Document 61xbeLbpqqynvVwd11g1NY8d

No. 96-06239-A JOSEPH LEE DENNIS, ET AL. Plaintiffs, VS. OWENS-CORNING FIBERGLAS CORPORATION, ET AL, Defendants. IN THE DISTRICT COURT OF DALLAS COUNTY, TEXAS 14TH JUDICIAL DISTRICT DEFENDANT SOUTHERN PACIFIC TRANSPORTATION COMPANY'S SUPPLEMENTALANSWERS TO PLAINTIFF'S INTERROGATORIES TO: Plaintiff Bennie Leon Dunbar, by and through his attorneys of record, Peter Kraus and Kimberly Castles, Baron & Budd, P.C., The Centrum, 3102 Oak Lawn Avenue, Suite 1100, Dallas, Texas 75219-4281. COMES NOW, Southern Pacific Transportation Company, one of the Defendants in the above styled and numbered action, and files this, its Supplemental Answers to Plaintiffs Interrogatories Directed to Defendant Southern Pacific: INTERROGATORY NQ^4: State whether you contend that the Plaintiff has done anything or failed to do anything that constitutes contributory negligence. If so, please state the basis of your contention and what evidence exists to support that contention. SUPPLEMENTAL ANSWER: Southern Pacific does contend that certain acts and omissions by Plaintiff Bennie Dunbar constitute contributory negligence. These acts include the fact that Plaintiff Bennie Dunbar was instructed and required to use a respirator under certain conditions yet he failed to do so. He may have also failed to use a respirator while in the employ of other employers although instructed and required to do so. Furthermore, Plaintiff Dunbar may have failed to follow safety instructions while working for both Southern Pacific and other employers. Plaintiff Dunbar also has an extensive history of smoking cigarettes which probably exacerbated his alleged lung condition, if any. Plaintiff Dunbar's tobacco use was as much as 2 packs per day for 30 years according to a statement he made to emergency room personnel in 1991 at Detar Hospital in Victoria, Texas. This admission is recorded in the records of Dr. Robert F. Oakley, Jr. which are attached to Southern Pacific's Supplemental Responses to Plaintiff's Request for Production served herewith. The effect of Plaintiff Dunbar's smoking Defendant's Supplemental Answers to Plaintiffs Interrogatories PD5:65957.1 Page 1 history on his current health is more fully detailed in the written report of Dr. George L. Delclos which is attached to Southern Pacific's Supplemental Responses to Plaintiffs Request for Production served herewith. Southern Pacific reserves the right to supplement the facts and theories upon which it will prove Plaintiff Dunbar's contributory negligence based upon the development of further evidence in this case. Also, Southern Pacific reserves the right to rely upon the facts and theories of any other defendant which support Plaintiff Dunbar's contributory negligence. Furthermore, Southern Pacific reserves the right to develop this theory through the testimony of any expert or fact wimess designated by any party or through any other relevant evidence. INTERROGATORY NO. 5: State whether you contend that the Plaintiff has done or failed to do anything that constitutes a failure to mitigate damages. If so, please describe the basis of your contention and what evidence exists to support that contention. SUPPLEMENTAL ANSWER: Southern Pacific does contend that certain acts and omissions by Plaintiff Bennie Dunbar constitute a failure to mitigate damages. These acts include the fact that Plaintiff Dunbar smoked cigarettes, as much as 2 packs per day for 30 years according to a statement he made to emergency room personnel in 1991 at Detar Hospital in Victoria, Texas. This admission is recorded in the records of Dr. Robert F. Oakley, Jr. which are attached to Southern Pacific's Supplemental Responses to Plaintiffs Request for Production served herewith. Smoking of cigarettes contributes to pulmonary disease and use of cigarettes following suspected exposure to asbestos constitutes a failure to mitigate damages. The effect of Plaintiff Dunbar's smoking history on his current health is more fully detailed in the written report of Dr. George L. Delclos which is attached to Southern Pacific's Supplemental Responses to Plaintiffs Request for Production served herewith. Furthermore, Plaintiff Dunbar's medical records indicate an unwillingness to comply with treatment and follow his physicians' orders. This fact