United States District Court, N.D. Iowa, Western Division
CORY C. WELLS as Administrator of the Estate of N.K.W., et al. Plaintiffs,
LAMPLIGHT FARMS, INCORPORATED, et al., Defendants.
LEONARD T. STRAND, Magistrate Judge.
This case is before me on a motion (Doc. No. 76) by defendant Lamplight Farms Incorporated (Lamplight) to quash a Rule 30(b)(6) deposition notice and for protective order. Plaintiffs have filed a resistance (Doc. No. 78) and Lamplight has filed a reply (Doc. No. 79). While Lamplight requests oral argument, I have carefully reviewed the parties' submissions and conclude that oral argument is not necessary. See N.D. Ia. L.R. 7(c). The motion is fully submitted and ready for decision.
As detailed in prior rulings, this case stems from the death of a twenty-two month old girl, N.K.W., who was the daughter of plaintiffs Cory C. Wells (Cory) and Bonnie J. Wells (Bonnie). Plaintiffs allege that on August 2, 2011, Cory, N.K.W. and others were camping in Dickinson County, Iowa, when N.K.W. ingested a product called "Tiki Citronella Torch Fuel with Lemongrass Oil" (the Citronella Torch Fuel), causing her death.
Plaintiffs filed this action on July 30, 2013, alleging that Cory purchased the Citronella Torch Fuel at a Wal-Mart Store in Spencer, Iowa, on or about August 1, 2011. Cory asserts claims individually and as administrator of N.K.W.'s estate. Bonnie asserts claims individually. The initial defendants were: (a) Lamplight, which is alleged to have manufactured and distributed the Citronella Torch Fuel, (b) Rexam, which is alleged to have manufactured the child-resistant closure used by Lamplight for the Citronella Torch Fuel container, (c) Berry, which is alleged to be the successor-in-interest to Rexam, (d) Bradley, which is alleged to have assisted Lamplight in the design, manufacture and distribution of the Citronella Torch Fuel, and (e) Wal-Mart, which is alleged to be the retailer from whom Cory purchased the Citronella Torch Fuel.
Plaintiffs originally asserted two theories of liability: (1) that the child-resistant closure included with the Citronella Torch Fuel purchased by Cory was defective and (2) that the design of the transparent container was defective in that when it contained Citronella Torch Fuel, it could appear to a small child to be a bottle of apple juice. On October 28, 2014, plaintiffs dismissed their claims against Rexam and Berry, along with "any and all claims that the closure mechanism on the Lamplight torch fuel product failed in any respect, including any claims that the container bottle did not properly mate with the cap or that the cap failed in some other manner that defeated the child-resistant safety closure function." Doc. No. 73 at 1-2. Thus, the design defect claim based on the product's packaging is the only remaining theory of liability. Trial is scheduled to begin June 15, 2015.
On November 26, 2013, I approved and entered (Doc. No. 27) the parties' joint proposed scheduling order and discovery plan (the Scheduling Order). The Scheduling Order established deadlines of July 1, 2014, for plaintiffs to disclose expert witness information, September 1, 2014, for defendants to disclose expert witness information and October 1, 2014, for plaintiffs to disclose any rebuttal expert witness information. The Scheduling Order also set January 15, 2015, as the deadline for the completion of all discovery. Doc. No. 27 at 1-2. To date, no party has filed a motion to extend any of the deadlines established in the Scheduling Order.
On July 1, 2014, plaintiffs served the expert report (Report) of Timothy H. Bohrer (filed herein as Doc. No. 78-2). In the Report, which is dated June 27, 2014, Bohrer states that plaintiffs' counsel asked him to consider the feasibility of three alternative packaging designs: (1) an "Alternative Torch Fuel Package, " which is basically the same container Lamplight was using in 2011 but in a black opaque color, (2) a "Fuel Can Package, " which is "known in the industry as a slant handled F-Style container, " and (3) a "Paint Thinner Package, " which is "known in the industry as an F-style steel can." Report at 1-2, 7, 10. Bohrer concluded that the Alternative Torch Fuel Package "would have been highly practical to be in place before May 2011 and for as long as ten years before then." Id. at 6.
