State Farm Fire and Casualty v. Helen of Troy, Limited et al

Filing 76

ORDER granting in part and denying in part plaintiff's 58 Motion to Exclude John Weiss and for Sanctions; supplemental briefing due within 7 days by Judge Ricardo S Martinez.(RS)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10
11
12
13

Case No. C15-1771-RSM

STATE FARM FIRE AND CASUALTY,
as subrogee for Catherine Robinson,

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO EXCLUDE JOHN WEISS
AND SANCTIONS

Plaintiff,
v.

14
15
16
17
18
19
20

HELEN OF TROY, LLC, et al.,
Defendants.
I.

INTRODUCTION

This matter comes before the Court on Plaintiff State Farm Fire and Casualty as
subrogee for Catherine Robinson (“State Farm”)’s Motion to Exclude John Weiss and

21

Sanctions. Dkt. #58. State Farm moves the Court for an order striking Defendants’ witness

22

John Weiss and to impose sanctions for failing to disclose Mr. Weiss and for violating this

23

Court’s prior Order compelling discovery. Id.; see also Dkt. #52. Defendants oppose this

24

Motion, arguing that State Farm failed to meet and confer and that Plaintiff’s other contentions

25
26
27

are incorrect. See Dkt. #45. For the reasons set forth below, the Court GRANTS IN PART
AND DENIES IN PART State Farm’s Motion.

28
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
EXCLUDE JOHN WEISS AND SANCTIONS - 1

II.

1

BACKGROUND

2

A full background of this case is not necessary for the purposes of this Motion. This

3

lawsuit resulted from a fire which largely destroyed the heating pad, manufactured by

4

Defendants, which State Farm alleges caused the fire. See Dkt. #1-2.

5
6

Initial disclosures were due in this case on April 22, 2016. Dkt. #15. Defendants

7

identified a single unnamed employee as a witness. Dkt. #59 at 2. Defendants did not disclose

8

expert witness Paul Way or witness John Weiss. Id. Defendants have never supplemented their

9

initial disclosures. Id.

10

On July 7, 2016, State Farm sent its first set of discovery requests to Defendants. Dkt.

11
12

#29-5. State Farm requested all documents regarding the software and hardware in the heating

13

pad and the design and manufacturing of heating pad controllers; the “manner in which the heat

14

pad monitors heat, current, and voltage,” all testing or certification of the software or hardware

15

in the Heating Pad, and heating pad certifications such as those by U.L. Dkt. #29-5. On August

16

15, 2016, Defendants served their answers. Dkt. #29-6. Every answer includes multiple

17
18

objections with limited or no substantive response.

19

State Farm filed a Motion to Compel the above discovery on October 13, 2016. Dkt.

20

#28. On December 21, 2016, the Court granted State Farm’s Motion and ordered Defendants to

21

fully and completely answer by January 6, 2017. Dkt. #52. On January 6, Defendants informed

22
23

State Farm via letter that they had produced “all testing documents in Kaz’s possession in

24

response to State Farm First Set of Discovery,” that they did not have the entire UL file, that

25

they did not have the patent for the heating pad, and that they could not locate a document

26

called the “Theory of Operation.” Dkt. #59 at 2-3.

27

On January 31, 2017, Defendants disclosed Mr. Weiss as a potential witness for the first

28
time via responses to discovery. Dkt. #59 at 3. Discovery closed on February 27, 2017. Dkt.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
EXCLUDE JOHN WEISS AND SANCTIONS - 2

1
2

#43. Prior to the closing of discovery, Defendants made an effort to arrange for the deposition
of Mr. Weiss. See Dkt. #67-4.

3
4

III.

