Summary
declining to dismiss complaint upon concluding that the pleading adequately pled product defect, particularly given that the defendant was in a better position to understand the specific product failures that may have caused the accident
Summary of this case from In Re: Litigation, 05C-09-020-JRSOpinion
C.A. No. 98C-10-252-RRC.
Submitted: July 7, 1999.
Decided: September 28, 1999.
UPON PLAINTIFF'S SECOND MOTION TO COMPEL DISCOVERY. GRANTED
ORDER
THIS 28th day of September, 1999, upon review of the Plaintiffs motion to compel, it appears that:
(1) Plaintiff Aileen Murray alleged in her Complaint that Defendants negligently caused injury to her person when the filter in her pool exploded.
(2) Plaintiff filed a set of interrogatories with her Complaint on October 23, 1998, which became the subject of Plaintiffs Motion to Compel filed on February 8, 1999. The initial interrogatory question which Defendants found objectionable read as follows: "List by name and identifying court docket number all civil complaints that have been filed against any defendant alleging a filter-lid explosion incident similar to the allegations contained in the Complaint in this lawsuit." Despite Defendant's objections to what they deemed "vague" and "overbroad" interrogatories, this Court granted the Plaintiffs Motion to Compel Discovery on February 23, 1999.
(3) Defendant subsequently answered Plaintiffs interrogatory questions, according to Plaintiff, by "carving out" all cases which involved any filter components other than the filter lid. Plaintiff argues that Defendant should have provided all information regarding all cases lodged against defendant K2, Inc., Anthony and Sylvan Pools Corporation, Anthony and Sylvan Pools, Inc., and Essef Corporation (hereinafter referred to as "K2 Defendants") without differentiating as to those cases involving allegations of negligence relating to the clamping band, the valves, and any other filter component. Rather than impose upon this court with a second Motion to Compel, Plaintiff filed a second set of interrogatories which specifically requested cases involving the clamping band and the filter selector valves. Defendants have objected to the second set of interrogatories in their entirety. This Court is once again faced with a Motion to Compel filed by the Plaintiff.
(4) Defendant claims that it has filly complied with this Court's order on February 23, 1999. Defendant claims that because Plaintiff made no mention of clamping bands or valves in the Complaint or the first set of interrogatories, Defendant did not know such information was desired by Superior Court Civil Rule 26(b)(1). It is well-settled in Delaware case law that parties may "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . [and which is] reasonably calculated to lead to the discovery of admissible evidence." An objection based on the irrelevancy of information requested by an interrogatory should be sustained only if it appears that the information sought is not relevant or material to the subject matter of the case or would not possibly lead to admissible evidence. In the present case, the plaintiff is requesting information involving cases where filter components attached to Defendant's filter have exploded. This Court feels that such a request is appropriate under Rule 26(b)(1). While the information provided may not necessarily be admissible in the present case (but this Court makes no such ruling in this regard), the discoverable information may be reasonably calculated to provide other evidence which may be admissible. For this reason, this Court rejects Defendant's objections to the second set of interrogatories and orders that those be answered, as well. It should also be noted that Defendant's own literature, the Antho-pure Pool Care Guide, provides a picture of the filter system on page 16 of the guide. In this picture, defendants identify both the clamping ring and the selector valve handle, as well as a number of other components such as the pressure gauge, air relief valve, hose bib, and pump. It is the Court's impression that these components are vital to the operation of the filter and that it does not operate properly without such components in place. It is not a viable argument that Plaintiffs requests for information about cases involving filter explosions be limited to exclude any item which Defendant, itself, deems necessary to the proper functioning of the filter.
Continental Insurance Co. v. Ventresca Del. Super., C.A. No. 90C-JL-219, (Aug. 5, 1992), Herlihy, J. at 2 quoting Super. Ct. Civ. R. 26(b)(1).
Tolson v. Foraker Del. Super., 192 A.2d 919 (1963)
(5) Defendant also contends that Superior Court Rule 9(b) required that Plaintiff aver negligence with specificity and that Plaintiff has not done so. Defendant has not made the request, as is normally the case, that the Complaint be dismissed under Rule 9. This Court, however, is not inclined to accept such an argument nor dismiss Plaintiffs claim. Under Superior Court Civil Rule 8(c), an affirmative defense is waived unless pled in defendant's answer. While Defendant Clark did indeed plead an objection under Rule 9 in its answer on December 8, 1998, Defendant K2 has failed to do so. For this reason, the Court deems an objection based on Rule 9 waived with respect to the K2 Defendants.
See Cannelongo v. Fidelity Am. Small Bus. Inv. Co., Del. Supr., 540 A.2d 435 (1988).
Waiver notwithstanding, a Rule 9 objection still does not stand. Rule 9(b) was not meant to demand technical details from a Plaintiff, only enough information in the Complaint to put the defendant on notice as to the general nature of the Complaint and to afford the defendant an ability to prepare a defense. Plaintiff correctly asserts that the "extent of specificity required of any . . . complaint is viewed in light of the circumstances surrounding the litigation, including the complexity of the matter, the time span involved, and whether the details of the negligence are primarily in the control of the responding party. Less particularity is required "when the facts lie more in the knowledge of the defendant" than with the plaintiff. In the case at hand, Plaintiff is a consumer of a pool. The filter connected to that pool has injured her, whether through her own negligence, negligence of the installer, negligence of the manufacturer, or perhaps by some other act or person unforseen. Plaintiff seeks to discover information which may assist her in ascertaining specifically what element of that pool filter, if any, is responsible for her injuries. Defendant K2, by its own admission has been in the pool business for thirty years. Such experience, presumably puts a great deal of information in Defendant's possession, information which Plaintiff seeks to discover. This Court believes that the spirit of Rule 9 has been met by Plaintiffs averments and that no further specificity is required.
Rinaldi et. al v. Iomega Corp., Del. Super., C.A. No 98C-09-064, Cooch, 3. (September 3, 1999) (Mem. Op.) at 17 citing Sprout v. Ellenburg Cap. Corp., Del. Super., C.A. No. 95C-05-025, slip op. at 17, Graves, J. (Aug. 26, 1997); see also Stitt v. Lyon, Del. Super., 103 A.2d 332, 334 (1954).
Stuchen v. Duty Free Int'l, Inc., Del. Super., C.A. No. 94C-12-194, Toliver, J. (Nov. 11, 1996) (ORDER).
Rinaldi at 17-18, citing Phillips v. Delaware Power Light Co., Del. Super., 194 A.2d 690 (1963) at 697.
For the forgoing reasons, Plaintiffs Motion to Compel Discovery is granted. It is hereby ordered that within fourteen days of the date of this Order (unless the parties should mutually agree to a later date) the K2 defendants, Anthony and Sylvan Pools Corporation, and Essef Corporation shall provide to Plaintiff full and complete responses to 1) Plaintiffs First Set of Interrogatories (Nos. 1-6), in accordance with Superior Court Rule of Civil Procedure 33; and 2) Plaintiff's Second Set of Interrogatories (Nos. 1-7), in accordance with Superior Court Rule of Civil Procedure 33. In making their responses, defendants shall not exclude any prior complaint alleging that a filter lid explosion caused injury to the plaintiff.
IT IS SO ORDERED.