Given et al v. Ameristep, Inc. et al
Filing
79
MEMORANDUM OPINION AND ORDER denying without prejudice defendants' 52 MOTION to Strike Plaintiffs' "New" Ladderstand Evidence or in the Alternative, MOTION for an Adjournment of Trial in Order to Reopen Discovery, and Related M OTION for Sanctions, Costs and Fees Incurred Due to Plaintiffs' Conduct Related to the "New" Ladderstand Evidence; granting in part and denying in part as more fully set forth herein defendants' 37 MOTION for Sanctions Against Plaintiffs, Including A Dismissal With Prejudice, For Spoliation of Evidence; plaintiffs shall file a supplemental expert's report by 6/30/2014; directing plaintiffs to send, at their own expense, all of the tree stand evidence, including newly discovered evidence, to an address specified by the defendants; defendants shall take care that the physical evidence is preserved and not damaged while it is in their custody; defendants are to return the physical evidence to the plaintiffs followin g its inspection; plaintiffs shall reimburse the defendants for the reasonable costs of returning the evidence; the parties shall appear by counsel telephonically for a Status Conference set for 7/18/2014 at 10:00 AM in Charleston; plaintiff, at thei r own expense, shall make plaintiffs' expert available for deposition at a time and date to be determined at the 7/18/2014 teleconference; directing plaintiff to pay the reasonable fees and costs incurred by the defendants for one attorney to appear and take the deposition of the plaintiff's expert. Signed by Judge John T. Copenhaver, Jr. on 6/12/2014. (cc: attys; any unrepresented parties) (tmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
BRUCE GIVEN and
MELISSA GIVEN,
Plaintiffs,
v.
Civil Action No. 2:13-2070
AMERISTEP, INC.,
a Michigan corporation and
CABELA’S WHOLESALE, INC. and
PRIMAL VANTAGE COMPANY, INC.,
Defendants.
MEMORANDUM OPINION & ORDER
Pending are: (1) the defendants’ motion seeking
sanctions for spoliation of evidence, filed March 6, 2014; and
(2) the defendants’ motion to strike or, alternatively, amend
the scheduling order, filed May 13, 2014.
I.
The dispute in this case arises from injuries that
Bruce Given suffered when he fell from an allegedly defective
hunting tree stand manufactured by Primal Vantage Company, Inc.
(“Primal”), distributed by Ameristep, Inc. (“Ameristep”), and
sold by Cabela’s Wholesale, Inc. (“Cabela’s”).
Mr. Given and
his wife, Melissa (collectively “the Givens”), seek relief under
a variety of state-law theories, including products liability,
negligence, and breach of warranty.
A.
The basic facts, somewhat condensed, are as follows.
On September 8, 2011, Mr. Given purchased a Team Realtree Buck
Buster ladder stand (the “tree stand” or “stand”) from Cabela’s.
The tree stand consists of a seat, bolted to a platform,
attached to the top of an eighteen-foot ladder, which is itself
comprised of four interconnected ladder segments. 1
Once fully
assembled, the stand can be raised and affixed to a nearby tree,
providing a user with an elevated firing platform from which to
hunt.
The tree stand utilizes a “truss and cable” system
designed to provide rigidity to the overall structure and
prevent the ladder segments from separating.
To simplify
greatly, the system consists of a pair of truss arms attached to
the third ladder segment, and a truss cable that can be
1
The tree stand’s ladder is formed by four separate pieces. For
ease, and to avoid confusion, the portion nearest to and
touching the ground will be referred to as the “bottom segment.”
The segments immediately above the bottom segment are referred
to as the “second segment” and “third segment,” respectively.
The final portion of the ladder, which connects the third
segment to the platform and seat, is identified as the “top
segment.”
2
lengthened or shortened using a turnbuckle.
When properly
installed, the truss cable is attached to the seat platform
above the ladder and to the bottom segment of the ladder, then
seated into a channel at the apex of the truss arms, and
tightened until the ladder bows out slightly away from the
adjacent tree.
The assembly instructions note that, “[i]f the
ladder is perfectly straight or bowed in slightly toward [the]
tree, [the] TRUSS IS TOO LOOSE,” and the tree stand must be “reset.”