also constitutes a failure to mitigate damages. Southern Pacific reserves the right to supplement the facts and theories upon which it will prove Plaintiff Dunbar's contributory negligence based upon the development of further evidence in this case. Also, Southern Pacific reserves the right to rely upon the facts and theories of any other defendant which support Plaintiff Dunbar's contributory negligence. Furthermore, Southern Pacific reserves the right to develop this theory through the testimony of any expert or fact wimess designated by any party or through any other relevant evidence. Defendant's Supplemental Answers to Plaintiffs Interrogatories PD5:65957.1 Page 2 INTERROGATORY MO. 6: List each and every place of work and job assignment of the Plaintiff which he held during his employment with Defendant and describe in detail the duties involved in each of the job assignments. SUPPLEMENTAL ANSWER: Although personnel records are now retained on a permanent basis, prior to 1972, personnel records were retained for 5 years. As a result. Southern Pacific no longer retains the personnel, wage, or medical records of Plaintiff Bennie Leon Dunbar. Based upon Railroad Retirement Board (RRB) records. Plaintiff was employed by the Texas & New Orleans Railroad Company from March until July of 1951. In his deposition, Plaintiff stated that he was employed at Southern Pacific's Englewood Yard in Houston, Texas as a laborer performing railcar repair. Other than RRB records and Plaintiffs deposition, Defendant is unable to locate any records which provide information that is responsive to this interrogatory. INTERROGATORY NO. 8: Describe in detail where asbestos containing products were used by railroad workers on Defendant's railroad(s) during the period of Plaintiffs employment by Defendant. ANSWER: Objection. Defendant objects to this interrogatory as overly broad, unduly burdensome, and not limited as to location. Furthermore, this interrogatory is irrelevant and not reasonably calculated to lead to the discovery of relevant or admissible evidence because it seeks information regarding work locations at which Plaintiff did not perform his duties as a Southern Pacific employee. Subject to and without waiving the foregoing objection, see the written report of industrial hygienist Larry Liukonen which is attached to Southern Pacific's Supplemental Responses to Plaintiffs Request for Production served herewith. The rail cars upon which Plaintiff worked did not contain any asbestos containing products. Furthermore, thousands of different types of products were shipped by rail during the period of Plaintiffs employment with only a small percentage of those products constituting asbestos containing material. INTERROGATORY NCL5: If you have alleged in your answer that Plaintiffs injuries and/or damages were caused by some other injury, disease or condition, either pre-existing or unrelated to and arising after or in conjunction with Plaintiffs exposure to asbestos-containing products, please describe in detail such pre-existing or subsequent disease, injury or condition. For each alleged other injury, disease or condition, identify all evidence upon which you base this contention. Defendant's Supplemental Answers to Plaintiffs Interrogatories PD5:65957.1 Page 3 SUPPLEMENTAL ANSWER: Southern Pacific does contend that Plaintiff Bennie Dunbar's current alleged medical condition, if any, is the result of other injury or disease. These other injuries and disease include the damage to Plaintiff Dunbar's lungs from his smoking of cigarettes, as much as 2 packs per day for 30 years according to a statement he made to emergency room personnel in 1991 at Detar Hospital in Victoria, Texas. This admission is recorded in the records of Dr. Robert F. Oakley. Jr. which are attached to Southern Pacific's Supplemental Responses to Plaintiff's Request for Production served herewith. The effect of Plaintiff Dunbar's smoking history on his current health is more fully detailed in the written report of Dr. George L. Delclos which is attached to Southern Pacific's Supplemental Responses to Plaintiff's Request for Production served herewith. Furthermore, Plaintiff Dunbar is suffering from a heart related condition which is evidenced by his heart attack in approximately 1991. Many of