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Gilliland v. Harley-Davidson Motor Company Group, LLC

United States District Court, District of Nebraska

April 14, 2015



Thomas D. Thalken United States Magistrate Judge

This matter is before the court on the plaintiffs’ Motion to Amend to Request an Award of Punitive Damages (Filing No. 143). The defendant filed a brief (Filing No. 147) and index of evidence (Filing No. 148) in response. The plaintiffs filed a brief (Filing No. 162) in reply.


This case arises out of injuries Terrence Gilliland (Gilliland) and Luis Gallegos sustained as a result of a single vehicle motorcycle accident on April 22, 2010, in Mills County, Iowa. At the time of the accident, Gilliland was operating a 2007 Harley-Davidson VRSCAW V-Rod motorcycle (the motorcycle). Gallegos was a passenger. Neither Gilliland nor Gallegos can recall, or knew at the time, what caused the accident. The plaintiffs claim the accident occurred because the center post of the motorcycle’s triple-tree assembly came apart, causing the crash.

The plaintiffs initially filed their complaint against the defendant in the District Court of Douglas County, Nebraska, on December 13, 2010, alleging theories of negligent manufacturing, negligent failure to warn, negligent inspection/testing, negligent training, and strict liability, with respect to the motorcycle. The case was subsequently dismissed, without prejudice, on June 7, 2012, for lack of prosecution. On October 12, 2012, the plaintiffs filed a second complaint against the defendant in the District Court of Dodge County, Nebraska, alleging similar claims. The defendant removed the action to this court on October 30, 2012. See Filing No. 1 - Notice of Removal.

As relevant to the instant motion, in the court’s initial progression order, the court set April 1, 2013, as the deadline for the plaintiffs to amend the pleadings. See Filing No. 10. Following a telephone planning conference on June 14, 2013, the court entered a final progression order. See Filing No. 18. As is common, because the deadline to amend the pleadings passed, and no party sought an extension, the court did not renew the deadline for the plaintiffs to amend the pleadings in the final progression order. Thereafter, this case progressed in accordance with the court’s progression orders.

On October 10, 2013, the defendant deposed the plaintiffs’ expert, Chris Hoffman. See Filing No. 55 - Ex. D Hoffman Depo. During the deposition, Mr. Hoffman referenced Service Bulletin 1215 and 1215A. Id. p. 17-18. On November 15, 2013, the plaintiffs served a request for production of Service Bulletin 1215B. See Filing No. 29; Filing No. 50 - Howard Aff. ¶ 4 and Ex. A. The defendant produced Service Bulletin M-1215 on December 16, 2013. See Filing No. 50 - Ex. A.[1] According to the defendant, Service Bulletin M-1215 “was not generated to address any safety issue or concern with the 2007 Harley-Davidson VRSC model motorcycles (or any other model motorcycle covered by the service bulletin).” See Filing No. 55 - Ex. A Hejlik Aff. ¶ 8. Instead, the defendant generated Service Bulletin M-1215 in response to customer complaints about

a “clunking” noise in the front end of certain Dyna, Softail and VRSC platform motorcycles, which was determined to arise from a loss of clamp load on the steering head joint or a “looseness” that typically manifested itself in a “clunking” noise when riding over a significant road imperfection and/or when the motorcycle’s front brakes were applied.

Id. The defendants generated Service Bulletin M-1215A “to correct a part number applicable to Dyna and Softail platforms” and Service Bulletin M-1215B “to clarify that model year 2008 VRSC and FX Springer Softail model motorcycles were not within the scope of the bulletin.” Id. ¶ 9.

