United States District Court, D. Nebraska
JULIE KEASCHALL, AND Personal Representative of the Estate of Kurtis Keaschall, deceased; and DAWSON PUBLIC POWER DISTRICT, Plaintiffs,
ALTEC INDUSTRIES, INC., AND OSBORNE INDUSTRIES, INC., Defendants.
MEMORANDUM AND ORDER
Cheryl R. Zwart United States Magistrate Judge
This matter is before the court on Defendants’ motions to compel. (Filing No. 51; Filing No. 58). Defendants request an order allowing their experts to inspect and perform destructive testing on the aerial lift platform at issue in this case. Plaintiffs do not object to inspection and testing, but they do object to the sample size the defense experts intend to extract to perform their inspections and testing. For the reasons stated below, the motions to compel will be granted.
Defendant Osborne Industries, Inc. (“Osborne”) manufactures and sells insulated boom buckets for use on aerial power equipment. Defendant Altec Industries, Inc. (“Altec”) incorporates the buckets into power equipment that is then sold. Around 2005, Osborne sold an insulated boom bucket to Altec. Altec assembled the insulated bucket on an aerial boom truck and sold the truck to Plaintiff, Dawson Public Power District (“DPPD”). On June 6, 2012, Kurtis Keaschall was operating the aerial boom truck during his employment with DPPD when the insulated boom bucket separated from the truck and dropped to the ground, injuring Kurtis and causing his death.
Julie Keaschall, personal representative of the estate of Kurtis Keaschall, and Dawson Public Power District (“DPPD”), filed this lawsuit alleging claims of negligence, breach of warranty, and strict products liability against Defendants. Plaintiffs’ products liability claim alleges the insulated boom bucket and its component parts were defective. The material strength and composition of the aerial lift bucket is a material issue in this case.
The aerial lift and insulated boom bucket are in the possession and control of DPPD. At this point, each party has performed a visual examination of the bucket and have taken a numerous photographs of the bucket and its fracture points. Plaintiffs’ expert has completed an expert report. As early as July of 2015, the parties discussed Osborne’s desire and specific proposed protocol for destructive testing on portions of the bucket. But they have been unable to agree upon the testing to be done. Plaintiffs have performed no destructive testing on the bucket.
Defendants request access to the bucket to complete their own material strength analyses and chemical composition testing to prepare their expert reports. Specifically, both Defendants seek to complete destructive testing and an examination with a stereomicroscope and a scanning electron microscope of three areas of the break in the insulated bucket. In order to complete their proposed testing, Osborne requests certain samples be removed from the bucket’s fracture points. The approximate size of each sample sought is:
• Sample A - 6”x4”x3”
• Sample B - 3”x3”
• Sample C - 1.5”x2”
of those samples, only a fingernail size of each is required for destructive testing. Defendants state they will return the remaining portions of the samples to the Plaintiff after examination.
Plaintiffs object to the removal of these samples arguing only a fingernail-sized portion should be taken for destructive testing and allowing any more would amount to destroying evidence.
The scope of permissible discovery is extremely broad and parties may obtain “discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense including the existence, description, nature, custody, condition, and location of any documents . . . .” Fed.R.Civ.P. 26(b)(1). “A request for discovery should be considered relevant if there is any possibility that the information sought may be relevant ...