Michel v. Ford Motor Co. (E.D. La., Feb. 20, 2019, evidence ruling)

Our plain-English summary of Michel v. Ford Motor Co. (U.S. District Court, Eastern District of Louisiana, February 20, 2019).

Victor Michel worked as a mechanic and generator service technician and developed peritoneal mesothelioma. He sued Ford Motor Company and other asbestos suppliers in Louisiana state court in 2017, and the case was removed to federal court. Michel died in June 2018, and his survivors were substituted as plaintiffs. Only Ford remained as a defendant by early 2019. Before a trial that was later continued, the court decided three pretrial motions. First, it quashed plaintiffs' trial subpoena to Matthew Fyie, who lived in Michigan, because he was outside the court's 100-mile subpoena power under Rule 45. That Ford's lawyers were in New Orleans did not change this. Second, it allowed plaintiffs to designate Fyie's deposition testimony late, finding good cause: the mistake was not in bad faith, the testimony was meant to show Ford products contained asbestos, and the continuance limited prejudice to Ford. Third, it struck plaintiffs' late objections to Ford's counterdesignations of Michel's deposition testimony, because plaintiffs gave no explanation and did not confer with Ford first.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Eastern District of Louisiana
• Decided: February 20, 2019
• Docket: Civil Action No. 18-4738
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. The court granted Ford's motion to quash the trial subpoena to Matthew Fyie, granted plaintiffs leave to designate Fyie's deposition testimony, and granted Ford's motion to strike plaintiffs' late objections to Ford's counterdesignations of Victor Michel's testimony.

What the court held. A trial subpoena cannot compel a witness who lives and works more than 100 miles from the trial and outside the state; a scheduling deadline may be modified only for good cause under Rule 16(b)(4), judged by the Geiserman factors.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Victor Michel: peritoneal mesothelioma; died

Who	Work	Where	When	Products
Victor Michel	mechanic and generator service technician			brakes, clutches and friction materials, Ford products

The defendants

• Ford Motor Company (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Michel v. Ford Motor Company (August 28, 2018). The district court denied the plaintiffs' motion to remand, finding Louisiana defendant Taylor-Seidenbach was improperly joined and Cummins' removal was timely, so the case stays in federal court.
• Michel v. Ford Motor Company (December 28, 2018). The court granted Cummins's and Ford's motion to exclude plaintiffs' experts Dr. Brody and Dr. Castleman for late disclosure of their reports and denied plaintiffs' motion to amend the scheduling order.
• Michel v. Ford Motor Company (January 7, 2019). The court denied Ford's and Cummins's motions to exclude or limit the expert testimony of Dr. Staggs, Dr. Finkelstein and Christopher Depasquale, so the plaintiffs' experts may testify.
• Michel v. Ford Motor Company (January 7, 2019). The court denied Cummins Inc.'s and Ford Motor Company's joint motion for summary judgment, so the plaintiffs (Michel's survivors) keep their claims against both defendants.
• Michel v. Ford Motor Co. (February 20, 2019). The court granted the plaintiffs' motion to amend their complaint to add survival, wrongful death, premises and employer liability claims against Ford, found strict products liability claims already pleaded, and said a continuance would cure prejudice to Ford.
• Michel v. Ford Motor Co. (May 23, 2019). The court granted Ford Motor Company's motion to dismiss only as to plaintiffs' wrongful death employer liability claim, which was dismissed with prejudice, and otherwise denied it, so plaintiffs' other wrongful death claims against Ford continue.
• Michel v. Ford Motor Company (January 21, 2020). The magistrate judge granted the Michel plaintiffs' motion for leave to file a second supplemental and amended complaint adding Ford Leasing Development Company, LLC as a defendant, over Ford Motor Company's opposition.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

ICTOR MICHEL,

v.

FORD MOTOR CO., ET AL., SECTION "R" (4).

Civil Action No. 18-4738.

February 20, 2019.

United States District Court, E.D. Louisiana.

Keith Michel, On behalf of Victor Michel, Norbert Michel, On Behalf of Victor Michel & Vickie Michel, On Behalf of Victor Michel, Plaintiffs, represented by Alex S. Dunn, Jr., Gori, Julian & Associates, P.C., Ashley Lynette Page, Gori, Julian & Associates, P.C., Christopher Thomas Layloff, Gori Julian and Associates PC, pro hac vice, Jason John Steinmeyer, Gori Julian and Associates PC, pro hac vice & Roshawn H. Donahue, Gori, Julian & Associates, P.C.

