Document N29B83o4mdvD1BgL55MaDKjdQ

CAUSE NO. 95-12951-D juh. 3 u o c > _ JEANDE LEIGH FLEMING, Individually and as Personal Representative of the Heirs and Estate of ROY FLEMING, Deceased; and THOMAS RICHARD GORMAN and ROSE MARY GORMAN vs. NORFOLK SOUTHERN CORP., ET AL IN THE DISTRICT COURT 95TH JUDICIAL DISTRICT DALLAS COUNTY, TEXAS DEFENDANTS* OBJECTIONS AND RESPONSES TO PLAINTIFFS* REQUESTS FOR ADMISSION Subject to the Court's ruling on Defendant's Special Appearance, Defendant, Norfolk Southern Railway Company (NSRC), hereby files its Objections and Responses to Plaintiffs' Requests for Admission and respectfully states as follows: PRELIMINARY STATEMENT The following responses are being provided after diligent investigation and inquiry by Defendant. However, because some of the evidence relating to the matters inquired about by Plaintiffs' request for admission occurred more than fifty (50) years ago, the availability of persons involved and the existence of applicable documents has been limited. As a result of the foregoing factors, many of the individuals who might have had personal knowledge of the matters to which Plaintiffs' request for admission relate are deceased, retired, or are otherwise unavailable to NSRC, and investigations to date indicate that at least some documents which relate to matters inquired about by these requests may have been destroyed in keeping with normal corporate record retention policy. Accordingly, some responses are possibly incomplete. NSRC's investigation is continuing and should additional information DEFENDANTS* OBJECTIONS AND RESPONSES TO FLAINTgyS* REQUEST FOR ADMISSION Page 1 surface, supplemental responses will be submitted. The following is a part of and is incorporated by reference in every response provided hereinafter: This response is accurate as of the date of the Answers of Defendant Norfolk Southern Railway Company to Plaintiffs' Request for Admission. However, NSRC's investigation is continuing, and NSRC cannot exclude the possibility that it may be able to obtain more complete information or even information which indicates that the response being supplied is incorrect. NSRC objects to responding to this request in regard to any period of time other than the period during which it allegedly employed Plaintiff. NSRC objects to providing information about geographic locations and operating units within the system other than those at which and for whom Plaintiff worked. The basis for such objections are that any responses would be irrelevant to the subject matter of the pending litigation, would not be reasonably calculated to lead to the discovery of admissible evidence, and would be burdensome and oppressive to NSRC. The responses that follow, unless otherwise apparent from the context, are limited to the specific period (1948, 1949, 1950) that NSRC allegedly employed Plaintiff as a machinist; and to the area in and around Lima, Ohio, the place where Plaintiff allegedly worked for NSRC. Respectfully submitted, JACKSON & WALKER, L.L.P. 112 East Pecan Street, Suite 2100 San Antonio, Texas 78205 Telephone (210) 978-7700 DEFENDANTS' OBJECTIONS AND RESPONSES TO PLAIN-TOTS' REQUEST FOR ADMISSION James L. Walker A State Bar No. 07085(Sq/ Leo D. Figueroa State Bar No. 06984100 ATTORNEYS FOR DEFENDANT, NORFOLK AND SOUTHERN RAILWAY COMPANY Page 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing was served by certified mail, return receipt requested, to Mr. Peter A. Kraus / Kimberly A. Castles, Baron & Budd, The Centrum, Suite 1100, 3102 Oak Lawn Avenue, Dallas, Texas 75219, on this the ^7/^1day of June, 1997. All defense counsel may request a copy of this document. 1592036 DEFENDANTS' OBJECTIONS AND RESPONSES TO PLAINTIFFS* REQUEST FOR ADMISSION Page 3 REQUESTS FOR ADMISSION REQUEST FOR ADMISSION NO. 1: Admit or deny that asbestos-containing products were in general use aboard Defendant's railroad during the time period Plaintiff was employed by Defendant. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request isoverly broad; 2. the request in unlimited in terms of geographic scope; 3. the request is vague; 4. the request isambiguous; 5. the overly broad nature of the request is such that it would be unduly burdensome and prohibitively expensive to gather the information necessary to respond to this request; and, 6. the request exceids the scope of discovery permitted by Rule 166b of the Texas Rules of Civil Procedure. Subject to and without waiving the foregoing objections, this request for admission is denied as stated. REQUEST FOR ADMISSION NO, 2: Admit or deny that Defendant transported, ordered, purchased or otherwise acquired asbestos-containing products, asbestos-containing friction products, machinery requiring the use of asbestos or asbestos-containing products. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the requestis overly broad; 2. the requestis unlimited in terms of time; 3. the requestin unlimited in terms of geographic scope; 4. the requestis vague; 5. the requestis ambiguous; 6. the requestis multifarious; 7. the request seeks information which is not relevant and which is not reasonably calculated to lead to the discovery of admissible evidence; 8. the overly broad nature of the request is such that it would be unduly burdensome and prohibitively expensive to gather the information necessary to respond to this request; and, 9. the request exceeds the scope of discovery permitted by Rule 166b of the Texas Rules of Civil Procedure. Subject to and without waiving the foregoing objections, this request for admission is denied as stated. DEFENDANTS' OBJECTIONS AND ttESPONffiS TO PLAINTIFFS* REQUEST FOR ADMISSION Page 4 REQUEST FOR ADMISSION NO. 3: Admit or deny that Defendant used or implemented on Defendant's railroad, asbestos-containing products. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request is unlimited in terms of time; 3. the request in unlimited in terms of geographic scope; 4. the request is vague; 5. the request is ambiguous; 6. the request is multifarious; 7. the overly broad nature of the request is such that it would be unduly burdensome and prohibitively expensive to gather the information necessary to respond to this request; and, 8. the request exceeds the scope of discovery permitted by Rule 166b of the Texas Rules of Civil Procedure. Subject to and without waiving the foregoing objections, this request for admission is denied. REQUEST FOR ADMISSION NO. 4: Admit or deny that Defendant's cars, engines and/or locomotives which Plaintiff worked on or around were unreasonably dangerous and unfit because of the presence of and/or use of asbestos-containing products. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request is vague; 3. the request is ambiguous; 4. the request is multifarious; and, 5. the request is argumentative. Subject to and without waiving the foregoing objections, this request for admission is denied. REQUEST FOR ADMISSION NO. 5: Admit or deny that Plaintiff was a railroad worker, as that term is generally understood, during his employment with Defendant. DEFENDANTS' ORIECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR ADMISSION PageS RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is vague; 2. the request is ambiguous; and, 3. that the request is argumentative. Subject to and without waiving the foregoing objections, Defendant states as follows: NSRC has not located a personnel file or medical file pertaining to Plaintiffs alleged employment and has no other written record to substantiate Plaintiffs allegation that he was an employee of NSRC, therefore, NSRC is unable to admit or deny Request No. 5. REQUEST FOR ADMISSION NOT fr Admit or deny that Plaintiff, in the course and scope of his work as a railroad worker and/or employee of Defendant, worked on and/or around Defendant's railroad, railway cars, engines and/or locomotives, shops, roundhouses, and transfer sheds where asbestos, and asbestos containing products were present. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request is vague; 3. the request is ambiguous; 4. the request is multifarious; and, 5. the request is argumentative Subject to and without waiving the foregoing objections, Defendant states NSRC has not located a personnel file or medical file pertaining to Plaintiffs alleged employment and has non other written record to substantiate Plaintiffs allegation that he was an employee of NSRC, therefore, NSRC is unable to admit or deny Request No. 6. REQUEST FOR ADMISSION NO. 7: Admit or deny that Defendant was aware during the periods of time Plaintiff worked for Defendant that airborne asbestos dust created a potential health hazard to those who breathed such dust. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request is vague; 3. the request is ambiguous; and, 4. the request is argumentative. Subject to and without waiving the foregoing objections, this request for admission is denied. DEFENDANTS* OBJECTIONS AND RESPONSES TO FLA1NTOFS* REQUEST FOR ADMISSON Page 6 REQUEST FOR ADMISSION NO. 8: Admit or deny that Plaintiff was employed by Defendant or by a predecessor-in-interest of Defendant. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request is vague; 3. the request is ambiguous; and, 4. the request is argumentative. Subject to and without waiving the foregoing objections, Defendant states NSRC has not located a personnel file or medical file pertaining to Plaintiffs alleged employment and has no other written record to substantiate Plaintiffs allegation that he was an employee of NSRC, therefore, NSRC is unable to admit or deny Request No. 8. REQUEST FOR ADMISSION NO. 9: Admit or deny that Plaintiff worked on and/or around Defendant's railroad in areas where asbestos-containing products were installed, used, prepared for use, replaced or repaired, stored or loaded, unloaded or transported. