Opinion
CIVIL ACTION NO. 18-661-BAJ-EWD
2021-04-19
Gail CHISUM v. MERCEDES-BENZ USA, LLC, et al.
Drew Eastman Nordgren, The Nordgren Law Firm, LLC, Baton Rouge, LA, for Gail Chisum. Perry R. Staub, Jr., Janet Daly McGrew, Mark Edward Van Horn, Taggart, Morton, Ogden, Staub, & O'Brien, LLC, New Orleans, LA, for Mercedes-Benz USA, LLC.
Drew Eastman Nordgren, The Nordgren Law Firm, LLC, Baton Rouge, LA, for Gail Chisum.
Perry R. Staub, Jr., Janet Daly McGrew, Mark Edward Van Horn, Taggart, Morton, Ogden, Staub, & O'Brien, LLC, New Orleans, LA, for Mercedes-Benz USA, LLC.
RULING AND ORDER
ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE
Before the Court is the Motion to Reopen Discovery ("Motion"), filed by Gail Chisum ("Plaintiff"). Plaintiff seeks an order reopening discovery for the limited purpose of allowing discovery relating to the preliminary evaluation and/or investigation by the National Highway Traffic Safety Administration's ("NHTSA") Office of Defects Investigation ("ODI") concerning wheel speed sensor failures in 2011-2018 Mercedes-Benz Sprinter vehicles (the "NHTSA Investigation" or "NHTSA Materials,") like the one at issue in this case. Mercedes-Benz USA, LLC ("MBUSA") opposes the Motion. As set forth below, the Motion will be granted, and discovery will be reopened for sixty (60) days to allow the parties to seek discovery regarding the NHTSA Investigation only.
R. Doc. 66.
R. Doc. 72. Defendant, Winnebago Industries, Inc. ("Winnebago"), joined the opposition. Id. Since the filing of the opposition, the Court has dismissed all claims against Winnebago, and Winnebago is no longer a defendant in this case. R. Doc. 88.
I. BACKGROUND
Plaintiff purchased a new 2014 Winnebago View, Model WM524M motor home ("Vehicle"), VIN #XXXXXXXXXXXXXXXXX, from Miller's RV Center in Baton Rouge, Louisiana on April 30, 2015. The Vehicle was constructed on a Mercedes-Benz Sprinter chassis, which was sold by MBUSA to Loeber Motors, Inc., a MBUSA authorized dealer. Loeber Motors, Inc. sold the Sprinter chassis to Winnebago, which manufactured the Vehicle's recreational quarters and sold the completely assembled Vehicle to Miller's RV Center. The Vehicle was serviced six times for various issues between the date of purchase, April 30, 2015, and when Plaintiff stopped using the Vehicle for travel in June 2018. Two weeks later, Plaintiff filed suit against MBUSA, Winnebago, and Anmar Services, Inc. d/b/a Miller's RV Center ("Miller's RV Center") (collectively, "Defendants") to recover damages under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. ("MMWA"), and Louisiana redhibition law, alleging that the continued illumination of the check engine and other lights, and failure of the cruise control function, breached the express and implied warranties on the Vehicle.
R. Doc. 22, ¶ 9.
R. Doc. 57-1, p. 4 and R. Doc. 13-5.
Serial No. 10544R280385.
R. Doc. 57-1, p. 4; R. Doc. 55, p. 10.
R. Doc. 55-2, p. 47-8; R. Doc. 55, p. 15.
See, generally , R. Docs. 1 & 22. Plaintiff voluntarily dismissed his claims against Miller's RV Center on October 15, 2019. R. Doc. 44.
A more detailed factual and procedural background is included in the Court's Ruling on the parties’ Motions for Summary Judgment, which is incorporated by reference.
R. Doc. 88.
II. LAW & ANALYSIS
Pursuant to Fed. R. Civ. P. 16(b)(4), a scheduling order "may be modified only for good cause and with the judge's consent." The Fifth Circuit has explained that a party is required "to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension." A trial court has broad discretion to preserve the integrity and purpose of its pretrial orders, "which, toward the end of court efficiency, is to expedite pretrial procedure."