Aurora Pump Company & Borg-Warner Morse Tec LLC, As successor-by-merger to Borg-Warner Corporation, Defendants, represented by Glenn Lyle Maximilian Swetman, MG+M The Law Firm, Bradley Adam Hays, MG+M The Law Firm, Brandie Mendoza Thibodeaux, MG + M The Law Firm, Christopher O. Massenburg, MG+M The Law Firm, Danielle Mikel Sczesny, Garrison, Yount, Forte & Mulcahy, LLC, David R. Frohn, MGM Law Firm, Helen Meredith Buckley, MG+M The Law Firm, Jeanette Seraile-Riggins, MG+M The Law Firm, Meghan B. Senter, MG+M The Law Firm, Natasha Amber Corb, MG+M The Law Firm & Quinn Kelcie Brown, Dunlap Fiore LLC.

Dana Companies LLC, formerly known as DCO, LLC & Pneumo Abex Corporation, Defendants, represented by Barbara Bourgeois Ormsby, Deutsch Kerrigan LLP, William Claudy Harrison, Jr., Deutsch Kerrigan LLP, Arthur Wendel Stout, III, Deutsch Kerrigan LLP, Jason P. Franco, Deutsch Kerrigan LLP & Jennifer E. Adams, Deutsch Kerrigan LLP.

Dap, Inc., Defendant, represented by Kay Barnes Baxter, Foley & Mansfield, Ashley A. Edwards, Cosmich Simmons & Brown, PLLC, Forrest Ren Wilkes, Cosmich Simmons & Brown, PLLC, Georgia Noble Ainsworth, Cosmich Simmons & Brown, PLLC, Jason K. Elam, Forman, Watkins & Krutz LLP, Margaret Adams Casey, Cosmich Simmons & Brown, PLLC & Martin James Dempsey, Jr., Cosmich Simmons & Brown, PLLC.

Ford Motor Company, Defendant, represented by Deborah DeRoche Kuchler, Kuchler Polk Weiner, LLC, Amber B. Barlow, Kuchler Polk Weiner, LLC, Janika D. Polk, Kuchler Polk Weiner, LLC, Lee Blanton Ziffer, Kuchler Polk Weiner, LLC, Monique M. Weiner, Kuchler Polk Weiner, LLC, Terrence M.R. Zic, Whiteford, Taylor & Preston, LLP, pro hac vice & William L. Mennucci, Thompson Coe Cousins & Irons, LLP, pro hac vice.

Honeywell International, Inc., in its capacity as successor to Bendix and successor in Interest to AlliedSignal, Inc., Defendant, represented by Eric Shuman, McGlinchey Stafford, PLLC & Sarah Elizabeth McMillan, McGlinchey Stafford, PLLC.

Bridgestone Americas, Inc., Incorrectly named in the Plaintiff's petition as Bridgestone-Firestone America's Holding, Inc, Defendant, represented by Benjamin J. Guilbeau, Jr., Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP & John J. Simpson, Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court are: (1) Ford's motion to quash plaintiffs' subpoena directing Matthew Fyie to appear and testify at trial;[1] (2) plaintiffs' motion for leave to designate deposition testimony of Matthew Fyie;[2] and (3) Ford's motion to strike plaintiffs' untimely objections to Ford's counterdesignations of Victor Michel's deposition testimony.[3] The Court resolves the motions as follows.

I. BACKGROUND

This case arises out of Victor Michel's asbestos exposure during his work as a mechanic and generator service technician. [4] Michel contracted peritoneal mesothelioma after a career that included performing work as a mechanic on engines and brakes.[5] He filed this action in state court on July 28, 2017 against Ford Motor Company and many other asbestos suppliers, claiming negligence and that defendants' products were unreasonably dangerous.[6] Defendants removed the case to federal court on May 8, 2018.[7] On June 12, 2018, Michel died.[8] The Court substituted his survivors as plaintiffs on July 10, 2018.[9] As of January 25, 2019, the only defendant remaining in the case is Ford.

