Document 5LVLZ9OXRQao3KYwkV3Kyxaq8

94-12680-K PtAJNTffFS EXHIBIT RR-448b MARVIN ENGLISH, JR.; LEO ALBERT BESEMAN; LAURIER VICTOR COITEUX; KENNETH RAYMOND DITZLER; LUTHER THOMAS DINSMORE; DANIEL FEGLER; JAMES EDWARD JOHNSON; RUE LEE ALLEN and MAE REDA ALLEN; ALBERT FISHER; and DUANE WILLIAM KRUGER, Plaintiffs, OWENS-CORNING FIBERGLAS CORPORATION, et si. Defendants. IN THE DISTRICT COURT OF DALLAS COUNTY, TEXAS 192nd JUDICIAL DISTRICT DEFENDANT'S FIRST AMENDED RESPONSE TO PLAINTIFF'S REQUEST FOR ADMISSION COMES NOW the Defendant, The Burlington Northern and Santa Fe Railway Company, by and through its attorney, J.D. Bashline. McLeod, Alexander, Powel&Apffel, P. C., and for its Response to Plaintiffs Request for Admission, states as follows: GENERAL OBJECTIONS APPLICABLE TO EACH REQUEST Defendant objects to Plaintiffs definition of Defendant to include legal entities other than Defendant which is beyond the scope of permissible discovery and to each and every request which seeks information from entities other than the named Defendant, including separate entities for which Plaintiffworked in the past when such entities were not a part of this organization. Respectfully submitted, MCLEOD, ALEXANDER, POWEL & 2285 America Tower, 2929 Allen Parkway Houston, Texas 77019 Phone; (713) 527-9393; Fax: (713)527-9437 ATTORNEYS FOR DEFENDANT THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been sent by certified mail, return receipt requesfed \o all counsel of record via regular mail, certified mail and/or facsimile on this the day C <f*3LISMtFA/GW WPD PAGE 2 RESPONSES TO REQUEST FOR ADMISSION REQUEST FOR ADMISSION NO. 1: Admit or deny that asbestos-containing products were in general use aboard Defendant's railway cars, engines and/or locomotives during the time period Plaintiff was employed by Defendant. RESPONSE: Defendant objects to this request as vague and ambiguous. Defendant further objects to the use of the term "general use" as it is undefined and thus Defendant is unable to respond without a specific definition of such term. Without waiver of these objections: Plaintiff was not employed by this Defendant. After reasonable inquiry concerning this request and based on lack of specific information on Plaintiffs actual work tasks, unable to admit or deny. REQUEST FOR ADMISSION NO. 2: Admit or deny that Defendant ordered, purchased or otherwise acquired asbestos-containing products, asbestos-containing friction products, machinery requiring the use ofasbestos or asbestos-containing products and/or materials for use during the time period Plaintiff was employed by Defendant. RESPONSE: Defendant objects to this request as overly broad, vague and ambiguous. Subject to said objection. Defendant admits that the entity that Plaintiff claims he was employed with would have likely purchased some products which contained some asbestos at some period of time during the time period Plaintiffwas employed. REQUEST FOR ADMISSION NO. 3: , Admit or deny that Defendant used or implemented upon Defendant's railway cars, engines and/or locomotives on which or in the vicinity of which Plaintiff worked, asbestos-containing products, asbestos-containing products, asbestos-containing friction products or machinery requiring the use of asbestos or asbestos-containing products. RESPONSE: Defendant objects to this request as vague and ambiguous. Subject to said objection, Defendant does not have sufficient knowledge or information to either admit or deny said request. Defendant has made reasonable inquiry concerning this request and the information known or obtainable does not enable Defendant to admit or deny. REQUEST FOR ADMISSION NO. 4: Admit or deny that Defendant's cars, engines and/or locomotives which Plaintiff worked on or around were unfit because ofthe presence of and/or use of asbestos-containing products, machinery requiring the use of asbestos or asbestos-containing C. \M3LBWtfMSW. WfD PAGE 3 ^products and/or asbestos-containing friction products on these railway cars, engines and/or