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Fulford v. Michigan Ladder Company, LLC

United States District Court, M.D. Louisiana

February 1, 2019

MARVIN FULFORD AND RENA FULFORD
v.
MICHIGAN LADDER COMPANY, LLC, ET AL.

          RULING AND ORDER

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         Before the Court is a combined Motion for Sanctions (the “Motion for Sanctions”) and Motion to Strike Defendants' Defenses and Defendants' Expert, Thomas Bayer (the “Motion to Strike”), [1] filed by Marvin Fulford (hereinafter, “Marvin”) and Rena Fulford (“Rena”) (collectively, “Plaintiffs”). The Motions are opposed by Defendants Michigan Ladder Company, LLC, Robert Nissly (“Nissly”), Thomas P. Harrison, Nissco, Inc., Amherst Fund, II, LLC, Harrison Industries, LLC, Michigan Ladder Properties, LLC, and Michigan Ladder Company, Inc. (collectively, “Defendants”).[2] For the reasons that follow, the Motion for Sanctions is DENIED and the Motion to Strike is DENIED.

         I. Background

         On or about February 2, 2015, Marvin was attempting to light a heater suspended from the ceiling while in the course of his employment with the LSU Sweet Potato Research Institute in Winnsboro, Louisiana when the “Climbtek”[3] ladder that he was standing on, unexpectedly collapsed.[4] The collapse allegedly caused Marvin to strike his head on the concrete floor and to suffer serious injuries, including a fractured vertebra in his neck and a brain injury.[5]

         On January 8, 2016, Plaintiffs filed suit in this Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332, alleging that Marvin's injuries were caused by Defendants' Climbtek ladder, which was unreasonably dangerous under the Louisiana Products Liability Act, La. R.S. 9:2800.51, et seq., and negligently designed/manufactured.[6] Plaintiffs seek a combined $3.5 million dollars in damages for medical expenses, lost earnings/loss of earning capacity, physical impairment, loss of enjoyment of life, and loss of consortium for Rena.[7]

         On October 4, 2018, Plaintiffs filed the instant Motion for Sanctions and Motion to Strike.[8]On October 11, 2018, Defendants filed their opposition thereto.[9] On October 19, 2018, a status conference and hearing was held on the Motion for Sanctions and Motion to Strike, at which time the parties presented argument.[10]

         II. Arguments of the Parties

         A. Motion for Sanctions

         1. Plaintiffs' Arguments

         Plaintiffs aver that, at the April 2017 and August 2018 depositions of Nissly, the former President of Michigan Ladder Company/Climbtek, testified that all business records relating to the design, testing, manufacture and assembly for the Climbtek ladder at issue were destroyed (collectively referred to herein as “design and testing records”).[11] Plaintiffs also contend that Nissly testified on December 21, 2010 in a different lawsuit, Horton v. Climbtek, [12] then pending in the U.S. District Court for the Middle District of Florida, that the design and testing records were destroyed.[13]

         On September 27, 2018, Plaintiffs notified Defendants of their intention to file a Motion for Destructive Testing and to Add Expert Metallurgist (the “Motion for Testing”) because of Nissly's testimony that the records were destroyed. The next day, while Plaintiffs were in the process of electronically filing their Motion for Testing (which is currently pending before the District Judge), Plaintiffs aver that they received an email from defense counsel, wherein Defendants enclosed a link to a file that contained over 1, 000 design and testing records for the Climbtek ladder that Nissly was able to obtain from Climbtek's Third-Party Administrator/claims handler (“TPA”).[14] Plaintiffs claim that Nissly has never provided an explanation as to why he previously testified that the records had been destroyed.[15]

         Plaintiffs now seek sanctions against Nissly and the TPA (but not defense counsel) for Nissly's failure to admit that the design and testing records existed and for Nissly's and the TPA's failure to produce them in a timelier manner to Plaintiffs. Plaintiffs argue that it is implausible that Nissly could have been unaware that design and testing records existed, and Plaintiffs find it suspicious that the records were produced only after Plaintiffs informed Defendants of their intention to file the Motion for Testing and after the expiration of “all expert deadlines.”[16]

         Plaintiffs concede that Fed.R.Civ.P. 37 does not appear to apply to the instant scenario, and, while the Court may have authority under Fed.R.Civ.P. 26(e) and/or 26(g) to impose sanctions, Plaintiffs argue the Court should rely on its inherent power to award sanctions due to Nissly's and the TPA's egregious bad faith conduct set forth above.[17] Plaintiffs suggest sanctions in the form of an award of Plaintiffs' attorney's fees, travel expenses, videographer and court reporter costs associated with Nissly's deposition and/or an admonishment to Nissly and the TPA for failing to provide the design and testing records prior to the expiration “of all expert deadlines.” Plaintiffs also seek an explanation from Nissly and the TPA as to why the records were not produced earlier.[18]

