Document EdnBRZwzyGbrE4bzMdeDvMkZj

Cause No. DV0O-O8571-K John Chambers and Tommylu Chambers, et al. vs. GAF Corporation (f/k/a Newco Holdings, Inc.), individually and as successor to GAF Corporation (f/k/a General Aniline & Film Company), and The Ruberoid Company, et al. In the District Court Dallas County, Texas 192nd Judicial District DUPONT'S RESPONSE TO TEXAS RULES OF CIVIL PROCEDURE 194.2 DISCLOSURES TO: Frank G. Shelton, Plaintiff, by and through .his attorney, Stephanie Finch, whose address is Baron & Budd, The Centrum, 3102 Oak Lawn Avenue, Suite 1100, Dallas. Texas 75219. Pursuant to Rule 194.2 of the Texas Rules of Civil Procedure, E. I. du Pont de Nemours and Company makes the following disclosures in response to Plaintiffs Request for Disclosure. 1. Rule 194.2(a) Disclosures Correct Name of Party The correct name of this party is E. I. du Pont de Nemours and Company. 2. Rule 194.2(b) Disclosures Potential Parties This defendant is unaware, at this time, of any other potential parties to this litigation. 3. Rule 194.2(c) Disclosures Legal Theories and Factual Bases of Claims or Defenses .DuPont's legal theories and the factual bases of claims or defenses are still being developed at this time. The following legal theories and factual bases may be amended or supplemented as information is developed. DuPont was not negligent because it acted with reasonable care under the circumstances. DuPont's Response to Texas Rules ofCivil Procedure 194.2 Disclosures - Page 1 According to Plaintiffs Amended Petition, plaintiff s claims against DuPont are based solely on Mr. Shelton's alleged exposure while working at DuPont's facility in Victoria, Texas. It is DuPont's legal theory that the alleged claims and parties have been improperly joined in this action and that individual claims and parties, or discrete groups of claims and parties, should be severed. Thus, joinder is improper. It is DuPont's legal theory that plaintiffs claims are potentially barred by applicable statutes of limitation, repose or laches. The factual bases for this theory' rest on the potential that each Plaintiffs diagnosis, awareness and knowledge of an asbestos related condition occurred at such a time as to be barred from now bringing that claim. It is DuPont's legal theory that plaintiffs injuries and damages were caused by Mr. Shelton's negligence. Further, it is DuPont's legal theory that DuPont owed no duty to plaintiff. The vast majority of Mr. Shelton's exposure occurred other than on DuPont's premises. Mr. Shelton's exposure, if any, on DuPont premises was the result ofconduct, negligence, conditions or activities created by Mr. Shelton himself or his employer. Mr. Shelton's alleged illness was not caused, in whole or in part, by any act or omission of DuPont. 4. Rule 194.2(d) Amount and any Method of Calculating Economic Damages DuPont denies that plaintiff is entitled to recover any damages, economic or otherwise, against it. Furthermore, as of the making of this disclosure, plaintiff has not provided DuPont with any calculation of any economic damages that he may be claiming; therefore, DuPont is unable at this time to respond to any method of calculation that plaintiff may employ. Any method used to calculate economic damages should be limited by all statutory and common-law limitations on the amount of recovery. 5. Rule 194.2(e) Disclosures Persons with Knowledge of Relevant Facts Based on the limited information available to DuPont at this time regarding the nature and circumstances ofPlaintiffs' alleged claims, it is believed that those listed below may have knowledge of relevant facts. As the facts ofthe case are further developed, this response will be supplemented. James E. Borden, Jr. 2908 Arroyo Drive Victoria, Texas 77901 (512)573-3135 DuPont's Response to Texas Rules ofCivil Procedure 194.2 Disclosures - Page 2 Bruce W. Karrh, M.D. 7 Blackhawk Trail Savannah, Georgia 31411 (912)598-8992 Robert E. Keith 219 Wearden Drive Victoria, Texas 77904 (512) 578-5650 Tommy A. Thompson 102 Woodcreek Circle Victoria, Texas 77904 (512)575-5127 To the extent persons are allowed to testify at the trial in this matter, DuPont hereby crossdesignates persons with knowledge of relevant facts and co-workers of Frank G. Shelton. 