Document M1Jp7daDk1yKn9n9ndpmzdGj

Benos, Cummings, Mann & Valenti A Legal Professional Association Wayne F. Benos Dana E. Cummings Eric H. Mann John A. Valenti The Bulkley Building 1501 Euclid Ave., Suite 800 Cleveland, Ohio 44115-2175 Tel: (216) 575-1777 Fax:(216)575-1951 E-mail: bcmv@multiverse.com July 12, 2001 Charlie McLeigh, Esq. Goldberg, Persky, Jennings & White, PC 1030 Fifth Ave., Third Floor Pittsburgh, PA 15219 RE: Goldberg Groups 10. 11. and 12 Cuyahoga County Court ofCommon Pleas Dear Mr. McLeigh: Enclosed please find Defendant American Standard Inc. 's Responses and Answers to Plaintiffs' Request for Admissions, Interrogatories and Request for Production of Documents Directed to Defendant in the above-captioned cases. Sincerely, Enclosures. jftaquel Timm Legal Assistant H:\Docs\Ehm\WABCO\Goldberg\McLeighOl.lir.wpd IN THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, OHIO PLAINTIFF GOLDBERG GROUP 10 Joseph C. Decker Archie N. Fox Roger Gilmore Paul Gordon George Gunkievich Leo Heavener John Heslep Wilbur Heslep Victor Hoskinson John Hunnell Junior Ice Hillis Jenewein Harold Lively Lewis Lively Dennis Longwell Thomas E. Lucas Charles W. Miller Rudy Mokros Larry Morris (Deceased) Paul E. Nelms Ernest S. Petho Roger Probst Sherman Richter William E. Yarbrough J.E. Yoho GOLDBERG GROUP 11 Richard Blake William Davis Gordon Dennis Danny Dulaney Donald Ebert (Deceased) Vernon Ebert James Eddy Marlyn Eisenbarth James Feeney James Glasscock 51121\00001\CH198188.WPD 1 CASE NUMBER 95-293253-046 95-293253-076 95-293253-082 95-293253-090 95-293253-084 95-293449-050 95-293449-046 95-293449-028 95-293449-044 95-293449-035 95-293449-074 95-293449-057 95-293526-091 95-293526-097 95-293526-089 95-293526-094 95-293526-067 95-293526-056 95-293526-052 95-293526-048 95-293526-038 99-398381 95-293394-094 95-293312-035 95-293312-036 95-293312-038 95-293253-045 95-293253-041 95-293253-048 95-293253-056 95-293253-052 95-293253-058 95-293253-054 95-293253-068 95-293253-087 Thomas Glover Roger Hammond John Harrigan Donald Hogue Stanley Jarrett Robert L. Jones Loyal H. Lee Willard Lucas Raymond Stackpole Russell Stewart Howard Thomas (Deceased) Kermit Thomas (Deceased) GOLDBERG GROUP 12 James M. Johnson Robert Kenny Emmitt Kerns Joseph Kolakowski Stanley Lamp Harold J. Lehman Gary Lloyd Phillip E. Lowe William May Franklin McCaslin Donald L. McDougai Joseph McFrederick Robert Mease Jack V. Mobberly Dale R. Mobley Joe Mollendick Mardis E. Moore Melvin M. Palmer Richard Paulus Dennis Piatt George F. Pool Clinton Racer Ronald Rader (Dec'd) Francis Rataiczak Herbert Rice Earl Ritchie John L. Robbins John H. Rush Robert E. Sawyers Harry Schaub (Dec'd) 95-293253-083 95-293449-027 95-293449-032 95-293449-051 95-293449-065 95-293449-066 95-293449-090 95-293449-091 95-293394-059 95-293394-057 95-293394-023 95-293394-024 95-293449-056 95-293449-078 95-293449-088 95-293449-095 95-293526-085 95-293526-101 95-293526-096 95-293526-095 95-293526-082 95-293526-081 95-293526-064 95-293526-063 95-293526-059 95-093526-078 95-293526-077 95-293526-062 95-293526-079 95-293526-039 95-293526-024 95-293526-037 95-293526-036 95-293394-097 95-293394-101 95-293394-100 95-293394-095 95-293526-013 95-293526-017 95-293394-089 95-293394-065 95-293394-088 2 T Kenneth Shanholtzer (Dec'd) James H. Slider Plaintiffs, vs. 95-293394-048 95-293394-062 A-BEST PRODUCTS COMPANY, INC., et al.. Defendants. DEFENDANT AMERICAN STANDARD INC.'S RESPONSES AND ANSWERS TO PLAINTIFFS' REQUEST FOR ADMISSIONS, INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT COMES NOW, the Defendant, Westinghouse Air Brake Company, sued herein as "American Standard Inc., and its division, in its own right and as Successor to Westinghouse Air Brake and/or Wabco" (hereinafter "Defendant" or "Westinghouse Air Brake"), and in Response and Answer to Plaintiffs' Request for Admissions, Interrogatories and Request for Production ofDocuments, states as follows: PRELIMINARY STATEMENT AND GENERAL OBJECTIONS This Defendant's Response to each of these Interrogatories and Requests to Produce incorporates this Preliminary Statement and General Objections. Westinghouse Air Brake Company, and its successors, (hereinafter "Westinghouse Air Brake") built and sold products for intended use on rail-carried vehicles to railroad equipment manufacturers and railroads. It is one of many separate and distinct companies that can trace its history back to and was incorporated by George Westinghouse. It was formed originally in 1869 to design, develop, and manufacture air braking components for vehicles. In 1930, it sold its automotive-related operation to a newly formed company, Bendix-Westinghouse Air Brake Co. 3 T Westinghouse Air Brake Company was acquired in 1968 but continued to operate and remained in business as a separate and distinct entity until December 31, 1978. As of January 1, 1979, Westinghouse Air Brake Company was dissolved and, thereafter, through March 8,1990, operated as Westinghouse Air Brake Division ofAmerican Standard Inc. ("American Standard"). On March 9,1990, American Standard sold Westinghouse Air Brake Division and other North American railrelated assets to Rail Acquisition Corporation, which immediately incorporated under the name Westinghouse Air Brake Company ("New Westinghouse Air Brake"), transferring the assets ofthe Westinghouse Air Brake Division to that new corporation. On information and belief, in 1999, after a merger with