Document J41XRM6oZwVLpE3ybJz6dgwe

CAUSE NO. 97-3977-F BOBBY GENE GRAY; ROBERT L. RYALS; DON BALKO; and RONALD RAY LIGHTFOOT VS. OWENS CORNING (a/k/a OWENS CORNING CORPORATION), ET AL. IN THE DISTRICT COURT OF NUECES COUNTY, TEXAS 214TH JUDICIAL DISTRICT DEFENDANT UNION PACIFIC RESOURCES COMPANY F/K/A CHAMPLIN PETROLEUM COMPANY. INDIVIDUALLY AND AS SUCCESSOR BY MERGER TO PONTIAC REFINING CORPORATION'S RESPONSES TO PLAINTIFF'S REQUEST FOR RULE 194 DISCLOSURES TO: PLAINTIFF ROBERT L. RYALS, by and through his attorneys ofrecord, Ms. Holly J.W. Huart and Ms. Stephanie Finch, Baron & Budd, The Centrum, Suite 1100, 3102 Oak Lawn Avenue, Dallas, Texas 75219. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Union Pacific Resources Company makes the following disclosures in accordance with Rule 194.2(a)-(c), (e)-(g), (i) and (k). REQUEST FOR DISCLOSURES (a) the correct names ofthe parties to the lawsuit; RESPONSE: The proper name ofthis Defendant is Union Pacific Resources Company. This Defendant is without personal knowledge as to the proper name of any other party. (b) the name, address, and telephone number of any potential parties; RESPONSE: Unknown at this time; however it would include any manufacturers of asbestos-containing products to which Plaintiff and the owners/operators of any premises at which the Plaintiffworked. See Plaintiffs deposition testimony. (c) the legal theories and, in general, the factual bases of the responding party's claims or defenses (the responding party need not marshal all evidence that may be offered at trial); CSWV461187.1 RESPONSE: Union Pacific Resources Company, a Delaware Corporation was recently acquired and became a subsidiary of Anadarko Petroleum Corporation. It previously was an independent corporation, and before that a subsidiary of Union Pacific Corporation. A predecessor of Union Pacific Corporation purchased the stock of Champlin Petroleum Company and the former Pontiac Refinery from Celanese Corporation ofAmerica in 1969. Champlin Petroleum Company's name was changed to Union Pacific Resources Company in 1987. Also, effective January 1, 1987, 50% interest in the Corpus Christi refinery was sold to a subsidiary of PDVSA, the National Oil Company of Venezuela. A general partnership was established known as the Champlin Refining Company partnership operating the Corpus Christi refinery on behalf ofthe 50% interest held by a subsidiary ofPDVSA and 50% interest held by Champlin Refining Inc., a wholly owned subsidiary of Champlin Petroleum Company (now known as Union Pacific Resources Company). Effective January 1, 1989, Champlin Refining, Inc. had sold its remaining 50% interest in Champlin Refining Company to a subsidiary ofPDVSA which was subsequently merged by PDVSA into PDVSA's CITGO Petroleum Company. Following the sale of its interest in the Corpus Christi Refinery, (formerly known as the Pontiac Refinery), Champlin Petroleum Company, now known as Union Pacific Resources Company, retained no records or documents relating to the operation ofthat refinery. All such documentation remained in the possession ofthe currerit owner and operator ofthat refinery. This Defendant denies that any act or omission on its part causes or contributed to any illness or injury complained ofby the Plaintiffherein. At all times relevant to matters made the basis ofthis lawsuit, this Defendant complied with Texas Law and acted as a reasonably prudent premises owner would under the same or similar circumstances. At all times relevant hereto. Defendant exercised reasonable care in accordance with the knowledge available to maintain a safe place to work, and Defendant denies that its premises created an unreasonable, risk ofharm, or that there was a defect which existed in Defendant's premises. Accordingly, this Defendant denies any liability whatsoever to Plaintiff. Defendant would show that the Plaintiff's claims are barred by the applicable statute of limitations. The illnesses and damages ofPlaintiffand/or decedents, if any, are due solely to other causes and matters which are not related to this Defendant's act, operations, conduct or facilities, in that Plaintiffand/or decedents' illnesses, if any, are the result ofnatural health processes and would have occurred just as they did irrespective ofthis Defendant's actions and conduct. Defendant would show that it hired independent contractors who were knowledgeable in their crafts who were expected to perform their work in a safe