Hardtke, John et al v. JLG Industries, Inc. et al

Filing 20

ORDER granting in part and denying in part 13 Motion to Compel. Defendant must provide complete responses to plaintiff's discovery demands as directed by this order not later than June 17, 2016. The preliminary pretrial conference order, dkt. 9 , is amended as follows: Plaintiff's deadline for disclosing experts is July 15, 2016, and defendant's deadline for disclosing responsive experts is September 16, 2016. Signed by Magistrate Judge Stephen L. Crocker on 6/10/2016. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JOHN HARDTKE,
ORDER
Plaintiff,
and

15-cv-719-slc

GENERAL CASUALTY COMPANY OF WISCONSIN,
Involuntary Plaintiff,
v.
JLG INDUSTRIES, INC. and ABC INSURANCE CO.,
Defendants.
_____________________________________________________________________________________
Plaintiff John Hardtke has brought claims against defendants JLG Industries, Inc. and
ABC Insurance Co. under Wisconsin law for negligence and defective design of a parking break
switch on the SkyTrak®10054 Telehandler related to injuries he sustained after the parking
break on the telehandler disengaged.1 Now before the court is Hardtke’s motion to compel JLG
to provide complete responses to his First Set of Interrogatories and Request for Production of
Documents that he served on JLG on January 22, 2016. Dkt. 13.
Specifically, Hardtke seeks an order requiring JLG to supplement its responses to
Interrogatory Nos. 2, 5-7, 9- 11 and 13-15 and Request Nos. 1-7, 9-12, 14, 15 and 17, which
all relate to the parking break system on the telehandler. See JLG Resp. To Interrogs. & Req. for
Prod. of Docs., dkt. 15, exh. 1. Hardtke also asks the court to amend the scheduling order to
extend his May 27, 2016 deadline for disclosing expert witnesses until 45 days after JLG files
its responses. JLG raises a few different objections to the discovery requests, but its primary
complaint is that Hardtke’s requests are overly broad because they ask about all components and
aspects of the parking break system, whereas Hardtke’s claims focus on the design of the toggle

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Hardtke alleges that he inadvertently disengaged the parking break as he was exiting the
telehandler and sustained injuries when the telehandler rolled backwards over him while he was trying to
reset the break.

switch. Dkt. 18. JLG also requests that the court order Hardtke to pay the expenses it incurred
in opposing the motion. Dkt. 18.
Having reviewed the parties’ submissions, I conclude that many of Hardtke’s requests are
overly broad and I will limit them to the parking break switch that he accuses of being defective.
Because JLG has not provided a response to some of the discovery requests with respect to the
toggle switch design, I will order it to do so by June 17, 2016. I will grant a short extension of
the deadlines for the parties’ disclosure of experts and require that Hardtke disclose his experts
by July 15, 2015; JLG will have until September 16, 2016 to file its responsive disclosures.
JLG’s request for reimbursement of expenses will be denied.

I. Discovery Related to Parking Break System
JLG objects to Interrogatory Nos. 5-7, 10-11 and 13-14 and Request Nos. 1-7, 1012, 14-15 and 17 on the grounds that they are overly broad because Hardtke is seeking
information related to the potential failure of the parking brake as a whole and not the allegedly
faulty design of the break’s toggle switch. For example, Interrogatory No. 5 asks about the date
on which the parking break system was designed, Interrogatory No. 6 asks about individuals
involved in the design of the system, Interrogatory No. 7 asks about all changes made to the
design of the system before or after the incident, and the requests for production of documents
seek items such as policies, drawings, test results, and communications related to the safety and
design of the break system as a whole.
Hardtke argues that he is not required to limit his case to only one particular theory.
However, Hardtke’s complaint alleges that the design of the parking break is defective because
it has only a simple toggle switch in which the up position disengages the break, there is no
protective cover over the switch, and the switch is located in the upper left corner of the

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dashboard where the operator can hit it accidentally when exiting the telehandler. See dkt. 1 at
¶¶ 5, 8, 11 and 18. Hardtke has not alleged any facts in his complaint or in any subsequent
filings indicating that there is any defect in the parking break itself or that any other component
apart from the toggle switch contributed to the accident. Without more, Hardtke’s vague
assertions of “other theories” are nothing more than speculation and do not justify the burden
that his broad discovery requests would place on JLG. See Davis v. G.N. Mortgage Corp., 396 F.3d
869, 885 (7th Cir. 2005) (additional discovery requests “based on nothing more than mere
speculation and would amount to a fishing expedition”); United States v. Westmoreland, 122 F.3d
431, 434 (7th Cir. 1997) (“In the absence of any evidence that would be probative of selective
prosecution, the district court did not err in refusing to grant discovery. Westmoreland is not
entitled to go on a fishing expedition.”); Todd by Todd v. Merrell Dow Pharmaceuticals, Inc., 942
F.2d 1173, 1178 (7th Cir. 1991) (“Todd's speculation that Merrell Dow must possess unspecified
additional information is not sufficient grounds to embark upon a virtually boundless fishing
expedition.”); United States v. Bob Stofer Oldsmobile–Cadillac, Inc., 766 F.2d 1147, 1153 (7th Cir.
1985) (additional discovery not warranted where party made only “vague assertions” that further
discovery would develop genuine issues of material fact).
Accordingly, I am limiting the scope of Hardtke’s discovery requests to the design and
operation of the toggle switch that he accuses in his complaint. Because it appears that JLG
objected to most of the discovery requests identified above as overly broad and did not provide
any response with respect to the toggle switch, I will order it to supplement its responses solely
with respect to this specific design feature. In other words, although JLG does not have to
include information relevant to all aspects of the parking break system, it must provide the
information that Hardtke seeks with respect to the parking break switch.