See also R. Doc. 48 (Amended Scheduling Order) providing that "[t]he time limits set forth in this order shall not be modified except by leave of court upon a showing of good cause" and that "[a]ll motions to extend scheduling order deadlines must be supported by facts sufficient to find good cause as required by Rule 16.... Extensions of deadlines governing discovery must be supported with information describing the discovery already completed, what necessary discovery remains, the parties’ efforts to complete the remaining discovery by the deadline, and any additional information showing that the parties have diligently pursued their discovery."
Marathon Fin. Ins. Inc., RRG v. Ford Motor Co. , 591 F.3d 458, 470 (5th Cir. 2009) (quoting S&W Enters., LLC v. Southtrust Bank of Ala., NA , 315 F.3d 533, 535 (5th Cir. 2003) ).
S&W Enters. , 315 F.3d at 535.
"The U.S. Fifth Circuit Court of Appeals has applied a four-factor balancing test in certain contexts to determine whether good cause exists to modify a scheduling order by weighing (1) the explanation for the failure to adhere to the deadline at issue; (2) the importance of the proposed modification to the scheduling order; (3) potential prejudice; and (4) the availability of a continuance to cure such prejudice." "Notwithstanding this four-factor test, the court still has the ‘inherent power to control its own docket to ensure that cases proceed before it in a timely and orderly fashion.’ " "The purpose of a scheduling order is to allow the district court to control and expedite pretrial discovery matters. Scheduling orders and their enforcement are regarded as essential in ensuring that cases proceed to trial in a just, efficient, and certain manner." "To achieve this end, the Court is given broad discretion so that the integrity and purpose of the pretrial order may be preserved."
Green v. Archer Daniels Midland , Civil Action Nos. 10-4481, 2012 WL 85409, at * 3 (E.D. La. Jan. 11, 2012) (citing Geiserman v. MacDonald , 893 F.2d 787, 790–92 (5th Cir. 1990) ; Reliance Ins. Co. v. La. Land & Exploration Co. , 110 F.3d 253, 257–58 (5th Cir. 1997) ; S&W Enters. , 315 F.3d at 536 ).
Hernandez v. Mario's Auto Sales, Inc. , Civil Action No. L-07-132, 617 F.Supp.2d 488, 493 (S.D. Tex. Jan. 21, 2009) (quoting U.S. v. Waldman , 579 F.2d 649, 653 (1st Cir. 1978) ).
Id. (internal citations omitted).
Id. (citing Bilbe v. Belsom , 530 F.3d 314, 317 (5th Cir. 2008) (stating that the district court's decision regarding whether to modify a scheduling order is afforded great deference, especially where the facts of the case suggest a lack of diligence on the part of the movant); S&W Enters. , 315 F.3d at 535 ; Hodges v. United States , 597 F.2d 1014, 1018 (5th Cir. 1979) ).
Here, Plaintiff seeks an order reopening discovery for ninety (90) days for the limited purpose of permitting discovery regarding the NHTSA Investigation. Plaintiff claims that all four good cause factors weigh in favor of reopening discovery under Rule 16(b). Specifically, Plaintiff contends that after the July 1, 2020 discovery deadline, he learned that NHTSA "opened a preliminary evaluation [on September 30, 2020] to investigate wheel speed sensor failures in numerous Mercedes-Benz Sprinter vehicles, including the Sprinter Vehicle making up the subject matter of this redhibition action." Plaintiff claims he has "had no opportunity to conduct discovery into NHTSA's investigation of the Mercedes-Benz Sprinter speed sensor failures, or the pending result of the investigation," which "could provide valuable circumstantial evidence supporting Plaintiff's claims."
R. Doc. 66.
R. Doc. 66-1, pp. 3-4.
R. Docs. 48, 54.
R. Doc. 66, p. 1.
Id. at p. 2.
The Motion was discussed at a telephone conference with counsel. Plaintiff reiterated his reasons for requesting that discovery be reopened. MBUSA indicated its intent to oppose the Motion, claiming (1) it will be costly and time consuming to obtain the information concerning the NHTSA Investigation because the information requested by Plaintiff is "extensive," and (2) that any information Plaintiff seeks concerning the NHTSA Investigation is "inadmissible." After this discussion, and in response to questions by the Court, Plaintiff explained (1) that the Motion was "fashioned so [the parties] wouldn't have to upset any deadlines," (2) that information obtained about the NHTSA Investigation, if any, "will not impact the [then] pending Motions for Summary Judgment," and (3) that Plaintiff is simply attempting to get the NHTSA Materials for use a trial but if he "doesn't get it by trial, so be it."