and workmanlike manner. These contractors had the right and duty ofcontrol oftheir employees and their sub-contractors' employees which they exercised. Defendant denies that it was negligent or that it had a duty which was breached to any contractors' or sub-contractors' employees. Defendant would show that the Plaintiffs exposure, if any, arose out of the performance of his work or the work of other contractors. CSWVK51187.1 -2- Defendant denies that its premises were unsafe or that a defect existed in its premises. Ifthe Plaintiffand/or decedent suffered any injuries and damages, as alleged, all ofwhich are expressly denied, then any such alleged injuries and damages were caused solely by, or contributed to by, reason ofPlaintiff's and/or decedent's own fault, and this Defendant requests a reduction of any recovery by Plaintiff in accordance with Chapter 33 of the Texas Civil Practice and Remedies Code and other applicable law. The Plaintiffs and/or decedent's injuries, if any, were the result of new, independent and intervening causes. Defendant would further show that Plaintiffs and/or decedent's injuries, if any, were proximately caused by third parties including the manufacturers of asbestos insulation as alleged by Plaintiffin his Petition, the contractors and unions, or by instrumentalities belonging to third parties, over which Defendant had no control and with regard to which it had no duty. For further answer, Defendant says that Plaintiff is not entitled to punitive or exemplary damages since a recovery of the same against this Defendant would violate its rights under the contracts clause of Article I 10,- United States Constitution, and would violate the due process clause of the 14* Amendment to the United States Constitution and Article I 19 of the Texas Constitution because ofthe lack of sufficient standards governing such an award. In the alternative, Defendant pleads and invokes the standards or recovery and limitations on the amount ofrecovery for punitive or exemplary damages set forth in Chapter 41 ofthe Texas Civil Practice and Remedies Code. In the unlikely event that Defendant is held liable in this case to Plaintiffwhich is not admitted and is expressly denied. Defendant asserts its right to a full credit and a reduction ofthe amounts of Plaintiffs damages pursuant to Section 33.102(b)(1) ofthe Texas Civil Practice and Remedies Code. Defendant would show that Plaintiffand/or decedent were not on its premises or were neither exposed to asbestos nor sustained any injury as a result of contact with, exposure to, or use of any product on its premises, and therefore, there could be no showing ofproximate cause of any injury to Plaintiff or decedent. Defendant asserts that the Plaintiffand/or decedent were negligent in smoking cigarettes and the use ofother tobacco products which were known to cause chronic obstructive lung disease and in some instances were known to cause or produce cancer, and with this knowledge, the continued smoking of cigarettes and the use of other tobacco products was the proximate cause and/or the producing cause oftheir injuiy, if any. In the alternative. Plaintiffand/or decedent failed to mitigate his damages by not ceasing to smoke. CSWVJ61187.1 -3- Defendant would show that any exposure that Plaintiff and/or decedent might have had to products allegedly containing asbestos that were allegedly on Defendant's subject premises was insufficient in quantity and quality, and thus, could not have been a proximate cause of any injury alleged by Plaintiffand/or decedent. Defendant would show that Plaintiffs and/or decedent's claims ofinjuries and damages, if any were the result of an unavoidable accident. Defendant denies it was grossly negligent and thus cannot be held responsible and liable for alleged gross negligence and/or punitive damages. Defendant asserts that to the extent the Plaintiff and/or decedent were employees of Defendant, their causes of action, if any exist, are barred by the exclusive remedy provision ofthe Workers Compensation Act ofthe State ofTexas. Defendant denies that any act or omission ofDefendant was a substantial factor in bringing about injury to Plaintiff or decedent, if any, which would not otherwise have occurred. (e) the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case; RESPONSE: Union Pacific Resources Company, a Delaware Corporation was recently acquired and became a subsidiary of Anadarko Petroleum Corporation. It previously