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Landi v. Home Depot USA, Inc.

United States District Court, M.D. Florida, Fort Myers Division

July 17, 2018

JOHN LANDI and LORI LANDI, Plaintiffs,
v.
HOME DEPOT USA, INC. and MAKITA USA, INC., Defendants.

          ORDER

          MAC R. McCOY, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Defendants' Motion to Determine Protocol to Disassemble the Subject Miter Saw, filed on February 8, 2018. (Doc. 26). Plaintiffs filed a Response opposing the saw's disassembly on March 14, 2018. (Doc. 32). Defendants filed a Reply to Plaintiffs' Response on April 11, 2018. (Doc. 36). This matter is ripe for review.

         I. Background

         Plaintiffs originally brought this action in state court, but Defendants removed it to federal court on December 19, 2017. (Doc. 1). Plaintiffs' Amended Complaint seeks damages for alleged injuries resulting from a miter saw severing Plaintiff John Landi's arm. (Doc. 2 at ¶¶ 1, 17). Plaintiffs allege that Defendant Makita USA, Inc. designed and manufactured the saw and that Defendant Home Depot USA, Inc. marketed, advertised, distributed, and sold the saw. (Id. at 2). Plaintiffs allege that the saw blade contained manufacturing and design defects that caused it not to function as safely as expected. (Id. at 4). Plaintiffs allege that the saw's defects are the direct and proximate causes of John's alleged injury. (Id. at 4-5, 10-11).

         Defendants contest Plaintiffs' allegations and assert various defenses. (Doc. 6 at 11-12; Doc. 7 at 11-12). In pertinent part, Defendants assert affirmative defenses that the alleged injury and loss resulted from misuse of the saw and/or that the saw was substantially changed after it left Defendants' control. (Doc. 6 at 12; Doc. 7 at 11-12).

         In support of these defenses, Defendants contend that disassembly of the subject saw should be permitted. (Doc. 26 at 2-3). Defendants argue that such testing is necessary “to inspect areas that cannot be seen while the saw is fully assembled by the naked eye and to document the inner components of the subject saw.” (Id. at 3).

         In support of this argument, Defendants note that in addition to the saw blade, “which is designed to retract and cover the blade as the blade is raised, ” the subject saw also has an adjustable laser beam. (Id. at 2). When properly aligned, Defendants state that the laser beam creates a line where the blade will cut the material to assist with accuracy. (Id.). When Defendants previously performed a non-destructive inspection of the saw's exterior, however, Defendants noted that (1) the blade guard appeared to be obstructed, (2) a new blade was on the saw, (3) white debris covered portions of saw, and (4) the laser beam appeared to be out of position. (Id. at 2-3). As a result of these findings, Defendants contend that additional testing is needed. (See id.).

         For their part, Plaintiffs oppose the testing proposed by Defendants. (See Doc. 32 at 1). Indeed, Plaintiffs seek an Order preserving the saw in its current condition. (Id.).

         The parties' disagreements regarding the need for disassembly first arose in state court prior to removal. (See Doc. 32 at 2; see also Doc. 32-2). There, the court granted Defendants' Motion to Preserve Evidence. (See id.). In pertinent part, the state court order provided that the saw would be maintained in as close to the current condition as possible and laid out basic guidelines for inspections and testing. (Doc. 32-2). Additionally, however, the state court allowed a hand-written modification to the order based on Plaintiffs' insistence, which modification states that the order “shall not be interpreted to be an agreement to allow for disassembly but shall not bar it.” (Doc. 32 at 2 (quoting Doc. 32-2 at 2)).

         After the case was removed to federal court, the parties completed a joint Case Management Report. (Doc. 24). In the Case Management Report, the parties stipulated that the state court order would be maintained. (Id. at 9). Nevertheless, the parties also stipulated that some disassembly is necessary to document and inspect the parts of the saw that are not visible. (Id.). Specifically, the parties stipulated:

The parties agree that each party shall have an equal access to inspect and conduct nondestructive testing of the subject saw, and that no party will be charged an access fee in order to inspect the saw. The parties will continue to abide by the Order Preserving Evidence entered by the state court judge on September 26, 2017.
The parties agree that the subject saw needs to be disassembled to some degree to inspect and document the parts that are not visible. The parties will endeavor to agree to a protocol governing the disassembly procedure. The parties agree that all parties will be present during any disassemble or destructive testing of the subject saw unless otherwise agreed to or waived in writing by a party. If the parties reach an impasse in determining a protocol then either party may bring a motion before the Court to determine an appropriate protocol to disassemble the saw.

(Doc. 24 at 9).

