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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAVID H. PEASE, III and :

LISA PEASE, : No. 4:10-CV-00843

:

Plaintiffs, :

:

v. : (Judge McClure)

:

KELLY AEROSPACE, INC. d/b/a :

KELLY AEROSPACE POWER :

SYSTEMS, INC., An Alabama :

Corporation, et al., :

:

Defendants. :

MEMORANDUM

June 11, 2010

I. INTRODUCTION

This action was initiated in 2007, when plaintiffs David H. Pease III and

Lisa Pease filed an action against defendants Kelly Aerospace Inc., d/b/a Kelly

Aerospace Power Systems, Inc.; Main Turbo Systems, Inc. (“Main Turbo”);

Lycoming Engines Inc. (“Lycoming Engines”); and Air Tolin in Ohio state court. 

On April 20, 2007, the action was transferred to the District Court for the Middle

District of Alabama for jurisdictional purposes. (Rec. Doc. No. 1, Attachment No.

1). The lawsuit arises out of an incident that occurred on June 5, 2005, when

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 Only Lycoming Engines remains as a defendant in the present action.

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plaintiff David Pease was injured after his aircraft, a Piper Saratoga, crashed near

Tazewall, Tennessee. Plaintiffs claim that the crash occurred after Mr. Pease’s

plane “suffered an engine seizure after an apparent oil starvation event at a high

altitude . . . .” Id. at 1.

II. PROCEDURAL HISTORY

Upon a renewed motion to dismiss, filed by defendant Main Turbo on April

18, 2008 (Rec. Doc. No. 4, Attachment No. 3), the District Court for the Middle

District of Alabama, Northern Division (“Alabama District Court”), on June 20,

2008, dismissed Main Turbo as a defendant in the instant case (Rec. Doc. No. 5,

Attachment No. 1). By an order dated August 20, 2009, and upon consideration of

the parties’ stipulation for dismissal with prejudice filed on August 17, 2009, the

Alabama District Court directed the clerk to dismiss defendants Kelly Aerospace,

Inc., d/b/a Kelly Aerospace Power Systems, Inc., from the cause of action. (Rec.

Doc. No. 7, Attachment No. 2).1

 The Alabama District Court, by a Memorandum

and Order dated April 19, 2010 transferred the matter to the District Court for the

Middle District of Pennsylvania, based upon the convenience of witnesses and the

parties, as well as the interests of judicial economy. (Rec. Doc. No. 11,

Attachment No. 2).

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 According to Fed. R. Civ. P. 37(a)(3)(B), “[a] party seeking discovery may

move for an order compelling an answer, designation, production, or inspection.”

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On April 12, 2010, plaintiffs filed a motion to compel the production of

documents, pursuant to Federal Rule of Civil Procedure 37, with a brief in

support.2

 (Rec. Doc. Nos. 17 and 18). With this motion, plaintiffs sought “an

order compelling Defendant Lycoming Engines to produce highly relevant and

material accident documents and materials responsive to Plaintiffs’ production

request.” (Rec. Doc. No. 17 at 1). Lycoming Engines filed a brief in opposition

on May 10, 2010. (Rec. Doc. No. 27). Plaintiffs filed a reply brief on May 24,

2010. (Rec Doc. No. 31). By a Memorandum and Order dated June 8, 2010, we

granted the plaintiffs’ motion to compel. (Rec. Doc. No. 32). In our Memorandum

and Order, we concluded that the discovery request concerned nonprivileged

material relevant to the plaintiffs’ claim pursuant to Fed. R. Civ. P. 26(b)(1), and

that “‘the discovery appears reasonably calculated to lead to the discovery of

admissible evidence’ and is not unreasonably cumulative, duplicative, unduly

burdensome, or overly broad.” Id. at 15-16 (quoting Fed. R. Civ. P. 26(b)(1)).

III. DISCUSSION

Currently before this court are two motions. The first is a motion, filed by

plaintiffs with the Alabama District Court on March 9, 2010, in which plaintiffs

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March 10, 2010, pursuant to an order issued by the Alabama District Court on

March 5, 2009. (Rec. Doc. No. 6, Attachment No. 9). As memorialized in this

court’s scheduling order (Rec. Doc. No. 26), filed after a telephone conference call

with counsel, any further scheduling was to be deferred until after this court ruled

upon plaintiffs’ motion to compel (Rec. Doc. No. 17).

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seek to extend their expert discovery deadlines by forty-five days.3 (Rec. Doc. No.

13). In their brief filed in support of their motion, plaintiffs contend that an

extension is warranted, as two of plaintiffs’ proposed experts require additional

discovery so as to provide sufficient opinions concerning the model engine at

issue. (Rec. Doc. No. 14 at 2). This discovery was the subject of plaintiffs’

motion to compel (Rec. Doc. No. 17), which was granted by this court on June 8,

2010 (Rec. Doc. No. 32). In addition, plaintiffs claim that additional time also is

required to complete discovery concerning the disposition of the aircraft wreckage

and potentially significant parts from the aircraft that may now be missing. (Rec.

Doc. No. 14 at 3-4). In a brief in opposition filed on March 25, 2010, with the

Alabama District Court, Lycoming Engines claims that the requests made by the

plaintiffs are overly broad and that the materials requested “will have no bearing

on Plaintiffs’ experts’ opinions.” (Rec. Doc. No. 15 at 3). In their reply brief,

plaintiffs contend that the material which was the subject of the motion to compel

“is critical to the preparation of the plaintiffs’ experts.” (Rec. Doc. No. 16 at 3-4). 