Similarly, if the “ladder appears to have an extreme
outward arc in it,” the instructions advise that the stand
should be taken down and re-set.
B.
On October 19, 2011, Mr. Given transported his tree
stand to a tract of land located on Powell Mountain, in Nicholas
County, West Virginia, which Mr. Given’s hunting club leases for
use during the State’s hunting season.
Mr. Given claims that he
and two other members of the hunting club, Mike Claxton and
Rodney Kirk Cooper, 2 removed the tree stand from its packaging,
read the assembly instructions and warnings, and assembled the
2
During his deposition, Mr. Given identified his second
companion only as Kirk. From additional documents in the
record, it appears that Kirk’s full name is Rodney Kirk Cooper.
3
tree stand accordingly.
As relevant here, Mr. Given testified at his
deposition that the men installed and adjusted the truss cable
until they were satisfied that the arc of the ladder appeared to
them to match the shape recommended in the manufacturer’s
assembly instructions.
Three days later, on October 22, 2011, Mr. Given
returned to the tree stand, intending to hunt from it that day.
Before climbing the ladder, he visually inspected the truss
cable to make certain that it was “still attached to th[e]
truss,” and observed that the stand appeared otherwise
unaltered.
According to Mr. Given, he then began to climb the
stand, but, as he approached the platform, the third segment of
the ladder bent inward towards the tree and separated from the
top segment of the ladder, at which point Mr. Given fell to the
ground below.
Mr. Given fell on his left side, and the bent, third
segment of the ladder landed somewhere nearby.
In the moments
after the fall, he observed that the truss cable had remained
intact and that it was still connected to the seat platform and
bottom segment of the ladder, but he was otherwise unable to
ascertain exactly what prompted the ladder to give way beneath
4
him.
After laying on the ground “for a while,” Mr. Given
called another member of the hunting club, Sam Zecco, explained
what had transpired, and asked for help.
Approximately ten
minutes after Mr. Given’s phone call, Mr. Zecco and Mr. Claxton
arrived at the scene.
The three men remained at the accident
site for an unspecified period of time, during which Mr. Given
took a photograph of the bent ladder segment.
Mr. Given also
removed the bent ladder segment from the scene and retained it,
but he left the remainder of the tree stand untouched and did
not photograph it.
At his deposition, he testified that he did
not return to the accident site until approximately one year
later, at which point the tree stand was gone.
Mr. Given
indicated that he did not ask any of the other members of his
hunting club to retrieve the stand, and simply assumed that it
had been stolen.
C.
The Givens initiated this action on February 6, 2013,
and subsequently amended their complaint with the defendants’
consent on August 23, 2013.
Count I of the amended complaint
asserts claims against all of the defendants under a strict
5
product liability theory, alleging that the tree stand failed
due to a design or manufacturing defect, or, alternatively, that
the stand did not include satisfactory warnings.
Compl. ¶¶ 11-12.
Pls’ Am.
Count II pleads negligence, alleging that
Primal breached its duties to properly design and manufacture
the tree stand, and also breached its duty to adequately warn
about the dangers of the stand.
Id. ¶ 14.
Count III claims
that all of the defendants breached an express or implied
warranty that the tree stand “was of merchantable quality,
durable, safe and fit for it[s] stated and ordinary uses.”
¶ 16.
Id.
Finally, Count IV charges Cabela’s with negligence for
“failing to monitor the products it sells and [] failure to
reasonably inspect [t]he equipment it sells to customers.”
Id.
¶¶ 18-19.
On March 6, 2014, the defendants moved for dismissal
of the entire case as a sanction for the spoliation of evidence,
alleging that the plaintiffs’ failure to preserve the entire
tree stand had significantly impaired their ability to defend
this case.
By standing order, the motion was referred that same
day to the Honorable Dwane L. Tinsley, United States Magistrate
Judge, for proposed findings and recommendations.
Just over a week later, on March 17, 2014, the
defendants filed two motions for summary judgment.
6
Both seek
summary judgment as to each of the plaintiffs’ claims.
