Sheppard v. Glock, Inc.

176 F.R.D. 471, 1997 U.S. Dist. LEXIS 6191, 1997 WL 230796
CourtDistrict Court, E.D. Pennsylvania
DecidedApril 30, 1997
DocketCiv. A. No. 96-5533
StatusPublished
Cited by4 cases

This text of 176 F.R.D. 471 (Sheppard v. Glock, Inc.) 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
Sheppard v. Glock, Inc., 176 F.R.D. 471, 1997 U.S. Dist. LEXIS 6191, 1997 WL 230796 (E.D. Pa. 1997).

Opinion

MEMORANDUM

BARTLE, District Judge.

This is a diversity products liability action. Pending before the court are the motions of defendants Glock, Inc. (“Glock America”) and Glock, G. es.m.b.h. (“Glock Austria”) for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Plaintiff Elizabeth Sheppard was employed as a police officer by the City of Philadelphia in 1994. On August 17,1994, she was “qualifying” at the Philadelphia pistol range with a Glock Model 17, 9 millimeter firearm (“Glock 17”). The pistol discharged a round of fire into Ms. Sheppard’s right thigh when she holstered it. Ms. Sheppard contends that a defective design in the Glock 17 caused the discharge.1 Defendants assert that Ms. Sheppard had her finger on the trigger when she holstered the weapon.

Plaintiffs filed the instant lawsuit on August 8, 1996.2 Ms. Sheppard claims damages on theories of strict liability, breach of warranty, and negligence, and her husband, plaintiff Milton Sheppard, asserts a claim for loss of consortium. On October 25, 1996, the court entered a written Scheduling Order setting forth various discovery and other pretrial deadlines as well as the date for the case 'to be placed in the court’s trial pool. Plaintiffs’ counsel missed the March 1, 1997 deadline for production of liability expert reports. On March 11, 1997, he moved to amend that deadline and all deadlines in the Scheduling Order. We denied the motion. On March 24, 1997, defendants moved to preclude plaintiffs from providing liability expert testimony at trial. We granted the motion on April 1,1997.

Defendant Glock America moved for summary judgment on March 31, 1997. Defendant Glock Austria moved for summary judgment on April 2, 1997, joining in Glock America’s memorandum. Their argument is as follows. In a products liability action, a plaintiff must prove that the product was defective and that the defect was a substantial factor in bringing about the plaintiffs [473]*473injury. Carrecter v. Colson Equip. Co., 346 Pa.Super. 95, 499 A.2d 326, 329 (1985). Defendants maintain, and plaintiffs concede, that plaintiffs cannot prove that the Glock 17 was defective without expert testimony. See, e.g., Electron Energy Corp. v. Short, 408 Pa.Super. 563, 597 A.2d 175, 180 (1991), aff'd, 533 Pa. 66, 618 A.2d 395 (1993). Plaintiffs also concede that, unless we vacate our order precluding such testimony, summary judgment in defendants’ favor is mandated. Consequently, they argue in their “answer” to defendants’ summary judgment motions that we should vacate that order, although they have not filed a motion requesting that we do so. The sole issue for resolution, then, is whether exclusion was the appropriate sanction for the failure of plaintiffs’ attorney to abide by the Scheduling Order.

Rule 16(f) of the Federal Rules of Civil Procedure authorizes sanctions for the failure of a party or a party’s attorney to obey a scheduling order. It provides that the court “may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B),(C),(D).” Id. One acceptable penalty is “prohibiting th[e] party from introducing designated matters in evidence.” Fed.R.Civ.P. 37(b)(2)(B). We imposed that sanction here.

In doing so, we were mindful that the exclusion of evidence is an “extreme” sanction. Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 905 (3d Cir. 1977), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985), aff'd, 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). We also recognized that “when evidence preclusion is tantamount to a dismissal,” as in this case, preclusion is proper only when dismissal would be proper as well. See 3 James Wm. Moore et al., Moore’s Federal Practice § 16.92[5][c][i] (3d ed.1997).

The Court of Appeals for the Third Circuit has opined on the propriety of dismissal as a penalty for dilatory pretrial conduct. In Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir.1984), it instructed that the district court should weigh:

(1) the extent of the party’s personal responsibility;

(2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery;

(3) a history of dilatoriness;

(4) whether the conduct of the party or the attorney was willful or in bad faith;

(5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and

(6) the meritoriousness of the claim or defense.

Id. at 868. The critical factor is -willfulness or bad faith, although dismissal may, in select situations, be fitting even absent willfulness or bad faith. Estate of Spear v. Commissioner of I.R.S., 41 F.3d 103, 112 (3d Cir.1994). Indeed, while all of the above factors must be considered, dismissal can be appropriate even when some of the factors are not met. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988), cert. denied, 488 U.S. 1005, 109 S.Ct. 786, 102 L.Ed.2d 777 (1989). With these principles in mind, we assess whether exclusion of plaintiffs’ liability expert (and hence the grant of summary judgment against plaintiffs) is in fact the appropriate sanction here.

I. The Extent of the Sheppards’ Personal Responsibility

There is no evidence that the Sheppards were in any respect personally responsible for the delays in this ease. The record reveals that, when requested to do so, they have appeared for depositions and testified with candor. Having said that, “the [plaintiffs’] lack of responsibility for their counsel’s dilatory conduct is not dispositive, because a client cannot always avoid the consequences of the acts or omissions of its counsel.” Poulis, 747 F.2d at 868.

II. The Prejudice to Glock America and Glock Austria Caused by the Failure of Plaintiffs’ Counsel to Meet Scheduling Orders and Respond to Discovery

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176 F.R.D. 471, 1997 U.S. Dist. LEXIS 6191, 1997 WL 230796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheppard-v-glock-inc-paed-1997.