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 The original expert disclosure deadline for the defendant was set for May

11, 2010. (Rec. Doc. No. 6, Attachment No. 9). Again, pursuant to this court’s

scheduling order, dated May 4, 2010 (Rec. Doc. No. 26), any further scheduling

was to be deferred until a ruling was issued on plaintiffs’ motion to compel (Rec.

Doc. No. 17).

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Plaintiffs also contend that responses to their requests concerning missing

wreckage are still outstanding. Id. at 4.

The second motion before this court is a motion filed by the defendant to

extend expert disclosure deadlines or, in the alternative, to strike and preclude

plaintiffs’ experts. (Rec. Doc. No. 19).4

 Defendant claims that it should be

allowed additional time to make its own disclosures concerning experts, as

plaintiffs allegedly have failed to comply with Fed. R. Civ. P. 26(a)(2). Defendant

notes that, in part, plaintiffs based their request for extension on the failure of

defendant to provide them with the documents at issue in the motion to compel,

which was granted by this court on June 8, 2010. Lycoming Engines again

reiterates its contention that this request is overly broad and is being used by

plaintiffs simply as a tactic in prolonging discovery. Lycoming Engines contends

that plaintiffs have failed to provide, in violation of Fed. R. Civ. P. 26(a)(2), any

expert report as to expert Colin Sommer, as well as a sufficient expert report as to

Douglas R. Herlihy. Defendants request a sixty-day extension beyond the date

upon which plaintiffs make a complete disclosure of their expert information or, in

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the alternative, defendants request that this court strike the two above-mentioned

experts for the plaintiffs. Id. at 8-10.

The court is persuaded that extensions of time are necessary and appropriate

in fairness to both parties, especially in light of this court's Memorandum and

Order, dated June 8, 2010, granting the plaintiffs' motion to compel. (Rec. Doc.

No. 32). Therefore, we will grant plaintiffs' motion to extend report discovery

deadline (Rec. Doc. No. 13), and we will grant the defendant's motion to extend

its expert disclosure deadline (Rec. Doc. No. 19), to the extent of the relief

provided in this order.

NOW, THEREFORE, IT IS ORDERED THAT: 

1. Motions Granted. The plaintiffs' motion to extend their report

discovery deadline (Rec. Doc. No. 13) and the defendant's motion to extend its

expert disclosure deadline (Rec. Doc. No. 19) are granted to the extent of the relief

provided in this order. 

2. Discovery. All fact discovery shall be completed on or before July 6,

2010. 

3. Expert witnesses. To the extent required by Fed. R. Civ. P. 26(a)(2),

plaintiff(s) will supply to defendant(s) the name(s) and report(s) of their expert(s)

on or before August 17, 2010, and defendant(s) will supply to plaintiff(s) the

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name(s) and report(s) of their expert(s) on or before September 28, 2010. 

3.1 Depositions of experts for use at trial in lieu of live

testimony may be taken at any time prior to trial, with concurrence of

counsel. 

3.2 Supplemental reports of plaintiff(s)' experts must be

supplied to opposing counsel on or before October 12, 2010.

3.3 Supplemental reports of defendant(s)' experts must be

supplied to opposing counsel on or before October 26, 2010..

 3.4 All depositions of an opposing party's experts under Fed.

R. Civ. P. 26(b)(4) must be conducted on or before November 9,

2010. 

3.5 Counsel are reminded of their continuing obligation to

supplement disclosures and responses in accordance with the

provisions of Fed. R. Civ. P. 26(e), which obligation is not affected

by this order. 

4. Motions in limine. 

4.1 All motions in limine, other than those pertaining to

testimony of experts, shall be filed on or before November 5, 2010,

with supporting briefs attached. All opposing briefs shall be filed on

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or before November 19, 2010. No reply briefs are permitted. 

4.2 Motions in limine pertaining to testimony of experts

should be filed and briefed according to the foregoing schedule, but

may be filed and/or supplemented at any time prior to November 16,

2010, if necessary, to reflect deposition testimony. 

5. Dispositive motions. All motions for judgment on the

pleadings or for summary judgment shall be filed on or before October 12,

2010. 

6. Final pretrial/settlement conference. A final

pretrial/settlement conference will be held on December 3, 2010, at a time

to be announced, in Chambers, Third Floor, Federal Building, 240 West

Third Street, Williamsport, Pennsylvania. 

7. Jury trial. Jury selection will be January 4, 2011, at 10:00

a.m., Fourth Floor, Federal Building, 240 West Third Street, Williamsport,

Pennsylvania. 

8. Superseding order. This order supersedes all previous

scheduling orders to the extent inconsistent therewith.

9. Courtesy copies. No courtesy copies of documents shall be

sent directly to the undersigned judge. 

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10. Facsimile transmission. No document may be faxed to

chambers or to the clerk's office without express permission obtained in

advance from the judge or his secretary or law clerk, which permission shall

be limited to each document request, unless otherwise indicated. 

11. Correspondence. As a general practice, the court will take no

action based on correspondence. Counsel must adhere to the motion

practice set forth in the rules. 

12. Inquiries. Any inquiries you have concerning this case and

its progress should be directed to Kathy McLaughlin, Deputy Clerk of

Court, Federal Building, 240 West Third Street, Suite 320, Williamsport,

Pennsylvania, telephone number (570) 323-9772.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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