6. Rule 194.2(f) Disclosures Testifying Experts 1. Morton Corn, Ph.D. Department of Environmental Health Sciences The Johns Hopkins University 615 North Wolfe Street, Room 6010 Baltimore, Maryland 21205 (410) 955-3602 (410) 955-9334 facsimile Dr. Morton Com is a professor emeritus with the Johns Hopkins University's Department of Environmental Health Sciences in Baltimore. He is currently Director, National Institute of Occupational Safety and Health (NIOSH) Educational Resource Center in Occupational Safety and Health for Training Physicians. Nurses, Hygienists and Safety Professionals, and Director. Division of Environmental Health Engineering. Dr. Corn is an industrial hygienist with long-standing experience in addressing asbestosrelated issues from the perspective of an industrial hygienist and government regulator. He received his Ph.D. degree in Industrial Hygiene and Sanitary Engineering from Harvard University's Division of Engineering and Applied Physics in 1961. He served as Assistant Secretary of Labor for the DuPont`s Response to Texas Rules ofCivil Procedure 194.2 Disclosures - Page 3 Occupational Safety and Health Administration ("OSHA'') from 1975 to 1977 during the Ford Administration. Dr. Com may testify concerning the following subjects: (a) the uses and characteristics of asbestos and asbestos-containing products; (b) the development of industrial hygiene and occupational safety and health in the United States; (c) the evolution of knowledge in the industrial hygiene community concerning the potential health hazards associated with exposure to dust and asbestos; (d) the characteristics of asbestos dust and fibers and measurements of airborne concentrations of asbestos dust and fibers; (e) standards, guidelines, procedures and practices relating to the control of potential exposure to dust and asbestos dust; (f) exposure assessment and associated exposures for non-asbestos workers and the general public; (g) DuPont's industrial hygiene practices and procedures; and (h) DuPont's practices, programs and procedures for the health and safety of its employees. Dr. Com is expected to address these subjects in a general context, and also as they relate to DuPont. Dr. Com is expected to discuss the specific factual allegations by plaintiffs regarding conditions, procedures, and practices at DuPont. Dr. Corn's testimony is based upon (1) his extensive experience and training in the fields of industrial hygiene and occupational health and safety, (2) knowledge of relevant literature, (3) review of documents, discovery, and testimony regarding plaintiffs allegations, (4) review of relevant DuPont documents; and (5) review of the record in this case. 2. Richard J. Lee, Ph.D. RJ Lee Group 350 Hochberg Road Monroeville, Pennsylvania 15146 (724)325-1776 _ Dr. Richard J. Lee is President of the RJ Lee Group, Inc., a consulting firm and analytic laboratory in Pittsburgh. Prior to his affiliation with the RJ Lee Group, Dr. Lee was head of the U.S. Steel Technical Center's Electron Microscopy and Surface Analysis Section for 12 years. He is a theoretical physicist by training, and received his Ph.D. degree from Colorado State University. Dr. Lee was a member of the Health Effects Institute's Literature Review Panel on Asbestos in Buildings, commissioned by Congress. He has also performed work for the EPA and served on various EPA panels and committees regarding asbestos issues. He has also performed investigations of naturally occurring asbestos and other minerals and methods for detection and identification of such minerals. This has included analysis of bulk, air, water, soil and dust samples. The subject matters on which Dr. Lee may testify include: (a) the history of the guidelines and standards governing exposure to asbestos; (b) the development ofscientific knowledge regarding the measurement ofasbestos in the.air; (c) the aerodynamics of fibers; (d) exposure levels of various activities in the workplace and in public, commercial and private residences including relevant DuPont facilities; (e) analysis and production of bodies of air sampling data for the Environmental Protection Agency and other governmental and private entities regarding naturally occurring forms DuPont's Response to Texas Rules ofCivil Procedure 194.2 Disclosures - Page 4 of asbestos in the environment; (f) the release of asbestos from clothing; and (g) the results of experiments conducted by himself and others. Dr. Lee is expected to testify based on (1) his extensive experience and training. (2) knowledge of relevant literature and data. (3) review of documents, discoveiy, and testimony regarding the plaintiffs' allegations, and (4) review of relevant DuPont documents. 