See
Defendants’ Motion for Summary Judgment Relating to all of
Plaintiffs’ Claims on No Design, Manufacturing or Warnings
Defect at 1 (“Defendants . . . move this [c]ourt for summary
judgment on each of [p]laintiffs[’] claims”); Defendants’ Motion
for Summary Judgment Relating to all of Plaintiffs’ Claims on No
Proximate Cause (same). 3
The plaintiffs opposed the motions.
Both sides relied, to some extent, on the opinions of
experts who were retained to examine the bent ladder segment and
opine on the cause of Mr. Given’s accident.
Both sets of
experts appear to agree that the observed deformation in the
ladder could not have occurred unless the ladder segments
separated while Mr. Given was climbing.
Unsurprisingly,
however, the experts drew different conclusions from that
observation.
The plaintiffs expert, Dr. Bastiaan E. Cornelissen,
opined that the weight of a user climbing the ladder could cause
the ladder segments to separate if the truss cable were undertightened or became disengaged from the apex channel, and if the
3
Apart from the fact that they articulate separate legal
arguments in favor of summary judgment, no reason for the
duplicative filings is readily apparent, save one: the combined
length of the memorandums submitted in support of the twin
motions runs to thirty pages, the total of which exceeds the
limit for briefing in support of a motion for summary judgment
set by the court’s local rules.
7
ladder base was either suspended above the ground at the start
of the climb or sunk into the ground during the climb.
Cornelissen Rep. at 3.
Dr. Cornelissen stated that such
failures were foreseeable, and could have been “easily remedied
by providing cross bolts, pins, or similar securing devices at
the ladder stand connection points” to prevent the ladder
segments from separating.
Id.
According to his report,
“Incorporating securing devices into the subject ladder stand
design was technically and economically feasible and would have
prevented” Mr. Given’s accident.
Id.
Apart from his conclusions regarding the design of the
tree stand, Dr. Cornelissen did not conduct any “destructive
analysis” of the retained portion of Mr. Given’s ladder and
therefore offered no opinion as to the “chemical composition and
mechanical properties of the actual steel used in the production
of the ladder stand.”
Id.
He did note, however, that the bent
ladder segment “did not exhibit abnormally brittle behavior.”
Id.
The defendants countered with two experts of their
own.
The first, George Saunders, examined the bent ladder
segment and concluded, to a reasonable degree of engineering
certainty, that the accident was caused by Mr. Given’s misuse of
the tree stand, rather than any design or manufacturing defect.
8
Saunders Rep. ¶¶ 11, 13.
Although Mr. Saunders noted that his
analysis was severely limited due to the lack of physical
evidence, he was still able to make several findings that led to
his ultimate conclusion.
First, after examining the engineering
drawings for the tree stand, Mr. Saunders opined, contrary to
Dr. Cornelissen’s theory, that the ladder segments could not be
physically separated if the truss cable was properly attached
and seated in the apex channel, even if the truss cable was
adjusted to its longest length (i.e., not tightened).
Id. ¶ 8.
Second, he determined that the deformation observed in the bent
ladder segment from Mr. Given’s tree stand “could only occur if
the [truss] cable assembly separated (i.e. broke) or the cable
assembly was not in place on the truss arm per the [assembly]
instructions at the time of the incident.”
Id. ¶ 13.
Third,
Mr. Saunders examined the channel at the apex of the truss arms
where the truss cable would have rested if the stand were
properly assembled.
He stated that, had the stand been properly
assembled, evidence of contact between the truss cable and apex
channel would have been present, but noted that “[c]lose
examination of the truss arm bushing . . . did not reveal any
physical evidence of contact between the truss arm” and cable.
Id. ¶ 14.
The defendants’ second expert, Lorne Smith, Jr., also
9
concluded that misuse of the tree stand caused Mr. Given’s
accident.
He examined the bent ladder segment and agreed with
Mr. Saunders that the “physical evidence exhibited on th[at]
part of the stand . . . [did] not show any sign that the [truss]
cable was ever attached to the apex of the stand,” specifically
noting that there were “no physical marks on the apex showing
that the cable had ever been installed.”
Smith Rep. ¶ 11.
Mr.
Smith additionally concluded that the tree to which Mr. Given
chose to affix the stand was a second potential cause of the
accident.