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request is vague; 3. the request is ambiguous; and, 4. the request is multifarious. Subject to and without waiving the foregoing objections, NSRC has not located a personnel file or medical file pertaining to Plaintiffs alleged employment and has no other written record to substantiate Plaintiffs allegation that he was an employee of NSRC, therefore, NSRC is unable to admit or deny Request No. 9. REQUEST FOR ADMISSION NO, 10: Admit or deny that Defendant did not distribute any literature or warnings of any kind to its employees during the period of time Plaintiff worked for Defendant regarding the potential health hazards to those who breathe airborne asbestos dust. DEFENDANTS' ORIECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR ADMISSION Page 7 RESPONSE: Defendant objects to the form and substance of this request grounds that the request is argumentative. Subject to and without waiving the foregoing objections, Defendant states that the NSRC has not located a personnel file or medical file pertaining to Plaintiffs alleged employment and has no other written record to substantiate Plaintiffs allegation that he was an employee of NSRC, therefore, NSRC is unable to admit or deny Request No. 10. REQUEST FQR_ADMISSION NO. 11: Admit or deny that asbestos-containing products were placed on or used in the conduct of Defendant's railroad during the time period Plaintiff was employed by Defendant including the following asbestos-containing products: a. any asbestos-containing product and/or machinery requiring the use of asbestos or asbestoscontaining products and/or materials b. asbestos tiles c. asbestos millboard d. asbestos friction products e. asbestos pipecovering f asbestos gaskets g- asbestos joint compound RESPONSE: h. i. jk. 1. m. n. 0. P* q* asbestos cement asbestos block asbestos packing boilers brake shoes brake linings clutch linings firebrick refractories/castables turbines Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request in unlimited in terms of geographic scope; 3. the request is vague; 4. the request is ambiguous; 5. the request is multifarious; 6. the request is argumentative; 7. the request seeks information which is not relevant and which is not reasonably calculated to lead to the discovery of admissible evidence; and, 8. the overly broad nature of the request is such that it would be unduly burdensome and prohibitively expensive to gather the information necessary to respond to this request. Subject to and without waiving the foregoing objections, this request for admission is denied. DEFENDANTS' OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR ADMISSION Page 8 REQUEST FOR_ADMISSION NO. 12: Admit or deny that Defendant engaged in no abatement programs for the removal of asbestos at any time since 1965. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request in unlimited in terms of geographic scope; 3. the request is vague; 4. the request is ambiguous; 5. the request is multifarious; and, 6. the request exceeds the scope of discovery permitted by Rule 166b of the Texas Rules of Civil Procedure. Subject to and without waiving the foregoing objections, this request for admission is denied. REQUEST FOR ADMISSION NO. 13: Admit or deny that Defendant was aware of the presence of and/or use of asbestos-containing products at the Railroad during the time period Plaintiff was employed by Defendant. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request in unlimited in terms of geographic scope; 3. the request is vague; 4. the request is ambiguous; 5. the request is multifarious; 6. the request is argumentative; 7. the request seeks information which is not relevant and which is not reasonably calculated to lead to the discovery of admissible evidence; 8. the overly broad nature of the request is such that it would be unduly burdensome and prohibitively expensive to gather the information necessary to respond to this request; and, 9. the request exceeds the scope of discovery permitted by Rule 166b of the Texas Rules of Civil Procedure. Subject to and without waiving the foregoing objections, this request for admission is denied. REQUEST FOR ADMISSION NO. 14: Admit or deny that Defendant became aware of the potential health hazards of airborne asbestos during the time periods in which Plaintiff was employed by Defendant. DEFENDANTS' OBIECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR ADMISSION Page 9 RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request is vague; 3. the request is ambiguous; and, 4. the request is argumentative Subject to and without waiving the foregoing objections, this request for admission is denied. REQUEST FOR ADMISSION NO. 15: Admit or deny that Defendant did not continuously provide face masks to railroad employees working with or around asbestos from 1945 to the present for the purpose of protecting these employees from inhaling asbestos. