United States District Court, W.D. Pennsylvania
BONNIE RAPCHAK, Executrix of the Estate of John E. Borzik, Deceased, and WANDA BORZIK, Plaintiffs,
FREIGHTLINER CUSTOM CHASSIS CORPORATION, HALDEX BRAKE PRODUCTS CORPORATION, and SAF-HOLLAND USA, INC., Defendants.
MEMORANDUM OPINION AND ORDER OF COURT
TERRENCE F. McVERRY, District Judge.
Pending before the Court is a MOTION OF DEFENDANT FREIGHTLINER CUSTOM CHASSIS CORPORATION TO COMPEL DISCOVERY (ECF No. 57) and PLAINTIFFS' MOTION TO DISASSEMBLE THE SUBJECT HALDEX VALVE (ECF No. 58). The issues have been fully briefed via Defendant Freightliner Custom Chassis Corporation's ("Freightliner") brief in support (ECF No. 59); Plaintiffs' response (ECF No. 60) and brief in opposition (ECF No. 61); Freightliner's brief in opposition (ECF No. 62); the Declaration of Robert Butler, Ph.D., P.E. (ECF No. 63) filed by Freightliner; and Freightliner's reply brief (ECF NO. 66). The Court held an oral argument on Tuesday, August 5, 2014. Accordingly, the motions are ripe for disposition.
This case arose out of the tragic death of John E. Borzik while inspecting the undercarriage of his 2008 Tour Master recreational motorhome on September 11, 2011. At that time, Mr. Borzik positioned himself near the right side of the rear axle lying supine on a creeper under the structure when it unexpectedly descended, trapped him, compressed his chest and caused him to asphyxiate over a period of time which eventually led to his death. Plaintiffs aver that "the structure of the motorhome descended because the height control valves and/or dump valves in the suspension system of the chassis malfunctioned and did not perform as intended or expected by permitting air to escape from the rear." Compl. at 8, ECF No. 1. According to Plaintiffs, an air leak through a port in the front-mounted dump valve was detected soon after the decedent's body was found.
Defendants designed, manufactured, assembled, and/or sold the motorhome, its chassis, and the air suspension system. Freightliner manufactures motorhome chassis; Haldex Brake Products Corporation ("Haldex") manufactures the height control/dump valve(s) which Plaintiffs allege malfunctioned; and SAF-Holland, Inc. ("SAF-Holland") manufactures the suspension system which was used in the motorhome. According to Defendants, the motorhome and the trailer that was attached to it on the date of the incident were not on level ground, which may have caused or contributed to the purported malfunction. See Def.'s Resp., Ex. 5 at 1-3, ECF No. 60-5.
Plaintiff Bonnie Rapchak is the Executrix of decedent's estate; Plaintiff Wanda Borzik is his mother. As Plaintiffs aver, Ms. Borzik observed her son shortly after the accident and "perceived that [he] was seriously injured or in the process of dying." Compl. at 21, ECF No. 1.
A. Relevant Facts
On April 16, 2012, Rapchak filed a Writ of Summon in the Court of Common Pleas of Washington County in which it named Haldex, Freightliner Custom Chassis Corp., Freightliner Corp., SAF-Holland and Power Gear, Corp. See Def.'s Mot. to Compel, Ex. 1, ECF No. 57-1. Court records indicate that Power Gear filed a Rule to File Complaint on May 4, 2012; that Judge DiSalle issued an order on May 21, 2012 regarding the custody and control of the motorhome; and that Rapchak filed a Praecipe to Discontinue on July 9, 2012.
On May 9, 2012, counsel for Plaintiffs sent opposing counsel a correspondence in which he raised the issue of conducting an inspection of the motorhome. See Pls.' Reply, Ex 1 at 4, ECF No. 60-1. The date of the inspection was ultimately scheduled on August 14, 2012. On July 25, 2012, counsel for Plaintiffs sent opposing counsel another correspondence in which he enclosed a proposed protocol for the inspection. See id. , Ex 6 at 2-3, ECF No. 60-6. Notably, the proposed protocol calls for "[t]he removal of the height control valve and replacement with the new valve." Id. at 2.
Defendants did not provide an alternative protocol or seek any legal recourse to prevent the removal of the valve. Counsel for Defendants who were present at the inspection did, however, apparently voice an objection to the removal of the valve. Defendants' counsel also sought to conduct additional testing and examination of the motorhome, which included cycling the suspension system, removing the vehicle from its original setting and placing it on a level surface, and evaluating the load being exerted on the trailer hitch. After conferring with his consultants, Plaintiffs' counsel did not allow further cycling or the repositioning of the motorhome but provided Defendants with the opportunity to conduct load testing.
During the August 14, 2012 inspection, Plaintiffs' consultants removed the valve and installed an identical model. Afterward, the suspension system apparently operated normally- i.e. , it did not leak air or otherwise malfunction. From Plaintiffs' perspective, the operation and function of the replacement suggests "that a contaminant or malfunctioning or mispositioned internal component of the valve had caused the valve outlet mechanism to remain open allowing the air to exhaust through the outlet part." Pls.' Mot. at 3, ECF No. 58. Plaintiffs further maintain that a foreign substance was observed through a port hole after the valve was removed, which they suspect is a sealant or compound used in the assembly of the suspension system.
On August 9, 2013, Haldex attempted to test the subject valve at its facility in Kansas City, Missouri with two of Plaintiffs' consultants in attendance along with representatives of the other Defendants. Plaintiffs describe what transpired at Haldex as follows:
Expecting the expulsion of contaminants when the test equipment would force air into the valve at high pressure, the parties agreed that a cloth would be placed at the mouth of the exit port to catch any expelled contaminants, which then could be tested. However, before the cloth was in place, high pressure air blew a substance in particle form out of the valve, which could be not only seen but felt when the particles struck the consultants.
Pls.' Mot. at 3-4, ECF No. 58. It is unclear as to why safeguards were not in place to capture any particles expelled from the valve. Nevertheless, all parties consented to Haldex testing the valve in a manner that was ...