Alston v. Outboard Marine Corp.

12 Pa. D. & C.4th 297, 1991 Pa. Dist. & Cnty. Dec. LEXIS 169
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedFebruary 18, 1991
Docketno. GD 90-02963
StatusPublished
Cited by2 cases

This text of 12 Pa. D. & C.4th 297 (Alston v. Outboard Marine Corp.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alston v. Outboard Marine Corp., 12 Pa. D. & C.4th 297, 1991 Pa. Dist. & Cnty. Dec. LEXIS 169 (Pa. Super. Ct. 1991).

Opinion

WETTICK, J.,

— This is a product liability action brought by a boat operator who was struck by the engine’s lower unit and propeller after he fell out of the boat.

Plaintiff retained an outside expert in anticipation of litigation (Robert J. Swint) who prepared an “analysis report” of the accident in which he concluded that the design of the boat’s motor/throttle system was defective because it did not have a “kill switch” or a “lower unit propeller guard” and that either of these devices would have prevented or reduced plaintiff’s injuries. In response to interrogatories, plaintiff furnished a copy of the expert’s “analysis report” to defendant Outboard Marine Corporation.

Through a series of interrogatories, this defendant has requested plaintiff to provide technical information “known to plaintiff or his representatives.” The interrogatories ask, inter alia, whether plaintiff or his representatives have information concerning governmental regulations pertaining to protective guard systems, persons who designed protective guard systems for outboard and stern driven propellers prior to the accident, the identity of manufacturers or distributors of protective guards systems, the existence of photographs depicting protective guard systems,, literature discussing the use of protective guard systems, the costs of a protective [299]*299guard system, how the protective guard system could be employed without substantially impairing the performance of the motor, test data reflecting the testing of protective guard systems, and persons using protective guard systems. Defendants also asked plaintiff, based on information known to plaintiff or his representatives, to explain the basis for plaintiff’s claims that defendant had the expertise and experience to design and install a technically feasible protective guard system on outboard motors, and that plaintiff’s injuries would have been prevented or reduced if a protective guard system had been employed. Plaintiff’s response to each of these interrogatories was that he has no knowledge concerning these matters and that Robert J. Swint, the expert for plaintiff, may have information.

Defendant contends that plaintiff’s expert is plaintiff’s representative and that in answering defendant’s interrogatories, plaintiff must provide any information that is known to his representatives. Defendant cites this court’s opinion in Carter v. Leonard, 130 Pitts. L.J. 39 (1981), in which we held that a corporation may not respond to interrogatories simply by referring the party submitting the interrogatories to a corporate employee who has the relevant information. We said that a corporation must furnish information that is known or readily available to a reliable corporate employee and involves a matter within the employee’s competence ' unless the corporation has a reasonable basis for questioning the accuracy of the employee’s information. Defendant also cites Rule 4003.1(c) which provides that it is not a ground for objection that the information sought involves an opinion or. contention that relates to a fact or the application of law to a fact.

[300]*300Defendant’s argument would perhaps be meritorious if the representative of plaintiff who has information which the interrogatories seek was not an expert whom plaintiff retained in anticipation of litigation. In the present case, plaintiff’s only basis-for refusing to furnish any information known to Mr. Swint is that this information, according to plaintiff, is protected by Rule 4003.5 which provides in relevant part:

“Rule 4003.5 — Discovery of expert testimony. Trial preparation material.

44 (a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:

“(1) A party may through interrogatories require

4 4 (a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and

44(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.

4 4 (2) Upon cause shown, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.”

[301]*301The right of a party to obtain information from a specially retained expert that another party expects to call as a witness at trial through interrogatories directed to that other party is specifically addressed by Rule 4003.5(a)(1).

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Bluebook (online)
12 Pa. D. & C.4th 297, 1991 Pa. Dist. & Cnty. Dec. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alston-v-outboard-marine-corp-pactcomplallegh-1991.