Little v. Budd Co.
| Decision Date | 10 September 2018 |
| Docket Number | Case No. 16-4170-DDC-KGG |
| Citation | 339 F.Supp.3d 1202 |
| Parties | Nancy LITTLE, individually and as personal representative of the estate of Robert L. Rabe, Plaintiff, v. The BUDD COMPANY, Defendant. |
| Court | U.S. District Court — District of Kansas |
E. Todd Hottman, Hottman Law Firm, Olathe, KS, John D. Roven, Roven-Kaplan, LLP, Kevin M. Camp, Jones Granger, Houston, TX, for Plaintiff.
James E. Wynne, Butzel Long, PC, Detroit, MI, Joseph E. Richotte, Butzel Long, PC, Bloomfield Hills, MI, Vincent Edward Gunter, Rasmussen Dickey Moore, LLC, Kansas City, MO, for Defendant.
Plaintiff Nancy Little brings this action individually and as the personal representative of the estate of her father, Robert L. Rabe, against defendant The Budd Company. Plaintiff alleges that her father was exposed to asbestos-containing pipe insulation while working as a Pipefitter for the Atchison Topeka & Santa Fe Railroad ("ATSF") between 1951 and the mid-to-late 1970s. She contends that this exposure caused her father to develop asbestos-related malignant mesothelioma, causing his death on December 28, 2012.
Defendant allegedly manufactured passenger railcars and sold them to ATSF. Plaintiff contends that defendant placed asbestos and asbestos-containing products into its railcars, thereby exposing her father to asbestos during his employment with ATSF. Plaintiff asserts state law claims for negligence, strict product liability/design defect, and strict product liability/warning defect. Alternatively, plaintiff asserts a state law claim for negligence per se based on defendant's alleged violation of two federal statutes: (1) the Locomotive Inspection Act, and (2) the Federal Safety Appliance Act.
Defendant has filed a Motion for Summary Judgment (Doc. 71) seeking summary judgment against each of plaintiff's claims. Plaintiff has filed a Memorandum in Opposition (Doc. 81), and defendant has submitted a Reply (Doc. 90). Plaintiff also seeks a summary judgment ruling of her own. She has filed a Motion for Partial Summary Judgment (Doc. 73), asking the court to grant summary judgment in her favor on certain elements of her claims and against some of defendant's affirmative defenses. Defendant has submitted a Memorandum in Opposition (Doc. 78) to that motion, and plaintiff has submitted a Reply (Doc. 85).
After considering the parties' arguments, the court grants defendant's Motion for Summary Judgment in part and denies it in part. Also, it grants plaintiff's Motion for Partial Summary Judgment in part and denies it in part. The court explains why it made these decisions, below.1
Before turning to the parties' cross-motions for summary judgment, the court considers plaintiff's Objections to Portions of Defendant's Summary Judgment Evidence and Motion to Strike. Doc. 82. It asks the court to strike one paragraph of a Declaration that defendant submitted as support for its Motion for Summary Judgment. The Declaration is from Brian Bastien, defendant's President. Mr. Bastien declares that he has served as an officer of defendant since April 11, 2008, when he became the company's Treasurer. Since July 1, 2013, Mr. Bastien has served as its President.
Mr. Bastien's Declaration explains that defendant made and sold thousands of passenger railcars from 1932 to 1987. So, by his own admission, Mr. Bastien did not start working for the company for some 20 years after it stopped manufacturing railcars. Mr. Bastien attests that the information provided in his Declaration is "true of my own personal knowledge except those matters stated on information and belief, and, as to those matters, [he] believe[s] them to be true." Doc. 72-1 at 1 (Bastien Decl. ¶ 1).
Specifically, plaintiff objects to paragraph 6 of Mr. Bastien's Declaration. Plaintiff asserts that Mr. Bastien's Declaration never reveals how he knows the information asserted in paragraph 6. Thus, plaintiff contends, Mr. Bastien bases the assertion on "information and belief"—and not his personal knowledge. Paragraph 6 of Mr. Bastien's Declaration reads:
When the Budd passenger railcars were in use the steam came from a steam locomotive, a diesel locomotive equipped with a steam generator or a steam generator car if a steam generator-equipped locomotive was not available. The main steam lines of all the passenger cars in a train were designed to be, and were, connected to each other and to their power source, most usually the locomotive and most infrequently a steam generator car.
