EXHIBIT 7

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Bennett v. Segway, Inc., Not Reported in F.Supp.2d (2011)

2011 WL 4965179

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2011 WL 4965179

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United States District Court, W.D. North Carolina,

Asheville Division.

May K. BENNETT, Plaintiff,

v.

SEGWAY, INC. and Electric

Avenue, Inc., Defendants.

No. 1:11cv09.

|

Oct. 19, 2011.

Attorneys and Law Firms

Michael W. Patrick, Law Office of Michael W. Patrick,

Chapel Hill, NC, for Plaintiff.

Alex John Hagan, Paul K. Sun, Jr., Ellis & Winters, LLP,

Raleigh, NC, Jeremy Michael Falcone, Ellis & Winters,

LLP, Cary, NC, J. Donald Cowan, Jr., Ellis & Winters LLP,

Greensboro, NC, Gloria T. Becker, Batten Lee, Cary, NC, for

Defendants.

ORDER

DENNIS HOWELL, United States Magistrate Judge.

*1 Pending before the Court is the Plaintiff's Motion

to Compel [# 35]. Plaintiff brought this action against

Defendants asserting claims for negligence and breach of

implied warranty of fitness and merchantability. Plaintiff

now moves to compel Defendant Segway, Inc. (“Defendant”)

to produce documents responsive to her First Request for

Production of Documents. The Court GRANTS the motion

[# 35].

I. Background

Plaintiff brought this action against Defendants after she was

thrown off the first generation Segway XT she was operating

at the North Carolina Arboretum. Plaintiff contends that she

was operating the Segway in accordance with the instructions

she received at the Arboretum when “the device suddenly

stopped and, without warning, threw [her] off the machine,

causing her to strike her leg and hip and body against the

pathway.” (Pl.'s Compl. ¶ 6.) She further alleges that she

fractured her hip and leg in the fall. (Id.) Plaintiff contends

that the Segway she was operating was defectively designed

and brought this action asserting claims for negligence and

breach of implied warranty of fitness and merchantability.

After bringing this action, Plaintiff served Defendant with her

First Requests for Production of Documents. Request No. 57

requested Defendant to produce:

All deposition transcripts and copies

of trial testimony for Gerald Rigdon,

David Robinson, John Morrell, Mike

Gansler, Douglas Field, Jane Davison,

and Dean Kamen that relate to any

personal injury action.

(Pl.'s First Request for Production of Documents (Pl.'s

Request”) at p. 20.) Defendant offered several objections

to this request, including that most, if not all, of the

requested deposition transcripts are subject to Confidentiality

Agreements and Protective Orders from other cases. (Def.'s

Resp. to Pl.'s First Request for Production of Documents

(“Def.'s Resp.”) at p. 57.)

In Request No. 2, Plaintiff requested that Defendant produce:

All documents which relate to

or concern, in any manner any

complaints, claims, or accident or

incident reports regarding any accident

to or injury suffered by any

person while using any Segway

manufactured, produced, or sold

by you regardless of place where

the system was used. This request

includes, but is not limited to those

incidents listed in Exhibit A hereto.

(Pl.'s Request at p. 3.) Defendant offered a number of

objections to this requests. (Def.'s Resp. at p. 2.)

Plaintiff's Request No. 11 sought the production of:

Any and all incident reports or

accident reports, lawsuit complaint,

or any other report, memoranda,

notation, or study concerning or

regarding any injuries which involve

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2011 WL 4965179

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in any way any Segway regardless

of where located or installed. This

request includes but is not limited to

those incidents listed in Exhibit A

hereto.

(Pl.'s Request. at pp. 5–6.) Again, Defendant objected to this

request on several grounds. (Def.'s Resp. at p. 5.) Defendant,

however, agreed to produce limited documents responsive to

the request upon the entry of a protective order by the Court.

(Id. at p. 4–5.)

*2 After a series of discussions between the parties over

these three requests and the limited documents produced

by Defendant in response to the requests, Plaintiff filed a

motion to compel the production of all responsive documents.

Plaintiff's motion is now properly before the Court.

