Document 4JRw134VdJ5RQ8w6ypOL4943p

IN THE CIRCUIT COURT THIRD JUDICIAL CIRCUIT MADISON COUNTY, ILLINOIS LAURHY BLANKENSHIP, Individually and u Special Administrator of the Estate of DOUGLAS BLANKENSHIP. Deceased. and All Other cases On the Simmons Finn November 18.2002 Trial Docket. PlauitifEL PNEUMO ABEX CORE., et al. Defendants. ) ) ) ) ) ) ) ) ) ) > ) ) ) > No. 02-L-6J0 PLAINTIFFS* RULE 219(e) MOTION FOR SANCTIONS AGAINST DEFENDANT PNEUMO ABEX CORP. Plaimjfb, pursuant to MS Cl Huh 219(c), hereby move this Court to impose sanctions against defendant Pneumo Abex Corp. ("Abex"), on the grounds: that it has deliberately and contemptuously filed false, incomplete, misleading and improper answers to interrogatories; and, that it has failed and refused to supplement its deficient responses. Specifically, plaintiff* ask Ihis Court to: strike all pleadings and defenses of Abex: enter defaultjudgments against Abex; and order that trial shall proceed only as to the issue ofdamages, punitive as well as compensatory. Alternatively, plaintiffs ask this Court to impose such sanctions as are just under the circumstance* In support thereof, plaintiffs state: I. On April 12,2000. this Court held a consolidated hearing on all defendants' objections to plaintiffs' standard written discovery. Abex received notice and had an opportunity to participate m Ibosc proceedings and, therefore, is bound by the results. By Ordered dated April 13,2000 (copy attacked at Exhibit A), Ibis Court issued its rulings as to those objections. Some interrogatories with withdrawn or modified. Some ofdefendants' objections were sustained. Most objections were overruled. The Court's April 13,2000 Order Amber directed defendants to provide supplemental answers, consistent with the Coon's rulings within M days. 2. Abes filed its answers to plaintifft' standard interrogatories on or about April 27, 2000. Those answers were not verified at the time that they were filed. Abe* baa not provided a verification. Both (be Standing Order and 733 ILCS 5/M09 require a proper verification. Additionally, Abe* combines to assert objects that the Court overruled. 3. la response to Interrogatory No. 8, Ahex states chat it has "in excess often (10) miltim* documents and about "three (3) million sales records." all of which are preserved "in the order in which they were found." According to Abex, this means that the "burden ofderiving or ascertaining the response is substantially the same for plaintiffs as Abe*-* Accordingly, m response to this and numerous subsequent Interrogatories. Abcx* 'response* is to invite plaintiffs to come and inspect its thirteen million documents. See Response to Interrogatories Nos. 9, |4, 15,18.28,3$, 36,40,47,48,52,54-40, 74.83,89.91*93.95*100, 104-109. and 120-123. 4. Rule 213(e) provides that "when the answer to on interrogatory may be obtained from documents...it shall be a sufficient answer to the interrogatory to produce those documents responsive te the Interrogatory." This means that a party need not write out an answer, when it can point to specific documents responsive to a particular interrogatory. It does not permit a party to answers an entire set ofinterrogatories with a general reference to a huge, imdifferemiated collection ofrecords. 5. Rule 213(e) further provides that any production in lieu ofan interrogatory anew* "shall comply with the requirements of Rule 214." Rule 214 requires that documents be produced as they are kepi in the ordinary course ofbusiness or organized by request. The Committee Comments to Rule 214 further provide: This (rule} requires the party producing the documents and that party's attorney to make a good-faith review ofdocuments produced to ensure fid) compliance with the request, but not to burden the requesting party with nonresponsive documents. The failure to organise the requested documents as required by this rule, or the production ofnonresponsive documents intermingled among the requested documents, constitutes a discovery abuse subject to sanctions under Rule 219. 6. Abcx'i manner ofresponding is in violation ofRule 214. As 'they were found* is not the same as 'as they are kept fan the ordinary course ofbusiness.' Moreover, even then, the responding party is not permitted to bury relevant documents in a mountain of irrelevant trash. This is nothing but a tactic designed to discourage document review and prevent plaintiffs from obtaining toll and complete infonoatioo. It tor exceeds what is customary even in asbestos litigation {where defendants are sometimes permitted some latitude to make a collection available for review).1 Essentially, offering to produce thirteen million tmsorted documents is an abuse for which sanctions should be imposed. 