Defendant offers Mr. Bastien's assertion to support its affirmative defense based on a preemption theory. As the court discussed in an earlier Order denying defendant's Motion for Judgment on the Pleadings, the Locomotive Inspection Act ("LIA") prohibits state regulation of the " ‘design, the construction, and the material of every part of the locomotive and tender and of all appurtenances.’ " See Doc. 61 at 9 ). On summary judgment, defendant argues that the LIA preempts plaintiff's claims here because they involve passenger railcars that "were designed to be, and were connected" to locomotives. Doc. 72-1 at 2 (Bastien Decl. ¶ 6).
Plaintiff argues that the court should strike this paragraph from the summary judgment record for three independent reasons: (1) defendant never disclosed Mr. Bastien under Fed. R. Civ. P. 26(a)(1)(A) ; (2) the information contained in paragraph 6 is not based on Mr. Bastien's personal knowledge; and (3) the information provided in paragraph 6 is inadmissible opinion evidence provided by a non-expert. As discussed below, the court excludes paragraph 6 of Mr. Bastien's Declaration for the first reason advanced by plaintiff—i.e. , defendant is precluded from offering this summary judgment evidence because it never identified Mr. Bastien under Rule 26(a)(1)(A). Because it decides plaintiff's motion on this basis, the court need not address plaintiff's two additional arguments seeking to exclude this summary judgment evidence.
Rule 26(a)(1)(A) requires a party to identify to the other party "each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses." Fed. R. Civ. P. 26(a)(1)(A). A party's failure to comply with Rule 26(a)(1)(A)'s disclosure requirements may preclude the party from offering an unidentified witness's testimony later in the proceedings. Federal Rule 37(c)(1) provides: "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1) ; see also Vesom v. Atchison Hosp. Ass'n , 279 F. App'x 624, 631 (10th Cir. 2008) .
A district court has discretion to decide whether a Rule 26 violation is justified or harmless and, when doing so, should consider the following factors: "(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness." Jacobsen v. Deseret Book Co. , 287 F.3d 936, 953 (10th Cir. 2002) (quoting Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co. , 170 F.3d 985, 993 (10th Cir. 1999) ).
These factors favor excluding Mr. Bastien's Declaration under Rule 37. First, plaintiff is prejudiced and surprised by the Declaration. Defendant never identified Mr. Bastien as a fact witness, who could provide testimony to support defendant's affirmative defense based on LIA preemption. So, plaintiff contends, defendant denied her the opportunity to discover information about Mr. Bastien's testimony. This deprivation includes that option to take his deposition. In contrast, defendant asserts that plaintiff had ample notice of Mr. Bastien's testimony because defendant identified him as its designated records custodian. Also, Mr. Bastien verified defendant's discovery responses. According to defendant, plaintiff was well aware that defendant intended to rely on ancient business records to support its defenses. So, defendant contends, plaintiff sustained no prejudice or surprise because she should have anticipated that defendant's records custodian would provide testimony about those documents. The court is unpersuaded.
Typically, a records custodian just is responsible for keeping records in the ordinary course of business. See, e.g. , Nat'l Jewish Health v. WebMD Health Servs. Grp., Inc. , 305 F.R.D. 247, 255 (D. Colo. 2014) () (quoting The Sedona Conference, Best Practices Guidelines & Commentary for Managing Information & Records in the Electronic Age , cmt. 4.e, p. 34 (2d ed. Nov. 2007) ); Smith v. Dwire Co. , No. CIVA04CV02182WYD-OES, 2005 WL 3543058, at *3 (D. Colo. Dec. 27, 2005) (); Custodian of Evidence , Black's Law Dictionary (10th ed. 2014) ("A custodian responsible for securing and controlling access to evidence and maintaining the evidence in exactly the condition it was in when received."). So, defendant's identification of Mr. Bastien as its records custodian could not have placed plaintiff on notice that defendant also intended for Mr. Bastien to provide substantive testimony about the...
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