Little Giant Ladder Systems, LLC. v. Tricam Industries, Inc. ( 2018 )

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Wing Enterprises, Inc. d/b/a Case No. 17-cv-1769 (ECT/ECW) Little Giant Ladder Systems, Plaintiff, v. ORDER Tricam Industries, Inc., Defendant. I. INTRODUCTION This matter is before the Court on Defendant Tricam Industries, Inc.’s (“Tricam”) Motion to Strike Untimely Supplemental Interrogatory Responses (Dkt. No. 109) (“Motion”). Plaintiff Wing Enterprises, Inc. d/b/a Little Giant Ladder Systems (“Wing”) alleges that Tricam has engaged in false advertising in connection with its sales of multi- position ladders sold under the name “Gorilla Ladders.” (Dkt. No. 1 ¶¶ 18-28, 36-48.) Tricam served interrogatories asking Wing to “[i]dentify with specificity the alleged misleading or false statement(s) made by Tricam.” (Dkt. 113-25.) In its first responses served on December 1, 2017, Wing responded: • Tricam’s false statements include but are not limited to Tricam’s representation to [and through] The Home Depot that its accused ladders are ANSI compliant; • As a direct result of Tricam’s representations, The Home Depot’s web pages for the accused products represent that the accused products are ANSI compliant; and e Tricam also represents to The Home Depot [and the public] that its accused ladder products conform to ANSI 14.2 through the labeling of its products. (Dkt. No. 116 at 2-4.) The relevant portion of the label at issue is reproduced below. rie) Pls Lo) et oo 8) ze) =) ZEW 53 (Dkt. No. 113-2 at 7-8.) According to Wing, it has contended that the entirety of the statement “MANUFACTURER CERTIFIES CONFORMANCE TO OSHA ANSI A 14.2 CODE FOR METAL LADDERS?” is false “throughout the entire case.” (/d.) Wing claimed the supplemental responses were “provided in an abundance of caution based on the unsupported and surprising opinion from Tricam’s expert, Dr. Treise, who alleges that Tricam’s statements about OSHA compliance via its ANSI compliance are beyond the scope of Wing’s false advertising claims.” (d. at 3.) Il. LEGAL STANDARD A party’s duty to supplement its interrogatory responses is set forth as follows in Federal Rule of Civil Procedure 26(e)(1): A party . . . who has responded to an interrogatory ... must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing .... 21 As set forth in Federal Rule of Civil Procedure 37(c)(1), “[i]f a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” In addition to or instead of such exclusion, a court may impose other sanctions, including “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Fed. R. Civ. P. 37(c)(1)(C), 37(b)(2)(A)(ii). When determining whether exclusion of the information contained in an untimely supplement is warranted, the Eighth Circuit has in similar circumstances approved of the use of a “balancing test” by which a court is to “evaluate[ ] the importance of the evidence to the [plaintiff], the justifications for [its] failure to comply [with the requirements of Rule 26], the prejudice to the [defendant] if the evidence were allowed to be used, and whether a continuance would effectively cure the prejudice.” Carmody v. Kansas City Bd. of Police Comm’rs, 713 F.3d 401, 405 (8th Cir. 2013) (quoting Citizens Bank of Batesville, Ark. v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir. 1994)). A court’s “discretion to fashion a remedy or sanction” is “wide,” but “narrows as the severity of the sanction or remedy . . . increases.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). Furthermore, if “striking the [untimely evidence] would be tantamount to dismissal,” the court is to consider “lesser sanctions” before excluding it. Id. (quoting Keefer v. Provident Life and Accident Ins. Co., 238 F.3d 937 (8th Cir. 2000)). IV. DISCUSSION A. Wing’s Supplementation Was Untimely. The Court first considers whether Wing supplemented its interrogatory responses “in a timely manner.” See Fed. R. Civ. P. 26(e)(1)(A). Wing first argues that it did not even need to supplement its interrogatory responses and only did so “in an abundance of caution.” (Dkt. No. 130 at 14.) According to Wing, “[t]he basis for