Specifically, he observed that “[i]t was very easy .
. . to see that th[e] tree” to which the stand was affixed “had
a severe lean to the side onto which the stand was [] placed,”
notwithstanding the fact that the manufacturer’s instructions
specified that the stand should not be used with a tree that was
leaning.
Id. ¶ 14.
Consequently, he opined that “[t]he fact
that th[e] tree was leaning over 11 inches [wa]s the reason [Mr.
Given] fell backwards away from the tree after the [ladder] leg
separated.”
Id.
Thus, at the end of March, the case appeared ready for
summary judgment.
The parties disputed whether the tree stand
had been improperly designed, and disagreed, based on the
limited examination of the physical evidence and Mr. Given’s
testimony, about whether the stand had been properly assembled.
10
D.
On April 11, 2014, new wrinkles began to emerge.
After the motions for summary judgment were filed and fully
briefed, and well after the discovery completion deadline set
forth in the court’s amended scheduling order, the defendants
deposed Mr. Claxton and Mr. Cooper.
In their depositions, both
men provided testimony concerning the fate of the remaining tree
stand evidence that conflicted with Mr. Given’s account.
According to Mr. Claxton, some of the remaining pieces
of the ladder stand were stored in the hunting club’s lodge for
approximately one year after Mr. Given’s fall.
He did not know
how the stand came to be stored there, and was not sure whether
the truss cable had been preserved.
However, Mr. Claxton did
recall that Mr. Given ultimately gave the platform and seat
portions of the stand to Mr. Cooper as compensation for Mr.
Given’s share of the cost of a porch that had been built onto
the club’s lodge.
Mr. Cooper testified that, a week or two after the
accident, Mr. Given asked him and Mr. Claxton to retrieve the
tree stand and bring it to the club’s lodge.
According to his
deposition testimony, he and Mr. Claxton retrieved the platform,
the seat, and “whatever ladder parts [Mr. Given] did not take
11
with him” on the day of the accident.
Mr. Cooper also
remembered seeing the truss cable at some point, but did not
know whether it was ultimately retained.
Finally, Mr. Cooper
confirmed that he received the top portion of the stand as
payment for Mr. Given’s share of the porch costs.
In his
telling, Mr. Claxton reached a verbal agreement with Mr. Given
regarding the trade and relayed that information to Mr. Cooper,
who then took possession of the stand pieces.
In response, Mr. Given filed a two-paragraph affidavit
in which he refuted the central elements of Mr. Claxton’s and
Mr. Cooper’s testimony.
Specifically, Mr. Given stated that he
does not recall asking anyone to retrieve any pieces of the
ladder stand following his accident, that he was not aware that
any “components of the ladder stand [he] fell from still
existed,” and that he did not recall agreeing to sell or
transfer any part of the ladder stand.
The discovery that the tree stand had, perhaps, not
been stolen and that additional physical evidence might be
available after all set off a further round of briefing and
motions.
First, on April 30, 2014, the defendants filed a
“supplemental brief” in support of their motion for spoliation
sanctions.
On May 13, 2014, they moved to exclude “additional
physical ladderstand evidence” -- apparently, by that time,
12
“most of the remaining components [of the tree stand] have been
recovered and [we]re in the possession of [p]laintiffs’
[c]ounsel.” -- or, in the alternative, sought to reopen
discovery.
Two weeks later, on May 27, 2014, the defendants filed
a motion in limine also seeking to exclude the newly discovered
tree stand evidence.
Documents attached to that motion indicate
that the plaintiffs’ expert, Dr. Cornelissen, has already
examined at least some of the new evidence, and either modified
his previous opinions or formed new opinions about the case as a
result.
Dr. Cornelissen has not, however, filed an amended
expert’s report, and nothing in the record clearly indicates
precisely what the newly discovered evidence consists of.
On June 2, 2014, after failing to respond to either of
the defendants’ motions to exclude the new evidence, the
plaintiffs moved to modify the amended scheduling order,
seeking, among other things, an extension of time to file
responses to the defendants’ motions in limine.
Finally, on
Thursday, June 5, 2014, the court held a telephonic conference
with counsel for both parties to discuss the newly discovered
evidence and its potential impact on the case.