7. There are other problems with specific interrogatory responses (ineluding outright misrepresentations. Several snswers are contrary to those given in other litigation filed years ago in St. Louis. See Exhibit A-L Specifically: Interrogatory No. 9: (a) This interrogatory seeks information regarding Abcx officers and directors who too held positions with other asbestos companies (b) Abcx simply references iis already inadequate response to Interrogatory No. 8 1 la teas senate. ifwhsi is produced u not apnued. there Bint lave be* tome tcamtofe tffioit mk to tMeic completely unrelated matfnah and product only what is iurfy responsive. (c)This mfomation it cricicaJ 10 plaintifls' ability to lUlly tnd accurately attribute knowledge and notice to Abex. [ntflTpgaiofv No 10 (a) This interrogatory seeks information as to asbestos businesses acquired by Abex. <b) Abex identities S. K. Wellman Co., which manulbctured friction materials, as a company that st acquired in 196). (c) Throughout the rest ofits answers, Abex provides do timber responses relating to Wellman. (a) These interrogatories ask Abex to identity and provide information as to any and all asbestos-containing products that it (and/or related companics/predecessors) designed, manufactured, processed, sold, distributed, applied, installed, patented, specified and/or relabeled. (b) Abex answers, in very general terms, that it "manuftciured and sold Q asbestoscontaining automotive friction products." Abex also provides a general list of trade names. (c) This is wholly inadequate. PlaimilTs are entitled to a reasonably specific answer, which identifies particular types of friction products and their applications. Plaimiffa are entitled to information as to foe years durtttg which each particular product was manufactured and sold. Interrogatory No. 25: (a) This interrogatory seeks the identities ofcompanies from which defendant purchased raw asbestos and/or asbestos-containing components. (b) Abex identifies a number ofcompanies but fails to list North American Asbestos Corporation (**NAACT). It also falsely states that d purchased only chrysolite. (c) Plaintiffs have found evidence that NAAC was as a supplier ofraw asbestos to Abex. See Exhibit B. Moreover, Abex purchased crocidolile, which is an undisputed carcinogen. C Additionally, Abex does not list its suppliers offoe phenolic resins, which were used to bind asbestos fibers (and, perhaps, other materials) to make friction products. Plaintiffs have learned that such resins, themselves, typically contained asbestos (sometimes crocidolite or amosite) (a) This interrogatory asks Abex to describe the packages in which its products were told (b) Abex objects that this shifts the burden ofproof on product identification from pUimim to Abex. It also states that it* products were sold in "cardboard boxes according to size.** (c) Abcx's objection is frivolous and contrary to the Court's April 13,2000 Order. This Court has repeatedly made dear feat product identification by a plaintiff is not a prerequisite to a defendant's compliance with discovery. Product identification is a relevant issue and a proper subject ofdiscovery. Abex is simply treating discovery as a tactical game instead ofdisclosing the truth. Additionally, its limited answer is next to useless (unless Abex will admit responsibility for any friction product that came from a cardboard box ofsome size). I uav No. 33 (a) This interrogatory asks if Abcx's products could be used without liberating asbestos fibers. (b) Abex says, in essence, `yes.tbey could be applied without liberating fibers.' (c) Such an unequivocal response is contrary to Abcx's experience as a member of the FMSI, which was well aware ofproblems with dust associated with the application of friction materials. Set Exhibit C Intfrmajflcv No, 3?: (a) This interrogatory asks Abex to identify mdividuaU involved in designing its asbestos products. (b) Abex claims that it would be impossible to identify til such persons and, then, does not identify anyune, but simply refer* to its mountain ofdocuments. (c) Assuming arguendo that identifying each and every such person might be impossible (or at least burdensome). Abex should be able to identify si least some of these people. The difficulty m providing a complete and exhaustive list is no excuse for failing to answer ai all. Indeed, this is simply a tactic to deny plaintiffs the opportunity to depose people who might have information adverse to Abex. Interrogatory No. 37: (a> Subpan (a) specifically asks for the type(s) of asbestos contained in defendant's products. (b) The only type ofasbestos identified by Abex is chrysotile. (c) Abex purchased croctdoUte {stt Exhibit 9), which is acknowledged to be a more haxardoui and an undisputed carcinogen. It has not accounted for the type ofasbestos contained in its binder resins. InteTTOiatorv No. 38; (a) This ioterrogfltocy asks for information concerning the specific locations at which defendant manufactured asbestos products, including identifying plant managers. (b) Abex provides some very generally, incomplete