Wing’s false advertising claims is, and has always been, that Tricam’s collective representation of OSHA/ANSI compliance is false because the MPX ladders do not meet a mandatory requirement of the ANSI A14.2 standard, specifically section 6.7.5.” (Id. at 2.) The Court is cognizant of Wing’s position that, as a technical matter, the Gorilla Ladders may not comply with relevant OSHA regulations if they do not comply with the ANSI A14.2 standard.7 But here, the “information” that should have been disclosed is Wing’s contention that the OSHA language (whether alone or as a “collective” representation with the ANSI language) on the Gorilla Ladders label or The Home Depot’s website is false or misleading—not the technical relationship between OSHA regulations and the ANSI A14.2 standard. 7 This issue was not discussed in any expert reports. The only expert opinion on this issue is Mr. Krafchick’s testimony elicited by Wing after Tricam filed this motion. Wing has not provided the Court with any expert report, discovery responses, or discovery disclosures identifying which provisions of OSHA are allegedly violated if the Gorilla Ladders do not comply with the ANSI A14.2 standard, and based on Mr. Krafchick’s testimony, different sections of the OSHA regulations incorporate different versions of ANSI standards. (See generally, Dkt. No. 139-1 at 54-67, Tr. at 167:16- 180:20.). The lack of clarity as to which OSHA regulations are allegedly not met underscores of the tardiness of Wing’s OSHA contention. The problem for Wing is that nothing in its Complaint, interrogatory responses, Rule 26 disclosures, or responses to Tricam’s Requests for Admission discloses the contention that “Tricam’s collective representation of OSHA/ANSI compliance is false.” Wing never indicated it was treating the OSHA and ANSI statements as a “collective” representation. On the contrary, as explained below, Wing took pains throughout discovery to separate the ANSI language from the OSHA language and to identify only the ANSI language as allegedly false. First, in the Complaint, Wing referred to the ANSI language and OSHA language separately: “In its marketing information, Tricam expressly represents to The Home Depot and to the consuming public that the Infringing Gorilla Ladders are ‘ANSI certified’ and ‘OSHA compliant.’” (Dkt. No. 1 ¶ 19.) Wing then proceeded to repeatedly identify the ANSI representation as false and repeatedly allege the Gorilla Ladders did not comply with ANSI, without any mention of OSHA. (Id. ¶¶ 20-28, 36- 48.) Notably, Wing did not seek any relief with respect to “OSHA compliant” language in its Prayer for Relief. Wing’s Complaint does not allege that the OSHA language is false or misleading. It also does not suggest that Wing is treating the OSHA and ANSI language as a “collective” representation for purposes of the false advertising claims. Rather, it parses the statements “ANSI certified” and “OSHA compliant” and then relies upon only the ANSI statements. Second, when asked in Interrogatory Nos. 18 and 19 to “[i]dentify with specificity the alleged misleading or false statement(s) made by Tricam to The Home Depot that provide the basis for Wing’s false advertising and deceptive trade practices causes of action,” Wing responded by only identifying statements of ANSI compliance. (Dkt. No. 116.) The word OSHA does not appear in the responses. Not only did Wing not identify any OSHA language as false, Wing also did not articulate any contention that because the ANSI language was allegedly false, the OSHA language also was false—even though the interrogatories also asked Wing to identify “what is misleading or false about the statement(s).” (Dkt. No. 116 at 1.) “Parties are ‘entitled to accept answers to previous interrogatories as true, and to refrain from seeking additional discovery directed to the same issue.’” ELCA Enters., Inc. v. Sisco Equip. Rental & Sales, Inc., 53 F.3d 186, 190 (8th Cir. 1995) (quoting Averbach v. Rival Mfg. Co., 879 F.2d 1196, 1201 (3d Cir. 1989)). Here, Tricam was entitled to accept Wing’s identification of ANSI-only language as allegedly false and to develop