United States District Court, D. South Dakota, Western Division
ORDER GRANTING DEFENDANT'S MOTION TO COMPEL [DOCKET NO. 25]
VERONICA L. DUFFY, Magistrate Judge.
Plaintiffs David and Barbara Donat, husband and wife, filed this diversity action before this court alleging tort claims of strict liability, breach of warranty, negligence, and loss of consortium for injuries David received when both front forks of his bicycle, manufactured by defendant Trek Bicycle Corporation ("Trek"), snapped while he was riding it. Trek has now filed a motion to compel the Donats to allow Trek's expert to inspect and photograph the subject bicycle using a scanning electron microscope. See Docket No. 25. The district court, the Honorable Jeffrey L. Viken, Chief United States District Judge, referred Trek's motion to this magistrate judge for resolution pursuant to 28 U.S.C. § 636(b)(1)(a).
The following brief facts are pertinent to Trek's motion. On August 10, 2010, David Donat was riding a Trek Madone SSL 6.5 road bicycle on a highway in Montana. While doing so, both of the carbon fiber front forks of the bike snapped. Mr. Donat fell to the pavement and sustained serious injuries.
The Donats filed their complaint in this matter on July 16, 2013. See Docket No. 1. Thereafter, the parties stipulated to a protective order concerning discovery that would be exchanged.
A brief background of the subject matter is helpful to have at this point. The carbon fiber forks of the Trek bike at issue are hollow inside and formed in two halves that are later joined. The material the forks are made of are manufactured using layers or plies of carbon fiber which are held together with layers of resin. The carbon fiber layers and resin are placed into a mold or "tool" and then subjected to high pressure and heat to bond the layers of carbon fiber and resin together. The front half of the fork, which is the leading edge of the fork (also called the "net" side of the fork) is created in a mold separate from the back half or trailing edge of the fork (also called the "lap" side of the fork). Once the two halves of the fork are formed, they are then joined together along both sides of the length of the fork. The overlap of the two portions of the fork, when joined together, create an area of greater thickness in the material of the fork because there are two layers overlapping each other.
On January 14, 2014, both parties participated in a joint destructive testing of the front fork of Mr. Donat's bike at SEAL Laboratories in El Segundo, California. The staff at SEAL Labs cut the fork near the fracture area pursuant to a protocol that both parties had previously agreed upon. The cut surfaces were polished and the samples were then examined and photographed using a Hirox optical microscope.
On February 12, 2014, the Donats had the bike forks examined by Dr. Scott Beckwith using a scanning electron microscope ("SEM") at Brigham Young University. This testing was done without notice to, or the participation of, Trek.
On March 7, 2014, the Donats filed their designation of experts. See Docket No. 19. Plaintiffs' expert reports center on certain mistakes or problems that allegedly occurred during the manufacturing of the Trek forks on Mr. Donat's bike. Specifically, the Donats' experts allege that the fork on Mr. Donat's bike was defectively manufactured because the places where the half of the fork constituting the leading edge of the fork were joined to the half of the fork constituting the trailing edge of the fork by overlapping the material from the two halves of the fork were lopsided and not symmetrical-that is, one side where the two halves met is a longer (wider) overlap than the overlap on the other side where the two halves met. See Docket No. 19-2, pages 16-21, and figures 21-23.
The Donats' experts also rely on the fact that there were voids between the layers of carbon fiber-air pockets-indicating that the process of binding the layers together was allegedly defective. In addition, Dr. Beckwith asserts that there were layers of some unknown foreign material which were present between the carbon fiber and resin layers. The Donats' experts opine that these manufacturing defects created areas of inherent weakness in the bike fork that caused it to fail. See Docket Nos. 19-2, 19-3.
The Donats designated Scott Ganaja, a mechanical and manufacturing engineer, who based his opinions as to the alleged defects in the Trek bike forks on his physical examination of the entire bike as well as the Hirox examination of the bike forks which was done jointly in January. See Docket No. 19-2. The Donats also designated Dr. Scott Beckwith, an expert on composite materials with a PhD in Material/Interdisciplinary Engineering. Dr. Beckwith's expert opinion incorporated the results of the SEM testing. See Docket No. 19-3.
This layperson's perspective of the difference between the two examinations-the Hirox microscope and the SEM microscope-appears to be a difference in degree. The images from the Hirox microscope show the material from the cross-sections of the bike fork in grosser terms. See e.g. Docket No. 19-2, page 17, Figure 21. The images from the SEM are images of higher magnification, sometimes much, much higher, showing the actual material the fork was made of, including the character and shape of the material at the site of the fracture on the fork. See e.g. Docket No. 19-3, page 8, Figure 6; page 9, Figure 8; and page 17, Figures 20 and 21.
From the SEM images, Dr. Beckwith asserts that certain portions of the fork failed due to compression fracture because of certain physical appearances that are manifested at a particular location on the fracture site. He opines that other portions of the fork failed due to tension failure, again because of the physical appearance of the carbon fibers at this location. Id. at pages 15-21. These observations are key to Dr. Beckwith's conclusions about the sequence of events during Mr. Donat's accident and the cause of the fork failure on his Trek bike. Id . The differences in the physical appearance of the carbon fibers at different ...