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Coleman v. Anco Insulations, Inc.

United States District Court, M.D. Louisiana

April 26, 2017

WILLIAM D. COLEMAN
v.
ANCO INSULATIONS, INC. ET AL.

          RULING AND ORDER

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         Before the court is a Motion for Destructive Testing[1] filed by defendant Pilkington North America, Inc. (f/k/a Libbey Owens Ford) (“PNA”). Although Plaintiffs indicated opposition to the Motion for Destructive Testing during an in-court conference with the parties on March 29, 2017, Plaintiffs have not filed an opposition to the Motion.[2] Accordingly, the court considers the Motion for Destructive Testing to be unopposed.[3] For the reasons set forth herein, the court GRANTS the Motion for Destructive Testing.

         I. Background

         Plaintiffs allege that William D. Coleman (“Decedent”) died from malignant mesothelioma on November 8, 2016 “due to or a [sic] consequence of his exposure to dust and fibers from asbestos and asbestos-containing materials utilized by” PNA.[4] On March 17, 2017, PNA filed the instant Motion for Destructive Testing, seeking an order allowing it to proceed with destructive testing of Decedent's pathology materials. Specifically, PNA seeks “to use a small portion of Decedent's tissue” for a “fiber burden analysis” that PNA contends will provide objective evidence “of whether or not there are asbestos fibers in decedent's pathological tissue.”[5] PNA explains that “[i]f the tissue is large enough and well preserved, it can be ‘digested' in a manner that eliminates the tissue and leaves behind any inorganic particles and minerals. By using this methodology, a person can identify objective evidence of exposure to biopersistent materials like asbestos.”[6] PNA therefore seeks an order from this court granting the Motion for Destructive Testing and ordering as follows:

1. The pathology to be released is described as: All pathology material (including, but not limited to: accession/specimen ##: S15-32945, OC-15-12125, C-15-214324, C-15-214326, S-15-053034, S-15-091159), including but not limited to slides, tissues, stains and blocks, and associated reports, of WILLIAM COLEMAN, XXX-XX-8396;
2. PNA's expert shall not use more than 50% of said pathology material;
3. The results of PNA's expert's destructive analysis will be provided to plaintiffs no later than ninety (90) days from date of service of said materials to PNA.[7]

         II. Law and Analysis

         “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b)(1).

         “Generally, the scope of discovery is very broad, though it is not unlimited.” Heck v. Buhler, 2015 WL 7432367, at * 2 (M.D. La. Nov. 23, 2015) (citing Crosby v. Louisiana Health Serv. & Indent. Co., 647 F.3d 258, 264 (5th Cir. 2011)). See also, Southern Filter Media, LLC v. Halter, 2014 WL 4278788, at * 3 (M.D. La. Aug. 29, 2014) (“The general scope of discovery is broad and permits the discovery of ‘any nonprivileged matter that is relevant to any party's claim or defense.' The rules governing discovery are accorded a broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials.”) (internal citations omitted). “It is well established that the scope of discovery is within the sound discretion of the trial court.” Southern Filter Media, LLC v. Halter, 2014 WL 4278788, at * 3 (M.D. La. Aug. 29, 2014).

         Rule 34 of the Federal Rules of Civil Procedure provides for the discovery of documents and tangible items. The Rule specifically allows a party to serve “a request within the scope of “Rule 26(b)” to “inspect, copy, test, or sample” “any designated tangible things.” Fed.R.Civ.P. 34(a)(1)(B). “Several courts have dealt with the issue of ‘destructive testing' in relation to production of ‘tangible things' within the parameters of Rule 34.” Bostic v. Ammar's Inc., 2011 WL 251009, at * 3 (E.D. Ky. Jan. 26, 2011). “‘If the parties differ as to whether an inspection or test is appropriate, the court must balance the respective interests by weighing the degree to which the proposed inspection will aid in the search for truth against the burdens and dangers created by the inspection.'” Galitski v. Samsung Telecommunications America, LLC, 2014 WL 3610789, at * 7 (N.D. Tex. July 22, 2014) (quoting Ramos v. Carter Exp. Inc., 292 F.R.D. 406, 408 (S.D.Tex. 2013) (quoting Hunley v. Glencore Ltd., 2013 WL 1681836, at *3 (E.D. Tenn. April 17, 2013)). “However, the decision whether to allow testing, destructive and non-destructive testing alike, ‘rests within the sound discretion of the court.'” Id. (quoting Ostrander v. Cone Mills, Inc., 119 F.R.D. 417, 419 (D.Minn.1988)).

         In Ostrander v. Cone Mills, Inc., 119 F.R.D. 417, 419 (D.Minn.1988), the court noted that “[p]roduction for purposes of destructive testing falls within” Fed.R.Civ.P. 34 and explained that “[t]he court is required to balance the interests to be served by destructive testing against the value of preservation of the evidence on behalf of the opposing party.” Other courts considering the issue of destructive testing have found four factors relevant to their analysis: “1) Whether the proposed testing is reasonable, necessary, and relevant to proving the movant's case; 2) Whether the non-movant's ability to present evidence at trial will be hindered, or whether the non-movant will be prejudiced in some other way; 3) Whether there are any less prejudicial alternative methods of obtaining the evidence sought; and 4) Whether there are adequate safeguards to minimize prejudice to the non-movant, particularly the non-movant's ability to present evidence at trial.” Bostic v. Ammar's Inc., 2011 WL 251009, at * 3 (E.D. Ky. Jan. 26, 2011) (quoting Mirchandani v. Home Depot, USA, Inc., 235 FRD 611, 614 (D. Md. 2006)).

         Although the instant Motion for Destructive Testing is unopposed, the undersigned nevertheless has considered the interests of the parties, the relevance and reasonableness of the proposed testing, and whether other parties to these proceedings will be prejudiced by the proposed destructive testing. As proposed by PNA, the destructive testing will use no more than 50% of Decedent's pathology materials and PNA shall provide the results of said testing to Plaintiffs. No party has asserted that PNA's proposed testing would hinder their ability to present evidence at trial, nor has any party suggested less prejudicial alternatives. Further, the undersigned finds that PNA has established the relevancy of the proposed fiber burden analysis.[8] Especially in light of the fact that PNA's proposal will not destroy all of the pathology materials and PNA's expert will provide the results of the analysis to Plaintiffs, the undersigned finds that such testing should proceed pursuant to Fed.R.Civ.P. 34.[9]

         III. ...


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