its litigation strategy accordingly. Third, when served with Requests for Admissions asking Wing to admit that the label—which included the statement “MANUFACTURER CERTIFIES CONFORMANCE TO OSHA ANSI A 14.2 CODE FOR METAL LADDERS” that Wing now claims should be treated as a “collective” representation—Wing admitted only that “Wing contends that any representation by Tricam that the accused Tricam ladders conform to ANSI 14.2, and more specifically, with ANSI 14.2 section 6.7.5, constitutes a false and/or misleading statement.” (Dkt. No. 113-8, Ex. 11 at 1-2 (emphasis added).) Wing now argues that the language “including Tricam’s use of the label depicted in Exhibit A” in its responses somehow “accused ‘the label’ as false.” (Dkt. No. 130 at 4-5.) This argument does not persuade the Court. When read in context, it is clear that Wing admitted that any representation of ANSI compliance was false, whether made on the label or elsewhere, not that the entire label or other statements on the label were false. In fact, Wing objected to “the label” as vague and “otherwise denie[d] the request” except for its admission regarding ANSI statements. (Dkt. No. 113- 8, Ex. 11 at 1-2.) Rather than putting Tricam on notice that Wing was contending the OSHA statement was false or was being treated “collective[ly]” with the ANSI statement, Wing’s responses excluded all language in the label other than the representation that the Gorilla Ladders conform to ANSI 14.2.8 Fourth, nothing in Wing’s liability and damages expert reports suggests that Wing thought the OSHA language was false or that OSHA compliance depended on ANSI compliance. In fact, those reports confirm that Wing’s liability contentions were limited to representations of ANSI (not OSHA) compliance. Dr. Cragun observed “Tricam’s Gorilla Ladders are promoted as ‘ANSI Certified’ and ‘OSHA Compliant,’” and then described the “Alleged Wrongful Acts” solely in terms of ANSI representations. (Dkt. No. 115 at 6-7.) More importantly, Wing’s liability expert Dr. Bloswick did not offer any opinions as to whether the Gorilla Ladders complied with OSHA or any relationship between the ANSI standards and OSHA regulations. (See Dkt. No. 119.) The crux of Wing’s current false advertising theory is that a ladder that does not conform with the mandatory provisions of the ANSI A14.2 standard does not conform to OSHA 8 Wing notes that Tricam never proposed any requests for admission about OSHA. It is unclear why Wing thinks Tricam should have done so, given that nothing in the Complaint or Wing’s initial disclosures put Tricam on notice that Wing thought the OSHA language was false. Wing also does not appear to have propounded any discovery about OSHA to Tricam. regulations, and that the ANSI and OSHA standards are “inextricably intertwined,” rendering the “collective OSHA/ANSI statements” false. (Dkt. No. 130 at 1-2, 3 & n.2.) Indeed, Wing refers to the ANSI and OSHA language as a “collective” statement throughout its brief. (E.g., id. at 3, 5, 6, 13, 17, 21.) But the only expert testimony on the relationship between the ANSI A14.2 standard for ladders and OSHA regulations was elicited by Wing’s counsel when deposing Tricam’s expert Mr. Krafchick—after Tricam brought this motion and before Wing filed its opposition brief.9 (See Dkt. Nos. 109, 130, 139-1.) Mr. Krafchick’s testimony does not constitute a timely disclosure that Wing thought the OSHA language was false or that Wing was treating the OSHA and ANSI language “collective[ly].” Further, the Court cannot discern any rational reason why Wing would not have had its technical expert Dr. Bloswick offer opinions as to the relationship between the OSHA regulations and ANSI standard in his expert report (including how they are “inextricably intertwined”) had Wing really intended from the outset of this case to assert at trial that the Gorilla Ladders did not comply with OSHA regulations. Wing also claims its contention that the “entire OSHA/ANSI label statement” was false was disclosed through deposition testimony. (See Dkt. No. 130 at 6-8.) But when asked, Mr. Moss and Mr. Wing both identified only ANSI