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Fish v. Air & Liquid Systems Corp.

United States District Court, D. Maryland

February 21, 2017

HELEN THOMAS FISH, et al. Plaintiffs,


          A. David Copperthite United States Magistrate Judge.


         This 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.

         Plaintiffs 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 Rule 105.2(a).

         Ford 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 present.

         Federal Rule 26(b) provides general provisions regarding the scope of discovery:

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).

         Discovery 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).

         The 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.

         As 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 oath.


         Maryland 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....").

         The 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. Guideline 1.

         Central 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).

         The 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.

         The 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.

         Now 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.

         As to 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.

         Other 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.

         In support of the Court's comments, the following are excerpts from the affidavits of Mr.

         Fish and his deposition:

         Affidavit at p. 10-22:

         "While 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.

         Affidavit at p. 11-27:

         "Once 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."

         Statement at 4:

         "While 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."

         Deposition at 349-350:

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 worked on?"
A: "Yes. sir."

         Previous Exposure

         Affidavit at 6-8:

         Plaintiff 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."

         Affidavit at 9:

“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)

         My work 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 added).

         It is 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 mesothelioma.

         In 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 discussed.

         The 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.

         This 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.

         Even 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).

         Recently, 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).

         In the 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." Fed.R.Civ.P. 26(b)(2)(C)(iii).

         Defendant Ford's Motion for a Protective Order

         The Areas of Inquiry

         1. The 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.

         Area of 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).

         Motion Granted for the reasons set forth on the record on January 13, 2017.

         2. For 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.

         3. 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.

         4. 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.

         5. Your 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 same.

         6. Your 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.

         7. Your 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. ...

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