information concerning focililies, but foils to give names ofplant managers. (c) Plaintills are entitled to this information. tntfTTQgalorv No. 40: (a) This interrogatory asks Abex to identify individuals with knowledge as to the sals and distribution ofits asbestos products. (b) Abex claims that it would be impossible to identify all such persons and, then, does not identify anyone, but simply refers to its mountain ofdocuments. (c) Assuming arguendo that identifying each and every such person might be impossible (oral least burdensome). Abex should be able to identify at least some of these people. The difficulty in providing a complete and exhaustive list is no excuse for foiling to answer at all. Indeed, this is simply a continuation ofAbex's tactic to deny plaintiffs the opportunity to depose people who might have information adverse to Abex. Interrogatories Nos. 47 A 48: (a) These interrogatories ask for information concerning industrial hygienists. (b) Abex docs identify five former medical directors, bui reRises to identify any mdustnal hygienists. (c) This is part of its continuing pattern ofnot providing names ofpotential witnesses. Wrrrt-rncv No. 54 A 56: (a) These interrogatories seek information regarding industrial hygiene surveys and dust counts. (b) Abex asserts frivolous objections that the Court has overruled. Il references its mountain ofdocuments. In general, it evades answering. (c) Abex did, in face, conduct industrial hygiene surveys and dust counts. See Exhibit 0. Plaintiffs are milled to the results. Inicnomory No. 38: (a) This interrogaiory asks if Abex, or anyone acting on its behalf, he* conducted any studies concerning the health effects ofasbestos. (b) Abex objects and references its document collection, but foils to identify any such studies. (c) Abex not only sponsored a study by Gardner ofSaranac Lake inihe 1930's and 1940's, but also participated m falsifying the results. See Exhibit E. (a) This interrogatory asks ifdefendant ever received any advice, suggestion, recommendation or the like concerning the need to warn about asbestos, prior to the first lime it issued any such warning. (b) Abex states that it cannot determine the exact circumstance* surrounding its decision to eventually issue a warning.. (c) A* a member ofFMSt, Abex participated in numerous discussions concerning warnings (mostly on not doing so), prior to the lime it began 10 do to. See Exhibit F. Interrogaiory No. 75: (a) This interrogatory asks when defendant first had knowledge or notice ofofTLVs. (b) Abex answers is that it cannot clearly Identify a specific date. (c) This is simply evasive. Abex is obligated to state the earliest date it can identify. Indeed, as a member ofthe American Industrial Hygiene Association in 1937, a member ofFMSt and other organizations, Abex would have had access to, and notice of TLV*. (a) These interrogatories seek information a* 10 when defendant firci had notice or knowledge that asbestos could cause certain diseases, including mesothelioma. (h> Abex states that it cannot pm-pomi a precise time. (c) Abex knew of(he association between asbestos and cancer a! least as arty as 1948 49, when rt helped to fclsify the Gardner study by eliminating references 10 cancer. See Exhibit G. It had notice and inibrmatioo concerning mesothelioma no later than 1961, when it hired Blackwell to serve as its medical director. See Exhibit H 1) wm (a) This inienogatory asks ifdefendant ever sponsored, performed or received the results ofany siodrfies) concerning the relationship between asbestos and certain diseases, including mesothelioma. (b) Abex discloses no such studies. It does "acknowledge* the Gardner study in a very vague way, but seeks to disavow the authenticity and accuracy ofthe documents showing its participation. () This is game-playing at its most extreme. Abex has evaded {Reducing documents by making the task too onerous. Then, when plaintiffs are required to obtain the information from other sources, it tries to deny authenticity.1 1)fi'lll'j Iatoev No. B?: (a) This iuerroptocy asks defendant to identify asbestos related claims against it. (b) Abex does not do so. (c) Its objections are frivolous and have been overruled by the Court. [pierrofatoriat Nos. 98-100; {a) These interrogatories ask defendant to identify documents sent to, or received from, various sources, including trade organizations, which make some reference to asbestos. (b) Abex ' discloses no responsive documents. (c) Maimiffs have been compelled to find such documents from other sources. Abex will, presumably, try to take advantage of its noncompliance by objecting to authenticity. IMPOSITION OF SANCTIONS S. Rule 219(c) provides that, ifa party fails to comply with discovery or with any court order relating to discovery, the court may impose any sanction, provided it is Mjusi.M Sanctions 1 h 9 for Ms raatoo Cut one ofthe mUtm Mncftoitf" which dw Court has bwa wiflin* to allow u the Mtomuk au4wme*iMn ofdocument* are dearty warranted here, gives Abex's Incomplete and Alee interrogatory answer*, and its repeated refusal to obey the Court'* Order dial ji provide complete answers. According to Rules 213 and 214, Abex's manner ofresponding b abusive and warrants sanctions. 