representations as the basis for Wing’s false advertising claims. (Dkt. No. 114 at 4-5, Tr. at 97:11-98:2, 169:24-165:18; Dkt. No. 132-3 at 4, Tr. at 39:6-40:16, 41:16-42:1.) Mr. Moss did not testify that Wing 9 This testimony was beyond the scope of the opinions in Mr. Krafchick’s report. believed the OSHA statement was false or that a “collective” OSHA/ANSI statement was false. (Dkt. No. 132-2 at 5, Tr. at 171:14 -172:9.) While Mr. Wing agreed that the “Manufacturer certifies conformance to OSHA ANSI-A14.2 Code for metal ladders” language was a statement Wing believed was false, he did not testify that Wing believed the OSHA statement was false or that Tricam’s representations regarding OSHA and ANSI were “collective.” (Dkt. No. 132-3, Tr. at 42:19-43:22.) At most, their testimony suggests that those witnesses and Wing believed the ANSI portion of the label was false. The Court also rejects Wing’s argument that Wing employee Mel Huffaker’s “vague understanding” that the lawsuit was about the fact that “Tricam has eroded the price of the ladders, and then claiming that their product is ANSI and OSHA compliant, is probably the two main points that I understand of it” (see Dkt. No. 132-4 at 4, Tr. at 20:10-19) was a disclosure that Wing had identified the OSHA language as false or was treating the OSHA and ANSI language collectively. The Court is similarly unpersuaded by Wing’s reliance on deposition testimony (whether of Tricam employees, Wing employees, or third parties) to the effect that the Gorilla Ladders cannot comply with OSHA regulations if they do not meet the ANSI A14.2 standard. (See Dkt. No. 130 at 20.) The relevant inquiry is when Wing disclosed its contention that the OSHA language was false to Tricam, not when Tricam knew the OSHA language existed or that OSHA regulations may be related to the ANSI standard. See U.S., ex rel. Nat. Res. Def. Council v. Lockheed Martin Corp., No. 5:99-CV-170, 2014 WL 6909652, at *6 (W.D. Ky. Dec. 8, 2014) (“Knowing of the statement and its factual context, however, is different from knowing that one’s opponent alleges the statement was false.”). The scattershot references to OSHA and ANSI relied on by Wing in opposition to Tricam’s motion are no substitute for meeting the disclosure requirements of Rule 26(e). See Transclean, 77 F. Supp. 2d at 1062 (“When discovery closed on November 15, 1998, the Plaintiffs quite properly relied upon the completeness of Bridgewood’s responses to their Interrogatories, as supplemented by the other discovery documents that Bridgewood had produced.”). In sum, the Court finds that Wing did not disclose its contention that the OSHA certified language on the Gorilla Ladders label and The Home Depot’s website was false or misleading or that Wing was contending a “collective representation of OSHA/ANSI compliance” was false before the July 31, 2018 close of fact discovery. Consequently, the Court also considers Wing’s argument that its supplemental responses are timely because they occurred shortly after Wing received Dr. Treise’s report and became aware “that Tricam was misconstruing Wing’s prior responses as somehow bifurcating the accused OSHA/ANSI statements into separate OSHA- compliance and ANSI-compliance statements.” (Dkt. No. 130 at 14-15.) “Timeliness under Rule 26(e)(1)(A) is measured from ‘the date when the facts are discovered, not some nebulous date when counsel first realized that there was some significance to them.’” Longlois v. Stratasys, Inc., 88 F. Supp. 3d 1058, 1077 (D. Minn. 2015) (quoting Havenfield Corp. v. H & R Block, Inc., 509 F.2d 1263, 1272 (8th Cir. 1975)). Wing knew the Gorilla Ladders label and The Home Depot’s website referred to OSHA on the day it filed the suit (Dkt. No. 1 ¶ 19), and it is possible that Wing believed from the outset of this case that the OSHA language was false due to the relationship between the OSHA regulations and the ANSI A14.2 standard. Nevertheless, Wing failed to identify the OSHA language as false or inform Tricam that it was treating the OSHA and ANSI language as a collective representation any time during fact discovery, instead only