United States District Court, D. Maryland
HELEN THOMAS FISH, et al. Plaintiffs,
AIR & LIQUID SYSTEMS CORPORATION, et al. Defendants.
David Copperthite United States Magistrate Judge.
action brought by the estate of Robert Fish, his wife and
children, alleges certain Defendants who were "miners,
manufacturers, processors, importers, converters,
compounders, merchants, installers, removers, sellers,
distributors, marketers and/or suppliers of asbestos;
asbestos-containing products; or products designed to be used
with asbestos-containing products or with products which
Defendants knew or should have known would contain
asbestos" caused asbestos exposure to Plaintiff
resulting in Plaintiff's death due to mesothelioma (ECF
396-3). Among those Defendants, it is alleged that Plaintiff
was exposed to asbestos while working on brake systems on
Ford vehicles. Of the voluminous number of Defendants and
resulting Cross-Defendants, only Ford, along with four others
remain. Of the four, three have dispositive motions pending
and one has a motion to dismiss pending. The majority of
Defendants have been settled or dismissed. This case was
referred to me by Judge Russell for purposes of managing
discovery and resolution of any discovery disputes. ECF 406.
and Ford were before the Court on January 13. 2017 for a
hearing on Plaintiffs' Motion to Compel discovery (ECF
400. 420). The Court made rulings on the record at that time.
The briefing was not yet complete for ECF 423, Defendant
Ford's motion for a protective order now before the
Court. The briefing is now complete and the motion is ready
for ruling. No hearing is necessary. Local Rule 105.6.
Plaintiffs have filed a motion for leave to file a Sur-Reply
(ECF 474). The motion to file a sur-reply is Denied. Local
has moved for a protective order to limit the 54 areas of
inquiry (AOI) with respect to their designated Rule 30(b)(6)
witness. In essence, Ford argues that the requested AOI by
Plaintiffs are not proportional to the allegations at issue,
are overly broad and unduly burdensome. The arguments
presented in ECF 423 are similar in nature to those presented
at the hearing on January 13, 2017. Plaintiffs argue that
their AOI should not be so limited, and rely upon an
affidavit of Eldon Dierks, (a friend of Robert Fish) that
Plaintiffs argue "supplements" the three affidavits
and detailed deposition previously provided by Robert Fish
(ECF 455-3). In his affidavit. Mr. Dierks stated that he and
Plaintiff worked on many automobiles together during their
three years at the hobby shop at Fort Meade including other
Fords. Those included more than one Ford model and more than
one model year of vehicles that either Dierks or Mr. Fish
worked on or were being worked on while they were present.
Mr. Fish previously testified he recalled only working on one
Ford- a 1974 Ford Mustang II. and he was just helping someone
with a brake job at that time. Mr. Fish testified he worked
on many other vehicles from other manufacturers. He did not
recall using original Ford parts. He testified that other
persons worked on vehicles in the hobby shop when he was
Rule 26(b) provides general provisions regarding the scope of
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the hurden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
rules are to be accorded broad and liberal construction.
See Herbert v. Lando, 441 U.S. 153. 177 (1979);
Hickman v. Taylor, 329 U.S. 495, 507 (1947).
Nevertheless, a court may "issue an order to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense ...."Fed. R. Civ. P. 26(c)(1).
Protective orders pursuant to Rule 26(c) "should be
sparingly used and cautiously granted." Medlin v.
Andrew, 113 F.R.D. 650. 652 (M.D. N.C. 1987).
"Normally, in determining good cause, a court will
balance the interest of a party in obtaining the information
versus the interest of his opponent in keeping the
information confidential or in not requiring its
production." UAI Tech., Inc. v. Valutech. Inc.,
122 F.R.D. 188, 191 (M.D. N.C. 1988) (citation omitted).
party moving for a protective order bears the burden of
establishing good cause. Webb v. Green Tree Servicing.
