In Re McNeilus Manufacturing Explosion Coordinated Litigation

Background

Swagelok Company asked to conduct independent destructive testing of critical evidence without input, involvement, or observation by the other parties. Swagelok had not disclosed the precise test it wanted to perform or what evidence the testing might produce. San Diego Fluid System Technologies joined the request, and the plaintiffs opposed it. The court considered letter briefs and held an informal discovery-dispute hearing by telephone on October 2, 2018.

The evidence was a 36-foot length of hose central to the litigation, which involved an explosion, serious injuries, and substantial property damage. The parties agreed that different portions of the hose had been affected by the fire in different ways, depending on their locations and proximity to clamps and other items. They also agreed that Swagelok’s proposed testing would destroy only very small pieces taken from different parts of the hose.

Analysis

The court concluded that, under the circumstances, Swagelok could not conduct destructive testing of any part of the hose privately. Because the fire might have affected different parts of the hose differently, destroying a portion without the other parties present could prevent them from testing a part that was identical or very similar.

The court rejected Swagelok’s reliance on the cases it cited. It explained that the relevant authorities treated the opportunity of the opposing party to attend and observe destructive testing as a factor supporting permission for such testing. The court also found a case involving private destructive testing more applicable because it recognized that apparently multiple pieces of evidence may still vary and that destroying a unique sample could prejudice the opposing party.

The court determined that the potential prejudice to the plaintiffs outweighed the prejudice Swagelok might face from revealing unfavorable test results or part of its litigation strategy. It stated that requiring Swagelok to allow all parties and their experts to consult about and attend any destructive testing would adequately protect the plaintiffs.

Disposition

The court denied Swagelok’s request to conduct destructive testing independently. The order was signed by United States Magistrate Judge Katherine Menendez.