Strange et al v. ProSlide Technology, Inc. (TV1)
Filing
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MEMORANDUM AND ORDER denying 32 Motion to Quash. Signed by Magistrate Judge H Bruce Guyton on 7/2/18. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
PATRICIA A. STRANGE, and KENNETH
STRANGE,
Plaintiffs,
v.
PROSLIDE TECHNOLOGY, INC., and VAN
STONE CONVEYOR, INC.,
Defendants.
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No. 3:17-CV-246-TAV-HBG
MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is a Motion to Quash [Doc. 32], filed by The Dollywood Company.
Defendant Van Stone Conveyor, Inc., and Plaintiffs filed Responses [Docs. 35, 39] to the Motion.
The Motion is now ripe for adjudication. Accordingly, for the reasons more fully set forth below,
the Motion to Quash [Doc. 32] is DENIED.
I.
BACKGROUND
Plaintiffs filed a Complaint on June 8, 2017, [Doc. 1] and later filed a First Amended
Complaint [Doc. 20] on December 12, 2017. In their First Amended Complaint, Plaintiffs allege
that on June 9, 2016, Plaintiff Patricia Strange was seriously injured as she was attempting to board
the RiverRush water coaster at Dollywood Splash Country in Pigeon Forge, Tennessee. [Doc. 20
at ¶ 7]. Plaintiffs state that Defendant ProSlide Technology, Inc., is the designer, manufacturer,
distributor, and seller of the RiverRush water coaster. [Id. at ¶ 10]. Plaintiffs further allege that
Defendant Van Stone Conveyor, Inc., distributed and/or sold the conveyor belt system used on the
RiverRush water coaster. [Id. at ¶ 15].
Plaintiffs state that according to the instructions posted in the boarding area of the
RiverRush water coaster, the rider in the front of the raft (where Plaintiff Patricia Strange was
situated), must extend his/her legs over the front of the boat. [Id. at ¶ 19]. As the raft moved
through the boarding area, Plaintiff Patricia Strange’s right foot got caught between the conveyor
belts and onto moving metal parts and/or rollers, which seized and crushed her right foot. [Id. at
¶ 20]. Plaintiff Patricia Strange remained in this helpless and agonizing state for at least fifteen
minutes. [Id.]. Plaintiffs allege that a Dollywood maintenance crew member had to dismantle the
conveyor belt in order to free Plaintiff Patricia Strange’s foot. [Id.]. Plaintiffs allege that Plaintiff
Patricia Strange suffered a displaced metatarsal fracture and deep lesions on the top and bottom of
her right foot, where the metal parts and/or rollers essentially ripped the skin down to the ligaments
in her foot, requiring multiple skin graft procedures among other treatments and surgical
procedures. [Id. at ¶ 22]. Plaintiffs allege negligence, violations of the Tennessee Products
Liability Act, breach of express warranty, breach of implied warranty of merchantability and of
fitness for a particular purpose, strict liability, res ipsa loquitor, failure to warn, and loss of
consortium. [Id. at 4-16].
The instant Motion relates to a subpoena that Defendant Van Stone Conveyor, Inc., (“Van
Stone”) served on The Dollywood Company (“Dollywood”), a nonparty to this action.
II.
POSITIONS OF THE PARTIES
Dollywood’s Motion [Doc. 32] states that the subpoena requires disclosure of privileged
and confidential information and would subject Dollywood to an undue burden. Dollywood has
set forth five areas of materials that it should not have to produce pursuant to Federal Rule of Civil
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Procedure 45. In addition, Dollywood relies on its Objections to Subpoena [Doc. 32-2], a
document that sets forth its objections to each request in the subpoena.
Defendant Van Stone filed a Response [Doc. 35], stating that its counsel conferred with
Dollywood and resolved items numbered 2 through 10 in the subpoena. Defendant Van Stone
states that the remaining issue is the production of Dollywood’s settlement agreement with
Plaintiffs. Defendant Van Stone argues that the settlement agreement between Dollywood and
Plaintiffs should be produced because its contents may be discoverable as to the issue of Plaintiffs’
bias and/or credibility in their testimony. Defendant Van Stone explains that it will require the
testimony of multiple representatives of Dollywood in its defense of the lawsuit because the
alleged incident occurred on Dollywood’s property. In addition, Defendant Van Stone states that
it also requires the testimony of Plaintiff Patricia Strange. Defendant Van Stone argues that it
needs to explore any bias of Plaintiffs in favor of Dollywood due to the settlement agreement.
Finally, Defendant Van Stone states that it is willing to enter into a protective order regarding the
use of the settlement agreement in this litigation.
Plaintiffs filed a Response [Doc. 39], stating that the settlement agreement is confidential
and not relevant to the claims and defenses in this action. Further, Plaintiffs state that Defendant
Van Stone’s subpoena did not request, and Dollywood did not produce, all of the relevant materials
within Dollywood’s possession, custody, and control.
