Document KRr7MBJ2y9qGgpjyV6Qb8O31Q

FILE NAME: Pfizer (PFIZ) DATE: 2016 DOC#: PFIZ052 DOCUMENT DESCRIPTION: Legal - Order [Sample vs. American Biltrite] STATE OF MISSOURI CITY OF ST. LOUIS ) ) SS ) MISSOURI CIRCUIT COURT TWENTY-SECOND JUDICIAL CIRCUIT (City of St. Louis) YOLANDA SAMPLE and NICKLAS SAMPLE, as Surviving Heirs of Joseph Sample, Deceased, Plaintiffs, vs. ) ) ) ) Cause No. 1422-CC09407 ) ) Division No. 31 ) n 2oe fFIC 0 P(JTy AMERICAN BILTRITE, INC., et ) al., ) ) Defendants. ) ORDER The Court has before it Plaintiffs' Second Motion to Compel Directed to Defendant Pfizer, Inc. The Court now rules as follows1. Plaintiffs' petition alleges that Joseph Sample was exposed to asbestos from a sound-proofing product manufactured and distributed by Pfizer called Kilnoise, and that as a result he developed mesothelioma and died. Plaintiffs allege that Decedent was a jazz musician in the 1960's and 1970's principally in Los Angeles, California; that the recording studios in which he e n t e r eo A * 1 As noted in the Court's order on Plaintiffs' first motion to compel, counsel for the parties acknowledge that they are unable to work well in moving this litigation forward due to "personality conflicts." The Court reminds counsel of their duty to do so anyway. The Court has little patience for the kind of purposeful evasion and delay evident in this case thus far. worked were in an almost continuous state of renovation and improvement as recording technology improved; and that during these renovations Decedent was exposed to asbestos-containing Kilnoise. The present motion relates to Plaintiffs' Second Set of Interrogatories, which Plaintiffs characterized as contention interrogatories, their corresponding Second Request for Production of Documents, and Plaintiffs' First Set of Requests for Admissions Direct to Pfizer, Inc. Pfizer responded with general objections intended to apply to all of these discovery requests and separate objections as to each request. Of Plaintiffs' 41 requests to produce, Pfizer produced documents responsive to only five. The Court has reviewed the matter and finds that Plaintiffs made a good faith effort to meet and confer with counsel for Pfizer to resolve this dispute; Pfizer did not. By email letter dated September 23, 2016, Plaintiffs attempted to confer with Pfizer regarding the alleged deficiencies in Pfizer's responses. Pfizer ignored and never responded to this request to confer. Pfizer's general objections to each set of discovery are all overruled. "[A]n objection which is so general that it would require the court to particularly examine each question 2 propounded to determine if the objection applies, is not good." See State ex rel. Williams v. Vardeman, 422 S.W.2d 400, 404 (Mo.App. 1967). Such is the case here. The Court further overrules Pfizer's objection that the term "asbestos" is vague because there are different types of asbestos, and Plaintiffs did not specify which type to which they are referring. To this Court's knowledge there is no safe level of exposure to any type of asbestos fiber, thus the type of asbestos is irrelevant to these discovery requests, and term "asbestos" as used here is not vague. Pfizer also objects to the present set of interrogatories, requests to produce and for admissions on the ground that they are not properly limited in time and scope and are irrelevant because Pfizer manufactured an asbestos-free Kilnoise during the time at issue. Plaintiffs' assert that Decedent was exposed to asbestos from Kilnoise during the renovation of the sound studios in which he worked in the 1960's and early 1970's. The evidence suggests that Pfizer manufactured asbestos-containing Kilnoise for some nine or ten years, from about 1962 to late 1972. Some time during this period Pfizer also began manufacturing Kilnoise without asbestos. The record is not clear as to how long Pfizer 3 marketed, sold and distributed asbestos-containing Kilnoise after Pfizer stopped manufacturing it. It is possible that asbestos-containing Kilnoise may have been installed long before Decedent worked in the studios, but that he became exposed to it during later renovations. Limiting Plaintiffs' discovery to only those years in which Decedent worked in the studios would miss those possible earlier efforts to market, sell, distribute, and install