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Terrell v. Central Washington Asphalt, Inc.

United States District Court, D. Nevada

February 4, 2015

WILLIAM TERRELL, et al., Plaintiffs,


CAM FERENBACH, Magistrate Judge.

This matter involves a consolidated personal-injury action arising from a multi-vehicular accident. Five motions are before the court: (1) Central Washington Asphalt's Motion to Reopen Discovery (#342[1]); (2) the parties' Stipulated Discovery Plan (#374); (3) Mitchell Zemke's Counter Motion for Attorney's Fees and Costs (#351); (4) Central Washington Asphalt's Motion to Preclude (#370); and (5) Doreen and Phillip Law's Motion for Determination of Good Faith Settlement (#387).

For the reasons stated below, Central Washington's Motion to Reopen Discovery is granted, the parties' Stipulated Discovery Plan is rejected, Zemke's Counter Motion for Attorney's Fees and Costs is denied, Central Washington's Motion to Preclude is denied, and the court defers ruling on the Laws' Motion for Determination of Good Faith Settlement pending additional briefing.


The facts underlying the parties' disputes are straightforward. For ease of presentation, the court divides its discussion into four sections, beginning with the circumstances surrounding the collision.

I. The Multivehicle Collision[2]

On December 12, 2010, Defendants James Wentland, Jerry Goldsmith, and Donald Hannon were driving trucks owned by Defendant Central Washington Asphalt, Inc. They were headed southbound on Nevada State Route 318, a two-lane road. It was six o'clock at night and dark.

Wentland and Goldsmith were driving in one truck, followed by Hannon in a second truck. Wentland pulled into the oncoming traffic lane, and passed four vehicles. Now, four more were in front of him, including a third truck driven by Third-Party Defendant Chip Fenton.

Having safely returned to the southbound lane, Wentland got on his citizens band ("CB") radio and told Hannon, who was driving behind him, that it was still safe to pass Fenton.

It was not. A GMC Envoy, driven by Third-Party Defendant Mitchell Zemke, was headed northbound. Fenton saw Zemke approaching and told Hannon that it was not safe to pass. Hannon, nevertheless, relied on Wentland's advice, pulled into the oncoming traffic lane, and accelerated directly towards Zemke.

Zemke's wife, Kathryn, looked up from her phone and yelled. Headlights were in the northbound lane. It was Hannon. Zemke swerved right, drove into the dirt, temporarily lost control, overcorrected, and collided with three cars as he pulled back onto the road. Five people were injured, including Doreen and Phillip Law, and one person-Jon Slagowski-died.

Fenton radioed Wentland, Goldsmith, and Hannon. He told them what had happened, and asked them to stop. In response, someone replied, "I'm in trouble."

Wentland, Goldsmith, and Hannon did not stop. They drove on for another forty miles until the Nevada Highway Patrol pulled them over, at which point they denied having any knowledge of the accident.

Six months later, the Slagowskis, Laws, and Zemkes commenced this consolidated personal-injury action against Wentland, Goldsmith, and Hannon and their employer, Central Washington Asphalt, Inc. Now, the parties are negotiating settlement offers as discovery winds down. Four motions are before the court.

II. Central Washington Moves to Reopen Discovery

On October 15, 2014, Central Washington moved to reopen discovery for the limited purpose of disclosing a trucking expert limited to addressing the Slagowskis newly added aiding-and-abetting claim. ( See Doc. #342). The Slagowskis allege that Central Washington, Goldsmith, Wetland, and Hannon aided and abetted each other in violating the Motor Carrier Act. §§ 31101, et seq. and Federal Motor Carrier Safety Regulations, 49 C.F.R. § 392.3, which prohibit drivers from operating commercial motor vehicles while fatigued. ( See Amend. Compl. #329 at 6). Oppositions were filed by Zemke (#349, #357), Fenton (#350), the Laws (#353), and the Slagowskis (#355) who contend that Central Washington could have conducted this discovery, but did not. The circumstances preceding this dispute follow.

On October 1, 2013, the expert-disclosure deadline elapsed. At that time, Defendants had designated Larry Miller as their trucking expert and Plaintiffs designated Lew Grill as their trucking expert. On June 6, 2014, Plaintiffs served Grill's supplemental report on Defendants. The report addressed driver fatigue and the Federal Motor Carrier Safety Regulations. On July 9, 2014, Defendants served Miller's supplemental report. It did not address driver fatigue or the regulations. It merely stated that the "[d]rivers were given the flexibility to plan their routes and take rests as they deemed appropriate." (Doc. #349-2 at 3).

On June 18, 2014, the Slagowskis moved to amend their complaint to add an aiding-and-abetting claim. On July 22, 2014, this court recommending denying the motion to amend.