In anticipation of trial, which was scheduled for February 19, 2019, the parties issued subpoenas and designated deposition testimony. On February 13, 2019, the Court continued trial to allow plaintiffs to amend their complaint.[10] Before trial was continued, Ford sought to have plaintiffs' subpoena to Matthew Fyie quashed because Mr. Fyie is beyond the Court's subpoena power, and because plaintiffs did not abide by the requirements of Federal Rule of Civil Procedure 45.[11] Plaintiffs opposed the motion,[12] and they also sought to designate deposition testimony of Mr. Fyie.[13] Ford opposed the motion to designate Mr. Fyie's deposition testimony.[14] Ford also sought to strike plaintiffs' objections to its counterdesignations to Mr. Michel's deposition testimony because they were not timely filed.[15]

II. DISCUSSION

A. Motion to Quash Subpoena Issued to Matthew Fyie

Ford argues that plaintiffs cannot subpoena Matthew Fyie to testify at trial because he is outside of the Court's subpoena power.[16] A party may subpoena a witness to attend and testify at trial only within one hundred miles of where the person resides, is employed, or regularly conducts business in person. Fed. R. Civ. P. 45(c)(1)(A). A court must quash or modify a subpoena that does not adhere to these geographical limits. Fed. R. Civ. P. 45(d)(3)(A)(ii).

Matthew Fyie resides in Michigan,[17] which is more than one hundred miles from the location of trial. The Advisory Committee Notes to the 2013 amendments to Rule 45 provide, "Rule 45(c)(1)(A) does not authorize a subpoena for trial to require a party or party officer to travel more than 100 miles unless the party or party officer resides, is employed, or regularly transacts business in person in the state." There is no evidence that Mr. Fyie resides, is employed, or regularly conducts business in person in Louisiana. Fyie is clearly beyond the reach of the Court's subpoena power under Rule 45(c). See Fradella v. Coca-Cola Co., No. 17-9622, 2018 WL 3455707, at [*2]-[*3] (E.D. La. Jul. 18, 2018) (quashing subpoena for the testimony of corporate representative when the subpoenaed business was headquartered more than one hundred miles from the place of trial); see also Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213, 222 (E.D. La. 2008) (quashing subpoenas for witnesses who resided more than one hundred miles from the place of trial).

Plaintiff argues that because Mr. Fyie was listed as "c/o Janika D. Polk, Kuchler Polk Weiner, LLC" on Ford's witness list, he therefore may be served under Rule 45(c) because the offices of Kuchler Polk Weiner are in New Orleans.[18] But where a person's attorney is located has no bearing on the Court's subpoena power. Mr. Fyie does not reside at Kuchler Polk Weiner, nor does he work at, or regularly conduct business at the law firm's office. Indeed, plaintiffs deposed Mr. Fyie in Michigan only four months ago.[19] Plaintiffs' argument has no merit and displays a disturbing unfamiliarity with the Federal Rules of Civil Procedure. Accordingly, the Court grants Ford's motion to quash the trial subpoena.

B. Motion for Leave to Designate Deposition Testimony of Matthew Fyie

Plaintiffs seek to designate deposition testimony of Matthew Fyie.[20] Ford opposes this motion because plaintiffs did not file these designations before their deadline under the Court's pretrial preparations and procedures.[21]

Under Federal Rule of Civil Procedure 16(b)(4), a court may modify the deadlines in its scheduling order "for good cause." Fed. R. Civ. P. 16(b)(4). In deciding whether to amend the scheduling order to allow a late filing, the Court's "judgment range is exceedingly wide," for it "must consider not only the facts of the particular case but also all of the demands on counsel's time and the court's." Streber v. Hunter, 221 F.3d 701, 736 (5th Cir. 2000) (quoting HC Gun & Knife Shows, Inc. v. City of Houston, 201 F.3d 544, 549-50 (5th Cir. 2000)). To determine whether good cause exists for the Court to modify the

scheduling order, the Court evaluates the following factors: "(1) the explanation for the failure to [designate the deposition testimony]; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice." Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990).