II. Legal Standard

Generally speaking, parties are entitled to discovery regarding

any non-privileged matter that is relevant to any claim

or defense. Fed.R.Civ.P. 26(b)(1). “Relevant information

need not be admissible at the trial if the discovery appears

reasonably calculated to lead to the discovery of admissible

evidence.” Id. Where a party fails to respond to an

interrogatory or a request for production of documents, the

party seeking discovery may move for an order compelling an

answer to the interrogatories or the production of documents

responsive to the request. Fed.R.Civ.P. 37(a)(3)(B). “Over

the course of more than four decades, district judges and

magistrate judges in the Fourth Circuit ... have repeatedly

ruled that the party or person resisting discovery, not the

party moving to compel discovery, bears the burden of

persuasion .” Kinetic Concepts, Inc. v. ConvaTec Inc.,

268 F.R.D. 226, 243 (M.D.N.C.2010) (collecting cases);

Mainstreet Collection, Inc. v. Kirkland's, Inc., 270 F.R.D

238, 241 (E.D.N.C.2010); Billips v. Benco Steel, Inc., No.

5:10cv95, 2011 WL 4005933 (W.D.N.C. Sept. 8, 2011)

(Keesler, Mag. J.).

III. Analysis

Plaintiff moves to compel Defendant Segway to produce

two categories of documents. First, Plaintiff moves to

compel the production of all trial and deposition transcripts

of the individuals specified in Request No. 57. Second,

Plaintiff moves to compel Defendant to produce copies of all

documents related to prior complaint of accidents involving

a Segway received by Defendant, as well as the documents

related to the investigation of these claims.

A. Documents Related to Prior Accidents Involving a

Segway

Plaintiff moves to compel Defendant Segway to produce

all documents related to prior complaints of incidents

or accidents involving a Segway. Defendant, however,

contends that these documents are not relevant because the

prior accidents and incidents at issue did not occur under

substantially similar conditions.

As a threshold matter, Defendant misstates the applicable

standard for determining whether the documents at issue

are subject to discovery. The cases from this Circuit

cited by Defendant address whether to admit evidence of

other accidents at trial, not whether the documents are

relevant for purposes of discovery. See e.g., Benedi v.

McNeil–P.P.C., Inc., 66 F.3d 1378, 1386 (4th Cir.1995);

Mirchandani v. Home Depot USA, Inc., 470 F.Supp.2d

579, 583 (D.Md.2007); Buckman v. Bombardier Corp., 893

F.Supp. 547, 552 (E.D.N.C.1995).

1

 As the district court

explained in Buckman:

1 Defendant also cites the unpublished case Pugh v.

Louisville Ladder, Inc., 361 F. App'x 448, 450 (4th

Cir.2010), for the proposition that Plaintiff must set forth

the similarity between the various models of Segways

prior to allowing discovery. The quoted portion of this

case, however, is from the Fourth Circuit's summary of

the ruling of the district court regarding the testimony

of the plaintiff's expert witness. Pugh, 361 F. App'x at

450. Aside from the fact that the district court's ruling

addressed the scope of the testimony of an expert, not

discovery, the Fourth Circuit did not even address this

issue on appeal because plaintiff did not appeal the

district court's ruling to limit the testimony of his experts.

Id. at 451. The Court will give Defendant the benefit

of the doubt regarding this citation and assume that

Defendant was not attempting to mislead the Court.

Going forward, however, the Court will strike any

pleadings by Defendant that contain such inaccurate or

misleading citations.

Evidence of other accidents is highly prejudicial.

Therefore, it is well settled that, before evidence of other

accidents can be admitted into evidence, plaintiff must

present a factual foundation for the court to determine

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that the other accidents were “substantially similar” to the

accident at issue.

*3 893 F.Supp. at 552. Thus, because of the highly

prejudicial nature of evidence of other accidents, a plaintiff

seeking to introduce this evidence at trial must show that

the other accidents are substantially similar to the accident

that caused the plaintiff's injury. Id.

The same concerns regarding the prejudicial nature of the

evidence, however, is not present during discovery. Instead,

the question is whether the evidence of other accidents is

relevant to Plaintiff's claims. Fed.R.Civ.P. 26(b)(1). It does

not matter that the evidence may not ultimately be admissible

at trial, provided that the “the discovery appears reasonably

calculated to lead to the discovery of admissible evidence.”

Id.

