United States District Court, W.D. New York
June 10, 2005.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY as subrogee of John and Faye Espersen, Plaintiff,
WHIRLPOOL CORPORATION, LG ELECTRONICS, Defendants.
The opinion of the court was delivered by: HUGH SCOTT, Magistrate Judge
Before the Court is plaintiff's motion to compel and for
extension of time to submit plaintiff's expert disclosure (Docket
No. 24). This case was referred for disposition of pretrial
matters on February 5, 2004 (Docket No. 3).
This action is a property damage claim arising from a fire in a
microwave oven-hood unit in subrogors John and Faye Espersen's
house in February 2002. The Espersens subrogated this claim to
plaintiff insurer New York Central Mutual. The Amended Scheduling
Order applicable to this case required plaintiff to "identify any
expert witnesses through interrogatories pursuant to Fed.R. Civ.
P. 26(b)(4)" by February 28, 2005 (Docket No. 7, Order of Apr. 8,
Plaintiff posed interrogatories to defendants, seeking
complaints regarding fires involving microwave ovens and hood
combinations identical or similar to defendants' unit; lawsuits
against defendants surrounding such equipment; and a list of
investigations and recalls by the United States Consumer Product Safety Commission or other state
or federal agencies regarding microwave oven-hood combination
fires. (Docket No. 24, Pl. Atty. Aff. Ex. E, Interrogs. Nos. 4,
5, 6.) Defendants objected to answering these interrogatories
because they believed they were overbroad and not focused on the
cause of the fire. They claim that the accident occurred because
of a power surge at the Espersen's house, that the microwave oven
had its power cord cut and was hard wired to the household
wiring. They complained that plaintiff did not identify the
system, feature or component in the microwave oven-hood
combination that caused the fire. Such an identification would
enable defendants to identify "similar" incidents. (Docket No.
26, Def. Memo. of Law at 5-7.)
Defendants argued that plaintiff did not object to their not
answering one of the interrogatories (asking about recalls and
governmental agency actions) prior to making this motion. In
order for plaintiff to inquire into other product liability
instances or cases, plaintiff needed to show that the other cases
were similar and to do this plaintiff needed to identify the
cause of this fire in defendants' product. Plaintiff counters
that it needs only prove a circumstantial evidence case and that
it could obtain discovery about similar units (Docket No. 24, Pl.
Memo. at 5). Defendants identified the product number for the
microwave oven-hood combination in the Espersen's house.
Plaintiff replies that the defendants' failure to respond to
discovery constitutes good cause for extension of the time to
file expert disclosure (Docket No. 31, Pl. Reply Memo. at 2-4).
Defendants then filed a sur-reply, with documents filed under
seal, indicating their inability to identify "similar" devices as
the microwave-hood combination at issue here (Docket Nos. 35-38).
Plaintiff relied upon Underwriters Laboratories' definition to
identify "similar" units to plaintiff's device; defendants contend, however, that Underwriters
Laboratories has a broader definition than they do regarding what
is "similar" to plaintiff's device.
The Orders scheduling briefing for this motion also stayed
discovery deadlines pending argument of the motion. (Docket Nos.
I. Motion to Compel
"Parties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other
tangible things and the identity and location of persons having
knowledge of any discoverable matter." Fed.R.Civ.P. 26(b)(1).
Failure to produce and compelling the opponent to seek an order
compelling discovery exposes the party (and/or its attorney) to
sanctions. See generally id. R. 37.
The Court grants in part plaintiff's motion, to allow
production of information about the particular model number that
was in the Espersens' home.
The relief available when a party fails to respond to a
discovery demand is the Order to compel and sanctions of the
reasonable costs associated with the motion to compel,
Fed.R.Civ.P. 37(a)(2)(B), (4)(A). Under Rule 37(a)(4)(C), if a motion
to compel is granted in part and denied in part, the Court, after
affording an opportunity to be heard, apportions the reasonable
expense incurred in relation to the motion among the parties in a
just manner. Plaintiff identified nine other model numbers that may be
"similar" to the Espersens' unit (see Docket No. 31, Pl. Memo.
at 7). Given the limited relief granted here and the absence of
an allegation of willfulness in withholding materials, each party
should bear their own costs.
III. Extension of Time to Disclose Expert
Plaintiff sought additional time to identify its expert. Under
the Amended Scheduling Order, that identification was due
February 28, 2005 (Docket No. 7). At oral argument, plaintiff now
claims that it mistook the Court's command to identify experts
for a more fuller disclosure of the expert's opinions and
conclusions. Rule 26(b)(4), cited in the Amended Scheduling
Order, only requires interrogatories or deposition of expert
witnesses, while Rule 26(a)(2) requires disclosure of the
expert's testimony 90 days before the start of trial. Plaintiff
(and apparently defendants) believed the Scheduling Order
contemplated producing the latter, while the Scheduling Order
merely refers to the former interrogatory. Plaintiff stated in
oral argument that it produced the identification information of
its expert last July. That portion of the Scheduling Order states
that "the parties shall identify any expert witnesses through
interrogatories pursuant to Fed.R.Civ.P. 26(b)(4) as follows:
(1) plaintiffs shall identify any expert witnesses by February
28, 2005; (2) defendants shall identify any expert witnesses by
April 30, 2005." (Docket No. 7, ¶ 4.)
Therefore, upon plaintiff's representation that additional time
is not needed to identify its expert, the request for extension
for plaintiff to submit expert identification is denied as
moot; but, given this recent motion practice, the overall
discovery deadline (including whatever expert disclosure beyond
witness identification) shall be extended to October 3, 2005.
As a result, the deadline for dispositive motions shall be December 1, 2005. The
pretrial conference, scheduled for August 17, 2005, at 2 pm,
before the undersigned (Docket No. 29) remains as scheduled.
For the reasons stated above, plaintiff's motion (Docket No.
24) to compel is granted in part as indicated above. Each party
shall bear their own costs for this motion. The discovery
deadline shall be October 3, 2005, and the dispositive motions
deadline shall be December 1, 2005.
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