DISCUSSION

A. Legal Standard

5
6

Federal Rule of Civil Procedure 26(a)(1)(A) provides that “a party must, without

7

awaiting a discovery request, provide to the other parties… the name and, if known, the address

8

and telephone number of each individual likely to have discoverable information — along with

9

the subjects of that information….” Rule 26(e)(1)(A) further requires that a party must

10

supplement its initial disclosures “in a timely manner if the party learns that in some material

11
12

respect the disclosure or response is incomplete or incorrect, and if the additional or corrective

13

information has not otherwise been made known to the other parties during the discovery

14

process or in writing….” Where a party fails to comply with these obligations, “the party is not

15

allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a

16

trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The

17
18

party facing sanctions bears the burden of proving that its failure to disclose the required

19

information was substantially justified or is harmless. Torres v. City of L.A., 548 F.3d 1197,

20

1213 (9th Cir. 2008). Furthermore, Rule 26(a)(2) requires disclosure of expert testimony

21

accompanied by a written report prepared and signed by the witness.

22
23

If a party fails to comply with a discovery order, the Court may issue a variety of

24

sanctions including, inter alia, designating facts to be taken as established for purposes of the

25

action, prohibiting the disobedient party from opposing designated claims or from introducing

26

designated matters in evidence, and rendering a default judgment against the disobedient party.

27

Fed. R. Civ. P. 37(b)(2)(A).

Attorney’s fees must be awarded “unless the failure was

28
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
EXCLUDE JOHN WEISS AND SANCTIONS - 3

1
2
3

substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ.
P. 37(b)(2)(C).
B. Meet and Confer Requirement

4

Defendants allege that State Farm has failed to meet and confer before filing this

5
6

Motion. However, State Farm is not moving to compel discovery under Rule 37(a). State

7

Farm is moving for relief from Defendants’ failure to disclose or supplement a witness, brought

8

under Rule 37(c), and for failure to comply with a court order, brought under Rule 37(b).

9

There is no meet and confer requirement for either type of motion. See Fed. R. Civ. P. 37; LCR

10

37. Defendants argue to the contrary, but their briefing contains several critical errors. First,

11
12

Defendants cite to non-existent Rule 37(a)(2)(A) with a block quote jamming together language

13

from Rule 37(a)(1) and 37(a)(3)(A). See Dkt. #66 at 5. This language applies to motions to

14

compel, not motions brought under Rule 37(b) or (c). Next, Defendants argue that a motion for

15

sanctions must include a good faith certification, quoting Local Rule 37(a)(1). Id. This local

16

rule also applies only to a motion to compel, not a motion brought under Rule 37(b) or Rule

17
18

37(c). Finally, Defendants cite to an out-of-circuit case for authority on motions to compel. Id

19

(citing Naviant Marketing Solutions, Inc. v. Larry Tucker, Inc., 339 F.3d 180, 187-87 (3rd Cir.

20

2003)).

21

State Farm did not point out any of the above errors in its Reply brief, instead

22
23

reiterating that its communications with Defendants satisfy the meet-and-confer requirement of

24

Rule 37(a). See Dkt. #68 at 1-3. Although the Court could find that State Farm sufficiently

25

met and conferred with Defendants to satisfy the Rule 37(a)(1) requirement, this requirement

26

does not apply to the instant Motion and will not serve as a basis for its denial. The Court

27

reminds the parties to thoroughly review the Federal Rules of Civil Procedure and this Court’s

28
Local Rules before incorrectly citing them in briefing.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
EXCLUDE JOHN WEISS AND SANCTIONS - 4

1

C. Motion to Exclude John Weiss

2

The Court has reviewed the arguments and facts cited by the parties on this topic.

3

Although State Farm is correct that Defendants failed to properly disclose John Weiss as a

4

witness in their initial disclosures and failed to supplement as required under Rule 26(e),

5
6

Defendants have met their burden of showing that these failures were harmless. See Torres,

7

548 F.3d at 1213. State Farm was aware of the addition of Mr. Weiss as a witness as early as

8

January 30, 2017, well before the close of discovery, allowing for the taking of a deposition if

9

State Farm so desired. State Farm was adequately informed as to the content of Mr. Weiss

10

planned testimony.

