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Bishop v. Goodyear Tire and Rubber Co.

United States District Court, D. South Dakota, Western Division

September 23, 2015



JEFFREY L. VIKEN, Chief District Judge.


Plaintiff Otto Bishop and State Farm Mutual Automobile Insurance Company ("Mr. Bishop") move the court for leave to supplement the designation of expert witnesses after the passage of the deadline to disclose expert witnesses. (Docket 44). Mr. Bishop also moves the court for an order granting his motion to compel discovery. (Docket 46). Defendants Goodyear Dunlop Tires North America, Ltd. and the Goodyear Tire and Rubber Company ("defendants") resist both motions. (Dockets 49 & 60).

This case arises out of a motorcycle accident on Interstate 90 in Jackson County, South Dakota, on August 1, 2010. (Docket 31 at p. 2). Mr. Bishop allegedly sustained injuries in the accident because of a failure in the rear tire which caused him to lose control of the motorcycle. Id . On July 22, 2013, Mr. Bishop filed a complaint against defendants asserting, in part, that the tire's defective condition directly and proximately caused him mental and physical injuries. (Docket 31 at p. 3). The court first considers Mr. Bishop's motion to compel discovery of information related to the allegedly defective tire (Docket 46) and, subsequently, Mr. Bishop's motion to supplement his designation of expert witness disclosures. (Docket 44).

I. Motion to Compel Discovery


The tire under debate is a Dunlop D402 MU85B16M/C Tire bearing DOT number DAF4M17M3107 with black sidewalls. (Dockets 46 at p. 5; 60 at p. 2). Mr. Bishop asserts the manufacturing defects of excess mold ring flash and non-fill in the bead area caused the tire to lose air pressure and triggered the crash. (Docket 31 at pp. 1-2). Mr. Bishop seeks an order compelling defendants to produce discovery related to the same Dunlop tire, only with white sidewalls. (Docket 46). Defendants resist Mr. Bishop's motion to the extent he requests additional testing data and design drawings for the tire in question. (Docket 60).


Mr. Bishop requests the testing data and design drawings for the Dunlop D402 MU85B16M/C white sidewall tires. Mr. Bishop asserts the information is relevant due to similarities between the white sidewall tire and the black sidewall tire. (Docket 46 at p. 6). Mr. Bishop further requests the deposition transcript of Ian Willetts, a prior corporate representative for Goodyear Dunlop Tires North America, Ltd., from an earlier case, along with four deposition exhibits. Id. at 1-4, 6-7. Defendants do not object to the distribution of Ian Willetts' deposition transcript and four exhibits. (Docket 60 at p. 1). The court grants Mr. Bishop's motion to compel with regard to the referenced transcript and four exhibits from Mr. Willetts' prior deposition.

Defendants object to Mr. Bishop's request for the testing data and design drawings of the white sidewall tires. Id . Defendants maintain because the white sidewall tire is not "built and cured" under the same specifications as the black sidewall tire, the data and drawings of the white sidewall tire are irrelevant to this case. (Docket 60 at pp. 5-6). Defendants assert the data from the internal testing Mr. Bishop requests determines neither "a tire's air sealing capability [n]or whether mold ring flash or non-fill could contribute to air loss." Id. at 6. Because Mr. Bishop's main argument contends the crash was caused by excess mold ring flash and non-fill in the bead area, the defendants assert it is not relevant to include it in discovery because the information does not concern either of the alleged defects. Id . Defendants argue "[s]imply because the [black and white sidewall] tires have the same load/speed index... does not make them substantially similar for purposes of this lawsuit." Id. at 4.

A. Scope of Discovery

The scope of discovery is broad under Fed.R.Civ.P. 26(b). See 8 Wright & Miller, Fed. Practice & Procedure ยง 2007 (3d ed.). "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C)." Fed R. Civ. P. 26(b)(1). If "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues, " then the court must limit discovery. Fed R. Civ. P. 26(b)(2)(C)(iii). District courts are given wide discretion when dealing with issues of discovery. See Cook v. Kartridg Pak Co., 840 F.2d 602, 604 (8th Cir. 1988).

While the United States Court of Appeals for the Eighth Circuit has not specifically addressed whether to allow discovery of two "substantially similar" tires, the court has dealt with comparable questions in analogous product defect cases. In Hofer v. Mack Trucks, Inc., the Eighth Circuit determined there was "no black letter rule of law regarding [product liability] discovery... other than to state that discovery of similar, if not identical, models is generally permitted." 981 F.2d 377, 380 (8th Cir. 1992). The Hofer court noted that "courts have undertaken a fact specific determination of the extent of the similarities or dissimilarities, and have inquired about the basis for the discovery request." Id .; see also Fine v. Facet Aerospace Products Co., 133 F.R.D. 439, 441 (S.D.N.Y. 1990) ("Generally, different models of a product will be relevant if they share with the accident-causing model those characteristics pertinent to the legal issues raised in the litigation.").

The United States District Court for the District of South Carolina addressed a similar situation. See Hartsock v. Goodyear Dunlop Tires N. Am. LTD, No. 2:13-cv-00419-PMD, 2013 WL 6919715, at *6 (D.S.C. Nov. 22, 2013), aff'd sub nom., Hartsock v. Goodyear Tire & Rubber Co., No. 2:13-cv-00419-PMD, 2014 WL 51237 (D.S.C. Jan. 7, 2014). In Hartsock, the defendant Goodyear Tire & Rubber Co., objected to allowing discovery information of ten tires with "different specifications, components, and... load capacities" than the subject tire. Id. at 6. The plaintiff argued one of his liability theories warranted demonstrating the tire's inner liner became overly thin during a faulty manufacturing process. Id. at 8. The court ruled for the plaintiff. Id . In reaching its decision, the court noted that discovery about similar tires is generally permitted and, at that point in the trial, the ten "other" tires were discoverable because the court had not yet been provided with information differentiating the specific inner liners of the tires. Id. at 6-8.

In light of the broad inclusion of similar tires in Hartsock, the Eighth Circuit's guidance in undertaking a fact specific determination, and Fed R. Civ. P. 26(b)(1) which states "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence, " the court finds the white sidewall tire testing data and design drawings are discoverable. The black and white sidewall tires, though not identical, are substantially similar. The tires have the same load/speed index, overall diameter, overall width, tread depth and maximum load. (Docket 48-3); see also Hofer, 981 F.2d at 380; Hartsock, 2013 WL 6919715, at *6-8.

The court notes defendants agreed Mr. Bishop may use a prior deposition transcript of Richard Scavuzzo, a non-retained expert witness of the defendants, in lieu of deposing him again. (Docket 64-2). Mr. Scavuzzo's prior deposition testimony dealt with the "Inflation Retention Test Results of Motorcycle Tire Test, " specifically MU85-16 narrow white sidewall tires. (Docket 64-3 at pp. 2, 4). Defendants' agreement is more than a tacit admission that there are at least some substantial similarities between the black and white sidewall tires as related to the alleged defects. If the differences between the two tires were profound, defendants ...

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