was an independent corporation, and before that a subsidiary of Union Pacific Corporation. A predecessor of Union Pacific Corporation purchased the stock of Champlin Petroleum Company and the former Pontiac Refinery from Celanese Corporation ofAmerica in 1969. Champlin Petroleum Company's name was changed to Union Pacific Resources Company in 1987. Also, effective January 1, 1987, 50% interest in the Corpus Christi refinery was sold to a subsidiary of PDVSA, the National Oil Company of Venezuela. A general partnership was established known as the Champlin Refining Company partnership operating the Corpus Christi refinery on behalf ofthe 50% interest held by a subsidiary ofPDVSA and 50% interest held by Champlin Refining Inc., a wholly owned subsidiary of Champlin Petroleum Company (now known as Union Pacific Resources Company). Effective January 1, 1989, Champlin Refining, Inc. had sold its remaining 50% interest in Champlin Refining Company to a subsidiary ofPDVSA which was subsequently merged by PDVSA into PDVSA's CITGO Petroleum Company. Following the sale of its interest in the Corpus Christi Refinery, (formerly known as the Pontiac Refinery), Champlin Petroleum Company, now known as Union Pacific Resources Company, retained no records or documents relating to the operation ofthat refinery. All such documentation remained in the possession ofthe current owner and operator ofthat refinery. CSW\461187.1 -4- Since Plaintiff at this time has provided insufficient information of work history, this Defendant is unable to specify all persons with knowledge of relevant facts. This will be supplemented as discovery proceeds. Defendant identifies and incorporates by reference all persons identified in the deposition testimony of Plaintiff, and in the Responses to Requests for Disclosure of Plaintiff and all other Defendants. 1. Braxton Routh, CSP Routh & Associates P. O. Box 8144 Corpus Christi, Texas 78468-8144 (361) 991-0206 Routh was employed in Safety at Champlin in Corpus Christi from June 1974 through February 1985. Routh has knowledge of safety, contractors and conditions in the plant. 2. Joe F. Gay 7704 Westwind Drive Ft. Worth, Texas 76179' (817)236-8418 Former Director of Safety for Champlin. Mr. Gay's testimony will be primarily factual, but to the extent his testimony is considered as expert testimony, he is designated as an expert. Mr. Gay will testify based on his previous experience that when he began work at Champlin in 1974, asbestos exposures were believed to be of such a nature as to be within acceptable limits. He will also testify that Champlin hired knowledgeable contractors to deal with asbestos and that substitutes for asbestos containing products were used beginning no later than the summer of 1974. He will also testify concerning the roles ofthe employer/ contractor and the premises owner. 3. Champlin employees or former employees Burford Duckworth, Accountant Catherine Gipner, Nurse Jim Kucera, Safety Bob Koy, Safety L.E. Rolando, Maintenance John Rector, observation and supervision of work of contractors' employees on Defendant's premises in 1978 and 1979 Anadarko Petroleum Corporation 1200 Timberloch Place The Woodlands, Texas 77380 (281) 875-1101 CSW\461187.1 -5- 3. David Massie W.E. "BUT Hough Wayne Starkey Hilario Flores Noe Soliz Custodian ofRecords Gilman Insulation Company, Inc. Corpus Christi, Texas The above were supervisors or insulators of Gilman Insulation Company, Inc., who have knowledge that from August, 1973 through 1989, the insulation products Gilman Insulation sold and used did not contain asbestos. (f) for any testifying expert: (1) the expert's name, address, and telephone number; (2) the subject matter on which the expert will testify; (3) the general substance ofthe expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information; (4) ifthe expert is retained by, employed by, or otherwise subject to the control ofthe responding party: (A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the experts testimony; and (B) the expert's current resume and bibliography; RESPONSE: 1. Braxton Routh, CSP Routh & Associates P. 0. Box 8144 Corpus Christi, Texas 78468-8144 (361) 991-0206 Routh was employed in Safety at Champlin in Corpus Christi from June 1974 through February 1985. Routh has knowledge of safety, contractors and conditions in the plant. He will testify on the Safety Department rules and procedures, the practices and policies in working with contractors