LLC. 283 F.R.D. 276, 278 (D.Md. 2012). The proponent may
not rely on stereotyped or conclusory statements... but must
present a particular and specific demonstration of fact as to
why a protective order should issue. Id. Good cause
exists where the information sought in discovery is not
relevant to any issue in the case.
stated previously, Plaintiffs have submitted the affidavit of
Eldon Dierks, which they claim "supplements" the
previous affidavits and deposition testimony of Plaintiff
himself. One lawyer's supplement is another lawyer's
contradiction. Defendant Ford argues that the Dierks
affidavit contradicts the original Plaintiffs own sworn
testimony. In reviewing the three affidavits filed by
Plaintiff and the deposition testimony, it is clear that the
Dierks affidavit contains allegations of additional Ford
vehicles and suggests a greater level of potential exposure
than the original Plaintiff himself testified to while under
cases have often recognized a plaintiffs burden to prove
a prima facie cause of action and damages. See,
e.g.. Wood v. Abell, 268 Md. 214, 233, 300 A.2d 665
(1973) (holding that plaintiffs have the burden to prove
negligence and damages); Jones v. Federal Paper Bd. Co..
Inc., 252 Md. 475, 485, 250 A.2d 653 (1969) (holding in
a negligence action that "plaintiffs had the burden of
proving their damages beyond mere conjecture and
speculation...."); Brock Bridge Ltd. Partnership,
Inc. v. Development Facilitators. Inc.. 114 Md.App. 144.
157, 689 A.2d 622 (1997) (holding in an action for breach of
contract that "the plaintiff bears the burden of
adducing sufficient evidence from which the amount of damages
can be determined....").
Court is guided by Fed.R.Civ.P. 26(b)(1) and Appendix A,
Guideline 1 of the Local Rules, "to facilitate the just,
speedy and inexpensive conduct of discovery, in light of what
is relevant to any party's claim or defense; proportional
to what is at issue in a case and not excessively burdensome
or expensive compared to the likely benefit of obtaining the
discovery being sought." Local Rules. Appendix A.
to resolving any discovery dispute is determining whether the
information sought is within the permissible scope of
discovery, as stated in Fed.R.Civ.P. 26(b)(1). Lynn v.
Monarch Recovery' Management. Inc.. 285 F.R.D. 350,
355 (D.Md. 2012). Federal Rule of Civil Procedure 26(b)(2)(C)
"cautions that all permissible discovery must be
measured against the yardstick of proportionality."
Victor Stanley, Inc. v. Creative Pipe. Inc.. 269
F.R.D. 497, 523 (D.Md.2010). Under that rule, the court,
acting sua sponte or at a party's request,
"must limit the frequency or extent of discovery"
if: (i) "the discovery sought is unreasonably cumulative
or duplicative, or can be obtained from some other source
that is more convenient, less burdensome, or less
expensive"; (ii) "the party seeking discovery has
had ample opportunity to obtain the information by discovery
in the action": or (iii) "the burden or expense of
the proposed discovery outweighs its likely benefit,
considering the needs of the case, the amount in controversy,
the parties' resources, the importance of the issues at
stake in the action, and the importance of the discovery in
resolving the issues." Fed.R.Civ.P. 26(b)(2)(C)(iii).
Court's comments regarding the facts of the case at the
hearing on January 13, 2017.were as follows:
"So just some comments. This case alleges an asbestos
injury to the plaintiff from multiple sources over the
plaintiffs adult lifetime. Plaintiff is now deceased and his
claim is represented by his wife, as executrix of the estate.
The plaintiff worked in the shipbuilding industry from 1960
to 1961. During that time, he worked on pipes and pipe
fitting where he claimed he could visibly see dust around
him. And it is alleged that, or at least the theory of
recovery here is that, that dust contained asbestos fibers.
plaintiff also served in the Navy for 20 years and alleges
additional exposure to asbestos while working and serving on
ships over his 20-year period.
more pertinent to today's case, it is also alleged that
plaintiff performed work inside or as a hobby on various
automobiles, including Buicks. Oldsmobile, Chevrolet, Pontiac
-- those are all GM products -- Dodge, Plymouth, and Chrysler
products, Toyota, Datsun, and others from about 1960 to 1980.
And the plaintiff alleges that the brakes in these vehicles
contain an asbestos component. And when replacing the brakes,
part of the mechanic's duty was to clean the area where
the brakes would be replaced, and that compressed air was
used, which filled the workspace with asbestos fibers causing
another source of possible ingestion.
