Relative Proportionality Argument Rejected

Bender v. Wiegand Sports GMBH, 2024 WL 4202155 (D. Md. Sep. 16, 2024)(Bredar, J.), grabbed my attention because it involved a claim for personal injuries arising out of the mountain coaster ride at Wisp Resort. That is a ride I have taken my children and grandchildren on many times.

One of three defendants contended that the discovery propounded on it was not proportional because it was the least culpable of the three.  The Bender Court disagreed.

Plaintiff alleged that her 9-year-old boy, riding in the front seat, was restrained by a lap belt; however, it allowed him to submarine and his head and face was struck repeatedly by the steel railing, causing catastrophic injuries.  Plaintiff, riding in the rear seat, wore a 3-point safety harness but also suffered minor physical injuries and significant emotional distress.

“Plaintiffs allege that there have been several other injuries stemming from Wiegand mountain coasters, both at Wisp Resort and at other locations.”

Plaintiffs sought discovery “relat[ing] to other incidents involving Wiegand mountain coasters at Wisp Resort and elsewhere.”  Wiegand objected.  Plaintiffs moved to compel and Wiegand moved for a protective order.

After setting out the boilerplate on scope of discovery and requirements for a protective order, the Court wrote: “The burden is on the party resisting discovery to explain specifically why its objections, including those based on irrelevance, are proper given the broad and liberal construction of federal discovery rules.”

In the District of Maryland: “Unlike some other courts … this Court does not impose on the requesting party the burden of establishing the substantial similarity of the requested incidents and lawsuits subject at the discovery stage of the litigation. That is a very rigorous process, often necessitating expert testimony. Ordinarily, that can and should be reserved for trial, or by motion in limine. At the same time, this Court is not prepared to compel discovery of incidents which bear no apparent relationship to the issues of notice, the magnitude of, the danger involved, the opposing party’s ability to correct a known defect; the product’s lack of safety for its intended uses standard of care, or causation in this case.”  Id. at *2 (emphasis added; citation omitted).

The Court wrote:

In short, Wiegand’s request for a protective order is far too broad, and Plaintiffs are entitled, under the liberal discovery rules, to receive information about other incidents that occurred in connection with the mountain coasters….  The document requests and interrogatories at issue plainly seek information to which Plaintiffs are entitled, and Wiegand cannot seriously contend that the information is not relevant. For instance, Request No. 16 of Plaintiff Bender’s First Request for Production of Documents seeks documents relating to “an injury producing incident involving a rider in a Wiegand Alpine Coaster 1.0 sled at Wisp.”

Id. at *2-3.  Other examples were also given.

Judge Bredar wrote that: “Discovery, of course, does not permit Plaintiffs to go on a fishing expedition. And there are certain of the challenged discovery requests that could likely benefit from agreement by the parties narrowing the precise types of incidents that would be subject to discovery.”

Wiegand described an alleged failure of plaintiffs to define what constitutes a “substantially similar” incident.  The Court then added: “However, Wiegand has apparently rebuffed attempts at reasonably narrowing the types of incidents that would be subject to discovery….”

The Court wrote: “It is not clear why Wiegand would be opposed to the definition apparently proposed by Plaintiffs, as it appears to the Court to be a very narrow one.”

Wiegand’s other arguments were also rejected.  Id. at *3-4.

For example, Weigand argued relative proportionality:  “Wiegand appears to argue that, because Pacific and Everbright are more culpable, discovery directed at Wiegand is disproportionate.”  [emphasis added].

Wiegand designed and sold the sled.  Defendant Pacific owned and operated Wisp Resort. Defendant Everbright was a co-operator.

Wiegand argued that Everbright failed to verify that the minor was properly fastened by the belt. Id. at n. 4.

The relative proportionality argument failed:

The issue of the various Defendants’ culpability is simply not before the Court at this time, and Wiegand’s view that it is less culpable than the other Defendants does not provide justification for the breathtakingly broad protective order Wiegand seeks.

Id. at *3 (emphasis added).

Wiegand’s argument that the requested information would not be admissible under Fed.R.Evid. 403 was of no moment because “Rule 26 itself provides that ‘[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.’”  Id. at *4.

Several other objections were overruled and Wiegand’s motion to file a compilation video was denied because “[r]eviewing such video would not aid the Court in its decisional process….”  Id.

Plaintiffs’ motion to compel was denied without prejudice for failure to comply with the Local Rules.  Id. at *4.