locomotives. RESPONSE: Defendant objects to this request as vague and ambiguous. Subject to said objection, this request is denied. REQUEST FOR ADMISSION NO. 5: Admit or deny that Plaintiffwas a railroad worker, as that term is generally understood, during his employment with Defendant. RESPONSE: Defendant admits that from information supplied by Plaintiff, he was employed by one or more railroads. The remainder ofthis request is denied. REQUEST FOR ADMISSION NO. 6: Admit or deny that Plaintiff, in the course and scope of his work as a railroad worker and/or employee of Defendant, worked on and/or around Defendant's railroad, railway cars, engines and/or locomotives where asbestos, asbestos containing products and/or machinery calling for the use of asbestos or asbestos containing products were present. RESPONSE: Defendant objects to this request as vague and ambiguous. Subject to said objection, because Plaintiffwas not employed by this Defendant, but by a predecessor entity, Defendant does not have sufficient knowledge or information to either admit or deny said request. Defendant has made reasonable inquiry concerning this request and the information known or obtainable does not enable Defendant to admit or deny. REQUEST FOR ADMISSION NO. 7: . Admit or deny that Defendant was aware at any time during the periods of time Plaintiff worked for Defendant that airborne asbestos dust created a potential health hazard to those who breathed such dust. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 8: Admit or deny that Plaintiffwas employed by Defendant or by a predecessor-in-interest of Defendant. RESPONSE: Admit as to Great Northern. c i/<oizs`/wrivpd PAGE 4 REQUEST FOR ADMISSION NO. 9; Admit or deny that Plaintiffworked on and/or around Defendant's railway cars, engines and/or locomotives where asbestos-containing products, asbestoscontaining friction products and/or machinery requiring the use of asbestos or asbestos containing products and/or materials were installed, used, prepared for use, replaced or repaired. RESPONSE: Defendant objects to this request as vague and ambiguous. Subject to said objection. Defendant does not have sufficient knowledge or information to either admit or deny said request. Defendant has made reasonable inquiry concerning this request and the information known or obtainable does not enable Defendant to admit or deny. REQUEST FOR ADMISSION NO. 10: Admit or deny that Defendant did not distribute any literature or warnings of any kind to its employees during the period of time Plaintiff worked for Defendant regarding the potential health hazards to those who breathe airborne asbestos dust. RESPONSE: Defendant objects to this request as vague and ambiguous. Subject to said objection, Defendant does not have sufficient knowledge or information to either admit or deny said request. Defendant has made reasonable inquiry concerning this request and the information known or obtainable does not enable Defendant to admit or deny. REQUEST FOR ADMISSION NO. 11: Admit or deny that the friction products and/or machinery requiring the use ofasbestos or asbestos-containing products and/or materials were placed on or used in Defendant's railway cars, engines and/or locomotives during the time period Plaintiff was employed by Defendant and upon Defendant's railway cars, engines and/or locomotives where Plaintiff worked were the following asbestos-containing products: a. any asbestos-containing product and/or machinery requiring the use ofasbestos or asbestos-containing products and/or materials b. asbestos tiles c. asbestos millboard d. asbestos friction products e. asbestos pipecovering f. asbestos gaskets g- asbestos joint compound h. asbestos cement i. asbestos block j- asbestos packing k. boilers 1. brake shoes m. brake linings n. clutch linings 0. firebrick P refractories/castables q turbines C<Ml&flXFA*G*.WrD PAGE 5 ^RESPONSES: Defendant objects to this request as vague and ambiguous. Subject to said objection. Defendant does not have sufficient knowledge