         2. Defendants' Opposition

         Defendants oppose Plaintiffs' Motion for Sanctions on several grounds.[19] First, Defendants argue that Nissly, age 81, truthfully and accurately testified in his April 2017 and August 2018 depositions that he did not maintain any records for Climbtek after the company went out of business 8-9 years ago in 2009-2010.[20] In support of this contention, Defendants proffer Nissly's affidavit, wherein Nissly states that he truthfully testified in both depositions associated with this case that he had not maintained any design or testing records for Climbtek after the business closed.[21] Nissly avers that after his August 2018 deposition, he discussed with his counsel and the TPA for this case the possibility that the design and testing records could have been kept by the TPA as part of prior Climbtek claim files, and Nissly authorized the TPA to search for them and provide them to counsel if they were found.[22] According to Nissly and/or Defendants, the TPA found the applicable design and testing records and provided them to defense counsel, who then produced them to Plaintiffs herein.[23] However, Nissly avers that none of those records were in his personal possession after Climbtek went out of business, and prior to his discussions with counsel and the TPA described above, he was also not aware that the TPA maintained these records.[24]

         Defendants further contend that in Nissly's December 2010 deposition testimony given in the Horton matter, and relied on by Plaintiffs, Nissly does not state that the documents at issue were destroyed at that time.[25] Rather, according to Defendants, Nissly's Horton testimony shows that some records were produced in Horton, [26] and ultimately, the Horton records from the TPA's closed Horton file were those produced to Plaintiffs in this case (and that Plaintiffs should have known the documents were produced in Horton, see discussion, infra.). Defendants admit that they also did not think to look in the Horton file for the design and testing records either until after Nissly's August 2018 deposition. Once they did think to do so, they located the design and testing records and then produced them to Plaintiffs within fifteen days of defense counsel's receipt.[27]

         Defendants assert that the design and testing records were not intentionally hidden from Plaintiffs; rather, Defendants have also endeavored to locate design and testing records so that Defendants can establish their defense that there is/was no defect in the Climbtek ladder. In fact, Defendants contend, the documents recently produced actually assist Defendants in defending the case because the documents allegedly show that the Climbtek ladder met or exceeded all applicable testing requirements and was subjected to independent testing by a third party.[28] Defendants state that defense counsel and Nissly discussed on several occasions the possibility of locating the old Climbtek design and testing records but Nissly contended that he did not maintain any after the business closed. The parties brainstormed other potential repositories and ultimately asked the TPA, which proved fruitful.[29] Defendants contend that counsel was reviewing the design and testing records to determine what they were, in the midst of working other cases, when he received notification from Plaintiffs of their intention to file their Motion for Testing. Defense counsel claims that he did not withhold the records until Plaintiffs' notice of filing; rather, Plaintiffs' notice simply prompted counsel to voluntarily forward the records he had recently received from the TPA as a supplement to Defendants' Rule 26 disclosures, which was timely.[30]

         Defendants argue that Plaintiffs incorrectly insinuate that there was an outstanding discovery request for the design and testing records, but that Plaintiffs have not provided any such discovery request to the Court. Rather, Defendants aver that Plaintiffs only propounded discovery related to the design and testing records to Climbtek, an entity which is not in existence or represented herein, and to Nissly, after the design and testing records were produced.[31] Defendants argue that Plaintiffs' authority in support of sanctions is distinguishable on the facts[32] and assert that Plaintiffs' Motion for Sanctions should be denied because Defendants have not made misrepresentations to Plaintiffs, have not violated court orders, and have timely produced the design and testing records.

         B. Motion to Strike

         1. Plaintiffs' Arguments

         As a sanction for Defendants' failure to timely produce the design and testing records, Plaintiffs' Motion to Strike seeks exclusion of Defendants' defenses, Defendants' expert Thomas Bayer (“Bayer”), and Bayer's expert report, pursuant to Fed.R.Civ.P. 37(c)(1), “Failure to Disclose or Supplement, ” which provides:

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(b)(2)(A)(i)-(iii) provides for the following sanctions (when a party disobeys a discovery order):

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; and,
(iii) striking pleadings in whole or in part….

         Plaintiffs argue that, in order to determine whether Defendants' failure to timely produce the design and testing records was “substantially justified or harmless” as referenced in Fed.R.Civ.P. 37(c)(1), the following factors, set forth by this Court in Broussard v. Go-Devil Manufacturing Co. of La, Inc. (the “Broussard factors”), should be considered: (1) the importance of the evidence; (2) the prejudice to the opposing party of allowing the evidence to come in; (3) the possibility for curing such prejudice by granting a continuance; and, (4) the explanation, if any, for the party's failure to comply with the disclosure requirements.[33] Plaintiffs further contend that the burden is on Defendants, as the parties failing to disclose the information, to prove their failure was harmless, and exclusion of evidence and/or a witness is appropriate when late disclosure of evidence deprives a party of the opportunity to conduct an effective deposition of a witness.[34]