As for the second alternative, the Fuel Can Package, Bohrer stated that he could not give an opinion as to whether it was feasible. He indicated that the Fuel Can Package "offers significant logistics & supply challenges, " and thus he could not "assess whether the adoption of the Fuel Can Package would have been practical from a supply & logistics perspective so that it could have been implemented before May 2011 until I receive additional information." Id. at 8, 10. That additional information included "detailed information regarding Lamplight's current equipment configuration" and "operating practices for their entire product line." Id. at 8-9.
With regard to the third alternative, the Paint Thinner Package, Bohrer wrote that it is "reportedly quite expensive and difficult to justify for small volumes" and "offers significant challenges from a logistical and operations standpoint." Id. at 10-11. He reported some additional concerns and concluded that he could not state that the Paint Thinner Package was a feasible alternative without "detailed information regarding Lamplight's current equipment configuration" and until he could determine "how a family of preformed containers of the same style as the Paint Thinner Package (with smaller sizes without handles) would run on existing filling lines." Id. at 11.
Thus, as of June 27, 2014, Bohrer was able to opine that the first option was a reasonable alternative design but reported that he could not form opinions as to the other two options without additional information. It appears that plaintiffs took no steps to obtain that additional information until November 5, 2014, when their counsel served a Notice of Deposition Pursuant to Federal Rule of Civil Procedure 30(b)(6). See Doc. No. 76-3 at 4-11 (the Notice). The Notice contains six broad topics, with a series of subtopics set forth under each.
Lamplight argues that the Notice is improper because (a) it is far too late for plaintiffs to disclose additional expert opinions and, in the alternative, (b) the topics described in the Notice are overly broad such that compliance would be unduly burdensome. Plaintiffs contend that they are entitled to disclose additional and/or supplemental expert opinions and point out that the Notice was issued two months before the close of discovery. Plaintiff also take issue with Lamplight's complaints concerning the scope of the Notice.
At the time Lamplight filed its motion, it had been advised that plaintiffs' sole purpose for issuing the Notice was to obtain additional information to provide to Bohrer for possible additions to his Report. Doc. No. 76-1 at 2. As I will discuss further below, plaintiffs now claim that the Notice also serves other, non-expert purposes. I will first address the Notice as it relates to the discovery of information to support additional expert opinions. I will then consider whether the Notice is appropriate for other reasons.
A. Are plaintiffs entitled to conduct discovery for the purpose of supporting additional expert opinions?
As noted above, the Scheduling Order established July 1, 2014, as the deadline for plaintiffs to disclose expert witnesses and January 15, 2015, as the deadline for the completion of all discovery. Lamplight argues that because plaintiffs' expert disclosure deadline expired many months ago, plaintiffs are not entitled to conduct discovery that would serve no purpose other than to allow their expert to formulate new opinions. Plaintiffs counter by noting that the permissible scope of discovery is broad and that discovery remains open, meaning all discoverable information remains fair game.
The answer to this conundrum requires several steps. First, I must consider what the expert disclosure deadline really means. That is, what must be disclosed by the deadline established in the Scheduling Order? Second, I must consider the extent, if any, to which a party may disclose additional expert witness opinions after the deadline for disclosing those opinions has expired. Finally, if it appears that disclosing new expert opinions at this stage of the case would be improper, I must determine whether an order prohibiting the requested discovery is the appropriate relief.
1. What must be disclosed by the expert disclosure deadline?
The answer to this question starts with Local Rule 26(b) which states, in relevant part:
(b) Fed.R.Civ.P. 26(a)(2)(A) and (B): Disclosure of Expert Testimony. Unless otherwise stipulated by the parties, the parties must, on or before the deadlines for disclosing expert witnesses established by the Rule 16(a) and 26(f) scheduling order and discovery plan, disclose their expert witnesses in accordance ...