On September 29, 2014, Miller was scheduled to be deposed in Los Angeles. Counsel for the Zemkes traveled from Las Vegas to appear for the deposition. (Doc. #366 at 5:25-26). However, immediately before the deposition was scheduled to begin, Central Washington announced that it had made a strategic decision "to re-designate Miller from a testifying expert to a consulting expert." ( Id. at 5-6). The deposition was cancelled.

On September 30, 2014, the Honorable Andrew P. Gordon, U.S. District Judge, granted the Slagowski Plaintiffs' motion to amend. On October 15, 2014, Defendants filed the instant motion to reopen discovery for the limited purpose of addressing the new cause of action in the amended complaints." (Doc. #342 at 1:23, 27-8). On October 23, 2014, Zemke opposed Central Washington's motion and filed the instant Counter Motion for Attorney's Fees and Costs. (Doc. #351 at 9-10). Zemke seeks $18, 775.71 in reimbursement for expenses he incurred in preparing for Miller's deposition. (Michalek Aff. (#351) at 3).

III. Central Washington Moves to Preclude Privileged Information

The parties' second discovery dispute arises from a different set of facts. On November 19, 2012, Defense Counsel inadvertently served Hannon's draft answers to Zemke's Interrogatories, rather than Hannon's final answers. ( Id. at 3:2). Four months later, on March 27, 2013, Plaintiffs deposed Nevada Highway Patrol Trooper Michael Simon. (Doc. #377 at Ex. 2). During the deposition, Plaintiffs used Hannon's draft answers to examine the witness. ( See id. ) Defense Counsel asserted a foundation objection, but no privileged objection was raised. ( Id. )

After the deposition ended, Defense Counsel discovered that he had inadvertently served Hannon's draft answers, rather than the final answers, and that the draft answers-which Defense Counsel considered privileged-had been used during Trooper Simon's deposition. Accordingly, Defense Counsel drafted a letter to opposing counsel, which explained the error, and placed it in the U.S. Mail. (Doc. #370 at 15). Corrected answers were appended to the letter. ( Id. at 16-25).

The next day, on March 28, 2013, Plaintiffs deposed a second Nevada Highway Patrolman, Trooper Guy Davis. (Doc. #377 at 4:16). During the deposition, Plaintiffs' Counsel used the draft answers to examine Trooper Davis. ( Id. at 4:17). Defense Counsel asserted form and foundation objections, but no privilege objection. ( Id. ) Defense Counsel then cross examined Trooper Davis and questioned him about the same draft interrogatory answers. ( Id. at 4:19-20).

On April 1, 2013, Plaintiff's Counsel received Defense Counsel's March 27 letter and corrected interrogatory answers. (Doc. #377 at 4:24-25). In pertinent part, the letter read:

On November 12, 2012, my office served you with Third-Party Plaintiff Donald Hannon's Answers to Third-Party Defendant Mitchell Forest Zemke's Interrogatories. The Answers were not signed by me. In reviewing my file, it has come to my attention that my office inadvertently served the draft Answers and not the final Answers that were verified by my client. Under 26(b)(5)(B)..., this document is privileged and must be returned and/or destroyed. [...] If you do not agree with the above, please advise so I can file the appropriate motion with the court. Otherwise, please destroy and/or return the document.

(Doc. #370 at Ex. 1). Four months later, Hannon was deposed on August 21, 2013. (Doc. #370 at 3:12-23). During the deposition, Plaintiffs' Counsel used the draft answers to examine Hannon and Defense Counsel objected on privilege grounds. On May 6, 2014, Hannon was re-deposed and admitted that he verified the draft answers. (Doc. #377 at Ex. 1).

On June 16, 2014, Defendants deposed Plaintiffs' trucking expert, Lew Grill. During the deposition, the draft answers were again used or referenced. (Doc. #370 at 4:15-28). Defense Counsel objected. ( Id. ) This scenario repeated itself five months later. On November 13, 2014, Plaintiffs deposed Mike Dilich, Defendants' trucking expert. During the deposition, the draft answers were used, and Defense Counsel objected. (Doc. #370 at 5:26). Defendants filed the instant motion to preclude use of the inadvertently disclosed document the next day.

IV. The Laws Move for a Determination of Good Faith Settlement

Finally, on December 18, 2014, the Laws moved for a determination of good-faith settlement (#387). Philip and Doreen Law have agreed to settle their claims against Central Washington for $1, 500, 000.00 and $160, 000.00, respectively. (Doc. #387 at 4:9, 11). If the court finds that the settlement was reached in good faith, the plaintiff's release discharges Central Washington from all liability for ...

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