Here, plaintiffs did not designate deposition testimony for Mr. Fyie because they erroneously assumed that they could subpoena him to testify live. There is no evidence of bad faith or dilatory motive. The testimony is important to plaintiffs' case because plaintiffs seek to use Mr. Fyie's testimony to establish that Ford products contained asbestos.[22] Finally, there is little prejudice to Ford, because the Court has continued trial. All factors therefore weigh in favor of modifying the scheduling order to allow plaintiffs to submit their designations. Accordingly, plaintiffs' motion is granted. Plaintiffs shall submit their designations within 30 days of the entry of this order.

C. Motion to Strike Plaintiffs Late Objections to Ford's Counterdesignations

of Victor Michel's Deposition Testimony

Finally, Ford seeks to strike plaintiffs' memorandum objecting to Ford's counterdesignations to Michel's deposition testimony because the memorandum was not timely filed, and because plaintiffs failed to comply with the Court order that the parties attempt to resolve objections to testimony before filing them.[23]

The Court's Pretrial Notice states that the parties must, "in good faith, attempt to resolve all objections to testimony so that the Court will be required to rule only on those objections to which they cannot reach an agreement as to their merit."[24] It also provides that memoranda on unresolved objections, unless otherwise stated, are due five business days before trial.[25] Plaintiffs submitted seven pages of unnumbered objections to Ford's counterdesignations to Victor Michel's deposition testimony on February 12, 2019, four business days before trial.[26] Although plaintiffs labelled these objections as "unresolved," plaintiffs did not, as the Court's Pretrial Notice explicitly requires, attempt to resolve these objections by meeting with Ford before filing them with the Court.[27] Instead, plaintiffs failed to notify Ford of their intent to file objections to its counterdesignations, and they filed the objections directly into the record after the Court's deadline. As already stated, the Court can modify its scheduling order only for "good cause" under Rule 16(b). Fed. R. Civ. P. 16(b) (4). The Court does not find that good cause exists to allow plaintiffs' late objections under the Geiserman factors. Under the first factor, plaintiffs provided no explanation for their late filing or failure to meet and confer before they filed the objections. In addition, plaintiffs have continually disregarded the Court's deadlines in this case, despite the Court's repeated warnings and admonitions. Moving to the second factor, the objections are of limited importance because plaintiffs have already had the opportunity to designate the portions of Mr. Michel's testimony that they wish to present at trial. And finally, the third and fourth factors also weigh against allowing the objections. Ford is prejudiced by plaintiffs' late submission, because plaintiffs had more time to object to Ford's designated testimony than Ford had to object to their testimony. The Court's continuance of the trial date will not cure this prejudice because the Court has frozen all evidence and motions except on the new claims being added in the amended complaint. Neither Ford nor plaintiffs will be permitted to file additional objections to these designations. The Court finds that plaintiffs have not shown good cause to modify the Court's Pretrial Notice. Accordingly, defendant's motion to strike plaintiffs' objections is granted.

III. CONCLUSION

For the foregoing reasons, Ford's motion to quash is GRANTED. Plaintiff's motion for leave to designate deposition testimony is GRANTED. Plaintiffs shall submit Mr. Fyie's deposition designations within 30 days. Ford's motion to strike plaintiffs' objections to its counterdesignations is GRANTED.

[1] R. Doc. 171.

[2] R. Doc. 194.

[3] R. Doc. 202.

[4] R. Doc. 1-2 at 10-12 ¶¶ 6, 10; R. Doc. 134 at 15.

[5] Id.

[6] R. Doc. 1-2 at 13-14 ¶ 14.

[7] R. Doc. 1.

[8] R. Doc. 21.

[9] Id.

[10] R. Doc. 201.

[11] R. Doc. 171.

[12] R. Doc. 178.

[13] R. Doc. 194.

[14] R. Doc. 199.

[15] R. Doc. 202.

[16] R. Doc. 171-1 at 1.

[17] Id. at 2.

[18] R. Doc. 178 at 3-4.

[19] R. Doc. 193 at 2.

[20] R. Doc. 194.

[21] R. Doc. 199.

[22] See R. Doc. 194-1 at 2.

[23] R. Doc. 202.

[24] See R. Doc. 53-1 at 3; see also R. Doc. 53 at 5 (requiring the parties to meet after the pretrial conference "to attempt to resolve all remaining objections and arrive at all possible stipulations").

[25] R. Doc. 53-1 at 3, 9-10.

[26] R. Doc. 196.

[27] See R. Doc. 202-1 at 3.

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites