Document 5bZLLNJYMoLxwx1epQXwoYjGV

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ALICE L. WARREN, ADMINISTRATRIX OF THE ESTATE OF JOHN H. WARREN, ) ) ) DECEASED, Plaintiff, ) ) ) ) v. ) THE DOW CHEMICAL COMPANY, THE B.F. GOODRICH COMPANY, WHITTAKER DEVELOPMENT CO., (Formerly Great American Chemical Corporation), ) ) ) ) ) ) UNION CARBIDE COMPANY, ) AMERICAN CYANAMID CORPORATION) and CONTINENTAL OIL COMPANY, ) Defendants. ) ) CIVIL ACTION l O BBO #064415 BBO #556669 89-30201-F ) OPPOSITION OF DEFENDANT CONOCO, INC. * O PLAINTIFF'S MOTION TO VACATE PROTECTIVI ( RDER Defendant Conoco, Inc. ("Conoco") opposes P3 ajntiff's Motion to Vacate the Protective Order for Conocc Inc. Plaintiff makes no showing that she is entitled td| such relief. Conoco is entitled to continued protect i< n from oppressive and burdensome discovery. This product liability action arises out of tl e alleged sale or supply of vinyl chloride monomer ("VCM" ly several manufacturers, including Conoco, to Monsanto Chm. cal Company ("Monsanto") in Springfield, Massachusetts. Mor snnto employed John Warren, plaintiff's decedent. Plaintiff a] [ges her decedent died as a result of his workplace exposu e to VCM between 1947 and 1974. UCC 077418 Plaintiff moves to vacate an order protectir Conoco from oppressive and burdensome discovery. The Prote dtdflve Order was based upon the absence of evidence that John Wa r r n was ever exposed to Conoco's VCM. Plaintiff makes no sigqn ilf icant showing that Conoco supplied VCM to Monsanto dur i r g the relevant time period and that John Warren was evlea exposed to it. The deposition of Mr. Joseph A. Tierney, upo] which plaintiff relies in her motion, is of no assistamde to her. In the absence of any identification of Conoco VCM as a product to which John Warren was exposed, the Protective 0rdidr should not be vacated. FACTS On March 6, 1991, the Court granted the unopp sed Motion of Defendant Conoco, Inc. for a Protective Order, ktt e Court protected Conoco from producing information regule ted in burdensome and oppressive interrogatories and doc\lment requests propounded by plaintiff. Specifically, Conoco wa: excused by the Protective Order from responding to interroga1t ories numbered 4 through 10, and 15 through 20; and decv ment requests numbered 1 through 7, 9 through 11, and 14 throug 25. (Copies of these discovery items were attached to Conoco' Motion for Protective Order) All of these seek voluminous r detailed information concerning product testing, safety r|e4ommendations, knowledge of hazards or dangers associated with tt e product, warnings, prior litigation, prior complaints, inf< rmation about -2- U :C 077419 Conoco employees who participated in OSHA hearings Manufacturing Chemists Association and Society of the Plastics Industry, Inc. hearings, government records, and communications with various organizations and government entitle XI Prior to the March 6, 1991 entry of the Prop e rtive Order, numerous depositions of Monsanto employees and o rmer employees were taken by plaintiff in this case, including t lat of Joseph A. Tierney, conducted on February 26, 19p lL The others were of Ruth Griffith, who worked for most of h ir career in the Monsanto laboratory and retired from Monsanto i i L982 as a Quality Control Agent; Robert Bourget, who is a skflex Facilities Director at Monsanto; Jerry Nolet, w 10 is a Contract Manager at Monsanto and was formerly in its Purbhfesing Department; and Lawrence Gormally, who is Superpi.n :endent of Material Handling and Purchasing for Monsanto. s|ince March 6, 1991, plaintiff also deposed Carl Rehm, who was foreman for many years in the Monsanto PVC production area, where VCM was Xf Some of these requests, notwithstanding the Irotective Order, are subject to numerous other objections t o discovery, including relevance objections. For example, doc ament request number 10 requests information about the "desigp "composition," and "chemical makeup" of VCM, non of which is remotely in issue in this case. Therefore, if tllis Court vacates the Protective Order, Conoco reserves i ts right to seek further