         Analyzing the above factors, Plaintiffs recognize that the design and testing records are “critical” (i.e., important), [35] but contend that Defendants have not offered a credible explanation for their failure to timely produce the records. Plaintiffs point out that Defendants failed to produce the design and testing records until thirty-three months after the lawsuit was filed (and after the expert deadlines had passed), which establishes that Defendants failed to exercise due diligence in searching for them.[36] Further, Plaintiffs now face prejudice because they must submit 1, 188 pages of newly-produced design and testing records to Plaintiffs' liability expert for a complete re-evaluation of all of Plaintiffs' expert's opinions as set forth in his July 16, 2018 report.[37] Plaintiffs therefore contend that Defendants' explanation for their failure to produce the requested design and testing records for the Climbtek ladder in a more timely manner is unjustified.[38]

         As a Rule 37 sanction for Defendants' lack of justification for their untimely production and the prejudice faced by Plaintiffs, Plaintiffs specifically seek exclusion of Bayer's anticipated testimony and Bayer's report.[39] Defendants retained Bayer as their liability expert in Horton v. Climbtek.[40] Therein, Bayer submitted two affidavits, both dated March 4, 2011 (“the Horton Affidavits”).[41] Plaintiffs argue that Bayer claims to have reviewed voluminous design and testing records produced by Climbtek in the Horton Affidavits.[42] Further, Bayer submitted his expert report in this case on September 17, 2018, also allegedly having reviewed those records. Plaintiffs argue that they are prejudiced, particularly with respect to the current March 25, 2019 trial date, by the foregoing, because Bayer reviewed the newly-produced Climbtek documents in the Horton litigation (and the litigation herein) prior to submitting his expert report, but Plaintiffs did not receive the documents until after Bayer produced his expert report and after Plaintiffs produced their expert report. Plaintiffs argue that they have been “ambushed, ” and it is suspicious that Bayer submitted the Horton Affidavits in March 2011, which reference the design and testing records ultimately produced here, after Nissly testified on December 21, 2010 that the Climbtek documents were destroyed. For these reasons, Plaintiffs request that Bayer's report be stricken and that Bayer be prohibited from testifying at trial.[43]

         2. Defendants' Opposition

         Defendants argue that Bayer did not review the design and testing records recently produced to Plaintiffs to reach his conclusions in his expert report produced herein, as Bayer did not have the design and testing records at the time he drafted his report in this case because Defendants had not yet given Bayer those records. Defendants contend that Bayer reviewed only the records listed in his report to reach his conclusions.[44] Defendants further argue that it is not unfair for Defendants to call Bayer as an expert simply because he examined a Climbtek ladder and had access to Climbtek records in the past. Rather, Defendants contend that it is commonplace for parties to retain experts with prior experience about a disputed issue so that the expert's opinion will be given more weight, and further, courts consider an expert's personal experience with the issues for which he is retained.[45] Defendants argue that Bayer and/or his report should not be excluded because Bayer worked on another case involving a Climbtek ladder, and there is no authority supporting this position.[46]

         Furthermore, Defendants point out that Plaintiffs, not Defendants, have been obtaining Horton filings, including Bayer's Horton Affidavits, since Nissly's April 2017 deposition. In Defendants' view, Plaintiffs presumably knew, or should have known, that the recently-produced design and testing records were also produced to the Horton plaintiffs, considering that one of Bayer's Affidavits in Horton references his review of those records.[47] Defendants contend that Plaintiffs, like Defendants, simply missed the fact that the records might be available because they were produced in Horton. Defendants suggest that Plaintiffs are now raising this argument in an attempt to have relevant information regarding whether there is a defect in the subject ladder excluded.[48]

         Defendants urge the Court to apply the following factors, set forth in Verzwyvelt v. St. Paul Fire & Marine. Ins. Co., in considering sanctions: (1) the party's explanation, if any, for failure to comply with the scheduling order; (2) the prejudice to the opposing party of allowing the witness to testify; (3) the possibility of curing such prejudice by granting a continuance; and (4) the importance of the witness's testimony.[49] Defendants contend that none of these factors, or the similar Broussard factors, support the striking of Defendants' expert, as Defendants have provided an explanation for why the records were not identified sooner, and any potential prejudice could be cured by a continuance of either the trial date or at least the expert deadlines.[50][51]

         III. Law and Analysis

         A. Motion for Sanctions

         Plaintiffs seek sanctions upon Nissly and/or the TPA who housed the records that were ultimately produced to Plaintiffs for their “bad faith conduct” pursuant to the Court's inherent power to impose sanctions, and not pursuant to any particular federal rule. The Court does have the inherent power to impose sanctions for bad faith conduct, “and the inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct.”[52] Plaintiffs' basis for sanctions against Nissly and/or the TPA is solely due to Plaintiffs' contention that Nissly failed to admit that these records existed in his April 2017 and August 2018 depositions, failed to produce the design and testing records to Plaintiffs until after “all expert deadlines [had] passed, [53] and allegedly testified in 2010 in the Horton matter that the documents “had been disposed of, ” yet one year later, Climbtek's expert Bayer attested in his Horton Affidavit that Bayer reviewed those documents.[54]

         As an initial matter, contrary to Plaintiffs' continued assertion in brief, the production of the design and testing records was not after “all expert deadlines” had expired. The production was September 28, 2018; the ...


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