R. Doc. 73. The conference was held prior to the deadline to oppose the Motion under the Local Civil Rules. Accordingly, MBUSA's opposition was not of record at the time of the conference.
Id. at pp. 1-2. MBUSA noted that there is a "clear Fifth Circuit and Middle District of Louisiana case on the admissibility of NHTSA investigations." The undersigned noted that admissibility and discoverability are different and reminded the parties that the District Judge assigned to this case will decide admissibility, while the undersigned will decide discoverability.
Id. at p. 2.
After the conference, MBUSA filed its opposition memorandum. MBUSA admits that the first "good cause" factor is met but contends that the remaining three factors weigh against reopening discovery. It argues that the "recently commenced NHTSA investigation into complaints involving alleged wheel speed sensor failures ... is not a valid basis for reopening discovery in this case" for two reasons. First, the NHTSA Materials are not admissible under Fed. R. Evid. 803(8) based on Fifth Circuit case law. Second, even if the NHTSA makes factual findings and issues a final report, such findings and/or report "may still not be either discoverable or admissible in this case" under Fed. R. Civ. P. 26. Specifically, MBUSA contends that the NHTSA report and related materials have "debatable" relevance as "plaintiff does not contend that his vehicle suffered from the particular symptoms that are under investigation by the NHTSA."
R. Doc. 72.
Id. at p. 72.
Id. at pp. 6-12 (discussing Smith v. Isuzu Motors , 137 F.3d 859 (5th Cir. 1998) and other cases holding that preliminary reports or evaluations by federal agencies, including those by NHTSA, are not final factual findings, are "untrustworthy," and are inadmissible under Fed. R. Evid. 803(8) ). In Smith , the Fifth Circuit affirmed the district court's refusal to admit three memoranda prepared by NHTSA staff members on hearsay grounds. 137 F.3d at 861-62. The Fifth Circuit concluded that the NHTSA memoranda did not meet the public records exception to hearsay in Fed. R. Evid. 803(8) because the "preliminary or interim evaluative opinions of agency staff members" are not "factual findings of the NHTSA." Id. at 862-63. See also, e.g., Hendricks v. Ford Motor Co. , No. 12-71, 2012 WL 4478308, at *3, n.1 (E.D. Tex. Sept. 27, 2012) (citing Smith and stating, "To the extent Plaintiff seeks to admit the NHTSA communications and the Preliminary Investigation itself, including letters between Defendant and NHTSA, that request is denied."). In further support of this argument, MBUSA also directs the Court to Lacey v. Arkema , No. 10-669, 2014 WL 1327792 (M.D. La. Mar. 31, 2014). In Lacey , the Court addressed whether an OSHA citation fell within Fed. R. Evid. 803 ’s public record exception to hearsay. Id. at *5. After listing and analyzing the following "indications of untrustworthiness ...: (1) the timeliness of the investigation; (2) the special skill or expertise of the official; (3) whether a hearing was held and at what level; and (4) possible motivational problems," the Court determined that the OSHA citation was not a public record within the meaning of Rule 803(8) because of "other circumstances indicat[ing] a lack of trustworthiness," such as statements in the Citation that it "does not constitute a finding that a violation ... has occurred" and that the recipient has a "right to contest this Citation and Notification of Penalty." Id. (citations and internal quotations removed; emphasis added in Lacey ).