and their employees, and the conditions in the plant. CSWVK51187.1 -6- 2. Joe F. Gay 7704 Westwind Drive Ft. Worth, Texas 76179 (817) 236-8418 Former Director of Safety for Champlin. Mr. Gay's testimony will be primarily factual, but to the extent his testimony is considered as expert testimony, he is designated as an expert. Mr. Gay will testify based on his previous experience that when he began work at Champlin in 1974, asbestos exposures were believed to be of such a nature as to be within acceptable limits. He will also testify that Champlin hired knowledgeable contractors to deal with asbestos and that substitutes for asbestos containing products were used beginning no later than the summer of 1974. He will also testify concerning the roles ofthe employer/ contractor and the premises owner. 3. Although primary fact witnesses, the following may, due to the nature of their work, provide some expert opinions: Champlin employees or former employees Burford Duckworth, Accountant Catherine Gipner, Nurse' Jim Kucera, Safety Bob Koy, Safety L.E. Rolando, Maintenance John Rector, work of contractors' employees 4. Defendant adopts and incorporates by reference the persons identified in Defendant's Designation ofExpert Witnesses, on file and served on Plaintiffs counsel in Cause No. 98-748-A; George Joseph Dolezal, et al v. Owens-Coming, et al; In the 28th Judicable District Court ofNueces County, Texas. (g) any indemnity and insuring agreements described in Rule 192.3(f); RESPONSE: Since Plaintiff has provided insufficient work history information Defendant is unable to specify at this time the insurance policies which may be applicable. Defendant will supplement as discovery proceeds; in general Defendant will make applicable policies, to the extent they exist, available for inspection at a mutually agreeable time. At this time. Plaintiffis referred to the Schedule of Insurance Policies held by Union Pacific Resources Company, previously provided to Plaintiffs counsel and identified as Exhibit "D-l." (i) any witness statements described in Rule 192.3(h); CSWVW1187.1 -7- RESPONSE: None at this time. (k) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of this case, all medical records and bills which you have obtained by virtue of an authorization furnished to you by Plaintiff. RESPONSE: None at this time. Respectfully submitted, HAYS, McCONN, RICE & PICKERING State Bar No. 16838000 CRAIG S. WOLCOTT State Bar No. 21845475 400 Two Allen Center 1200 Smith Street Houston, Texas 77002 (713) 654-1111 (Telephone) (713) 655-0027 (Telecopier) Attorney for Defendant UNION PACIFIC RESOURCES COMPANY, F/K/A CHAMPLIN PETROLEUM COMPANY, INDIVIDUALLY AND AS SUCCESSOR BY MERGER TO PONTIAC REFINING CORPORATION CSW\461187.1 -8- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe foregoing instrument has been forwarded to counsel for Plaintiffs by facsimile, certified mad, return receipt requested. Federal Express and/or hand delivery, and to all other counsel of record by regular mail, on this /rSs day of 2000. IG S. WOLCOTT CSW\461187.1 -9- Defendant denies there was an unreasonable risk of harm posed by the use of asbestos-containing products at Defendant's site. REQUEST FOR PRODUCTION NO. 54: Ifyou deny the foregoing request, in whole or in part, produce all documents supporting your denial. RESPONSE: Objection: Defendant Union Pacific Resources Company objects to this request on the grounds it is excessive, overbroad, vague, not limited to the relevant time period, not limited to the relevant site, and therefore seeks documents which are irrelevant and not reasonably calculated to lead to the discoveiy ofadmissible evidence. Further, the request does not seek specific, identifiable documents, and thus is an improper "fishing expedition." Texaco v. Sanderson and Loftin v. Martin. REQUEST FOR ADMISSION NO. 57: Admit that Defendant's failure to reduce or eliminate the risk of harm to Plaintiff was a substantial factor in bringing about Plaintiff s asbestos-related injury. RESPONSE: 1 Objection: Defendant Union Pacific Resources Company objects to this request on the grounds it is excessive, overbroad, vague, not limited to the relevant time, not limited to the relevant site, seeks information irrelevant and not reasonably calculated to lead to the discovery of admissible evidence, and assumes facts not in evidence. Subject thereto and without waiver of same, Defendant denies that Plaintiffhas an asbestos-related injury, and