the symptoms which Plaintiff Dunbar links to an alleged asbestos related disease can be directly linked to his heart condition. The effect of Plaintiff Dunbar's heart condition on his current health is more fully detailed in the written report of Dr. George L. Delclos which is attached to Southern Pacific's Supplemental Responses to Plaintiff's Request for Production served herewith. INTERROGATORY NO^IO: Please state the name of each and every person having knowledge of facts relevant to this action including most recent address and present telephone number, along with the experience and qualifications, if applicable, of each and every person, known to Defendant's agents, including, but not limited to: A. Identification of asbestos-containing products or type of products to which Plaintiff was exposed or facts disputing the identification of these products; B. Plaintiffs damages, injuries and/or facts disputing Plaintiff's damages and/or injuries; and C. The negligence of any person or entity other that Defendant which Defendant contends was a cause of Plaintiff's injuries and/or damages. D. Each of Defendant's defenses enumerated in Defendant's last filed answer. SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 10: The following witnesses have been listed by Plaintiff as those persons with knowledge of relevant facts. Southern Pacific also designates these persons as fact witnesses and reserves the right to elicit testimony from them regarding facts relevant to this case. These witnesses include: Defendant's Supplemental Answers to Plaintiffs Interrogatories PDS:65957.I Page 4 1. Bennie Leon Dunbar P.O. Box 1238 Ganado, Texas 77962 (512) 771-3737 Mary Kathleen Dunbar P.O. Box 1238 Ganado, Texas 77962 (512) 771-3737 Jeffery S. Dunbar P.O. Box 52 Ganado, Texas 77962 (5120 771-3742 Henry Dunbar P.O. Box 101 Louise, Texas 77455 (409) 648-2039 Delores Gresham 301 Commerce Drive, Apt. 415 Angleton, Texas 77515 (409) 849-1183 Bennie Leon Dunbar, Jr. P.O. Box 408 Ganado, Texas 77962 (512)771-3447 Clarence Kennedy Route 2, Box 133 Davis, Oklahoma 73030 (405) 369-3277 Nathan R. Decker 316 West Avenue E Garland, Texas 75040 (214) 494-6344 Robert Hayden 10925 White Oak Street Conroe, Texas 77303 (409) 264-3447 Defendant's Supplemental Answers to Plaintiff's Interrogatories PD5:65957.1 Page 5 Southern Pacific also designates the following witnesses as having knowledge of facts relevant case: Larry A. Engbrock Director of Crossing Traffic (formerly Litigation Manager for Southern Pacific) Union Pacific Railroad Company 913 Franklin Street Houston, Texas 77002 (713) 223-6271 Mr. Engbrock may testify as to Plaintiffs period of employment with Southern Pacific as well as the authenticity of Railroad Retirement Board records in general as well as Plaintiffs RRB records in particular. Specifically, Mr. Engbrock will testify that Plaintiff Dunbar has only five months of service with Southern Pacific. Audrey Gadson Retirement Benefits Coordinator Southern Pacific Transportation Company San Francisco, California (415) Ms. Gadson may testify as to authenticity of Plaintiff Dunbar's Railroad Retirement Board Records and that same is the most accurate reflection of the number of months of service that Plaintiff Dunbar has with Southern Pacific. Specifically, Ms. Gadson will testify that Plaintiff Dunbar has only five months of service with Southern Pacific. Horton Corwin Hinshaw, M.D. (by video deposition) Former Chief Surgeon for Southern Pacific Deceased Vance Strange, M.D. (by video deposition) Former Chief Surgeon for Southern Pacific Deceased Robert F. Oakley, Jr. M.D. 4502 North Laurent Street Victoria, Texas 77901-2473 (512) 572-0006 Custodian of Records of Robert F. Oakley, Jr. M.D. 4502 North Laurent Street Victoria, Texas 77901-2473 (512) 572-0006 Defendant's Supplemental Answers to Plaintiff's Interrogatories PD5:65957.1 Page 6 Gary F. Cox, M.D. 2700 Citizens Plaza, no. 100 Victoria, Texas 77901 (512) 576-5229 Custodian of Records for Gary F. Cox, M.D. 2700 Citizens Plaza, no. 100 Victoria, Texas 77901 (512) 576-5229 Allen Shields, M.D. 601 East San Antonio, No. 102 Victoria, Texas 77901 (512) 576-6121 Custodian of Records for Allen Shields, M.D. 601 East San Antonio, No. 102 Victoria, Texas 77901 (512) 576-6121 Custodian of Records for the Railroad