Boselli v. Southeastern Pennsylvania Transportation Authority

108 F.R.D. 723, 1985 U.S. Dist. LEXIS 12307
CourtDistrict Court, E.D. Pennsylvania
DecidedDecember 27, 1985
DocketCiv. A. No. 85-0406
StatusPublished
Cited by8 cases

This text of 108 F.R.D. 723 (Boselli v. Southeastern Pennsylvania Transportation Authority) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boselli v. Southeastern Pennsylvania Transportation Authority, 108 F.R.D. 723, 1985 U.S. Dist. LEXIS 12307 (E.D. Pa. 1985).

Opinion

[724]*724MEMORANDUM AND ORDER

EDWIN E. NAYTHONS, United States Magistrate.

Plaintiff, John Boselli, has filed this personal injury action pursuant to the Federal Employers Liability Act, 45 U.S.C. § 51 et seq. In his complaint, plaintiff alleged that on August 1, 1983, while he was engaged in his employment as a car inspector for SEPTA at the Paoli yard, he tripped and fell over a flag on or about the track area which allegedly resulted in his being rendered disabled from further employment. On August 5, 1985, plaintiff served supplemental interrogatories and requests for production of documents. When the discovery requests were not timely responded to by defendant, plaintiff filed a motion to compel which was granted by the Honorable James McGirr Kelly on October 17, 1985.

On October 31, 1985, defendant forwarded answers to the supplemental discovery requests, however, plaintiffs counsel is dissatisfied with certain answers provided by defendant concerning the examination, inspection, or maintenance at the situs of plaintiff’s accident at the Paoli yard. Plaintiff has also found dissatisfaction with certain answers to plaintiffs supplemental interrogatories and requests for production of documents concerning defendants’ expert witnesses.

On November 12, 1985, ■ plaintiff filed a motion to compel more specific answers to plaintiff’s supplemental interrogatories Nos. 11, 12, 13 and 15 and all documents responsive thereto as well as more complete and responsive answers to plaintiff’s supplemental interrogatories (Expert Set) Nos. 3(j), (k), 4(f), (g), (h), (i), (j), (k), (l)(ii) and (iii). Subsequently, plaintiff modified his original motion to compel discovery in that defendant should not be required to file supplemental answers to plaintiff’s supplemental interrogatories of August 5, 1985. Instead, plaintiff now seeks to have the defendant precluded from offering into evidence at trial any testimony or documentation with respect to any inspection, examination, or cleaning of the Paoli yard.

PLAINTIFF’S SUPPLEMENTAL INTERROGATORIES OF AUGUST 5, 1985 (LIABILITY SET)

In supplemental interrogatory No. 7, plaintiff requests defendant SEPTA to state whether its personnel inspected the area where the accident occurred within the three month period prior to the accident and seeks the identity of the personnel making such inspections, the nature of the inspections and the results thereof. In answer to this interrogatory, defendant stated as follows:

No regular or scheduled inspections of the premises are made. The premises, however, are periodically examined for debris by maintenance and cleaning personnel under the supervision of the Outside Shop Foreman.

In answer to the remaining subparts of interrogatory No. 7, defendant advised plaintiff that inspections which are made consist of the cleaning up of debris from the Paoli yard and also advised plaintiff that no written records of such inspections have been retained. Defendant incorporated this answer in response to interrogatory Nos. 11 and 12 seeking the same information as sought in interrogatory No. 7 in the event that SEPTA had no established inspection procedure. Defendant contends that it has provided plaintiff with all of the information it possesses responsive to these interrogatories in stating that it had no regular scheduled inspection procedure for the Paoli yard. Defendant further contends that it is not able to identify any individuals who may have inspected the track area in question prior to the accident since no records were kept in this regard as was recently confirmed by the depositions of the two shop foreman which were taken by plaintiff on November 13, 1985.

Plaintiff realizes that if the Court accepts at face value SEPTA’S assertion of the lack of records, a Court Order compelling those answers would be meaningless. Plaintiff therefore argues that the proper disposition of the motion to compel is sim[725]*725ply to preclude SEPTA from introducing at trial any evidence concerning inspections, examination, maintenance, or cleaning of the Paoli yard. Plaintiff contends that this would prevent SEPTA from having to comply with a discovery request which it admittedly cannot do, while the plaintiff is protected from the introduction into evidence of vague and prejudicial testimony regarding maintenance of the yard which the plaintiff could not intelligently corroborate nor cross-examine, citing Fed.R.Civ.P. 37(b)(2)(B).

Defendant, in its supplemental response to plaintiffs motion to compel, correctly points out that Rule 37(b)(2)(B) provides for a preclusion of evidence as a sanction only in the event that there has been a failure to comply with a discovery order. The subsection of Rule 37 cited by plaintiff provides:

(b) Failure to Comply with Order.
******
(2) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: ******

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

Rule 37 is not applicable in this case since the defendant has not failed to obey the previous Order of October 17, 1985 compelling answers to the interrogatories in question. Defendant’s inability to provide more detailed answers to these interrogatories cannot be held to be a failure to obey the Order compelling full and complete answers. See generally Dorsey v. Academy Moving & Storage, Inc., 423 F.2d 858 (5th Cir.1970); Potlatch Corp. v. United States, 679 F.2d 153 (9th Cir.1982). This Court cannot base a decision granting plaintiff’s request to preclude defendant from introducing any evidence at trial regarding pre-accident inspections. merely upon the defendant not having documents which plaintiff had hoped to secure. This is not an instance in which the defendant has documents which it has refused to turn over in disregard of a Court Order compelling it to do so.

Defendant correctly concedes, that it may be precluded from introducing any evidence at trial concerning the inspection of the Paoli yard which it has not turned over to plaintiff in response to proper discovery requests. However, a decision as to whether certain evidence should be precluded because it was not previously disclosed is a matter which should be determined, if the situation arises, at trial. Even if Rule 37 were applicable in this case, there is no basis to preclude defendant from introducing any and all evidence of prior inspections it conducted, particularly such evidence as that which it has revealed to plaintiff in answers to interrogatories and through depositions.

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Cite This Page — Counsel Stack

Bluebook (online)
108 F.R.D. 723, 1985 U.S. Dist. LEXIS 12307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boselli-v-southeastern-pennsylvania-transportation-authority-paed-1985.