Defendant denies it failed in anything relative to Plaintiff. REQUEST FOR PRODUCTION NO. 55: Ifyou deny the foregoing request, in whole or in part, produce all documents supporting your denial. RESPONSE: Objection: Defendant Union Pacific Resources Company objects to this request on the grounds it is excessive, overbroad, vague, not limited to the relevant time period, not limited to the relevant site, and therefore seeks documents which are irrelevant and not reasonably calculated to lead to the discovery ofadmissible evidence. Further, the request does not seek specific, identifiable documents, and thus is an improper "fishing expedition." Texaco v. Sanderson and Loftin v. Martin. CSWN454822.1 -41- REQUEST FOR PRODUCTION NO. 56: Ifyou contend that while at the premises on which you or your employees were working with asbestos-containing materials, Plaintiff was not exposed to sufficient quantities of asbestos dust to produce the disease(s) complained of, produce all documents supporting your contention. RESPONSE: Objection: Defendant Union Pacific Resources Company objects to this request on the grounds it is excessive, overbroad, vague, not limited to the relevant time period, not limited to the relevant site, and therefore seeks documents which are irrelevant and not reasonably calculated to lead to the discovery ofadmissible evidence. Further, the request does not seek specific, identifiable documents, and thus is an improper "fishing expedition." Texaco v. Sanderson and Lofttn v. Martin. REQUEST FOR PRODUCTION NO 57: Ifyou contend that Plaintiffis suffering from an asbestos disease as a result of exposures other than asbestos dust at the premises on which you or your employees were working with asbestoscontaining materials, produce all documents supporting your contention. RESPONSE: Objection: Defendant Union Pacific Resources Company objects to this request on the grounds it is excessive, overbroad, vague, not limited to the relevant time period, not limited to the relevant site, and therefore seeks documents which are irrelevant and not reasonably calculated to lead to the discovery ofadmissible evidence. Further, the request does not seek specific, identifiable documents, and thus is an improper "fishing expedition." Texaco v. Sanderson and Lofiin v. Martin. REQUEST FOR PRODUCTION NO. 58: Ifyou contend that Plaintiff does not suffer from the asbestos-related disease(s) complained of, produce all documents supporting your contention. RESPONSE: ' Objection: Defendant Union Pacific Resources Company objects to this request to the extent it seeks production of documents equally accessible and available to Plaintiff as to Defendant. Further, the request does not seek specific, identifiable documents, and thus is an improper "fishing expedition." Texaco v. Sanderson and Lofiin v. Martin. Subject thereto and without waiver of same, Defendant refers Plaintiffto Plaintiff's medical records and employment records. CSVA454822.1 -42- REQUEST FOR PRODUCTION NO. 59: Ifyou contend that Plaintiff was not exposed to asbestos dust at the premises on which you or your employees were working with asbestos-containing materials, produce all documents supporting your contention. RESPONSE: Objection: Defendant Union Pacific Resources Company objects to this request on the grounds it is excessive, overbroad and vague. Further, the request does not seek specific, identifiable documents, and thus is an improper "fishing expedition." Texaco v. Sanderson and Loftin v. Martin. Subject thereto and without waiver of same, see documents produced in the Cedillo case. See Plaintiffs employment records. REQUEST FOR PRODUCTION NO 60: REQUEST FOR PRODUCTION NO 60: Produce any and all documents and other tangible things which refer to the document retention (and/or destruction) policy ofDefendant, including the following: a. Any document retention and/or destruction policies for Defendant that pertain to documents and records, including but not limited to supplements, addenda, memoranda, operating bulletins, revisions, or any other superseding instructions that referred to the stopping, suspending or resuming of such retention or destruction policies. b. Any record retention and/or destruction, dumping, or purging policies for Defendant that pertain to documents and records created, maintained or stored by electronic and/or magnetic means, including but not limited to records that have been microfilmed, microfiched, imaged, scanned, or