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Electric Insurance Company, As Subrogee of John M. Dineen v. Brasscraft Manufacturing Company

May 2, 2012


The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge


In this subrogation action, which involves a products-liability claim based on a design defect, defendant BrassCraft Manufacturing Company ("BrassCraft") moves to compel co-defendant LSP Products Group, Inc. ("LSP") to produce certain exemplar parts for testing. LSP objects. For the reasons that follow, BrassCraft's motion to compel is granted in part and denied in part.


This case arises from losses sustained by plaintiff's subrogor, John Dineen, when a compression coupling fitting that was part of a water line leading to a bathroom faucet in Dineen's house failed, causing substantial water damage. The fitting that failed was manufactured by BrassCraft. BrassCraft, in turn, alleges that its fitting failed as a result of, among other things, design defects in two other parts to which its fitting was connected. Those parts, a nut and an insert fitting, were components of a flexible water supply line, part number UO2522-J2Z7, that was manufactured by LSP and incorporated into the Kohler faucet that Lakeside Plumbing & Heating installed in Dineen's bathroom. BrassCraft has asked LSP to produce 100 nuts and 100 insert fittings for testing. LSP has declined to do so, arguing that it no longer manufactures the UO2522-J2Z7 and, as a consequence, has no access to either the nuts or the insert fittings BrassCraft requested. Moreover, it says that the only nuts and insert fittings to which it does have access are significantly different from the parts at issue, which exempts them from discovery.

The Relevant Law

In a recent order on which both parties rely, Judge Laplante wrote:

As the defendants point out, "the party seeking information in discovery over an adversary's objection has the burden of showing its relevance." Caouette v. OfficeMax, Inc., 352 F. Supp. 2d 134, 136 (D.N.H. 2005) (citing cases).

This burden, however, should not be overstated. As the court of appeals has instructed, "district courts are to interpret liberally the discovery provisions of the Federal Rules [of] Civil Procedure to encourage the free flow of information among litigants." Heidelberg Ams., Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003). This philosophy extends to the relevance standard of Rule 26(b)(1), which "[m]ost courts [to] have addressed the issue find . . . is extremely broad." 8 Charles Alan Wright et al., Federal Practice and Procedure § 2008, at 133 (3d ed. 2010).

This liberal approach extends to products liability cases like this one. As one treatise notes, "[c]courts routinely permit discovery of similar, if not identical models in products liability litigation, provided they share with the accident-causing model at least some characteristics pertinent to the legal issues in the litigation," as well as "[i]nformation regarding whether other purchasers or users experienced similar problems with the product." 3 Louis R. Frumer & Melvin I. Friedman, Products Liability § 17 .01[1][c][I], at 17--6 (rev. ed. 2001 & 2011 supp.) (footnotes omitted).

West v. Bell Helicopter Textron, Inc., No. 10-cv-214-JL, 2011 WL 6371791, at *2 (D.N.H. Dec. 20, 2011). In another opinion on which both parties rely, Judge Duffy further explained:

Although there is "no black letter rule of law regarding discovery of [other] models in products liability cases . . . discovery of similar, if not identical, models is generally permitted." Hofer v. Mack Trucks, Inc., 981 F.2d 377, 381 (8th Cir. 1992). Courts generally undertake a "fact specific determination of the extent of the similarities and dissimilarities" of claimed similar vehicle models to determine if discovery of a model other than that involved in an accident in litigation should be allowed under Rule 26. Id. at 381. "[D]ifferent 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." Fine v. Facet Aerospace Prods. Co., 133 F.R.D. 439, 441 (S.D.N.Y. 1990). The models must share "pertinent characteristics" as they relate to the accident at issue. Hofer, 981 F.2d at 381. What is required is a specific factual showing of substantial similarity. Conclusory statements of alleged similarity are not enough. See Piacenti v. Gen. Motors Corp., 173 F.R.D. 221, 225 (N.D. Ill. 1997).

Gibson v. Ford Motor Co., 510 F. Supp. 2d 1116, 1120 (N.D. Ga. 2007).

The Nut

LSP contends that: (1) BrassCraft's request for 100 nuts is excessive; (2) the nut it currently uses, which is the only one to which it has access, is not manufactured by the same supplier that manufactured the nut it incorporated into the UO2522-J2Z7. To demonstrate the dissimilarity between the old nut and the new one, LSP offers the affidavit of its Director of Engineering, Marshall Henningsen, who states: LSP still uses the Nut in the manufacture of some of its hoses. LSP does not manufacture the Nut, but purchases it from two suppliers. The two suppliers LSP uses now are different from the two suppliers it used when the [UO2522-J2Z7] was manufactured. The suppliers LSP used at the time the [UO2522-J2Z7] was manufactured were located in the U.S. Today's suppliers are in China. I do not know whether the suppliers LSP currently uses manufacture the [N]ut in the same manner in which the Nut was manufactured. ...

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