Retirement Board 844 N. Rush Street Chicago, Illinois 60611-2092 Phone Number Unknown In addition to the above individuals, Southern Pacific also designates: All witnesses listed by all Defendants and Plaintiff Dunbar. All witnesses listed by Plaintiff Dunbar in his deposition. All witnesses deposed in this case. Any physician who has examined or treated Plaintiff Dunbar. Any person employed by any of Plaintiff's treating physicians or the health care facilities at which Plaintiff has been treated who has examined, interviewed, or otherwise taken a history from Plaintiff. All expert witnesses listed by Southern Pacific and any other Defendant and Plaintiff Dunbar. Defendant's Supplemental Answers to Plaintiff's Interrogatories PDS:957.1 Page 7 Southern Pacific reserves the right to supplement or amend its Witness List in accordance with the Court's docket control order governing this case, as well as the Texas Rules of Civil Procedure. INTERROGATORY NO. 11: Please identity documents or things, including x-rays, MRI's, CT-scans or other materials, which will be used at time of trial, (Exhibit List, Deposition List), which are relevant to each of Defendant's enumerated defenses in Defendant's last filed Answer. SUPPLEMENTAL ANSWER: Objection. Southern Pacific reiterates its objection to providing any information which may be protected by the attorney/client, attorney work product, party communication, or other privileges. Subject to and without waiving the foregoing objection, Southern Pacific may offer the following exhibits and depositions at the trial of this case: Video Deposition of Horton Corwin Hinshaw, M.D. Video Deposition of Vance Strange, M.D. Deposition of Plaintiff Bennie Dunbar Records (including x-ray film, MRI film,CT scan film, etc.) of Robert F. Oakley, Jr., M.D. Records (including x-ray film, MRI film,CT scan film, etc.) of Gary F. Cox, M.D. Records (including x-ray film, MRI film,CT scan film,etc. ) of Peter A. Petroff, M.D. Records (including x-ray film, MRI film,CT scan film,etc. ) of Frank Mazza, M.D. Records (including x-ray film, MRI film,CT scan film,etc. ) of Allen Shields, M.D. Records of the Railroad Retirement Board Written Reports and curriculum vitae of all experts designated by Southern Pacific Written reports and curriculum vitae of all experts designated by any other party Southern Pacific reserves the right to supplement or amend its Exhibit List up until April 21, 1997, which is in accordance with the Court's docket control order governing this case. Defendant's Supplemental Answers to Plaintiffs Interrogatories PD5:65957.1 Page 8 INTERROGATORY NO. 12: Identify all names and addresses of all individuals Defendant may call as an expert witness(es) at trial, and for each individual, please state: A. The subject matter on which the witness is expected to testify, specific as to each individual Plaintiffs case, the substance of the facts and opinions to which the witness intends to testify on the Defendant's behalf and a summary of the grounds for each opinion, specific as to each individual Plaintiffs case; B. All factual observations, test results, supporting data, learned treatise (books, general articles, texts or other publications) and opinions which the witness has generated, been provided, intends to use, and/or may use to support his/her opinions and conclusions relative to the case whereupon which the witness has or will base his/her testimony in this matter, specific as to each individual Plaintiffs case. The identity, address and job classification of each consulting expert whose opinions or data have been referred to and/or relied upon by the expert witness, and the complete title and author of each learned treatise referred to and/or relied upon by the witness for information and/or corroborating his/her opinions regarding the subject matter of this lawsuit. C. Whether any person identified in subparagraph B above has provided a report or other documentation to you, and if so, identify each such document or report, specific as to each individual Plaintiffs case, separate and distinct from all other Plaintiffs within the group. D. Identify all documents or other materials, including but not limited to x-rays, pathology, CT-scans, you have provided to each person identified in response to subparagraph B