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A few of JLG’s responses to specific interrogatories merit mention. Interrogatory No.
10 asks JLG to identify any notices or complaints that it received regarding parking break
system; corresponding Request Nos. 10-11 seek all documents and communications related to
complaints or concerns with the break system; and Interrogatory No. 11 asks that if JLG’s
answer to Interrogatory No. 10 is none, it detail the steps it took to answer the question. JLG
responded that it was not aware of anyone else complaining that the parking brake disengaged
on a similar model telehandler and the telehandler running them over. Although I agree that
JLG need not identify every complaint or problem with the break system as a whole, it must
respond to Interrogatory Nos. 10-11 and Request Nos. 10-11 with respect to any complaints
about or relating to the parking break switch (including its location or function) and not narrow
its focus to instances in which the parking break disengaged and resulted in the telehandler
running someone over.
Interrogatory No. 14 and corresponding Request No. 15 ask about any claims made
against JLG for personal injuries arising out of use of the type of telehandler at issue in this case.
JLG objects to the broad scope of the requests because it requires them to identify any accident
involving any part of the telehandler. As with the above requests, JLG must identify any claims
involving disengagement or malfunction of the parking break switch and not limit its response
to claims with facts identical to the ones in this case.

II. Other Objections to Discovery
A. Work Product
Interrogatory No. 2 asks for the identity of any individuals involved in the investigation
of the accident. JLG identified the engineer who inspected the telehandler after the accident and
stated that any other investigation was performed at the direction of its attorneys in anticipation

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of litigation and therefore constitutes attorney work product protected from discovery. Hardtke
states that he is seeking only the identity of the individuals who investigated the accident and
not the mental impressions or legal strategies developed by defense counsel.
I agree with Hardtke that the identities of the investigators is not privileged; whom
defense counsel chooses to hire as investigators is not attorney work product and does not reveal
any of legal strategy or thought processes. However, as JLG notes, what the investigators
uncovered and what they reported presumably would be privileged. Although I doubt that the
identity of the investigators is likely to be helpful to Hardtke, it is not attorney work product
and therefore is discoverable.

B. Evidence of Alternative Design
Interrogatory No. 9 asks JLG to identify all of the telehandler forklift trucks
manufactured and sold under the JLG name in the past five years, and corresponding Request
No. 9 seeks copies of the manuals for the trucks identified in response to the interrogatory.
Hardtke explains that he needs this information to help identify other alternative designs for the
parking break, which is a required element of a defective design claim under Wisconsin law. See
Wis. Stat. § 895.047 (“A product is defective in design if the foreseeable risks of harm posed by
the product could have been reduced or avoided by the adoption of a reasonable alternative
design by the manufacturer and the omission of the alternative design renders the product not
reasonably safe.”). See also Morden v. Continental AG, 235 Wis. 2d 325, 359, 611 N.W.2d 659
(2000) (“[S]tate of the art (what the industry feasibly could have done) at the time of the design
or manufacture is relevant to [but not conclusive of] the jury's determination of negligence.”).
JLG does not believe that it should be burdened with the task of researching and producing the
model and serial numbers and sales information related to these products to help Hardtke prove

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his claim. However, JLG does not explain why it would be burdensome for it to conduct a search
with these limited parameters. Gray v. U.S. Steel Corp., 284 F.R.D. 393, 396 (N.D. Ind. 2012)
(internal citations omitted) (noting district courts place burden on objecting party to show why
particular discovery request is improper and caution that burden cannot be met by “a reflexive
invocation of the same baseless, often abused litany that the requested discovery is vague,
ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence”). Because Hardtke’s request is
directly related to an element of one of his claims, is limited in time and is likely to lead to the
discovery of relevant evidence (i.e., a possible alternative design for the break switch), I will order
JLG to respond to the interrogatory and request for production of documents.

C. Persons Responding to Discovery Requests
Interrogatory No. 15 asks JLG to identify all persons who assisted in answering the
interrogatories and requests for production of documents. JLG appears to have answered this
question by producing a verification signed by Brent Hoover along with its response to the
motion to compel. See dkt. 19, exh. C.

III. Motion to Amend Pretrial Conference Order
Although the court’s exasperation with how Hardtke approached this entire matter is
unabated, it would be disproportionately harsh sanction to keep his expert disclosure deadline
in place, since this would foreclose experts entirely. To allow time for JLG to supplement its
response to Hardtke’s discovery requests, I am amending the preliminary pretrial conference
order, dkt. 9, to revise the deadlines for the disclosure of experts as follows: Hardtke will have
until July 15, 2016 and JLG will have until September 16, 2016 to comply with the

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requirements of Fed. R. Civ. P. 26(a)(2). Even though this leaves only one week between the
deadline for disclosure of JLG’s experts and the deadline for dispositive motions (which are due
on September 23, 2016), the remaining pretrial deadlines and trial date remain firm. If JLG
chooses to file a dispositive motion, Hardtke will have almost a month to digest JLG’s experts’
reports and conduct additional discovery before filing a response.
Finally, because Hardtke’s motion to compel is granted in part, I will deny JLG’s request
for reimbursement of fees and costs incurred in responding to the motion.

ORDER
IT IS ORDERED that:
(1)

Plaintiff John Hardtke’s motion to compel discovery, dkt. 13, is
GRANTED IN PART and DENIED IN PART. Defendant must
provide complete responses to plaintiff’s discovery demands as
directed by this order not later than June 17, 2016.

(2)

The preliminary pretrial conference order, dkt. 9, is amended as
follows: Plaintiff’s deadline for disclosing experts is July 15,
2016, and defendant’s deadline for disclosing responsive experts
is September 16, 2016.

Entered this 10th day of June, 2016.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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