Summary
In Easyrest, the plaintiffs failed to introduce any evidence demonstrating that the product at issue failed to meet an industry standard and further stipulated that it would be impossible for testing to establish conclusively whether the product was defective.
Summary of this case from Irmscher v. SchulerOpinion
4:06-cv-2-SEB-WGH.
January 18, 2007
ORDER ON DEFENDANT FUTURE FOAM, INC.'S MOTION FOR SANCTIONS AND TO COMPEL
This matter is before the Honorable William G. Hussmann, Jr., United States Magistrate Judge, on Defendant Future Foam, Inc.'s Motion for Sanctions and to Compel filed November 27, 2006. (Docket Nos. 28-29). Plaintiff's Response to the motion was filed on December 11, 2006. (Docket No. 31). Defendant's Supplement to its motion and Reply Brief were filed on December 12, 2006. (Docket Nos. 33-34).
The Magistrate Judge, being duly advised, now GRANTS, in part, and DENIES, in part, the defendant's motion, as follows:
1. The motion to compel a more specific answer to Interrogatory No. 1 is DENIED. However, plaintiff will not be allowed to use other witnesses or documents in its case in chief at trial unless there is a formal supplementation to this interrogatory at the close of discovery.
2. The motion to compel is GRANTED as to Interrogatory Nos. 2 and 3.
3. As to Interrogatory Nos. 4 and 5, the motion is GRANTED, in part. To the extent that the plaintiff wishes to collect damages in addition to that detailed in the first three paragraphs of the email from Mark Strobel sent Sunday, August 7, 2005, at 9:41 p.m., on the subject of "Future Foam Defects," the plaintiff must state with specificity the manner in which it calculates the additional damages. In addition, plaintiff shall state with specificity which documents produced to date supply the underlying data for the damage calculations. The plaintiff may do so by describing the categories of documents used to support the damage allegations by reference to a Bates stamp number or some other more specific description of where these documents can be found among the items previously produced.
4. With respect to the request to compel further response to the document requests, the motion is GRANTED. Plaintiff is DIRECTED to tab or organize in some manner the documents previously produced so that it can be ascertained as to which categories of documents are responsive to the particular document requests ( e.g., "Bates Nos. 00150-00450 are responsive to Document Request No. 2"; or "Documents in Boxes A and C are responsive to Document Request No. 11.").
5. Because there is some uncertainty as to whether plaintiff served responses to requests for admission on August 15 or November 8, 2006, and because Request Nos. 1-4 go to the merits of this case and there is no showing of prejudice to the defendant based upon the delay in receiving the responses, the defendant's request that this court deem them admitted is DENIED.
6. With respect to the initial disclosures, plaintiff is DIRECTED to file initial disclosures as required by the rule, including a specification of damages, within ten (10) days of the date of receipt of this entry.
You are hereby notified that the District Judge may reconsider any pre-trial matter assigned to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A) where it is shown that the order is clearly erroneous or contrary to law.