above, specific as to each individual Plaintiffs case, separate and distinct from all other Plaintiffs within the group. E. Describe in detail the education and work history of, and identify any books, treaties, articles, published and unpublished reports, studies or other scholarly works authored by any individual identified in response to subparagraph B above. Alternatively, in lieu of said response, attach a copy a resume or curriculum vitae and a list of publications to your answers. INTERROGATORY NO. 12: Southern Pacific objects to this interrogatory as overly broad and unduly burdensome. Subject to and without waiving the foregoing objection, refer to Southern Pacific's Designation of Expert Witnesses was filed with the court on February 3, 1997. Defendant Southern Pacific designates the following expert witnesses for trial: Defendant's Supplemental Answers to Plaintiffs Interrogatories PD5:659S7.1 Page 9 1. Dr. George L. Delclos Respiratory Consultants of Houston 6550 Fannin, Suite 2403 Houston, Texas 77030 Dr. Delclos is a respiratory specialist. He is expected to testify regarding the status of Plaintiff Bennie Dunbar's medical condition and his opinion as to the cause of Plaintiff's condition. He is also expected to testify regarding Plaintiff Bennie Dunbar's pre-existing medical conditions. Dr. Delclos' curriculum vitae and written report are attached to Southern Pacific's Supplemental Responses to Plaintiff's Request for Production served herewith. 2. Dr. Frank Weir 8131 Wycomb Houston, Texas 77070 Dr. Weir is an industrial hygienist and toxicologist. He is expected to testify regarding whether Plaintiff Bennie Dunbar's exposure to asbestos was in excess of acceptable levels in the railroad industry at the time of Plaintiff's employment. He is also expected to testify regarding the state of medical knowledge within the railroad industry and whether Defendant Southern Pacific's efforts with regard to industrial hygiene were appropriate. Dr. Weir's curriculum vitae and written report are attached to Southern Pacific's Supplemental Responses to Plaintiff's Request for Production served herewith. 3. Larry Liukonen, CIH, CSP Technical Health & Safety Consultant, Inc. Arlington, Texas (817) 483-4097 Mr. Liukonen is a certified industrial hygienist and may testify as to issues of causation, Defendant's compliance with any state, federal or local regulations or guidelines relating to permissible levels of exposure to asbestos at the time of the alleged exposure in the subject case. Mr. Liukonen's curriculum vitae and written report are attached to Southern Pacific's Supplemental Responses to Plaintiff's Request for Production served herewith. 4. Vance Strange, M.D. Deceased, Videotape deposition taken in 1984 re: State of the Art. He was the chief medical examiner, a fact and expert witness. Dr. Strange is a former Chief of Staff, Southern Pacific Employee Hospital Association, San Francisco, California. Dr. Strange will be called to testify by video deposition given on April 16, 1988 as to the state-of-the-art within the railroad industry from his own personal experience. As Defendant's former Chief Medical Officer, Dr. Strange will elaborate upon the state of medical knowledge regarding the dangers of asbestos at the time of Plaintiff Bennie Dunbar's employment. Dr. Strange cannot appear in person at trial because he is deceased. Defendant's Supplemental Answers to Plaintiff's Interrogatories PD5:65957.l Page 10 5. Horton Corwin Hinshaw, M.D. Dr. Hinshaw, is a former Chief of Staff, Southern Pacific Employee Hospital Association. Dr. Hinshaw will be called to testify by video deposition in re FELA as to the asbestos litigation, 1984, as to the state-of-the-art as reflected in his review of the medical literature and from his own personal experience. Dr. Hinshaw, is deceased and therefore unavailable to testify at trial. Dr. Hinshaw's curriculum vitae and a copy of his complete video deposition from 1984 (provided in lieu of a written report) are attached to Southern Pacific's Supplemental Responses to Plaintiffs Request for Production served herewith. 