Everett v. BRP-Powertrain GmbH & Co KG et al

Filing 131

ORDER signed by Judge Lynn Adelman on 04/12/2018. IT IS ORDERED that plaintiff's motions to compel 120 & 121 are DENIED. (cc: all counsel) (lls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GREGORY EVERETT,
Plaintiff,
v.

Case No. 14-C-1189

BRP-POWERTRAIN, GmbH & CO. KG, and
KODIAK RESEARCH, LTD.
Defendants.
______________________________________________________________________
DECISION AND ORDER
Gregory Everett suffered serious injuries when his experimental aircraft crashed
during a test flight. He alleges that the crash was caused when the aircraft’s engine
overheated and seized. The engine was designed and manufactured by defendant
BRP-Powertrain and distributed by defendant Kodiak Research, Ltd. Before me now
are Everett’s motions to compel the defendants to respond to certain of his requests for
written discovery.
Before addressing the motions, I note that the plaintiff did not file them pursuant
to Civil Local Rule 7(h). In the scheduling order for this case, I directed the parties to
file all discovery and non-dispositive pretrial motions pursuant to that rule. (Order of
Nov. 29, 2017, ¶ 4c.) Rule 7(h) provides for a shorter briefing schedule that enables the
court to resolve discovery motions quickly and avoid delay.

Although I will not require

the plaintiff to re-file his current motions under Rule 7(h), I advise him that I will
immediately strike any future discovery motions that he does not file under that rule.
As for the substance of the motions, the plaintiff primarily contends that the
defendants should be compelled to respond to his discovery requests asking for

information about BRP products that are “similar” to the engine at issue in this case,
which is a Rotax 582 Model 99 DCDI engine.

The defendants do not object to

producing information concerning similar engines. However, the defendants note that
the plaintiff has not identified the engines that he considers to be “similar” to the Rotax
engine that was installed on his plane. The defendants contend that unless the plaintiff
identifies the engines that he believes are similar, they cannot respond to his requests.
I agree with the defendants on this point. Until the plaintiff identifies the engines he
contends are similar to the engine at issue in this case, the defendants cannot
meaningfully respond. Thus, at this point, I will not compel the defendants to respond to
his requests for information about “similar” engines. However, the plaintiff is free to
serve new discovery requests that identify the specific engines that he contends are
similar to the engine he installed on his plane.
The plaintiff also seeks to compel BRP-Powertrain to produce design and
manufacturing specifications (and related documents) concerning the engine that the
plaintiff installed on his plane.

A related request asks for information about every

modification or alteration to the engine that BRP made since the time it was first offered
for sale. BRP objects to these requests on the ground that they are overly broad, and I
agree. It is true that some design and manufacturing documents for the subject engine
are discoverable, as the plaintiff alleges that the engine was defectively designed and
manufactured. However, the plaintiff is not entitled to every design and manufacturing
document relating to the engine. The engine has more than 184 component parts
(Spoerk Decl. Ex. C, ECF No. 123-3), and it has been offered for sale for many years
and undergone many alterations and modifications. Thus, the plaintiff’s requests as
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written would require BRP to produce a huge quantity of documents. Moreover, most of
these documents would be entirely irrelevant, as the plaintiff does not allege that every
component of the engine was defectively designed and manufactured.

Only those

documents that relate to the plaintiff’s theory of why the engine is defective would be
relevant.
The defendants contend that the plaintiff does not actually have a theory of why
the engine is defective. They state that they served contention interrogatories on him
asking him to identify why he believes the engine is defective and that he did not
provide a substantive response. (BRP Br. at 6, ECF No. 122.) In his briefs in support of
the motions to compel, the plaintiff does not explain how the engine might be defective
or how the documents he asks for would be relevant to his claim that the engine was
negligently designed or manufactured. He does indicate that the engine was defective
because it overheated and seized, but these are symptoms of a potential defect; they
are not themselves manufacturing or design defects. To show that the engine was
defective, the plaintiff will need to identify the parts of the engine that caused it to
overheat and seize.

Any discovery requests asking for design and manufacturing

documents relating to those parts of the engine would be proper.

But the plaintiff

cannot ask for all design and manufacturing documents relating to the engine, hoping to
find something to support his claims. See In re Dairy Farmers of Am., Inc. Cheese
Antitrust Litig., 801 F.3d 758, 766 (7th Cir. 2015).
Perhaps the plaintiff has not yet formulated his precise theory of how the engine
is defective, and he needs design and manufacturing documents from the defendants
before he can do so. But, to have had a good-faith basis to file a complaint alleging that
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the engine was negligently designed or manufactured, the plaintiff must have had at
least some basic hypotheses about what parts of the engine were defective.

The

plaintiff should draft discovery requests that ask for the design and manufacturing
documents that he needs to test those hypotheses. In other words, the plaintiff should
identify the parts of the engine that he suspects were defective and ask the defendants
to produce design and manufacturing documents concerning those parts. He is not
entitled to the production of all design and manufacturing documents regardless of
whether they relate to his theory of the case.

Accordingly, the plaintiff’s motion to

compel production of all design and manufacturing documents will be denied.
Finally, the plaintiff seeks to compel the defendants to produce information
relating to contracts and other business transactions either between themselves or with
certain third parties. However, the plaintiff has not explained how these documents
would be relevant to the issues in this case. In his briefs, he states only that these
requests are “directed at discovering documents or other materials relevant to the
development of Defendant’s product, which is at issue in this case.” (E.g., Br. in Supp.
at 5, ECF No. 121.) However, this statement is entirely conclusory and does not explain
how the information sought might be relevant to “the development of Defendant’s
product.” Therefore, the plaintiff’s motion to compel production of this information will
be denied.
For the reasons stated, IT IS ORDERED that plaintiff’s motions to compel (ECF
Nos. 120 & 121) are DENIED.
Dated at Milwaukee, Wisconsin, this 12th day of April, 2018.

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s/Lynn Adelman
LYNN ADELMAN
United States District Judge

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