3. James M. Crapo, M.D. Chairman, Department of Medicine National Jewish Medical and Research Center^ 1400 Jackson Street Denver, Colorado 80206 (303)398-1436 Dr. Crapo is a physician specializing in pulmonary medicine. He is Chairman of the Department of Medicine at the National Jewish Medical and Research Center in Denver, Colorado. He is a former Professor of Medicine and Professor of Experimental Pathology at Duke University Medical Center. Dr. Crapo has carried out extensive research into the mechanisms of pulmonary disease resulting from the inhalation of particulates, including the processes associated with asbestos-related disease. Dr. Crapo is expected to testify generally about the reactions of the lungs to inhaled particulates and foreign substances in both industrial and non-industrial environments. Dr. Crapo is expected to discuss, in particular, the biological effects of exposure to asbestos dust, and the etiology of asbestos-related disease. Dr. Crapo is expected to testify that the risk of asbestos-related lung disease is related to dose, and will provide his opinions regarding the levels of asbestos exposure necessary to produce disease. He may also testify concerning his asbestos-related studies and publications as well as other literature and studies related to asbestos-related diseases. Dr. Crapo may also review the x-rays and other medical records of Mr. Shelton and render opinions regarding the presence or absence of asbestos-related abnormalities in Mr. Shelton's lungs. Dr. Crapo is expected to describe the diagnostic criteria and methods used in the diagnosis of asbestosis and other asbestos-related conditions. Dr. Crapo may critique the diagnostic reports of the plaintiffs' experts as they relate to plaintiffs' alleged conditions. Dr. Crapo may render opinions regarding the probable cause or causes of Mr. Shelton's condition. 4. Dr. Bruce W. Karrh 7 Blackhawk Trail Savannah, Georgia 31411 (912) 598-8992 Dr. Bruce W. Karrh was the Vice President for Integrated Health Care for DuPont from 1993 until 1996 when he retired. Dr. Karrh received a Bachelor of Science degree in Chemistry from the DuPont's Response to Texas Rules ofCivil Procedure 194.2 Disclosures - Page 5 University of Alabama at Tuscaloosa in 1958 and a Medical degree from the Medical College of Alabama in Birmingham in 1962. He entered the United States Army and performed a rotating internship in 1963 at Brooke General Hospital, Fort Sam Houston, Texas. From 1963 to 1965, Dr. Karrh was a flight surgeon in the U.S. Army medical corps, and from 1965 to 1970, he was in private practice in Athens, Alabama. In 1970, Dr. Karrh became the Medical Supervisor for DuPont's Spruance Plant where he remained until 1973. At that time he became the Research Manager of the Environmental Sciences Group at Haskell Laboratory until 1974. DuPont then appointed Dr. Karrh Assistant Medical Director and then Medical Director in 1977. In 1983, Dr. Karrh was named General Director, Medical, Safety and Fire Protection for DuPont. He was then named Vice President for Safety, Health and Environmental Affairs in 1984 - a position he held until 1993. Dr. Karrh was a long-standing DuPont employee experienced in addressing health and safetyrelated topics and issues at DuPont. As part of his duties at DuPont, Dr. Karrh gained knowledge, both historical and current, regarding DuPont's history of and practices regarding safety throughout the company. In the course of his duties, Dr. Karrh became familiar with the history of and practices regarding DuPont's approach to workers' safety and health issues involving exposure to dust and asbestos dust. Much of Dr. Karrh's testimony will be fact testimony; however, he may express opinions in some areas that may be considered expert opinions. Out of an abundance of caution. DuPont is designating Dr. Karrh as an expert because he may be asked to provide such opinions. Dr. Karrh may testify concerning the following subjects: (a) DuPont's history of providing for health and safety of its employees; (b) policies, procedures and programs for the health and safety of workers including those addressing