6. Elliott Hinkes, M.D. 301 North Prairie, Suite 311 Englewood, California 90301 (301) 674-0050 Dr. Hinkes is an oncologist who may testify as to issues pertaining to causation, diagnosis and prognosis of plaintiffs medical condition. Dr. Hinkes may also testify as to issues pertaining to the state-of-the-art of medical literature relating to the potential health hazards of asbestos at all relevant times and, in particular, as the state of the art pertains to railroad employees. He has agreed to testify at the trial of this matter and will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning his opinion and its basis. Dr. Hinkes' curriculum vitae is attached to Southern Pacific's Supplemental Responses to Plaintiffs Request for Production served herewith. Defendant reserves the right to call as an expert witness and rely upon the testimony of any of Plaintiff Bennie Dunbar's treating physicians. Defendant also designates any and all expert witnesses designated by any other party to this lawsuit. This includes, but is not limited to: Scott G. Donaldson, M.D. 375 Municipal Drive, Suite 218 Richardson, Texas 75080 (214) 680-0666 Dr. Donaldson performed an independent medical examination of Plaintiff Dunbar on February 28, 1997. As such. Dr. Donaldson is expected to testify regarding status of Plaintiff Bennie Dunbar's medical condition and his opinion as to the cause of Plaintiffs condition. He is also expected to testify regarding Plaintiff Bennie Dunbar's pre-existing medical conditions. Dr. Donaldson's curriculum vitae and written report are attached to Southern Pacific's Supplemental Responses to Plaintiffs Request for Production served herewith. Defendant's Supplemental Answers to Plaintiffs Interrogatories PD5:65957.1 Page 11 INTERROGATORY NO. 29: List each person who has acted in a medical advisory capacity to your company at any time during the past 40 years, including, but not limited to, physicians (including those physicians who would have been responsible for conducting physicals, evaluations or screenings of Defendant's employee's) and industrial hygienists, and the current address, telephone number and job title of each of those individuals who has had or may have had any knowledge regarding the hazards of airborne asbestos dust. SUPPLEMENTAL ANSWER: Southern Pacific's Medical advisors include Horton Corwin Hinshaw, M.D. and Vance Strange, M.D. Please refer to Southern Pacific's Supplemental Answer to Interrogatory No. 12 for additional information regarding Drs. Hinshaw and Strange. INTERROGATORY NO. 37: Does Defendant intend to call a company representative as a witness at the trial of this case? If so, list: A. The name, address, and job title of each company representative who may be called; B. A summary of the testimony expected to be given by each such witness; C. List any and all previous times that the named witnesses have either given deposition or trial testimony in an asbestos-related case, including the jurisdiction, style of the case, case number, date of testimony, and the name of the attorney taking the deposition for the Plaintiffs) in that case. INTERROGATORY NO. 37: Objection. Southern Pacific objects to this interrogatory to the extent that it may inquire into information protected by the attomey/client, attorney work product, party communication, and other privileges. Southern Pacific also objects to sub-part C as irrelevant, overly broad, and unduly burdensome. Subject to and without waiving the foregoing objection, Southern Pacific may call the following company representatives to at trial to offer both fact and expert testimony: Horton Corwin Hinshaw, M.D. Vance Strange, M.D. Larry Engbrock Defendant's Supplemental Answers to Plaintiffs Interrogatories PD5:65957.1 Page 12 Audrey Gadson Please see supplemental answers to Interrogatories Nos. 10 and 12 for additional information responsive to (a) and (b). DATED: April 4, 1997 Respectfully submitted, PHELPS DUNBAR, L.L.P. Texas Bar No. 05020100 John C. Wray Texas Bar No. 00797699 3040>Post Oak Blvd., Suite 900 Houston, Texas 77056 Telephone: (713) 626-1386 Facsimile: (713) 626-1388 ATTORNEYS FOR SOUTHERN PACIFIC TRANSPORTATION COMPANY CERTIFICATE OF SERVICE This is to certify that a true copy of the foregoing instrument has been forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure by certified mail, return receipt requested, on this 4th day of April 1997. u. JohnC. Wray Defendant's Supplemental Answers to Plaintiffs Interrogatories PD5-.6S957.1 Page 13