another company, new Westinghouse Air Brake Company's name was changed to Westinghouse Air Brake Technologies Corporation ("Wabtec"). These responses are prepared and ( filed on behalf of Westinghouse Air Brake as it has existed and done business in those different corporate forms over those years. Westinghouse Air Brake has been at all relevant times a manufacturer ofrailway equipment. It was not, is not, and never has been, a manufacturer of asbestos products or asbestos containing insulation. For many years, Westinghouse Air Brake sold its products under the trade name WABCO. It continued to use that trade name, but since 1990 it has done so based on a non exclusive license issued by American Standard, which owns the rights to that name and uses it on a non-exclusive basis. To the extent that these Interrogatories and Requests to Produce call for information outside of that scope and context, this Defendant objects on the ground that such Interrogatories and Requests are overly broad, unduly burdensome, seek information neither relevant nor material to the subject matter of this case, and are not reasonably calculated to lead to the discovery ofrelevant, admissible evidence. 4 The information used in responding to these Interrogatories and Requests to Produce was assembled by this Defendant's authorized employees and counsel and was derived primarily from an ongoing review of such records that remain available and from ongoing discussions with Westinghouse Air Brake's past and present employees. Because much of the information is of, or relates to, events of many years ago, it is difficult, if not impossible, for this Defendant to retrieve or reconstruct some of the requested information. Most such records relating to the operations of Westinghouse Air Brake went to the acquiring corporation at the time ofclosing on March 9,1990. Further, investigations to date indicate that at least some historical documents were destroyed pursuant to Westinghouse Air Brake's normal record retention policy. Defendant is engaged in a continuing investigation in an attempt to locate, or confirm the absence of, such information or documents and Defendant also is engaged in a continuing investigation with respect to the matters inquired into by Plaintiffs' discovery. The aforesaid reflects Defendant's corporate effort to comply in good faith with its obligations under the laws and procedures of this jurisdiction and other jurisdictions where discovery is sought. The process is an ongoing one. Defendant reserves the right to amend these Answers if new or more accurate information becomes available, or if errors are discovered. Furthermore, these Answers are given without prejudice to this Defendant's right to rely at trial on subsequently discovered information or on information inadvertently omitted from these Answers as a result ofmistake, error or oversight. To the extent information contained herein differs in any material respect from any prior responses to discovery, these Answers shall be deemed to update and supercede such prior Answers, to the extent they may be inconsistent. In responding to these Interrogatories and Requests, this Defendant does not concede the relevancy, materiality, or admissibility of any information sought by the discovery requests or any 5 T responses thereto. These Responses are made subject to and without waiver of any questions or objections to the competency, relevancy, materiality, privilege or admissibility of evidence, documents, or information referred to herein, or the subject matter thereof, in any proceeding, including trial. This Defendant makes the following additional General Objections to these Interrogatories and Requests: GENERAL OBJECTION NO, I: Westinghouse Air Brake objects to those Interrogatories and Requests that request information regarding the ultimate sale or distribution of products distributed or sold by Westinghouse Air Brake other than to manufacturers of rail-carried vehicles and related equipment or to railroads which the Plaintiffs served or with which they worked, and which may not lead to the discovery of admissible evidence regarding product shipments that may have been utilized at job sites where Plaintiffs are claiming exposure, because information sought regarding other sales or distribution of Westinghouse Air Brake's products is irrelevant, immaterial and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Moreover, unless there is an allegation that plaintiffor plaintiff's decedent actually performed work that would have exposed him to fibers released from internal asbestos containing components ofany specific product ofWestinghouse Air Brake, discovery relating to such products can produce only information that is irrelevant to the subject matter of the pending litigation, which is not reasonably calculated to lead to the discovery of admissible evidence, and is burdensome and oppressive. 