Plaintiffs continue that they asked
Dollywood to voluntarily produce nine separate categories of relevant documents and that to date,
Dollywood has not responded to this request.1
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It does not appear that Plaintiffs are requesting that the Court order such production. In
any event, if Plaintiffs seek Court action, they must file a motion in accordance with Federal Rule
of Civil Procedure 7(b)(1) (“A request for a court order must be made by motion.”).
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III.
ANALYSIS
The Court has considered the parties’ filings. Accordingly, for the reasons set forth below,
the Court finds the Motion to Quash [Doc. 32] not well taken.
As an initial matter, it appears that the only issue before the Court is whether Dollywood
should produce to Defendant Van Stone the settlement agreement that Dollywood entered into
with Plaintiffs. Rule 26(b)(1) of the Federal Rules of Civil Procedure provides, in relevant part,
“Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case.” (Emphasis added). Although the Sixth
Circuit recognizes that the settlement privilege protects settlement negotiations from discovery,
“this privilege does not extend to the terms of the final agreement.” State Farm Mutual Automobile
v. Physiomatrix, Inc., No. 12-cv-11500, 2014 WL 10294813, at *1 (E.D. Mich. Apr. 24, 2014)
(citing Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 981 (6th Cir.
2003)). The undersigned has previously observed, Kelley v. Apria Healthcare, Inc., No. 3:13-CV096, 2016 WL 737919, at *3 (E.D. Tenn. Feb. 23, 2016), that a number of district courts have held
that settlement agreements are not privileged. State Farm, 2014 WL 10294813, at *1; Wagner v.
Circle Mastiffs, No. 2:09-cv-0172, 2013 WL 2096655, at *3 (S.D. Oh. May 14, 2013); Oberthaler
v. Ameristep Corp., No. 5:08-1613, 2010 WL 1506908, at *1 (N.D. Oh. Apr. 13, 2010). “This is
true even where the agreement is designated as ‘confidential.’” State Farm, 2014 WL 10294813,
at *1.
Because a settlement agreement is not privileged, the only questions before this Court are
whether the settlement agreement is relevant and whether the request for the settlement agreement
is proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). Defendant Van Stone argues
that the settlement agreement is relevant with respect to any bias of Plaintiffs in favor of
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Dollywood. Plaintiffs respond that the settlement agreement is not relevant to the claims and
defenses in this case. The Court finds that Defendant Van Stone has established that the settlement
agreement is relevant. See Wagner, 2013 WL 2096655, at *6 (explaining that with issues of bias,
“settlement agreements frequently are found to be discoverable in order to allow the requesting
party to explore these issues with respect to witnesses”). In Goodyear, the Sixth Circuit noted,
“[T]here is no point in introducing bias evidence against a party-opponent. Any Goodyear
executive who takes the stand on Goodyear’s behalf will be presumed biased in favor of the
company position.” 332 F.3d at 982. In this case, Defendant Van Stone intends to show the
Plaintiffs have cause to be biased in favor of a non-party, Dollywood.
The Court observes that Plaintiffs simply argue that the settlement agreement is not
relevant, without providing any explanation as to why it is not relevant. The Court finds Defendant
Van Stone has made a sufficient showing that the settlement agreement is relevant under Rule 26,
and Plaintiffs have not set forth any counter-argument. See Hadfield v. Newpage Corp., No. 5:14cv-00027, 2016 WL 427924, at *3 (W.D. Ky. Feb. 3, 2016) (explaining that the threshold to show
relevancy is “relatively low”). The Court does not, however, opine on whether such evidence is
admissible at trial, and the parties are permitted to file motions in limine as set forth in the
Scheduling Order.
The Court has also weighed the Rule 26(b)(1) factors and finds that these factors weigh in
favor of producing the settlement agreement. Because the terms are confidential, Defendant Van
Stone will not be able to access this information from another source. While no party has alleged
that producing the settlement agreement will resolve the case, there is little burden or expense, if
any, on the part of the nonparty, Dollywood, to produce the settlement agreement. Moreover, in
their Complaint, Plaintiffs request $3,250,000.00 in compensatory damages. [Doc. 20 at 15]. In
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addition, they have requested punitive damages. [Id.]. Thus, the amount of potential damages is
significant.
Finally, Defendant Van Stone stated that it is willing to enter into a protective order
regarding the use of the settlement agreement in litigation. The Court agrees that the settlement
agreement should be subject to an agreed protective order submitted by the parties. Upon entry of
the protective order, the settlement agreement shall be immediately provided to Defendant Van
Stone.
IV.
CONCLUSION
Accordingly, based on the foregoing conclusions, the Court DENIES the Motion to Quash
[Doc. 32].
IT IS SO ORDERED.
ENTER:
United States Magistrate Judge
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