Subsequent to the disclosure of Service Bulletin M-1215, the plaintiffs sought an extension of various case progression deadlines. Following a contentious debate concerning the scheduling of matters in this case, the court[2] held a hearing on March 12, 2014, to discuss the parties’ motions and objections. See Filing No. 76 - Text Minute Entry. The court determined a six-month extension of the progression deadlines was warranted due to then-recent discovery disclosures. See Filing No. 77 - Order. The court entered an amended final progression order and then a second amended final progression order upon motion of the parties. See Filing No. 78 - Amended Final Progression Order; Filing No. 80 - Joint Motion to Extend the Case Deadlines; Filing No. 82 - Second Amended Final Progression Order. The plaintiffs did not request to renew the deadline to amend the pleadings in any of their motions. See Filings No. 27, 49, 64, 66, and 80. As such, the court did not renew the deadline for the plaintiffs to amend the pleadings. Further, the court stated in its final progression order and amended orders that any “[m]otions to alter dates . . . shall not be considered in the absence of a showing by counsel of due diligence in the timely development of this case for trial and the recent development of circumstances, unanticipated prior to the filing of the motion, which require that additional time be allowed.” See Filing No. 82 - Second Amended Final Progression Order.

On January 13, 2015, following the court’s ruling on evidentiary motions and the defendant’s summary judgment motion, the court entered an order rescheduling the final pretrial conference for March 20, 2015, and trial for April 21, 2015. See Filing No. 124 - Amended Order. On March 19, 2015, the day prior to the final pretrial conference and a month before trial, the plaintiffs moved to amend their complaint to add a claim for punitive damages. See Filing No. 143 - Motion. After the final pretrial conference, on the court’s own motion, trial was rescheduled for November 17, 2015. See Filing No. 146 - Text Order.

In the motion to amend, the plaintiffs seek leave to amend the complaint to add a request under Iowa Code § 668A.1 for punitive damages. See Filing No. 143 - Motion. The plaintiffs propose to add the following claim: “Defendant willfully disregarded a known or obvious risk that was so great to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences under Iowa Code § 668A.1.” See Filing No. 143-1 - Proposed Amended Complaint ¶ 54. The plaintiffs state “[s]ignificant additional discovery took place following the Court’s [March 17, 2014, ] Order (Filing No. 77) allowing additional discovery into Service Bulletin M-1215.” See Filing No. 143 - Motion ¶ 2. The plaintiffs argue evidence at trial will include sufficient proof of punitive damages under Iowa Code § 668A.1. Id. ¶¶ 3-4. The plaintiffs also argue allowing a jury instruction on punitive damages will not change the evidence or testimony at trial, thus there is no surprise to the defendant. Id. ¶¶ 3-4.

In response, the defendant argues the plaintiffs’ motion, which, before the court continued the trial date, was an eleventh-hour motion, should be denied because the plaintiffs have failed to show good cause for the amendment and the amendment is futile. See Filing No. 147 - Response. The defendant argues the court’s most recent progression order, which the plaintiffs reference, does not include a deadline to amend the pleadings because such deadline expired almost two years ago. Id. at 4-6. The defendant asserts the referenced Service Bulletin M-1215 does not excuse the plaintiffs’ delay. Id. The defendant argues the plaintiffs knew of Service Bulletin M-1215 since late 2013 and discovery involving Service Bulletin M-1215 ended around April 25, 2014, when plaintiffs’ counsel deposed the defendant’s engineer, Korry Vorndran. Id. The defendant further contends the plaintiffs’ allegation “significant additional discovery” followed after the court’s March 2014 Order blatantly ignores the fact Service Bulletin M-1215 had almost no effect on the plaintiffs’ expert’s revised report. Id. Lastly, the defendant argues the amendment is futile because the claim for punitive damages is not sufficiently alleged and it lacks evidentiary support. Id. at 6-8.

In reply, the plaintiffs contend, with trial scheduled for November 17, 2015, there is no disruption of the trial schedule or unfair prejudice caused by granting the motion. See Filing No. 162 - Reply. The plaintiffs argue their amendment is not frivolous because “[t]he avalanche of new evidence in the form of customer contacts, engineering analysis, and the complete redesign of the triple tree assembly and development of the critical Service Bulletins support a finding that Defendant knew, with a high degree of certainty, that its aluminum on steel triple tree assembly was destined to result in a motorcycle accident with the catastrophic results found ...

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