6 T GENERAL OBJECTION NO. 2: In light of the virtually unlimited breadth of Plaintiffs' discovery requests and the fact that information is sought for an unlimited time period, it is essentially impossible for this Defendant to conduct a complete search for the information sought. Westinghouse Air Brake no longer has, or never had, many of the documents required to respond to these Interrogatories and Requests. Therefore, this Defendant objects to Plaintiffs' Interrogatories and Requests on the foregoing grounds and for the reasons set forth in the Preliminary Statement. GENERAL OBJECTION NO. 3: This Defendant objects to these Interrogatories and Requests to the extent that they seek information subject to the attorney-client privilege or which constitutes protected work product. This Defendant specifically objects and asserts a privilege based on attorney-client privilege as to any communications between counsel and any member of the corporate control group, including communication with current or former counsel for this Defendant relating to any issues raised in Plaintiffs' complaints. This Defendant specifically objects on the basis of work product and where applicable, attorney-client privilege relating to any communication between counsel and any consultants or potential witnesses, including former employees of this Defendant with whom consultations may have occurred for the purpose ofeducating counsel relating to products or matters at issue in the Complaints. GENERAL OBJECTION NO. 4: This Defendant objects to each discovery request to the extent that it calls for proprietary and/or confidential business information and, as such, is protected from disclosure as trade secret information. This Defendant's Responses to these Interrogatories and Requests are made without waiver of any such privilege or protection against disclosure. 7 T GENERAL OBJECTION NO. 5: This Defendant objects to those Interrogatories and Requests that are not product specific or related to Westinghouse Air Brake, and that are not limited to Plaintiffs' places ofemployment and corresponding time periods. Without information as to the specific products at issue, Defendant cannot make a reasonable investigation in order to formulate a specific response. GENERAL OBJECTION NO. 6: Westinghouse Air Brake objects to the Plaintiffs' definition of the term "Defendant." Westinghouse Air Brake responds on its own behalfonly. The same objection applies to Plaintiffs' definition of the words "You" and "Your." GENERAL OBJECTION NO. 7: Defendant objects to Interrogatories and Requests to Produce that purport to impose upon it any obligations not set forth in the Ohio Rules of Civil Procedure. REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT Please admit or deny the following: 1. This defendant supplied asbestos-containing products: Admitted ______________ Denied RESPONSE: Defendant incorporates the Preliminary Statement and General Objections. Defendant further objects to this Request in that it does not identify and is not limited to any specific Westinghouse Air Brake product at issue in this litigation, nor is it limited in time or geographic area. Without waiving, and subject thereto, Defendant admits it supplied only those asbestoscontaining products identified in Answer to Interrogatory No. 1. 8 T 2. This defendant never warned end users that asbestos dust could pose a health hazard: Admitted _______________ Denied RESPONSE: Defendant incorporates the Preliminary Statement and General Objections. Without waiving and subject thereto, denied. 3. This defendant never provided masks, respirators or other forms of respiratory protection to non-employees of this defendant who came into contact with asbestos-containing products manufactured, supplied or used by this defendant's employees: Admitted _______________ Denied RESPONSE: Defendant incorporates the Preliminary Statement and General Objections. Without waiving and subject thereto, because Defendant's asbestos-containing products were proven, through testing, not to release respirable fibers in excess of the statutorily defined limits, there was no reason to provide masks, respirators, or other forms of respiratory protection, and this Request is admitted. 4. This defendant knew that there were hazards associated with asbestos during the time that it supplied or used asbestos-containing products: Admitted ______________ Denied RESPONSE: Defendant incorporates the Preliminary Statement and General Objections set forth above. The Request does not specify what level or type of exposure is claimed to be at issue. The Request fails to distinguish between fiber types and ignores important factors such as differences in the friability ofasbestos fibers in different products, different uses ofasbestos containing products, different exposures ofdifferent individuals at different work sites engaged in different crafts and the frequency, proximity, regularity and duration of particular exposures or how such theoretical, 9 T potential exposure might have compared to regulatory standards then in effect which would reflect or tend to reflect the existing knowledge of levels at which there might be a risk to humans. Defendant further objects to this Request in that it fails to specify a Westinghouse Air Brake Product, any. at issue in this litigation, nor is it limited in time. Westinghouse Air Brake Company was a corporation, later a division, which employed numerous persons throughout the course of its business, any one ofwhom may have obtained varying degrees ofknowledge regarding asbestos and asbestos related disease at vaiying points in time. Thus, Defendant is unable to definitively answer on what specific date, as a corporation, it first became aware of a possible correlation between asbestos, in particular circumstances, and certain human health consequences, or when under different sets of circumstances and occupational exposures there was a consensus view that the scientific