         Consistent with the parties' stipulation, Defendants sent Plaintiffs' counsel a proposed protocol. (Doc. 26 at 4). To this point, however, Plaintiffs have not agreed to Defendants' proposed protocol. (Id.). This prompted the current Motion by which Defendants request that the Court enter an Order determining a protocol for disassembly of the subject saw. (Id. at 1).

         II. Legal Standards

         In reviewing Defendants' request, the Court notes that Fed. R. of Civ. P. 26(b)(1) permits parties to obtain discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Additionally, Fed. R. of Civ. P. 34(a)(1)(B) permits the testing of any “tangible things” within the scope of Rule 26(b). In the instant Motion, however, Defendants seek to conduct testing that requires disassembly of the subject miter saw. (See Doc. 26 at 3; see also Doc. 26-1). One potential side effect of such testing is that the saw may be irreversibly altered. (See id.). Consequently, the proposed testing may constitute “destructive testing.” See Mirchandani v. Home Depot, U.S.A., Inc., 235 F.R.D. 611, 612 (D. Md. 2006).

         Destructive testing occurs when the testing will “irreversibly alter” a piece of evidence. Id. Even so, destructive testing falls under the scope of Rule 34. See, e.g., Jeld-Wen, Inc. v. Nebula Glasslam Int'l, Inc., 249 F.R.D. 390, 392 (S.D. Fla. 2008); see also Mirchandani, 235 F.R.D. at 613. As with all discovery matters, district courts have wide discretion in ruling on discovery motions. See Harris v. Chapman, 97 F.3d 499, 506 (11th Cir. 1996); see also Dabney v. Montgomery Ward & Co., Inc., 761 F.2d 494, 498 (8th Cir. 1985) (holding that the decision to permit destructive testing lies solely in the court's discretion).

         The parties do not cite, and the Court has not found, any controlling authority on the issue of destructive testing by or within the Eleventh Circuit. Nonetheless, Defendants cite to an illustrative case from the United States District Court for the District of Maryland, Mirchandani v. Home Depot, U.S.A., Inc. (Doc. 26 at 5).

         In Mirchandani, the court granted the plaintiffs' motion to conduct inspection and testing, holding that destructive testing should be permitted so as to allow the plaintiffs to substantiate their claim. Mirchandani, 235 F.R.D. at 617. There, the plaintiffs sought damages arising from an allegedly defective ladder after it collapsed while one plaintiff was climbing on it. Id. at 612. According to the plaintiffs, the defect was due to the composition of the ladder's locking bolts, which allegedly allowed the ladder to move from the locked to unlocked position. Id. To support their argument, the plaintiffs moved to conduct “destructive testing” that would “irreversibly alter” the bolt. Id. Upon completing the tests, the ladder was to be reassembled using a new bolt. Id. at 616. The defendants opposed the testing because they intended to present the ladder as evidence to the jury at trial in the same condition it was at the time of the accident. See id.

         In deciding this issue, the court laid out four factors to balance the importance of preserving evidence against permitting the tests. Id. The factors included:

(1) [w]hether the proposed testing is reasonable, necessary, and relevant to proving the movant's case; (2) [w]hether the non-movant's ability to present evidence at trial will be hindered, or whether the non-movant will be prejudiced in some other way; (3) [w]hether there are any less prejudicial alternative methods of obtaining the evidence sought; and (4) [w]hether there are adequate safeguards to minimize prejudice to the non-movant, particularly the non-movant's ability to present evidence at trial.

Id. at 614 (citing Cameron v. District Court In & For First Judicial Dist., 565 P.2d 925 (Colo. 1977)). Ultimately, the court held that the factors weighed in favor of the plaintiffs' need to substantiate their claim. Id. at 617. The court, therefore, permitted the destructive testing. Id.

         Although the Court has not found any controlling authority, trial courts within the Eleventh Circuit have previously found Mirchandani persuasive. See Penny v. AT&T Corp., No. 6:15-CV-557-ORL-31KRS, 2015 WL 12859342, at *3 n.2 (M.D. Fla. Aug. 19, 2015) (citing Mirchandani, 235 F.R.D. at 614-17); see also Campbell v. Pirelli Tire, LLC, No. 12-21153-CV, 2013 WL 12092518 (S.D. Fla. Feb. 1, 2013) (citing Mirchandani, 235 F.R.D. at 612). In Campbell v. Pirelli Tire, LLC, for instance, the United States District Court for the Southern District of Florida followed Mirchandani in denying the plaintiffs' motion seeking to conduct destructive testing. Campbell, 2013 WL 12092518, at *2-3. Similarly, in Pe ...


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