13
II.
When the defendants believed that all but one portion
of the tree stand had been lost, they claimed that they were
unable to mount a defense and argued that this case should be
dismissed, see Defs’ Mot. Spoliation; now that some of the
missing evidence has apparently been located, they want it
excluded, see Defs’ Mot. to Strike or Reopen Discovery.
Complicating matters further is the fact that the plaintiffs
have not moved, in any way, to add the newly discovered physical
evidence to the record by supplementing their opposition to the
defendants’ motions for summary judgment.
Thus, while it is
reasonably clear that the defendants no longer believe they need
the new evidence to mount a defense in this case, it is entirely
unclear what the newly discovered evidence consists of, or
whether the plaintiffs intend to rely upon it.
In any event, the evidentiary dispute that lies at the
heart of the motion for spoliation sanctions and the motion to
exclude must be resolved before this case can move forward.
As
a result, the court will withdraw the March 6, 2014 reference in
this matter, and consider both motions, now, together.
14
A.
“A party seeking sanctions based on the spoliation of
evidence must establish . . . that the alleged spoliator had a
duty to preserve material evidence,” and “thereafter willfully
engaged in conduct resulting in the evidence’s loss or
destruction.”
Cir. 2013).
Turner v. United States, 736 F.3d 274, 282 (4th
The duty to preserve evidence “arises ‘not only
during litigation but also extends to that period before the
litigation when a party reasonably should know that the evidence
may be relevant to anticipated litigation.’”
Id. (quoting
Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir.
2001)).
To establish the element of “willfulness,” the party
seeking sanctions must show that the alleged spoliator acted
intentionally, rather than merely negligently, but need not
prove bad faith.
Id.
“Dismissal constitutes ‘the ultimate sanction’ for a
spoliation infraction.”
Nichols v. Steelcase, Inc., No. 04-434,
2005 WL 1862422, at *9 (S.D. W. Va. Aug. 4, 2005) (citing
Silvestri, 271 F.3d at 593).
Before imposing such a harsh
sanction, a district court must “consider both the spoliator’s
conduct and the prejudice caused and be able to conclude either
(1) that the spoliator’s conduct was so egregious as to amount
15
to a forfeiture of his claim, or (2) that the effect of the
spoliator’s conduct was so prejudicial that it substantially
denied the defendant the ability to defend the claim.”
Silvestri, 271 F.3d 593.
In all cases, however, “dismissal
should be avoided if a lesser sanction” is sufficient to level
the evidentiary playing field and preserve the integrity of the
judicial process.
See id. at 590 (explaining that the district
court should choose a sanction appropriately molded to “serve
the prophylactic, punitive, and remedial rationales underlying
the spoliation doctrine” (quoting West v. Goodyear Tire & Rubber
Co., 167 F.3d 776, 779 (2d Cir. 1999)).
In this case, it appears beyond dispute that the
plaintiffs had a duty to preserve the tree stand evidence.
Mr.
Given maintains that he failed to do so because he did not
initially intend to file a lawsuit arising out of his injuries.
Whatever his initial intentions, he retained counsel within
three months of his accident, and -- at least according to him - still failed to return to the accident site, or take any other
measures to preserve the evidence, for a further nine months.
As punishment, the defendants argue that this case
should be dismissed inasmuch as Mr. Given’s failure to preserve
the entirety of the tree stand substantially denied them the
ability to defend the claims against them.
16
As their motions for
summary judgment demonstrate, however, this is simply not so.
Both parties had an opportunity to submit the retained
bent ladder segment to their respective experts, and experts for
both sides rendered opinions about the cause of the accident.
Neither expert suggests that the bent ladder segment was in some
way mechanically defective, a point which the defendants
highlight in arguing that the Givens cannot prove a
manufacturing defect in this case on the basis of the bent
ladder segment alone.
With respect to the design defect and failure to warn
claims, the actual tree stand used in this case is largely
irrelevant.
There is no suggestion that the warnings included
with the stand differed in any material way from the warnings
that were included with Team Realtree Buck Busters in the
ordinary course of commerce, and those warnings can be evaluated
on their merits whether the tree stand in this case was
preserved or not.