dust and asbestos dust; (c) medical screening, monitoring and surveillance of DuPont employees: and (d) evolution and understanding of potential health hazards posed by exposures of workers to dust and asbestos dust. ~ Additional Expert Designations Plaintiff has not provided adequate information about his alleged disease, current medical condition and testifying experts to allow DuPont to determine which additional experts it may need in this case. Further, plaintiff has not provided reports from his experts regarding what opinions they may assert with respect to DuPont or plaintiffs claims against DuPont, nor has plaintiff made his experts available to DuPont for deposition. As recognized by the Texas Rules on discovery and expert designations, DuPont is not in a position to make more extensive expert designations under these circumstances. To require a party to retain experts without the benefit of this essential information puts the party to an undue burden and unnecessary expense. DuPont will supplement this designation, if necessary, after adequate information is provided with respect to plaintiff s testifying experts. 5. It is anticipated that a radiologist with specialized training and experience in "B'! Readings will be necessary to review, interpret and render opinions regarding x-rays of Mr. Shelton. This expert is expected to testify generally about presentations seen on x-rays and to explain the presentation that is seen. It is also anticipated that this expert would testify specifically about the DuPont's Response to Texas Rules ofCivil Procedure 194.2 Disclosures - Page 6 findings seen on Mr, Shelton's x-ray films and is anticipated to render an opinion regarding the absence or presence of the findings of any asbestos-related condition of the lung. 6. It is further anticipated that a pulmonologist will be designated to discuss the physical condition of Mr. Shelton and also to discuss Mr. Shelton's medical records. This expert is also expected to discuss the anatomy and function of the respiratory system in the human body. This expert is expected to discuss the nature of asbestos, the symptomatology, disease process and diagnosis of asbestosis and cancers associated with the respiratory and related systems. It is also anticipated that this expert will testify regarding the methods ofdiagnosis ofalleged asbestos- related diseases as compared to other non-asbestos related diseases. It is anticipated that this expert will also discuss historical and/or medical literature pertaining to asbestos-related conditions and other diseases of the respiratory and related systems. 7. To the extent any experts designated by other parties are allowed to testify at the trial in this matter, DuPont hereby cross designates all experts listed by all parties. 8. To the extent any physicians or representatives of health care facilities are listed by Plaintiff Frank G. Shelton's experts or fact witnesses, DuPont reserves the right to call them as witnesses and to elicit opinions from them. 7. Rule 194.2(g) Disclosures Indemnity and Insurance Agreements DuPont will provide for inspection and copying a list of insurance policies that, subject to their terms, including financial terms, may afford coverage for the claims asserted against it in this action. 8. Rule 194.2(h) Disclosures Settlement Agreements None. 9. Rule 194.2(i) Disclosures Witness Statements None. 10. Rule 194.2(j) Disclosures Medical Records and Bills The records, if any. are attached. 11. Rule 194.2(k) Disclosures DuPont's Response to Texas Rules ofCivil Procedure 194.2 Disclosures - Page 7 Medical Records and Bills obtained by virtue of an authorization The records, if any, are attached. Further records will be provided as they are obtained. Dennis M. Conrad State Bar No. 04706400 S. Jan Hueber State Bar No. 20331150 Kirkley Schmidt & Cotten, L.L.P. 2700 City Center II 301 Commerce Street Fort Worth, Texas 76102-4127 (817) 338-4500 (817)335-4599 Fax Attorneys for Defendant E. I. du Pont de Nemours and Company CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing was served on Plaintiffs counsel by certified mail, return receipt requested, and a copy of the correspondence letter was served on all other known counsel by regular U.S. mail on this the 37" day of July, 2001. Counsel DuPont's Response to Texas Rules ofCivil Procedure 194.2 Disclosures - Page 8