protection based upon the confidential ar d proprietary nature of this type of information. -3- U 077420 used. None of these depositions lends any support to plaintiff's argument that Conoco VCM vas present c t Monsanto and that John Warren was exposed to it. Neither c oes any other information gleaned through discovery assist pla ii tiff in this regard. Conoco avers, under oath, that it did not bg:n to manufacture VCM until 1968, some 21 years after tie alleged exposure period commenced, fconoco's Response tc Plaintiff's Interrogatories f"Conoco Response111 . No. 3, relevant portions of Conoco Response are attached as Exhibit A), 2 uling out the possibility that John Warren was exposed to Com o> VCM prior to 1968. Furthermore, despite an exhaustive search \nd diligent inquiry, which included interviews of current aiid|former Conoco employees, as well an an extensive search of Co^o^o's records, Conoco located no records indicating any sales 6f VCM to Monsanto at any time, and no employee or former enployee of Conoco who either recalls any sales of Conoco V-M to Monsanto or that Monsanto was a VCM customer of Conoco. Response. Nos. 3, 14). Notwithstanding Conoco's representations, a lack of evidence from any other deponent or sou|r Conoco's VCM was present at Monsanto and that exposed to it, plaintiff relies on the weak and inconsistent testimony of one, seventy-five year to vacate a Protective Order and pursue a fishin -4- u C C 077421 against Conoco. Plaintiff's reliance on the testimony of Mr. Tierney is simply misplaced. Joseph Tierney was a tank farm supervisor at Monsanto between the late 1950s and 1982, when he retiree As such, he supervised the unloading of liquid chemicals fre m tank cars, including VCM, at the facility. (Deposition of Jdl seph Tierney ("Tiern. Dep.11) at 7, 8, 13, and 14; relevant pc rtlions of Tierney. Dep. are attached as Exhibit B). He w s asked and answered at deposition, often over objection, m< ny questions about the sources of VCM to Monsanto. Essentia] ljh he had little or no recall of the suppliers and no firsthand knowledge of who they were: [By Mr. Minoff] What I am asking, r, to your knowledge did those four companies hat you have named [Dow, Union Carbide, Goodrio and Conoco] continue to ship vinyl chloride - id all of them continue to ship vinyl chlor dfe to the plant up until the time that vinyl chlor ide was no longer at the plant? A: Some of them. Q- Some but not all? A: I don't recall. *** In the first year that you worked ere -- the first years that you worked there say through the 1950s -- 1956, 1957, 1958, 19 -- to your knowledge and to the best of your collection, sir, was Monsanto, during that pet i|^d, receiving any vinyl chloride from non-Monsa i sources? Not to the best of my recollection. -5- UCC 077422 *** Now let's take the 1960s -- 1960 :h rough 1969. To the best of your knowledge and rjpco 11 ect i on, sir, did Monsanto receive any vi n l chloride at the Indian Orchard plant from any n in-Monsanto sources during that period of tim \ A: We may have. Q: Why do you say we may have? A: Because I don't specifically recatll it Q What about from 1970 forward up u it il the time fthat vinyl chloride stopped being ceived at the plant? Is that the period when tn other companies you named were supplying the plant with vinyl chloride? Ves. Q: Are vou aware of anv instances pricc to 1970 when any of those other companies vou q% med supplied the plant with vinvl chloride? A: If the vinyl chloride supply fron Jexas City [Monsanto's own plant] was not sdfiiicient to take care of our needs at Indian Orcha arrangements were made with these other suppli is. Which ones. I don't recall? when. I dor recall. (Tiern. Dep. at 24-27) (emphasis added). After having no recall of any specific soui c< of VCM to Monsanto through 1969, Mr. Tierney later testil inconsistently: Q: [By Ms. Burger] Prior to 1969, it is fair to say that Monsanto was supplying itself the vast bulk of the VCM it used, correct. A: Yes. Q: Prior to 1969, do you have a per; lal memory that suppliers other than Monsanto sent VCM to the Indian Orchard facility? -6- u C 3 077423 A: Yes. Q: Who are those suppliers? A: Dow. Q: Again this is prior to 1969? A: Prior to 1969., Union Carbide [sic]. (Tiern. Dep. at 99). cdiich; Conico Significantly, Mr. Tierney has no personal )4n4wledge about the sources of VCM to Monsanto. His testimony s pure hearsay [By Ms. Burger] Did you therefor* i ver observe personally a Union Carbide ten the ui and gallon tank car coming into Monsanto that ' ou could identify as such? The only way I could identify the mlterial in the car is from the information that eceived from Material Coordination. Q: So with respect to Dow as well as Union Carbide and as well as Conoco that you ha1 r identified -- A: (Interposing) Yes. Q: -- the only way you personally woilfl have any knowledge about the source of the V ZM was bv somebody else telling vou who tha source was, is that right? A: That is correct. Q: You made no personal observations l a tank car of the supplier, correct? A: Yes. (Tiern. Dep. at 107 and 108) (emphasis added). To confirm that Mr. Tierney could not place C Dnoco VCM at Monsanto in any meaningful or admissible way, hie tfas then asked a series of questions about the supply of VCM bk Conoco: -7- JCC 077424 [By Ms. Burger] with respect to ai|iy supply of from Conico [sic] prior to 1969, ^ot are not able, are you, to tell us when in .me that occurred, is that right? VCM No; I am not able to tell you. Do you know whether Conico [sic] $u >plied any VCM in 1960? In 1960? Yes. I don't know Do you know whether it supplied afiy VCM in 1961? No. Do you know if it supplied any vcfr it all in 1962? No. Do you know if Conico [sic] suppl Le 1 any VCM in 1963? No. Do you know if Conico [sic] suppl Le 1 any VCM in 1964? No. Do you know if Conico [sic] suppljiefi any VCM in 1965? No. Same question, 1966? No. 1967? No. 1968? No. I might as well stick with Conico sic] and go forward. Do you know if Conico gs. c] supplied any VCM in 1969? -8- UCC 077425 A: I don't know. Q: Do you know if Conico [sic] suppl .e l any VCM in 1970? A: I don't know. Q: Do you know if Conico [sic] suppl .e l any VCM in 1971? A: No. Q: Do you know if Conico [sic] suppl Le 1 any VCM in 1972? A: No. Q: Same question, 1973? A: No. Q: Same question, 1974? A: No. Q: Same question, 1975? A: I think we are out of business th at a, right? Q: So clearly in 1975, it is no? A: No. (Tiern. Dep. at 108-111). Apparently unwilling to accept Mr. Tierney' inability to identify the presence of Conoco VCM at Monsantol any specific time, plaintiff's counsel tried and failed again Q [By Mr. Minoff] Do you recall sf ecifically whether Conico [sic] shipped any v|nyl chloride to Indian Orchard between '56 anc 69? A: I have no recollection. Q: What about after 1969? A: Again, no recollection. -9- UCC 077426 (Tiern. Dep. at 158) (emphasis added). Even if Mr. Tierney's testimony had some ev Lc antiary value (which Conoco disputes), there is zero evidence t lat John Warren was ever exposed to Conoco VCM. On an a ir ial basis, Monsanto used approximately 120 million pounds ad VCM, (Deposition of Robert Bourget at 26, a copy of rtiich is attached as Exhibit C) , and PVC operations occu riad at Monsanto 24 hours per day, seven days per week. (Deposi tian of Carlton Rehm, at 11-12, a copy of which is attached as Elibit D). Even if some extraordinarily limited amount of Cc noco VCM made it to Monsanto, notwithstanding Conoco's lack o knowledge of it, rio information has come to light indicating t he time, date or amount of any alleged exposure of John Warr en to that product. ARGUMENT The standard for granting a protective order to protect a party from "annoyance, embarrassment, oppressicn or undue burden or expense" in discovery is a showing ol good cause." Fed. R. civ. P. 26(c); Isaac v. Shell Oil Co.. 8: F.R.D. 428, 431 (E.D. Mich. 1979). A party seeking to modj|f or vacate such an order must demonstrate at least "some ite evant change in the circumstances under which the protective rder was entered." Public Citizen v. Liggett Group. In<: 858 F.2d 775, 791 (1st Cir. 1988), cert, denied. 