R. Doc. 72, pp. 9-12.
Id. MBUSA further argues that Rule 26 ’s proportionality requirement weighs against reopening discovery to allow discovery regarding NHTSA's investigation into wheel speed sensor failures in Mercedes-Benz Sprinter vehicles (Id. at pp. 10-12), because two proportionality factors—namely, the importance of discovery in resolving the issues and whether the burden/expense of the proposed discovery outweighs its likely benefit—weigh against reopening discovery to allow Plaintiff to seek discovery regarding the NHTSA Investigation. Id. at p. 11. MBUSA's proportionality argument relates to its argument that the NHTSA preliminary report and related documents are neither admissible nor relevant. Those arguments are addressed below. Additionally, the "party seeking to resist discovery on [proportionality] grounds still bears the burden of making a specific objection and showing that the discovery fails the proportionality calculation mandated by Rule 26(b) by coming forward with specific information to address" the proportionality factors. Carr v. State Farm Mutual Auto. Ins. Co. , 312 F.R.D. 459, 468 (N.D. Tex. Dec. 7, 2015) ; see also In re Subpoena Duces Tecum Issued to Stewart Robbins & Brown, LLC , MC 17-11-BAJ-RLB, 2017 WL 1903120, at * 6 (M.D. La. May 9, 2017) (stating (1) that "[b]road-based, non-specific objections that discovery requests are oppressive or unduly burdensome ... fall woefully short of the burden that must be borne by a party making an objection to a request of documents," and (2) that "a party asserting undue burden must typically present affidavits or other evidence demonstrating the time, expense or nature of the burden involved in responding to the discovery request." (internal quotations and citations omitted)). Because MBUSA has not provided the Court with any specific information necessary to analyze its proportionality argument, this argument is rejected.
There is good cause to reopen discovery for a limited time and for the limited purpose of information regarding the NHTSA Investigation only. As both parties acknowledge, the first good cause factor weighs heavily in favor of reopening discovery. Plaintiff could not have obtained information regarding the NHTSA Investigation prior to the expiration of the discovery deadline because, as MBUSA acknowledges, "the NHTSA materials post-date the discovery deadline in this case."
R. Doc. 72, p. 5.
Regarding the three remaining factors, MBUSA argues that they weigh against reopening discovery, but these arguments are largely reliant on MBUSA's argument that the NHTSA Materials are inadmissible. As the undersigned noted during the November 30 telephone conference, discoverability and admissibility are different issues. Indeed, all of the cases cited by MBUSA regarding documents and reports—preliminary or otherwise—by NHTSA or other government agencies deal with the admissibility of those documents, not whether they are discoverable in the first place.
Id. at pp. 5-12.
R. Doc. 73, p. 2, n.5.
See id. at pp. 6-9 and cases cited there.
Fed. R. Civ. P. 26(b)(1) provides:
"Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged 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."
"For purposes of discovery, relevancy is construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue related to the claim or defense of any party." Put differently, "[t]he test is not whether the information is admissible at trial, but whether it appears reasonably calculated to lead to the discovery of admissible evidence. Thus, as long as the information may lead to admissible evidence, it is discoverable."
Tingle v. Hebert , No. 15-626, 2016 WL 7230499, at *2 (M.D. La. Dec. 14, 2016), quoting Fraiche v. Sonitrol of Baton Rouge , 2010 WL 4809328, at *1 (M.D. La. Nov. 19, 2010).
Exxon Chem. Pats., Inc. v. Lubrizol Corp. , 131 F.R.D. 668, 672 (S.D. Tex. 1990).