9. In determining what sanction is appropriate, a court should consider the seriousness of the violation, the wiUftilness of the violation and the importance ofthe evidence involved. 10. Here, the violation b very serious and the evidence involved is important. Abes falsely omitted that some of its products contained crocidolite. It has repeatedly refused to provide any meaningful (even minimally) information as to its knowledge and notice ofthe potential hazards ofasbestos. U has expressly refused to provide specific information about products. It has attempted to disavow its early knowledge and paiticipation in a fraud on the public. 11. Abex* evasive assertion that it has no current knowledge, information or evidence is inadequate. The flaw with Abex's excuse is that ils discovery deficiencies are so great and pervasive, that they can only be the product of: (a) deliberately concealing information; <b) deliberately destroying information; and'or (c) deliberately refusing to search the corporate memory for information. Set Campen v. Executive House Hotel, Zee., 105 llt.App.3d 576.434 N.EL2d 511,318(1" Out. l982)Tan officer or agent who answers interrogatories on behalf ofa corporation must take reasonable steps to search the 'corporate memory*"). Thu u only exacerbated by the Act (hat Abex's answers are unverified. See OL&Ct. Rule 213(d)(corponitc answers to interrogatories must be verified by an officer, partner or agent). 12. A deliberate refusal to make an effort to look b as egregious as wilfully concealing known information. See BoUtini v. Owens Corning, 318 l!I.App.3d 1167, 744 N.b.2d 370,373 <4* Disc. 200IX"all reasonable presumptions will be indulged against a party who deliberately destroys evidence*)' 13. "(A) court (should) neither condone nor tolerate false, incomplete or inaccurate discovery." Boettcher v. Fonmie Farms, Inc., 243 lll.App.3d 940.412 NX2d 969.974 (5* Dirt. 1993JCMIiscovery is not a tactical game to be used to obstruct or harass the opposing litigant" / "half-cnilhi are equivalent to outright lies and 'fractional disclosure* is not tbe disclosure contemplated by our discovery rules"). Sec also Ostendorfv. International Harvester Co., 99 MI2d 273.433 N.E.2d 253.257 (1982K"half-tniths...have tbe effect ofan affirmative concealment"). 14. Rule 219<cXv) provides for striking alt defenses and entering a default judgment Rule 2 I9(cKm) provides that the court may order "that any portion ofthe offending pony's pleadings relating to that issue he stricken sod. ifthereby made appropriate, judgment be entered as to that issue." Abex's misconduct warrants such severe sanctions, ft actions were deliberate and contemptuous. Abex has provided false information and/or foiled to disclose information as to all of the issues as to which sanctions arc sought Because their cases are set for immediate trial, these plaintiffs have been severely and irreparably prejudiced by Abex's discovery fraud and deliberate disregard for tbe discovery process. This Court should strike its pleadings and enter a default judgment. See Buehler v. Whalen, 70 lll^d 51.374 N.B.24 460,467 (1978XMdiacovery procedures are meaningless unless a violation entails a penalty proportionate to the gravity ofthe violation*' l where party "gave false answers to interrogatories under oath... tbe trial court would have been justified tn striking tbe answer of this defendant and submitting to the jury only the issue ofdamages"). See also Hutcheson v. Shelf Wood River Refining Co., No. 99*1-430. 15. In these circumstances, the Court should strike the pleading and defenses ofAbcx. Abe* should also be directed to bear all com, including copying costs, to forthwith provide foil and accurate discovery. This Court should also enter default judgments against Abcx and proceed to trial solely on the issue ofdamages. It should instruct thejury that Abex has been found to have acted negligently and in willfol disregard ofthe rights and well being ofPlaintiff. It should instruct the jury that Plaintiff were exposed to asbestos products attributable to Abex and, (hat such products caused or contributed to any asbestos-related disease proved by PlatmiflU. Maintiffs should present medical and other evidence, relating to damages, which should be determined by the jury. WHEREFORE, plaintiffs pray this Court to enter its Order imposing the sanctions described herein and for such other and fonher reliefas this Court deems appropriate. THE SIMMONS FIRM. L.I..C. Attorneys for Plaintiff-Respondent 301 Evans Avenue, PO Box 559 Wood River. 1L 62095 616*259*2222