Documents related to prior complaints of incidents or

accidents involving a Segway, as well as documents related

to Defendant's investigation of these complaints is relevant

to Plaintiff's claim that the Segway she was operating when

the accident occurred was defectively designed. Moreover,

Defendant may not limit discovery to complaints involving

the Segway XT Generation 1 vehicle. 2 Finally, Defendant

has not shown that the production of the documents at issue

would be unduly burdensome or expensive. See Fed.R.Civ.P.

26(b)(C)(iii). Accordingly, the Court GRANTS the Motion

to Compel as to Requests No. 2 & 11.

2 Again, Defendant relies on cases addressing whether

such evidence is admissible at trial, not whether it is

relevant for purposes of discovery. See e.g., Lovett v.

Union Pac. R.R. Co., 201 F.3d 1074 (8th Cir.2000)

(holding that district court did not abuse it discretion

by excluding evidence of similar incidents at trial);

Rodriguez v. Crown Equip. Corp., 923 F.2d 416 (5th

Cir.1991) (finding that the record contained no proof

that the accidents were substantially similar and, thus,

issue of whether or not district court erred in excluding

evidence was not preserved for appeal); Bado–Santana

v. Ford Motor Co., 482 F.Supp.2d 197 (D.P.R.2007).

B. The Deposition and Trial Transcripts

Plaintiff also seeks copies of all deposition transcripts

and copies of trial testimony for specified employees

of Defendant Segway, relating to any personal injury

action. Defendant contends that the Court should limit the

production “to testimony in actions involving allegations

that a first generation Segway stopped suddenly and threw

the complainant off, while the complainant was proceeding

slowly outdoors.” (Def.'s Resp. at pp. 15–16.) In addition,

Defendant contends that most or all of these transcripts are

subject to protective orders that were entered in the courts

where these prior cases were pending, and, therefore, the

transcripts may not be produced to Plaintiff without violating

a court order. (Id. at 16.)

Like the discovery related to prior complaints of accidents

or incidents involving a Segway, Defendant's attempts to

narrow the scope of discovery is misplaced. Although much

of this evidence may not be admissible at trial, the transcripts

are relevant to Plaintiff's claims and, therefore, discoverable.

Accordingly, the Court GRANTS the Motion to Compel

as to Request No. 57. Defendant Segway shall produce

all deposition transcripts and copies of trial testimony for

Gerald Rigdon, David Robinson, John Morrell, Mike Gansler,

Douglas Field, Jane Davison, and Dean Kamen that relate to

any personal injury action stemming from the operation or

use of a Segway. To the extent that any of these transcripts

are subject to a protective order in place in another court,

the Court DIRECTS Defendant to provide Plaintiff with a

privilege log setting forth the transcript that is responsive

to the discovery requests and the specific portion of the

protective order that prohibits its disclosure. In addition,

Defendant shall provide a copy of the entire protective order

to Plaintiff. Plaintiff may then seek an Order from the Court

where the protective order is in place or an appropriate Order

from this Court. The Court INSTRUCTS Defendant that

if the Court later determines that it withheld a transcript

from Plaintiff without a reasonable basis, the Court will

consider appropriate sanctions against both Defendant and/or

its attorneys.

IV. Conclusion

*4 The Court GRANTS Plaintiff's Motion to Compel [# 35].

Consistent with this Order, Defendant shall produce within

twenty (20) days of the entry of this Order all documents

of prior complaints of incidents or accidents involving

a Segway, as well as documents related to Defendant's

investigation of these complaints. In addition, Defendant shall

produce within twenty (20) days of the entry of this Order

all deposition transcripts and copies of trial testimony for

Gerald Rigdon, David Robinson, John Morrell, Mike Gansler,

Douglas Field, Jane Davison, and Dean Kamen that relate to

any personal injury action stemming from the operation or

use of a Segway. To the extent the transcripts are subject to a

protective order, the Court DIRECTS Defendant to produce

a privilege log and the relevant protective orders to Plaintiff

within twenty (20) days of the entry of this Order. Finally,

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Bennett v. Segway, Inc., Not Reported in F.Supp.2d (2011)

2011 WL 4965179

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the Court INSTRUCTS Defendant that if the Court later

determines that it withheld a transcript from Plaintiff without

a reasonable basis, the Court will consider the appropriate

sanctions against both Defendant and/or its attorneys.

All Citations

Not Reported in F.Supp.2d, 2011 WL 4965179

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

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