Plaintiff argues that the NHTSA Materials "could provide valuable circumstantial evidence supporting Plaintiff's claims" because such information concerns the failure of speed sensors in Mercedes-Benz Sprinter vehicles, including "the 2013 model year [that] Plaintiff owns." While MBUSA argues that Plaintiff has a "relevancy problem" because his "complaints differ from those reportedly under NHTSA investigation" and there is "most likely no importance of the discovery to resolving the fundamental issue of whether [Plaintiff's] vehicle contained a defect," it stops just short of arguing that the NHTSA Investigation is not relevant under any circumstances. Notably, the documents submitted in support of the Motion (namely, the ODI Resume) indicate that the subject of the NHTSA Investigation is "Rear Wheel Speed Sensor Failure" in Mercedes-Benz Sprinter vehicles, and MBUSA acknowledges that the "core of [P]laintiff's Complaint is that the vehicle occasionally experienced problems with the NOX and RMP (i.e. , wheel speed) sensors." With limited information regarding the NHTSA Investigation, other than that it involves Mercedes-Benz Springer vehicles and wheel speed sensor issues, it cannot be ruled out that those materials may lead to the discovery of admissible information relevant to Plaintiff's claims. Considering the broad scope of discovery, the undersigned finds that the NHTSA Materials are relevant and discoverable. Regarding prejudice and the ability to cure same through a continuance, these factors are, at worst, neutral, considering that the trial of this matter was recently continued and a new trial date has not yet been set. While MBUSA argues that "permitting discovery regarding any issues under investigation by a federal agency highly prejudicial" and is a "long, costly walk off a short pier that cannot possibly lead to the discovery of admissible evidence," such arguments are not persuasive for several reasons. For the reasons explained above, the NHTSA Materials are relevant and discoverable. Additionally, MBUSA does not explain how discovery regarding the NHTSA Investigation is "highly prejudicial," especially given that MBUSA acknowledges that all parties could obtain the NHTSA Materials through a Freedom of Information Act request. Finally, MBUSA's argument that discovery regarding the NHTSA Investigation would be "costly" or "expensive" is premature, as it appears that Plaintiff has not yet propounded discovery requests regarding this issue on MBUSA. Conversely, preventing Plaintiff from seeking discovery regarding the NHTSA Investigation would be prejudicial to Plaintiff's ability to seek information that may be relevant to his claims. Additionally, any prejudice to Plaintiff can be cured a continuance, which has already been granted, and by reopening discovery only for a limited time and purpose. Whether or not Plaintiff cannot obtain the information sought within the limited time period provided, no additional extensions of the fact discovery period will be granted.
R. Doc. 66, pp. 1-2; R. Doc. 66-1, pp. 3-4.
R. Doc. 72, p. 10. See, e.g., id. at p. 9 (stating, (1)"Even once the NHTSA makes final factual findings and issues its final report ... the report may still not be ... discoverable ..."; (2) "Plaintiff might well be entitled to the final report and related materials under the ‘subject matter involved in the pending action’ standard. But ... it is doubtful that plaintiff can meet it"; (3) "The discoverability of the final NHTSA report and related materials would be debatable under a relevance standard ..."; and (4) that "is unclear how the final [NHTSA] report would be relevant to the claims in this case." (emphasis added)).
R. Doc. 66-2.
R. Doc. 72, p. 3.
See, e.g., Graves ex rel. W.A.G. v. Toyota Motor Corp. , No. 09-169, 2012 WL 28566, at *4 (S.D. Miss. Jan. 05, 2012) ("Discovery of Toyotas internal and external communications[, including the NHTSA,] and others pertaining to the amendment [of a rule regarding the strength to weight ratio requirement, which Toyota opposed,] was allowable for discovery purposes" because it is "well recognized that the standard of relevance in the context of discovery is broader than in the context of admissibility." (internal citations and quotations omitted)); May for Estate of May v. Ford Motor Co. , No. 09-165, 2009 WL 10689351, at *4 (E.D.K.Y. Dec. 15, 2009) ("The documents Ford provided to the NHTSA regarding PE 05-54 plainly are discoverable, as they relate to the precise mechanism here at issue."); Rivera v. Volvo Cars of North America, LLC , No., 2014 WL 12622448, at *4 (D.N.M. Aug. 5, 2014) (finding that "as to the contents of [Volvo's comments] to NHTSA may demonstrate notice of a design defect by [defendants] prior to the subject accident, the Court concludes that they are relevant and discoverable" but warning plaintiff "not to stray too far afield.").
R. Doc. 80.
R. Doc. 72, pp. 2 & 4.
R. Doc. 72, p. 11 ("The parties will have equal access to a final NHTSA report, and any related materials (through a Freedom of Information Act request).").
Considering the applicable factors and the Court's broad discretion, there is good cause to grant Plaintiff's Motion and to reopen discovery for sixty (60) days for the limited purpose of allowing the parties to conduct discovery regarding the NHTSA investigation. The parties are specifically reminded of their obligations under the Federal Rules of Civil Procedure, including that discovery or responses should not be used for "any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation," among other things.
III. CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff's Motion to Reopen Discovery is GRANTED for good cause. Discovery in this matter will be reopened for sixty (60) days for the limited purpose of allowing the parties to pursue discovery regarding the NHTSA Investigation concerning Mercedes-Benz Sprinter vehicles and wheel speed sensor failures. No further extensions of the fact discovery period will be granted.
R. Doc. 66.