Larson v. Westlake Vinyls, Inc. (Maryland U.S.D.C.)

Decided April 5, 2007--Opinion by Magistrate Judge William Connelly.

Larson moved to quash a subpoena from the District of Maryland by Westlake. The subpoena commanded Larson to appear for a deposition on March 1, 2007 regarding the case of Westlake Vinyls, Inc. v. Goodrich Corporation, currently pending in the United States District Court for the Western District of Kentucky, Paducah Division. In separate state court litigation in Ohio, Larson, a groundwater hydrologist, had been retained as as an expert witness to testify Goodrich's excess insurers.

The Kentucky case which gave rise to the subpoena against Larson concerns which of three parties should be responsible for cleaning up soil and groundwater contamination at a particular site. Westlake argued that Larson's opinions, articulated in the Ohio state litigation, are relevant to the Kentucy case and thus discoverable pursuant to Federal Rules of Civil Procedure 26(b)(1) and 45(c)(3)(B)(ii). However, it is undisputed that: (i) Larson is not testifying in the Kentucky litigation, (ii) Goodrich has not retained or specially employed Larson in anticipation of the Kentucky litigation, and (iii) that Goodrich retained Larson for the Ohio litigation.

The Court thus concluded that Larson is not a retained, nontestifying expert subject to Rule 26(b)(4)(B) with regard to the Kentucky litigation and that, alternatively, even if Rule 26(b)(4)(B) applied to Larson "to shield an expert’s opinions about the specific case they are retained for or any closely related litigation[,]" this "protection" is moot because Larson's expert report, deposition testimony, trial testimony, his expert disclosures as well as the data and information underlying his opinions have been disclosed to Westlake.

Further, the Court found that Larson's testimony in the Ohio litigation did not concern which entities are responsible for the contamination at issue in the Kentucky litigation and thus, do not do not describe matters disputed in the Kentucky litigation. It therefore quashed the subpoena under Rule 45(c)(3)(B)(ii) because it concluded that Larson was an unretained expert. In making its determination, the Court analyzed the motion using the five factors set forth in Kaufman v. Edelstein, 539 F.2d 811, 822 (2d Cir. 1976).

Finally, the Court determined that Larson had not waived his right to object to the subpoena because he did not serve written objections within fourteen (14) days of receiving the subpoena. Westlake argued that the fourteen day rule under Rule 45(c)(2)(B) was applicable. However, the Court noted that Rule 45(c)(2)(B), by its terms, only applies to a subpoena ad testificandum not to an objection to a subpoena duces tecum. In this case, the subpoena was a subpoena duces tecum and Rule 45(c)(3)(A) applies. That rule only requires that the motion to quash be filed within a reasonable time after service. The Court concluded that the motion to quash, filed within 29 days after service, was filed within a reasonable time.

The opinion is available in PDF.

MALDONADO v. MILLSTONE ENTERPRISES, INC., et al. (Maryland U.S.D.C.)(Not approved for publication)

Decided February 23, 2007—Opinion by Judge William Connelly

Plaintiff Maldonado alleged that Defendants caused injuries to him through the negligent failure to provide safe maintenance of a material hoist, failure to use reasonable care to discover and correct unsafe conditions on the material hoist, and failure to adequately warn of a hazardous and dangerous condition which Defendants knew or should have known existed. In considering defense motions for summary judgment, the Court struck Plaintiff’s expert report because it lacked an affidavit verifying its authenticity. The Court also found inadmissible an unsworn memorandum from an NSA safety specialist.

Because this case concerned the malfunction of complex machinery, the Court determined that the Plaintiff was precluded from relying on the doctrine of res ipsa locquitur and without expert testimony the Plaintiff was unable to establish a prima facie case. The Court added that even if the expert's opinion letter was admissible, it would not create a genuine issue of material fact because it was based on the inadmissible NSA memorandum and the expert himself had never examined the material hoist. Therefore the Court entered an order granting summary judgment in favor of the Defendants.


The opinion and order are available in PDF.