488 U.S. 10: (1989). There is no showing of any relevant change of circumit nces here. -10- UCC 077427 Plaintiff relies entirely on a few isolated .nes from a 171 page deposition, taken before the Protective irder was issued, to support her claim that Conoco should b|^ put through the onerous tasks of searching through volumino\|i documents and answering interrogatories which relate not to pfoflluct identification but to other issues. Plaintiff is not entitled to this discovery because she still has no evid^n :e which connects John Warren to Conoco VCM. Although o Offering up the name Conoco as a VCM supplier, Mr. Tierney was <:1 tar that he does not know whether Conoco supplied any VCM to lonsanto in any of the years from 1968, when Conoco began p:*o hieing VCM, through 1975, when Monsanto stopped using VCM. M >reover, Tierney's testimony of possible VCM supplies by C moco was derived solely from what others told him. Such p ire hearsay is not enough to warrant the fishing expedition pi ii itiff seeks. The general rule in Massachusetts is that a p .aintiff who sues a particular manufacturer for product liabjLl .ty must prove that the item causing the injury can be traced to that specific manufacturer. Mathers v. Midland-Ross Coro.. 4D3 Mass. 688, 691, 532 N.E.2d 46, 49 (1989)? Smith v. Ariens Cc* ., 375 Mass. 620, 691, 377 N.E.2d 954, 956 (1978). eg Carrisr v. Riddell. Inc.. 721 F.2d 867, 869 (1st Cir. 1983) ("we . . can find no case imposing liability upon a manufacturer . . in favor of one who uses the product of a different manufac tdter"). -11- UCC 077428 This identification requirement mandates mofe than "mere proof" that the product and the injured person ue: 'e simultaneously at the worksite, which has not e,re i been shown here. O'Connor v. Raymark Industries, Inc.. 40:. :iass. 586, 588, 518 N.E.2d 510, 511 (1988); Roberts v; Owens-Corning Fiberqlas Corp. . 726 F.Supp. 172, 174 (W.D. 1989). The plaintiff must demonstrate exposure "on a reguldr basis over some period of time where . . . [the decedent] ira| actually working with the product himself or in proximity fo where others were working with the product." id*? Rote tson v. Allied Signal. Inc.. 914 F.2d 360, 368, n 4, 5 3Ik Cir. 1990) . See Lohrmann v. Pittsburgh Corning Corp.f 782 F 2ft 1156, 1162-1163 (4th Cir. 1986)(to show causation must stablish "frequency, regularity, and proximity" of contact with product); Davis v. DuPont. 729 F.Supp. 652, 655 :.D. Ark. 1989)(manufacturer of paint products not liable r plaintiff's liver disease where plaintiff did not "come for/ard with any evidence that would establish a causal link betve an his injury and any product manufactured by the defendants" Where no more than a mere hint of the presence of a manufa :turer's product has been shown, as here, the Court can Dhibit unbridled and burdensome discovery. Isaac. 83 *.D. at 431-432. The Court has power to alert plaintiff that e may not use discovery as a "fishing expedition" into Conoco' records. See Bruno & Stillman. Inc, v. Globe Newspapers. 633 .2d 583, 597 -12- UCC 077429 (1st Cir. 1980); Blount International. Ltd, v. ic uvlkill Energy Resources. Inc.. 124 F.R.D. 523, 526 (D. M ss. 1989). Conoco has answered fully all interrogatories a i d document requests which pertain to product identificatior and makes no attempt to deprive plaintiff of any factual evic eice on this issue. (See Conoco Response. Nos. 1-3, 13-14). owever, absent some credible evidence of exposure by Jot n Warren to Conoco VCM, it is inappropriate to burden Conocc ith this far-reaching discovery requested by plaintiff. -13- UCC 077430 CONCLUSION For the foregoing reasons, Conoco respectfully requests that this Court deny plaintiff's Motion to Vacate the Protective Order. CONOCO, INC., By its Attorneys, : (_A~- Sharon R. Burger ( # 064415) Susan L. Parsons ( rfl Hac Vice) Lori J. Shapiro (BI 556669) Nutter, McClennen fish One International 1 ce Boston, MA 02110-249 (617) 439-2000 Dated: April 25, 1991 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoin served upon all counsel of record by first class date. document was tail on this Lori Shapiro (B #556669) 1497 i -14- UCC 077431 T