Ford, the plaintiff testified in his deposition that the only
Ford he recalled working on was a 1974 Mustang II. where
around 1979 in one afternoon he helped a friend do a brake
job for about three hours. The plaintiff I believe, takes the
position that others worked on these automobiles, including
Fords, in the hobby shop, and plaintiff could have been
exposed to asbestos dust.
than that argument. I found no evidence in the record that
plaintiff worked on any other Ford vehicles. Plaintiff also
testified that he never purchased Ford-branded parts. He did
not identify a single make or model Ford worked on by his
fellow servicemen at the hobby shop. Initially there was some
50-plus defendants named. But as discovery has proceeded, the
number of defendants has continually decreased, as it appears
from the record that plaintiffs principle exposure
allegations are not from Ford brakes or products but from
other defendants where he alleges he was consistently exposed
on a more long-term basis." Transcript at pp. 5-7.
support of the Court's comments, the following are
excerpts from the affidavits of Mr.
and his deposition:
at p. 10-22:
all types of makes and model of cars (including but not
limited to Ford. Mercury. Buick. Oldsmobile, Chevrolet,
Chrysler. Pontiac, Plymouth. Dodge. Datsun. Toyota and Honda)
were being worked on in the Hobby Shop, among the most
popular brands were Ford, Chevrolet. Chrysler and Datsun.
at p. 11-27:
the brake drum was removed, the brake dust inside the drum
was dumped onto the ground. This caused a cloud of visible
dust to rise in the workplace. Compressed air was then
sprayed on the brake assembly to clean and remove the brake
dust from the assembly. Spraying the brake assembly with
compressed air created a cloud of visible dust."
many different brands of vehicles were worked on in the Hobby
Shop, the most popular brands were Ford, GM. Chrysler and
Datsun. Similarly, while all different types of work were
being performed in the Hobby Shop, brake work
(inspection/adjustment/repair and/or replacement) was one of
the most common. My best recollection is that approximately
half of the vehicles being worked on would have their brakes
inspected, adjusted and/or replaced while in the shop."
Q: "Had you ever worked on a Ford Motor vehicle other
than the time that you told us about Mr. Perrault; did I say
his name correctly?"
A: "Yes. That was the only one."
Q: "That's the only Ford motor vehicle that you ever
A: "Yes. sir."
alleged exposure to asbestos aboard the NS Savannah and the
USS Kitty Hawk among other vessels. He initially worked in
HVAC. He also worked in close proximity to pipe insulators
and panel installers. Mr. Fish contradicts his counsel's
assertions at the hearing and in the pleadings, that his work
was isolated to the radio room, suggesting a minimal
exposure. Mr. Fish specifically stated he was around various
pieces of machinery in the boiler and engine rooms while they
were being insulated. He also stated that he was exposed
while pipe fitters and insulators were installing and
insulating various equipment. "This created visible
airborne dust in my immediate vicinity."
“I enlisted in the United States Navy in January 1962
and served for nearly 20 years. During my service. I worked
aboard the following vessels at times between 1974 and 1976:
USS Richard B. Anderson (approx.. 10 days)
USS Sea Dragon (approx.. 2 months)
USS Kitty Hawk (approx.. 10 days)
USS Constellation (approx.. 2 Vi months)
USS Brunswick (approx.. 3 weeks)
USS Jones (approx.. 10 days)
USS Permit (approx. 2 months)
duties primarily placed me in the radio rooms aboard these
vessels. I also lived and slept on each of the vessels during
my time aboard them and was, at times, in spaces where
thermal insulation products were located. At times there was
dust in the areas that I breathed. I believe this dust
contained at least some amount of asbestos." (emphasis
clear from the original Plaintiff himself, and I incorporate
his testimony, that the Court's characterization of
Plaintiffs' theory of exposure and recovery is supported
directly by the statements of the original Plaintiff. At the
hearing, Plaintiffs' counsel, while now pursuing Ford,
minimized the extensive occupationally related exposure that
Plaintiff alleged in his complaint, affidavits and
depositions, and now attempts to argue that Ford, (not all of
the prior occupational exposure), was a major or arguably
the major contributing factor in Plaintiff's
evaluating the issue of whether to grant the protective
order, the Court looks to the Plaintiffs' theory of
liability and how Defendant Ford fits into that theory.