the Kilnoise to which Decedent was alleged to eventually have become exposed. It is reasonable, however to limit the discovery requests to that period within which Pfizer manufactured, sold or in any way distributed Kilnoise. This would include any time period after Pfizer stopped manufacturing Kilnoise containing asbestos, but in which Pfizer continued to sell or otherwise distribute Kilnoise. The objection otherwise is overruled. Pfizer also objected to the discovery requests based upon the attorney-client privilege and work product doctrine. Pfizer did not provide a privilege log. The objection is in violation of Rule 57.01(c)(3), which provides that [i]f a privilege or work product doctrine is asserted as a reason for withholding information, then without revealing the protected information, the objecting party shall state information that will permit 4 others to assess the applicability of the privilege or work product doctrine." Pfizer, well aware of this rule, nevertheless improperly asserts the objection without providing the log2. To the extent Pfizer believes the attorney-client privilege or work product doctrine applies to any discovery request, Pfizer is directed to provide a detailed privilege log within thirty (30) days of the issuance of this Order. Otherwise, the objection is overruled. Plaintiffs' Second Set of Interrogatories. Pfizer next argues that Plaintiffs served improper contention interrogatories, associated requests for production of documents, and admissions. The argument here is that these discovery requests "fail to be limited to the time and scope of this case but further violate the rule of particularity because, as worded, they are vague, ambiguous, and overly broad," and are so "massively overbroad and improperly unlimited in time and scope that they necessarily invade Pfizer's work product and attorney-client privilege." Plaintiffs correctly point out that Pfizer has the burden of proving facts that support its affirmative defenses. Plaintiffs maintain that by these 2 As the Court said in its Order on Plaintiffs' first motion to compel, this Court has little patience with experienced counsel that knows this and the other rules of discovery and yet requires Court intervention before complying with them. 5 interrogatories they seek to clarify and sharpen the issues to be decided at trial. "An affirmative defense is a procedural tool available to defendants which seeks to defeat or avoid the plaintiff's cause of action and avers that, even if the allegations of the petition are taken as true, the plaintiff cannot prevail because there are additional facts that permit the defendant to avoid the legal responsibility alleged." Johnson v. Allstate Ins. Co., 262 S.W.3d 655, 666-67 (Mo.App. W.D. 2008). The Court has reviewed Plaintiffs' Second Set of Interrogatories and finds that Pfizer's objections generally are without merit. "The primary purpose of interrogatories is to aid the litigants to find out prior to trial what the facts are, so that controversial issues can be ascertained and the preparation for trial and trial limited to them all to the end of obtaining substantial justice between the part[ies] litigant." Trident Group v. Mississippi Valley Roofing, 279 S.W.3d 192, 201 (Mo.App. E.D. 2009)(emphasis in original). Moreover, Plaintiffs are correct that a failure to file a motion to compel or for sanctions for discovery violations by Defendant may make Plaintiffs vulnerable to the introduction of surprise witnesses and/or evidence of which it could have been made aware had they 6 pressed Pfizer for the discovery. See Trident Group, supra at 202. These interrogatories are specific, limited, and are tied to the twenty-five affirmative defenses asserted by Pfizer in its answer to the petition. Plaintiffs are entitled to discover the facts supporting Pfizer's affirmative defenses. Accordingly, Pfizer is to provide full and specific responses. It is not sufficient for Pfizer to more generally direct Plaintiffs, as it has previously, to "the bankruptcy trust documents and Joseph Sample's medical records," or to documents Plaintiff may have obtained in a California case. If Pfizer has evidentiary support for its affirmative defenses it must reveal it with specificity now. This case is more than two years old. To the extent Pfizer asserts that "discovery is ongoing" as a reason for not supplying any discovery, Pfizer is to provide the discovery it presently has available to it, and is to- seasonably supplement that discovery or risk sanction by this Court or the trial Court. Plaintiffs' Second Set of Reguests to Produce Documents. As noted above, Pfizer did not produce any documents, subject to its objections or otherwise, to 36 of Plaintiffs' reguests for production, the exceptions being Requests Nos. 9, 7 10, 11, 13, and 14. Pfizer's objections to these requests to produce mirror those it asserts with respect to Plaintiffs' second interrogatories. Pfizer's primary objection is that Plaintiffs' use of phrases such as "all documents" and "any and all documents" are overly broad.. The Court has reviewed these requests and overrules the objection with respect to the following requests to produce: 1, 2, 6, 7, 8, 9, 14, 15, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, and 39. The Court sustains the objection as to the remainder of the requests. As noted earlier, any Pfizer objection based on attorney-client privilege or the work product doctrine must be accompanied by a privilege log of sufficient specificity to allow others, including this Court, to determine whether the privilege or doctrine applies. Requests for Admissions. Plaintiffs have submitted thirty (30) requests for admission. Plaintiffs complain that Pfizer's responses to Plaintiffs' First Set of Requests for Admissions are inadequate. More particularly, Plaintiff complains that Pfizer admits, subject to objections, Requests for Admissions No., 1-7, and 29, and that Pfizer states, again subject to objections, that it can 8 "neither admit nor deny" Requests for Admission No. 8-18, 28, and 30. Plaintiffs ask the Court to overrule the objections and require complete and unqualified responses. Supreme Court Rule 59.01(d)(2) provides in pertinent part: A denial shall fairly meet the substance of the requested admission. When good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as true and qualify or deny the remainder. A responding party may give lack of information or knowledge as a reason for failure to admit or deny if such party states that the party has made reasonable inquiry and the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; such party may deny the matter, subject to the provisions of Rule 61.01(c), or set forth reasons why the party cannot admit or deny it. Rule 59.01(d) (2) . "A request for admissions, as authorized by Rule 59.01(a), is designed to remove an issue from trial or to determine which pleaded matters present genuine issues for trial." Felton v. Hulser, 957 S.W.2d 394, 397 (Mo.App. W.D. 1997). "A request for admissions under the rule can be made as to any disputed issue, whether evidentiary or elements of the burden of proof, as well as to any propositions not in genuine dispute, whether a matter 9 of application of fact to law or opinion." Dynamic Computer Solutions v. Midwest Mktq. Ins. Agency, 91 S.W.3d 708, 715 (Mo.App. W.D. 2002) . All of Pfizer's general objections are overruled. The Court also overrules all of Pfizer's objections that sound in "lack of information or knowledge" because Pfizer has not included a truthful declaration that it has made a reasonable inquiry into the question. The Court also overrules Pfizer's objection that the terms "asbestos" and "health hazard" are unduly vague. The Court overrules Pfizer's objections to Request No. 8. As the manufacturer of Kilnoise, Pfizer has the knowledge and resources to state whether it provided any warning label on its Kilnoise packaging relating to the health hazards of asbestos. Pfizer's qualified answer is insufficient. The Court sustains Pfizer's objection that Requests Nos. 9, 10, 11, 12, 14, 15, and 28 are vague as written. All other objections to the requests for admission are overruled. Pfizer will be allowed to file amended answers to Plaintiffs' Second Set of Interrogatories and Request for Production of Documents and First Set of Requests for Admissions in accordance with and within thirty (30) days of the issuance 10 of this Order. THEREFORE, it is Ordered and Decreed that Plaintiffs' Second Motion to Compel Directed to Defendant Pfizer, Inc. is GRANTED in part and DENIED in part, as stated above. SO ORDERED: Dated: Cc: Attorneys of Record 11