This case raised the issue whether a company should have the right to observe the destructive testing of its own products that are the subject of a lawsuit against it, and to obtain the results of the testing, regardless of whether the party conducting the testing will introduce the test results or expert testimony at trial. On August 11, 1994, Richard Haldane, then 5½ years old, was hit by a truck and seriously injured while riding a toy manufactured by Hasbro. In a subsequent products liability lawsuit alleging defective design, the plaintiffs requested that Hasbro produce two copies of the toy, which is no longer manufactured, for destructive testing. Hasbro objected, arguing that the plaintiffs had not shown why destructive testing was necessary. Hasbro also argued that if the court did allow the destructive testing, Hasbro should be able to observe. The Superior Court issued an order allowing plaintiffs to conduct the testing, but denied Hasbro’s request to attend the testing or to obtain testing results. The court concluded that Hasbro would only be entitled to the results if plaintiffs intended to have their experts testify at trial. Otherwise, the court concluded that the test results were protected work product. Hasbro filed a petition for writ of certiorari to the Rhode Island Supreme Court, seeking interlocutory review of the order.
NELF filed a memorandum in support of Hasbro, arguing that the trial court abused its discretion in barring Hasbro both from observing the scheduled destructive testing and from obtaining the results of the testing. NELF argued that ex parte testing will forever deprive Hasbro of the opportunity to evaluate or replicate the circumstances and results of a one-time-only test. Courts from other jurisdictions condition destructive testing on the attendance by the party opposing the testing, along with its counsel and experts, and allow the opposing party to obtain the results of the testing. NELF argued that allowing the opposing party to observe the testing is a simple procedural safeguard that is indispensable to allowing that party to know the circumstances of the testing that bear upon its results. This procedural safeguard also advances the balanced truth-seeking function of discovery. The Court denied Hasbro's petition for certiorari. The parties are in settlement negotiations.