Plaintiffs have alleged an occupational exposure to asbestos
in several areas of Mr. Fish's life. Mr. Fish was not an
automobile mechanic and did not work on Ford vehicles for a
living. Plaintiffs have alleged that Mr. Ford was exposed to
asbestos while he worked and lived aboard the NS Savannah and
then the USS Kittyhawk from 1960-1961, along with other
vessels during his Navy career. During that time he claimed
he was around insulation and pipe fitting activities, the
engine room, boiler rooms, pipe insulation among other
activities and all of these created "dust" where he
alleged ingestion of asbestos. He also claimed that in his 20
years in the Navy, he lived and slept on vessels where he was
exposed to asbestos. (ECF 474-1). Mr. Fish alleged that his
nonoccupational exposure was at the Hobby Shop as previously
testimony from the original Plaintiff himself calls into
question Ford's part in contributing to his asbestos
exposure. Mr. Fish could only recall the one 1974 Ford
Mustang II. and in a very broad sense, the possibility that
he could have been present when other Ford vehicles were
worked on, whether or not that included work on the brakes.
The speculative nature of Ford's contribution to
Plaintiffs exposure requires the Court to limit discovery by
applying the requirements of Rule 26 and the Local Rules
discussed previously. In his affidavits and deposition.
Plaintiff could not describe any other Ford vehicles as
sources of exposure except to say that he may have been
present when other persons worked on Fords as well as just
about every other make and model vehicle in existence at the
time of the alleged injury.
speculative nature of his claim begs the question of how all
of the requested information sought by Plaintiffs could ever
assist them in meeting their burden of proof when their best
witness could not. Put another way, even if Ford supplied the
information regarding all of the vehicles by make and model
that were in existence between 1950-1979 that contained
asbestos in the brake components, there is no method of
proving that (1) any or all of those vehicles were ever in
the Hobby Shop (2) in the Hobby Shop when Plaintiff was
present (3) had brake work done that exposed Plaintiff (as
opposed to all the other makes and model vehicles being
worked on and the many non-brake repairs) and (4) that the
exposure was sufficient a level to cause an asbestos injury.
The Court recognizes that if Mr. Fish had been a Ford
mechanic and his occupational exposure been more well
defined, this case would be in a different posture. That is.
however, not what we have before the Court.
the Dierks Affidavit, at its best, does little to fill in the
gaps and support Plaintiffs" speculative theory of
recovery. To prove that a given injury was "caused by
exposure to a specified substance, " a plaintiff must
demonstrate "the levels of exposure that are hazardous
to human beings generally, " and "the plaintiffs
actual level of exposure." Westberry v. Gislaved
Gummi AB, 178 F.3d 257. 263 (4th Cir.1999). Yates v.
Ford Motor Co.. 113 F.Supp. 841, 850 (E.D. N.C. 2015).
the District Court in the Eastern District of North Carolina
discussed a theory of recovery based upon speculation with
respect to expert testimony:
"The theory that "each and every exposure to
asbestos products results in injury to the person so
exposed" has made repeat appearances in the realm of
asbestos litigation. Krik v. Crane Co., 76 F.Supp.3d
747. 749-50 (N.D.I11.2014); see William L. Anderson,
"The 'Any Exposure" Theory Round II-Court
Review of Minimal Exposure Expert Testimony in Asbestos and
Toxic Tort Litigation Since 2008, " 22 Kan. J.L. &
Pub. Pol'y 1 (2012). Also referred to as "any
exposure" theory, or "single fiber" theory, it
represents the viewpoint that, because science has failed to
establish that any specific dosage of asbestos causes injury,
every exposure to asbestos should be considered a cause of
injury. See Krik 76 F.Supp.3d at 749-50;
Anderson v. Ford Motor Co.. 950 F.Supp.2d 1217, 1225
(D.Utah 2013). Numerous courts have excluded expert testimony
or evidence grounded in this theory, reasoning that it lacks
sufficient support in facts and data. E.g.. Comardelle v.
Pa. Gen. Ins. Co., 76 F.Supp.3d 628, 632-33
(E.D.La.2015); Krik 76 F.Supp.3d at 752-53,
Anderson. 950 F.Supp.2d at 1225; Sclafani v. Air
& Liquid Sys. Corp.. No. 2T2-CV-3013, 2013 WL
2477077, at *5 (C.D.Cal. May 9. 2013); Henrichen v.
ConocoPhillips Co.. 605 F.Supp.2d 1142, 1166
(E.D.Wash.2009). Likewise, applying the Daubert
factors, courts have found that the theory cannot be tested,
has not been published in peer-reviewed works, and has no
known error rate. Krik, 76 F.Supp.3d at 753-54;
Anderson. 950 F.Supp.2d at 1224-25;
Sclafani. 2013 WL 2477077, at *5; see mils v.