asserting that contention after receiving Dr. Treise’s report. Given that it was Wing who separated the OSHA and ANSI language at the beginning of this case and identified only ANSI language as false in its discovery disclosures and responses, Wing’s suggestion that Tricam is at fault for treating the ANSI language separately from the OSHA language is not well taken. “For litigation to function efficiently, parties must provide clear and accurate responses to discovery requests.” Transclean, 77 F. Supp. 2d at 1062. Wing cannot render an untimely disclosure timely by saying it was surprised that Tricam took Wing at its word that the allegedly false statements were those of ANSI compliance—and nothing else. Accordingly, the Court concludes that Wing failed to comply with Rule 26(e)(1). B. Striking Wing’s Supplemental Responses to Interrogatory Nos. 18 and 19 Is Appropriate The Court next considers whether to strike Wing’s September 26 supplemental responses to Interrogatory Nos. 18 and 19. In making this determination, the Court considers the importance of the evidence to Wing, the justifications for Wing’s failure to comply with the requirements of Rule 26, the prejudice to Tricam if Wing’s supplemental responses are not stricken, and whether a continuance would effectively cure the prejudice. See Longlois, 88 F. Supp. 3d at 1078 (striking supplemental interrogatory responses); see also Bruhn Farms Joint Venture v. Fireman’s Fund Ins. Co., No. 13-CV- 4106-CJW, 2017 WL 632105, at *4-7 (N.D. Iowa Feb. 13, 2017) (striking supplemental interrogatory responses and prohibiting plaintiff from seeking additional categories of damages disclosed therein). The Court finds these considerations weigh in favor of striking the supplemental interrogatory responses. The Court first considers the importance of Wing’s contention that the OSHA statements are false. In its brief, Wing did not argue that its OSHA contention is important. (Dkt. No. 130 at 22-23.) Instead, Wing argues this factor is neutral because no new evidence was disclosed in the supplemental responses. (Id.) This argument misses the mark. The question is whether Wing’s contention that the entire “MANUFACTURER CERTIFIES CONFORMANCE TO OSHA ANSI A 14.2 CODE FOR METAL LADDERS” statement is false should be stricken, thereby limiting Wing to the contention in its initial interrogatory responses that the statements that Gorilla Ladders “are ANSI compliant” or “comply with the requirements of ANSI 14.2” are false. (See Dkt. No. 113-2 at 2-3, 7-9.) Wing could have argued, for example, that its OSHA contention is important because the word “OSHA” on the Gorilla Ladder’s label is significantly larger than the word “ANSI” below it. Wing did not (possibly because it would then be difficult to explain why it focused on the ANSI language rather than the OSHA language throughout fact discovery). To the extent the OSHA contention is important to Wing’s false advertising claims, it “only serves to highlight the absence of any justification for [Wing’s] untimely supplementation” and failure to disclose its OSHA contention earlier. See Longlois, 88 F. Supp. 3d at 1078. This factor favors striking the supplemental interrogatory responses. As to prejudice, the prejudice to Tricam if Wing’s OSHA contention is not stricken is significant. During fact discovery, Tricam deposed nine Wing employees and eleven third-party witnesses, including from The Home Depot and other ladder manufacturers. (Dkt. No. 113 ¶ 34.) Further, Tricam’s expert Dr. Treise conducted a survey and critiqued Mr. Poret’s survey report based on Wing’s disclosures that only the ANSI statements were allegedly false, including observing that “although some respondents in open-ended comments specifically referenced OSHA as a factor in making a purchase, not one of the hundreds of respondents volunteered that ANSI- compliance was a factor.” (See Dkt. No. 35; Dkt. No. 113-1 at 11.) The Court does not doubt that fact and expert discovery would have had a different complexion had Wing asserted at the outset of this case that the OSHA language on the label and The Home Depot’s website was