or information to either admit or deny said request as respects Plaintiffs prior employees). Defendant has made reasonable inquiry concerning this request and the information known or obtainable does not enable Defendant to admit or deny. REQUEST FOR ADMISSION NO. 12: Admit or deny that Defendant engaged in any abatement programs for the removal of asbestos or asbestos-containing products, asbestos-containing friction products and/or machinery requiring the use of asbestos or asbestos-containing products and/or materials at any time since 1965 on Defendant's railroad, railway cars, engines and/or locomotives during the time ofPlaintiffs employment. RESPONSE: Defendant objects to this request as vague and unintelligible given Plaintiffs alleged dates of employment. Without waiver of this objection: As to Great Northern, after reasonable inquiry, unable to obtain information to be able to admit or deny this request. REQUEST FOR ADMISSION NO. 13: Admit or deny that Defendant was aware of the presence of and/or use of asbestos-containing products and/or machinery requiring the use of asbestos or asbestos-containing products and/or materials during the time period Plaintiff was employed by Defendant and upon Defendant's railroad, railway cars, engines and/or locomotives where Plaintiff worked. RESPONSE: Defendant objects to this request as vague and ambiguous. Subject to said objection, Defendant does not have sufficient knowledge or information to either admit or deny said request. Defendant has made reasonable inquiry concerning this request and the information known or obtainable does not enable Defendant to admit or deny. REQUEST FOR ADMISSION NO. 14: Admit or deny that Defendant became aware of the potential health hazards of airborne asbestos during the time periods in which Plaintiff was employed by Defendant. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 15: Admit or deny that Defendant did not continuously provide face masks to crew members working with or around asbestos, asbestos-containing products, asbestos-containing friction products and/or machinery requiring the use of asbestos and/or asbestos- C:\M3UOWAHS.ITO PAGE 6 -containing products upon Defendant's railway cars, engines and/or locomotives from 1945 to the present for the purpose ofprotecting these crew members from inhaling asbestos, air borne asbestos fibers and/or dust. RESPONSE: Defendant objects to this request as vague, ambiguous and argumentative, and that it assumes facts in evidence; specifically, that a mask was necessary or required if there was indeed asbestos in Plaintiff's work environment, and further assumes there was asbestos in Plaintiffs workplace. Without waiver of these objections, denied as phrased. REQUEST FOR ADMISSION NO. 16: Admit or deny that during the time Plaintiff was employed by Defendant, it was foreseeable that asbestos-containing products on Defendant's railway cars, engines and/or locomotives would or could be removed, stripped, replaced or repaired at some time after installation. RESPONSE: Defendant objects to this request as vague, ambiguous and argumentative, and that it assumes facts not in evidence. Without waiver of these objections: Denied in view of the ambiguity and vagueness ofthe request. REQUEST FOR ADMISSION NO. 17: Admit or deny that during the time Plaintiff was employed by Defendant, Defendant failed to comply with the requirements ofthe Boiler Inspection Act, formerly 45 U. S. C. 23; and restated at 49 U. S. C. 20701 et seq. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 18: Admit or deny that Plaintifffiled suit against Defendant within three (3) years ofthe date of discovering his asbestos-related condition or the existence of any asbestos-related causes of action. RESPONSE: Defendant objects to this request as vague and ambiguous. Subject to said objection, Defendant does not have sufficient knowledge or information to either admit or deny said request. Defendant has made reasonable inquiry concerning this request and the information known or obtainable does not enable Defendant to admit or deny at this time. 2 WOl/SMWMASK WTD PAGE 7 V w McLEOO llIA.lTT ROBEffr w ALEXANDER 1RET1RED1 BENJAMIN R ROWEL'RETIRED' ERVIN A APPFEL. JR FREDRICK J BRAOFORO JAMES L WARE w OANIEL VAUGHN DOUGLAS W POOLE MICHAEL B HUGHES JAMES B. GALBRAITH J.D. BASHLINE ANTHONY P BROWN JAMES R. ANSELl KENNETH J BOWER DAVID PARKE SALYER WM HULSE WAGNER DAVID E. COWEN GENEVIEVE BACAK MeGARVEY GEORGE P PAPPAS LAW OFFICES MCLEOD. ALEXANDER. POWEL & AFFFEL A AROFCSS10NAL cob aquation 802 ROSENBERG P. O. BOX 629 GALVESTON. TEXAS 77553 GALVESTON (409) 763-2481 HOUSTON (281) 488-7 ISO FAX: <409) 762-1155 HOUSTON OFFICE 2265 AMERICA TOWER 2929 ALLEN PARKWAY HOUSTON. TEXAS 77019 (7(3> 527-9393 FAX: (713) 527-9437 '05* RhIll-ps WILLIAM R FLOYD BRYAN R LASSWC^ JOHN V RABEL TAMARA iSHEPP'ClO STACEV H ALLEN JOHN H MCFARLAND PATRICE PUJOL JAMES A FREEMAN OANNYD vu ESTHER W YU JAMES O WYSS Houston Office July 30, 1997 Re: Cause No. 94-12680-K, Marvin English, Jr., etalv. Owens-Coming Fiberglas Corporation, et al., In the 192nd Judicial District ofDallas County, Texas. Ms. Kimberly Shauck Baron & Budd, P. C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, Texas 75219-4281 Dear Kimberly: You sent letters to me and to my associate, John Rabel, regarding interrogatories, requests to produce, and requests for admissions in this case; your letter was dated July 23rd First, your letters address responses owed by Defendant, Burlington Northern, Inc. Please check with Ms. Castles; I am sure you will find that, by Rule 11 Agreement, Burlington Northern, Inc. is no longer a party to this case. As regards discovery replies from Burlington Northern Railroad Company, you will find enclosed amended discovery responses from The Burlington Northern and Santa Fe Railway Company, as successor-in-interest to the Burlington Northern Railroad Company. The supplemental interrogatory answers, and the amended responses to requests for production and requests for admissions add some but not much by way of new information to our 1996 responses. The addition of further information is because we know a little more about this Plaintiff's claim than we did in 1996. However, the difficulty in answering the bulk of your discovery responses is that this Plaintiff never worked for The Burlington Northern and Santa Fe Railway Company, norfor Burlington Northern Railroad Company. Instead, he claims to have worked for C IfAOtJSmsMLCJCCCl -t_Ms. Kimberly Shauck English, et al v Owens-Coming Fiberglas Corp., el at July 30, 1997 Page 2 a separate corporation, the Great Northern Railroad, a company which separately existed between 1890 and March, 1970. At that time, the Great Northern and other railroads were merged into the Burlington Northern Railroad Company. According to the limited discovery you folks have provided us to date, Plaintiff was employed by the Great Northern during the late 1940'sand the early 1950's For that reason. The Burlington Northern and Santa Fe Railway Company has no information on Plaintiff, aside from what you have produced to us or what we have learned from subpoenaing medical records identified by you. And, at this point, there exist no records from the Great Northern responsive to your discovery requests. I trust this explanation helps you understand the answers we have provided. Ifyou still find the answers unsatisfactory, you can set the matter for a hearing. However, I suggest you do not do so until after the Plaintiff is deposed, which deposition is now not scheduled until August 27th in your offices. JDB/go C. lM3UBf&UtJCC001 PS Form 3800, March 1993 2 MM3 flMM klfl mOOnTUsKrMoCtsC Sent to Receipt for Certified Mail No Insurance Coverage Provided Do not use for International Mail {See Reverse) Street and No P.0 . State anc ZIP Cooe Postage Certifies fee $ Soec<a> Denvers Pet Restricted Denvers- fee Return Receiot Snowing to Wnons & Date Denve'eo Return Recerot Snowng to Wno-n Date, ana Addressee s Aooress TOTAl Postage & fees Postmat* or Date $ l