Indeed, the defendants’ experts have opined
that the “warnings and instructions . . . were adequate for
their intended purpose and met or exceeded industry standards.”
Defs.’ Sum. J. Mem. at 16.
As for the design defect claim, the plaintiffs,
relying on their expert, essentially argue that the tree stand
17
was defective because it was possible for the ladder segments to
separate while a user was climbing the ladder.
The defendants’
experts directly refute this contention, opining that the ladder
segments could not be separated unless the truss cable was
improperly assembled.
The important point, however, is that
both sets of experts were able to reach their conclusions by
analyzing the engineering drawings and design of the tree stand
without the need to examine or test a fully assembled stand, let
alone Mr. Given’s specific stand.
Moreover, the defendants
assert, based on evidence gleaned from the limited physical
evidence initially preserved, that Mr. Given’s design defect
claim is foreclosed because he in fact misused the tree stand by
failing to properly assemble the cable and truss system.
From
all of this, it hardly appears that the defendants were unable
to defend their case when the bent ladder segment was the only
known piece of physical evidence.
Indeed, that notion is
underscored by the fact that the defendants have now moved to
exclude the physical evidence that they previously claimed was
critical to their ability to defend.
Following the depositions of Mr. Claxton and Mr.
Cooper, the defendants “supplemented” their motion for
sanctions, arguing in the alternative that dismissal was
appropriate because Mr. Given acted in bad faith.
18
Specifically,
they assert that Mr. Given intentionally misled the defendants
and the court to believe that the remaining portions of the
ladder stand had been stolen, when in fact he had directed Mr.
Claxton and Mr. Cooper to collect and retain the physical
evidence.
As noted, however, Mr. Given has responded with an
affidavit refuting the testimony of Mr. Claxton and Mr. Cooper,
and denying any involvement in removing and storing the tree
stand after his accident.
Moreover, after learning that
remaining portions of the tree stand were still in existence,
the plaintiffs apparently undertook to collect them for
analysis.
In sum, it appears that the defendants were able to
mount an adequate defense in this case even before the missing
tree stand evidence was discovered.
And the court cannot find,
on the basis of the evidence submitted thus far, that Mr.
Given’s “conduct was so egregious as to amount to a forfeiture
of his claim.”
As a result, dismissal is not an appropriate
sanction in this matter.
Nevertheless, and notwithstanding that some parts of
the missing tree stand evidence have now been located, the
plaintiffs’ failure to preserve the tree stand has complicated
the defendants’ ability to prepare their case and the nature of
this litigation.
Accordingly, as set forth more fully below,
19
the court will impose monetary sanctions to remedy additional
costs to the defendants caused by the plaintiffs’ initial
failure to preserve the tree stand evidence.
B.
The defendants also argue that the newly discovered
evidence should be excluded pursuant to Federal Rule of Civil
Procedure 37, because: the plaintiffs acted in bad faith by
concealing the evidence; the evidence would be “untimely” if
admitted and prejudicial to the defendants; and the provenance
of the evidence is uncertain.
Alternatively, they seek to
reopen discovery to assess the relevance of the newly discovered
evidence, at the plaintiffs’ expense.
In its entirety, Rule 37(c)(1) reads:
If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified
or is harmless.
In addition to or instead of this
sanction, the court, on motion and after giving an
opportunity to be heard: [(A) may order payment of the
reasonable expenses, including attorney’s fees, caused
by the failure; (B) may inform the jury of the party’s
failure;
and
(C)
may
impose
other
appropriate
sanctions, including any of the orders listed in Rule
37(b)(2)(A)(i)-(vi)].
Fed. R. Civ. P. 37(c)(1)(A)-(C).
20
Whether a party’s nondisclosure of evidence was
substantially justified or harmless is guided by a five-factor
test.
As our court of appeals has explained, a district court
should consider:
(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that
party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing
party’s explanation for its failure to disclose the
evidence.
Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co.,
318 F.3d 592, 597 (4th Cir. 2003); see also Wilkins v.
Montgomery, --F.3d--, No. No. 13-1579, 2014 WL 1759083, at *5
(4th Cir. May 5, 2014) (“[T]he district court was not required
to tick through each of the Southern States factors.