false. This factor favors striking the supplemental responses. Finally, the Court considers whether a continuance would effectively cure the prejudice to Tricam. Wing argues that any prejudice can be cured by an extension of the pretrial schedule, permitting Tricam to take another 30(b)(6) deposition of Wing, and permitting supplemental expert reports on the interplay between OSHA and ANSI.10 (Dkt. No. 130 at 24.) “Such an approach would impose substantial costs on [Tricam] and 10 Wing has not moved to amend the scheduling order or established good cause for doing so. require the expenditure of additional judicial resources.” Longlois, 88 F. Supp. 3d at 1078. It also ignores the fact that Tricam reasonably may want to depose several third parties again to explore the importance of the OSHA contention, including The Home Depot, and it is uncertain whether Tricam would be able to do so without motion practice. For example, Tricam asserts that the parties “negotiated with The Home Depot for months about the scope of the document requests and deposition testimony” (Dkt. No. 111 at 24), and Wing has not claimed The Home Depot would consent to additional discovery. Tricam also asserts its survey expert Dr. Treise would need to conduct a new survey if Wing’s OSHA contention is not stricken, as Dr. Treise’s rebuttal report was based on Wing’s original ANSI-only contention. (Id. at 26.) In sum, “[a]lthough a continuance, and a reopening of discovery, might alleviate some of the prejudice inflicted by unfair surprise, such a remedy would wreak its own distinctive prejudice, by unnecessarily prolonging the pretrial processing of the Plaintiff[’s] claims, with the attendant expense of further discovery, and prolonged Motion practice.” Transclean, 77 F. Supp. 2d at 1064. The Court concludes that Tricam, having litigated the entire case based on contentions that ANSI representations alone were false, would be prejudiced by having to re-litigate the case based on a new contention that the OSHA statements were false, and by the consequent delay and expense. Further, the Court is concerned that Tricam has been prejudiced in other ways that cannot be remedied through a continuance. In particular, Wing appears to have used Dr. Treise’s rebuttal survey report as a roadmap for drafting its supplemental interrogatory responses. The purpose of Rule 26(e) is to “prevent Trial by ambush.” Transclean, 77 F. Supp. 2d at 1061. Permitting Wing to assert new contentions in response to a rebuttal expert report, well after the close of fact discovery, does not fulfill that goal. In fact, it would encourage litigants to re-write their contentions to undermine and circumvent timely disclosed expert opinions. Granting a continuance would not “place on [Wing] the burden for unnecessarily complicating these proceedings, properly hold [Wing] to account for [its] apparent lack of diligence, or deter future litigants from committing similar lapses with matters of high evidentiary import.”11 Longlois, 88 F. Supp. 3d at 1078. Upon weighing these factors, the Court concludes that Wing’s September 26, 2018 supplemental responses to Interrogatory Nos. 18 and 19 should be stricken. In so deciding, the Court notes that striking those responses is not “tantamount to dismissal.” See Carmody, 713 F. 3d at 405. Wing can still contend that Tricam’s representations regarding ANSI compliance are false and seek relief with respect to those representations. V. ORDER Based on the files, records, and proceedings herein, IT IS ORDERED THAT: 1. Defendant’s Motion to Strike Untimely Supplemental Interrogatory Responses (Dkt. No. 109) is GRANTED. 11 Wing argues that it will be prejudiced at trial if the Court strikes the supplemental interrogatory responses. If that is the case (and the Court declines to speculate on the consequences of this Order at trial), it is Wing, not Tricam, who should bear the burden for Wing’s untimely disclosure. 2. Plaintiff’s September 26, 2018 Supplemental Responses to Interrogatory Nos. 18 and 19 are STRICKEN. DATED: December 4, 2018 s/Elizabeth Cowan Wright ELIZABETH COWAN WRIGHT United States Magistrate Judge