11
12

While the failure to disclose may have been harmless, Defendants’ apparent attempt to

13

get around the expert witness disclosure requirements is not. The Court is concerned by the use

14

of Mr. Weiss as a fact witness given the likelihood that his testimony will be “based on

15

scientific, technical, and specialized knowledge as he holds the patent for the subject heating

16

pad, provided a very lengthy summary of how the heating pad worked (Exh. 5), and, as Way

17
18

said, Weiss is ‘…really the expert…who knows this product more intimately than anybody

19

else.’” Dkt. #58 at 11 (citing Dkts. #59-5 and #59-1 at 101:8-10 (Way Deposition)). The Court

20

will thus deny Plaintiff’s request to exclude Mr. Weiss for failure to disclose, but based on the

21

record before it, the Court is not convinced that testimony from Mr. Weiss would be admissible

22
23
24

under the Rules of Evidence.
D. Motion for Sanctions

25

State Farm argues that Defendants have failed to produce the complete U.L. file,

26

software, or a “written explanation” (in lieu of the Theory of Operation), despite these being

27

subjects of State Farm’s First Set of Discovery and the subsequent Court Order. Dkt. #58 at 8.

28
State Farm argues that these materials are available to Defendants. Defendants fail to address
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
EXCLUDE JOHN WEISS AND SANCTIONS - 5

1

this issue in their Response brief. See Dkt. #66. On Reply, State Farm credibly argues that

2

these documents go to the key issues in this case: “how the heating pad is designed, whether it

3

was manufactured to that design and whether the heating pad caused the fire.” Dkt. #68 at 4.

4

State Farm requests the Court impose the most drastic sanction it can, default judgment against

5
6

Defendants. Id. at 5-6.

7

Defendants place the Court in a difficult position by failing to respond to this portion of

8

State Farm’s Motion. On the other hand, State Farm fails to show how the missing documents

9

so severely prejudice Plaintiffs as to warrant the extreme sanction of default judgment, and fails

10

to provide meaningful guidance on how the Court could impose a less severe sanction.

11
12

Accordingly, the Court will request supplemental briefing from the parties. The Court

13

does not need further argument on whether sanctions should be imposed at all, or why default

14

judgment is appropriate. Instead, the Court requests from each party briefing on how to craft

15

an appropriate sanction under Rule 37(b)(2)(A)(i)-(ii). No other topic is to be discussed.

16

Regardless of the sanction imposed, the Court “must order the disobedient party… to

17
18

pay the reasonable expenses, including attorney’s fees, caused by the failure [to comply with a

19

Court Order]…” Fed. R. Civ. P. 37(b)(2)(C). Defendants’ silence on the topic of sanctions

20

forecloses any argument that their failure was “substantially justified” or that “other

21

circumstances make an award of expenses unjust.”

See id.

Thus the Court will Order

22
23
24

Defendants to pay State Farm’s reasonable expenses in bringing this Motion and in drafting the
Court’s requested supplemental briefing.

25
26
27

IV.

CONCLUSION

28
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
EXCLUDE JOHN WEISS AND SANCTIONS - 6

1
2
3
4

Having reviewed the relevant briefing, the declarations and exhibits attached thereto,
and the remainder of the record, the Court hereby finds and ORDERS:
(1) Plaintiff State Farm’s Motion to Exclude John Weiss and Sanctions (Dkt. #58) is
DENIED with regard to excluding John Weiss and GRANTED IN PART with

5
6

regard to sanctions.

7

(2) The Court requests supplemental briefing as to an appropriate sanction as described

8

above. This briefing shall be submitted no later than seven (7) days from the date

9

of this Order and may not exceed five (5) pages in length. No response or reply

10

brief is permitted.

11
12

(3) No later than ten (10) days from the date of this Order, State Farm shall file a

13

Motion for Attorneys’ Fees, noting it for consideration the second Friday after filing

14

and service of the Motion. The Motion shall be limited to five (5) pages and be

15

supported by documentary evidence reflecting only the amount of reasonable fees

16

and costs incurred in filing the instant Motion and requested supplemental briefing.

17
18

Plaintiffs may file a Response no later than the Wednesday before the noting date,

19

addressing only the reasonableness of the fees and costs requested, and limited to

20

five (5) pages. No Reply is permitted.

21

DATED this 31 day of May, 2017.

22
23
24
25

A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

26
27
28
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
EXCLUDE JOHN WEISS AND SANCTIONS - 7