Southern
States explains that district courts have ‘broad discretion’ to
decide harmlessness and ‘should’ -- not ‘shall’ -- ‘be guided
by’ the five factors.”).
Of course, the need to undertake that analysis
presupposes that the nondisclosing party has moved to use the
evidence at a trial, at a hearing, or in support of a motion.
See Fed. R. Civ. P. 37(c)(1); see also Southern States, 318 F.3d
at 596-97 (“The language of Rule 37(c)(1) provides two
exceptions to the general rule excluding evidence that a party
seeks to offer but has failed to properly disclose[.]” (emphasis
21
added)).
In this case, as noted, the plaintiffs have not filed
an amended expert’s report or moved to supplement their
opposition to the defendants’ motions for summary judgment, nor
have they indicated that they intend to use the newly discovered
tree stand evidence at trial.
Rather, the defendants, having
discovered the existence of the evidence through their
depositions of Mr. Claxton and Mr. Cooper, are now effectively
seeking to preempt the possibility that it will be used against
them.
The resulting uncertainty concerning the nature of the
evidence and the extent to which the plaintiffs intend to rely
upon it would make ruling on the motion to exclude premature at
this stage.
Without knowing more about the newly discovered
evidence, the court is, at a minimum, constrained in assessing
the level of surprise its introduction might cause as well as
the defendants’ ability to cure that surprise.
More
importantly, the record is nearly devoid of any information that
would allow the court to assess the importance of the newly
discovered evidence.
Accordingly, it appears that the better
course is to deny the motion to exclude without prejudice at
this time, pending a limited period of discovery tailored to
permit the parties to determine what, if any, impact the newly
discovered tree stand evidence will have on this case.
22
III.
Parts of the tree stand, once thought lost, have now
been found.
this case.
It is unclear how this new discovery will affect
What is clear, however, is that the plaintiffs’
failure to preserve the tree stand evidence in the first
instance is at the root of the resulting uncertainty and
procedural complexity.
Accordingly, and having discussed the
matter previously with counsel during the June 5, 2014
teleconference, it is ORDERED as follows:
1.
That defendants’ motion to exclude (ECF No. 52) be,
and it hereby is, denied without prejudice;
2.
That defendants’ motion to impose sanctions for
spoliation of evidence (ECF No. 37) be, and it hereby
is, denied insofar as the motion seeks dismissal as a
sanction and is otherwise denied without prejudice
except to the extent granted by the relief set forth
below;
3.
That plaintiffs be, and they hereby are, directed to
file a supplemental expert’s report, with such report
to address the relevance of the newly discovered tree
stand evidence, by not later than June 30, 2014;
4.
That plaintiffs be, and they hereby are, directed to
send, at their own expense, all of the tree stand
evidence, including the newly discovered evidence, to
an address specified by the defendants in order to
facilitate inspection of the evidence by the
defendants’ experts;
5.
That defendants be, and they hereby are, directed to
take care that the physical evidence is preserved and
not damaged while it is in their custody;
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6.
That defendants be, and they hereby are, directed to
return the physical evidence to the plaintiffs
following its inspection by the defendants’ experts;
7.
That plaintiffs be, and they hereby are, directed to
reimburse the defendants for the reasonable cost of
returning the physical evidence;
8.
That the parties be, and they hereby are, directed to
appear by counsel telephonically for a status
conference on Friday, July 18, 2014, at 10:00 a.m., at
which conference counsel shall be prepared to discuss
a proposed date for the deposition of the plaintiff’s
expert and a date by which the report of the
defendants’ counter expert or experts is to be
furnished;
9.
That plaintiffs be, and they hereby are, directed, at
their own expense, to make the plaintiffs’ expert
available for deposition at the date and time to be
determined during the July 18, 2014 teleconference;
and
10.
That plaintiffs be, and they hereby are, directed to
pay the reasonable fees and costs incurred by the
defendants for one attorney to appear and take the
deposition of the plaintiff’s expert.
The Clerk is directed to transmit a copy of this order
to all counsel of record and to any unrepresented parties.
DATED: June 12, 2014
John T. Copenhaver, Jr.
United States District Judge
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