Little Giant Ladder Systems, LLC. v. Tricam Industries, Inc.

Background

Wing alleged that Tricam falsely advertised and used deceptive trade practices in marketing its Gorilla Ladders. The complaint alleged that Tricam represented the ladders as “ANSI certified” and “OSHA compliant,” but repeatedly focused on the alleged failure to meet section 6.7.5 of the ANSI A14.2 ladder-safety standard. The complaint sought relief concerning the ANSI representations and did not allege that the OSHA language itself was false or misleading.

During discovery, Tricam asked Wing to identify specifically the statements supporting its false-advertising and deceptive-trade-practices claims. Wing’s initial responses identified alleged false statements about ANSI compliance but did not mention OSHA. Wing’s disclosures, requests for admission, deposition testimony, and expert materials likewise did not clearly identify an OSHA-based false-advertising contention. The court found that these materials generally separated the ANSI statements from the OSHA statements.

On September 26, 2018—almost two months after fact discovery closed—Wing supplemented its answers. The supplemental responses asserted that statements such as “MANUFACTURER CERTIFIES CONFORMANCE TO OSHA ANSI A 14.2 CODE FOR METAL LADDERS” were false because the ladders allegedly failed to comply with all aspects of ANSI A14.2, and that this supported a combined OSHA-and-ANSI theory. Tricam moved to strike the supplemental responses as untimely.

Legal standard

Federal Rule of Civil Procedure 26(e)(1) requires a party to timely supplement an interrogatory response when it learns that the response is materially incomplete or incorrect and the new information was not otherwise made known during discovery. Under Rule 37(c)(1), information not timely disclosed generally cannot be used to support a claim or defense unless the failure was substantially justified or harmless. The court applied a balancing test considering the importance of the information, the justification for the delay, the prejudice to the opposing party, and whether a continuance could cure that prejudice.

Court’s analysis

The court concluded that Wing’s September 26 supplementation was untimely. It found that Wing had not disclosed before the discovery deadline that the OSHA language was false or misleading, or that Wing was treating the OSHA and ANSI language as one combined representation. The court rejected Wing’s argument that references to the label, OSHA, and ANSI in various materials provided adequate notice of that contention.

The court also found that the failure to disclose was not substantially justified or harmless. Tricam had conducted fact and expert discovery based on the understanding that Wing was challenging only the ANSI representations. Allowing the OSHA theory after discovery closed would have required additional discovery, potentially including further depositions and a new consumer survey. The court also found that a continuance would not fully address the prejudice and would cause additional expense and delay.

Disposition

Judge Elizabeth Cowan Wright granted Tricam’s Motion to Strike Untimely Supplemental Interrogatory Responses. The court struck Wing’s September 26, 2018 supplemental responses to Interrogatory Nos. 18 and 19. The court specifically stated that striking the responses was not equivalent to dismissing the case: Wing could still contend that Tricam’s representations about ANSI compliance were false and seek relief concerning those representations.