Amerada Hess Corp.. 379 F.3d 32, 49 (2d Cir.2004)
(affirming exclusion of theory that decedent's cancer was
caused by a single exposure to toxic chemicals, regardless of
dosage, based on Daubert factors). Yates v. Ford
Motor Co., 113 F.Supp. 841, 846 (E.D. N.C. 2015).
instant case. Plaintiffs" allegations of ingestion with
respect to Ford, even in considering the Dierks affidavit,
falls short of convincing this Court to fully deny the motion
for protective order as Plaintiffs request. It is also not
lost on this Court that the Dierks affidavit, while
admittedly providing supplemental information, does in fact
contradict the original Plaintiffs testimony and statements
in several ways. The contradiction of facts is simply a
factor for the Court to consider when determining whether
"the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the
case, the amount in controversy, the parties' resources,
the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues."
Ford's Motion for a Protective Order
Areas of Inquiry
names, addresses, job titles, length of time
employed/retained by Defendant, and a year-by-year list of
all other positions, titles, or jobs held when working for
Defendant of each person who has supplied any information
used in answering Plaintiffs' discovery requests, and the
identity of all documents concerning same.
Inquiry No. 1 seeks irrelevant information, including because
it seeks discovery on discovery, and information protected
from discovery by the attorney-client privilege and the work
product doctrine. Furthermore, the information sought (but
not objected to) is duplicative of what Plaintiffs already
have requested and obtained through other methods of
discovery (see Exhibit F at No. 1 and Exhibit D at No. 1).6
Consequently, Plaintiffs* attempt to seek the same
information via deposition of its corporate representative is
unreasonably cumulative or duplicative as Plaintiffs had
sufficient opportunity to discover the information previously
from a source that was more convenient and less burdensome.
Hall, 2005 U.S. Dist. LEXIS 34940 *22; 5
Plaintiffs" Areas of Inquiry in the Amended Notice does
not include number 43. 6 Ford answered this Interrogatory by
identifying Matthew Fyie and providing his background
information. Ford further identified that its attorneys,
including counsel of record in this case and persons working
under the direction of those attorneys, assisted in answering
the discovery. Beyond this. Ford stated that there were no
other individuals who supplied any information used in
answering the Interrogatories. Ford objected to identifying
the individuals working under the direction of Ford's
attorneys on the grounds that it sought irrelevant
information, in particular, it sought discovery on discovery,
and information protected from discovery by the
attorney-client privilege and the work product doctrine.
EEOC, 2012 U.S. Dist. LEXIS 86198
*4. Additionally, the manner in which Ford and its attorneys
conducted discover)' (e.g. who was involved and "all
documents concerning same") ~ "discovery on
discovery" -- is not an appropriate topic of discovery
and numerous courts have disallowed such discovery. See
Banks v. St. Francis Health Or., Inc., 2015 WL 7451174,
at *7-8 (D. Kan. Nov. 23, 2015).
Granted for the reasons set forth on the record on January
each model year between 1950 and 1979 that Ford branded motor
vehicles were sold. the identity, by year, of the brake
specification(s) for each of your models by model and trim
line, and the identity of all documents concerning same.
Whether any of the models and trim lines identified in Area
of Inquiry No. 2 that there were asbestos-free brake linings
that would safely and effectively stop the vehicle, the
identity of the non-asbestos linings (by manufacturer brand
name and specific part number and corresponding brake edge
code) for each model and trim line you claim could safely and
effectively stop the vehicle and, when each such product was
commercially/generally available in the United States, and
the identity of all documents concerning same.
Whether there were suitable asbestos-free brake linings that
would safely and effectively stop any of your vehicles
between 1950 and 1979, and, if so, state by each model, trim
line and year all information concerning any such contention
and the identity of all documents concerning same.
specification of asbestos-containing brakes and clutches for
use in Ford vehicles at any time during the years 1950 to
1979. inclusive, and the identity of all documents concerning
involvement in any manner in the design of
asbestos-containing brakes and/or clutches for use in Ford
vehicles at any time during the years 1950 to 1979,
inclusive, and the identity of all documents concerning same.
communications with any of your supplier of friction products
that relates in any way to the content of the friction
materials used in the products supplied to you during the
years 1950 to 1979. ...