stored on tapes, disks, diskettes, CDrom, databases, etc. or on or within any computer hardware, backup system, download system, file dumping or other system of information management, whether on-site or off-site, including but not limited to supplements, addenda, memoranda, operating bulletins, revisions, or any other superseding instructions that referred to the stopping, suspending or resuming of such retention or destruction policies. RESPONSE: Objection: Defendant Union Pacific Resources Company objects to this request on the grounds it is excessive, overbroad, vague, unduly burdensome, an unnecessary expense and harassment and annoyance of this party, and seeks information irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. CSWU54822.1 -43- REQUEST FOR PRODUCTION NO. 61: Produce any and all documentation, including but not limited to lists, inventories, indices, databases or print-outs thereof, archives, storage inventories, logs, or other search aids that refer or relate to the existence, extent, type, organization, filing system, method of access or retrieval, and/or location of Defendant's documents (maintained or stored on-site or off-site) described in the preceding paragraphs. RESPONSE: Objection: Defendant Union Pacific Resources Company objects to this request on the grounds it is excessive, overbroad, vague, unduly burdensome, an unnecessary expense and harassment and annoyance of this party, and seeks information irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. REQUEST FOR ADMISSION NO. 58: Admit that Plaintifffiled suit against Defendant within two (2) years ofthe date of discovering his asbestos-related condition or the existence of any asbestos-related causes of action. RESPONSE: After reasonable inquiry, the information known or easily obtainable is insufficient to enable the responding party to admit or deny; accordingly this request is denied. REQUEST FOR ADMISSION NO. 59: Admit that Defendant is liable for Plaintiffs asbestos related illness. RESPONSE: Objection: Defendant Union Pacific Resources Company objects to this request on the grounds it is excessive, overbroad, vague and assumes facts not in evidence. Subject thereto and without waiver of same. Defendant denies that Plaintiffhas an asbestos-related illness, and Defendant denies it is liable for any illness ofPlaintiff. REQUEST FOR ADMISSION NO. 60: Admit that asbestos is still in use and/or in place on Defendant's Premises. RESPONSE: After reasonable inquiry, the information known or easily obtainable is insufficient to enable the responding party to admit or deny. CSWV454822.1 -44- REQUEST FOR ADMISSION NO. 61: Admit that Defendant no longer uses asbestos on its Premises. RESPONSE: Objection: Defendant Union Pacific Resources Company is no longer the owner of the premises, and thus is without sufficient information or knowledge of its condition. REQUEST FOR PRODUCTION NO. 62: If you contend that you did not own or control the facility(is) during any time period that Plaintiff worked (or believes he worked) at the facility(is), please produce all documentation that supports your contention, including but not limited to documentation pertaining to the purchase, sale, acquisition, merger, or divestment ofcorporations, subsidiaries, divisions, or other corporate entities or assets that included the purchase, sale, acquisition, merger, or divestment of the facility(is); such documentation to include, by way of example and not limitation, purchase or sale agreements, minutes, resolutions, annual reports, 10K reports or other state or federal agency filings, or deposition, trial testimony or affidavits of your corporate representatives who are the most knowledgeable individuals with respect such matters. RESPONSE: Objection: Defendant Union Pacific Resources Company objects to this request on the grounds it is excessive, overbroad and vague. Subject thereto and without waiver of same, see this Defendant's Preliminary Statement. The following requested items are being served on the requesting party with this response: a. Agreement of08/28/69 between Union Pacific Petroleum Corporation and Celanese Corporation providing for the acquisition by UPPC of all of the issued and outstanding Stock of Champlin Petroleum Company and Pontiac Refining Corp.; b. Delaware Secretary of State Certificate of Agreement of Merger, and Plan and Agreement ofMerger of Champlin Petroleum Company and Pontiac Refining Corp. CSWV454822.1 -45-