evidence supported a relationship between any claimed level of exposure and a particular outcome. On information and belief, at ail relevant times, Defendant kept informed ofthe prevai ling industry standards, customs, practices and information related to the operation of Defendant's own business. It is impossible to know exactly which employees had actual knowledge concerning the precise information available at any particular time. Moreover, it is more probable that its employees focused on materials the corporation used in great bulk quantities, which would not have included asbestos, when assessing risks relating to the handling ofpotentially dangerous materials. Defendant would have utilized such information in the manufacture ofits products to provide a reasonably safe workplace as information regarding workplace hazards became known. As to asbestos specifically. Defendant continually reviewed its product lines after the first reported concern or question was raised relating to friction materials and gaskets. It relied on advice from a wide variety of sources, including suppliers ofasbestos containing materials to determine whether such asbestos containing components did or did not create respirable fibrous dust at injury producing levels as research into 10 such uses became known, was digested, and became accepted, in its continuing effort to improve the safety, efficiency, reliability, and affordability of its products. Defendant is not currently nor has it ever been aware of any clinical, epidemiological, toxicological, industrial hygiene, medical and/or scientific literature or study demonstrating that the installation or use of any of its rail-related products released respirable fibers in the breathing zone or released any respirable fibers in excess of the American Conference of Governmental Industrial Hygienists ("ACGIH") and Occupational Health & Safety Administration ("OSHA") standards, such that it never had any information that its products had any potential to cause asbestosis, lung cancer, mesothelioma, pleural plaques or thickening, or other disease or medical condition. As a general proposition, the state of Defendant's corporate knowledge through 1985 regarding the potential of asbestos fibers to cause harm can be determined from the published literature relating to the handling of railroad friction products and compressor gaskets and from any information provided by its suppliers of such products. On information and belief, as information concerning possible health hazards associated with different types of and exposures to asbestos were published from the mid-1960s and onward. Defendant inquired of such suppliers as to the potential that any such products had to release respirable fibers. Defendant is now aware that suppliers of asbestos-containing friction products and gaskets were performing fiber release studies, and that such studies established that there was little or no release ofasbestos fibers during intended or foreseeable use. Defendant is not aware ofany communication by such suppliers of the specific results of such studies, but it believes based on literature that was published at that time and based on unpublished studies ofwhich it has now been advised that such studies of potential exposure by end users formed the bases on which the manufacturers of such components concluded that such products could be sold to Westinghouse Air Brake without warning. Pre-OSHA standards and regulations that reflected the general industrial appreciation ofthe hazards 11 associated with exposures to asbestos included the 1946-1972 ACGIH standards, which were adopted without change by different state departments of labor, by the federal regulations relating to the performance of federal contracts, and in naval and maritime standards. In late 1971, OSHA issued an emergency asbestos standard, and in 1972, it adopted a comprehensive OSHA standard, which largely incorporated the then existing ACGIH standards. Without waiving and subject thereto. Defendant admits that at a point in time during which one or more of the products that it sold contained asbestos bound up in matrix material, it knew as a general proposition that exposure to excessive amounts ofasbestos could constitute a hazard; however, Defendant denies that it knew of or that there was any hazard associated with any product that it supplied or used. 5. This defendant never told any employees ofthe entities listed on Exhibit A that there were hazards associated with asbestos: Admitted _______________ Denied RESPONSE: Defendant incorporates the Preliminary Statement and General Objections. Without waiving and subject thereto, this Request is admitted, based on Answer to Interrogatory Nos. 2-4 and 6. INTERROGATORIES DIRECTED TO DEFENDANT 1. Identify each and eveiy asbestos-containing product manufactured, and/or sold, and/or distributed, and/or marketed and/or supplied by this defendant at anytime between 1930 and the present, and for each such product provide the following: (a) The years during which such activity took place; (b) The approximate percentage of asbestos in each such product; (c) The specific type of asbestos fiber used in each product; (d) The temperature range for which each product was intended; (e) The product's trade or brand name; (f) A description of any markings which appeared on the product and its packaging; (g) A detailed description of the intended use of the product; 12 T