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request in unlimited in terms of geographic scope; 3. the request is vague; 4. the request is ambiguous; 5. the request is multifarious; and 6. the request is argumentative. Subject to and without waiving the foregoing objections, this request for admission is denied. REQUEST FOR ADMISSION NO. 16: Admit or deny that during the time Plaintiff was employed by Defendant, it was foreseeable that asbestos-containing products on Defendant's railroad would or could be removed, stripped, replaced or repaired at some time after installation. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request in unlimited in terms of geographic scope; 3. the request is vague; 4. the request is ambiguous; 5. the request is multifarious; 6. the request is argumentative; 7. the request seeks information which is not relevant and which is not reasonably calculated to lead to the discovery of admissible evidence; and, 8. the request exceeds the scope of discovery permitted by Rule 166b of the Texas Rules of Civil Procedure. Subject to and without waiving the foregoing objections, this request for admission is denied. DEPENDANTS' OBJECTIONS AND RESPONSES TO PLAINTIFFS* REQUEST FOR ADMISSON Page 10 REQUEST FOR ADMISSION NO, 17: Admit or deny that during the time Plaintiff was employed by Defendant, Defendant failed to comply with the requirements of the Boiler Inspection Act, formerly 45 U.S.C. 23; and restated at 49 U.S.C.20701 et seq. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request in unlimited in terms of geographic scope; 3. the request is vague; 4. the request is ambiguous; 5. the request is multifarious; 6. the request is argumentative; 7. the request seeks information which is not relevant and which is not reasonably calculated to lead to the discovery of admissible evidence; 8. the overly broad nature of the request is such that it would be unduly burdensome and prohibitively expensive to gather the information necessary to respond to this request; and, ` 9. the request exceeds the scope of discovery permitted by Rule 166b of the Texas Rules of Civil Procedure. Subject to and without waiving the foregoing objections, this request for admission is denied. REQUEST FOR ADMISSION NO. 18: Admit or deny that Plaintiff filed suit against Defendant within three (3) years of the date of discovering his asbestos-related condition or the existence of any asbestos-related causes of action. RESPONSE: Defendant objects to the form and substance of this request on the ground that the request is premature and multifarious. Subject to and without waiving the foregoing objections, Defendant states that the NSRC has no knowledge if or when the Plaintiff "discovered" his alleged asbestos-related condition nor has Plaintiff offered proof of his employment with NSRC, therefore, NSRC is unable to admit or deny Request No. 18. REQUEST FOR ADMISSION NO. 19: Admit or deny that Defendant is liable for Plaintiffs asbestos related illness. RESPONSE: Deny. DEFENDANTS' OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR ADMISSION Page 11 REQUEST FOR ADMISSION NO. 20: Admit or deny that Defendant knew or had reason to know that asbestos was in use on its railroad since the 1930's. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request in unlimited in terms of geographic scope; 3. the request is vague; 4. the request is ambiguous; 5. the request is multifarious; 6. the request is argumentative; and, 7. the request exceeds the scope of discovery permitted by Rule 166b of the Texas Rules of Civil Procedure. Subject to and without waiving the foregoing objections, this request for admission is denied. REQUEST FOR ADMISSION NO. 21: Admit of deny that Defendant consciously decided not to warn its employees of the dangers of asbestos. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 22: Admit or deny that asbestos is still in use and/or in place on Defendant's railroad. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request in unlimited in terms of geographic scope; 3. the request is vague; 4. the request is ambiguous; 5. the request is multifarious; 6. the request is argumentative; 7. the request seeks information which is not relevant and which is not reasonably calculated to lead to the discovery of admissible evidence; and, 8. the request exceeds the scope of discovery permitted by Rule 166b of the Texas Rules of Civil Procedure. REQUEST FOR ADMISSION NO. 23: Admit or deny that Defendant no longer uses asbestos on its railroad. DEFENDANTS* ORJECTTONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR ADMISSION Page 12 RESPONSE: Defendant objects to the form and substance of this request on the'following grounds: 1. the request is overly broad; 2. the request in unlimited in terms of geographic scope; 3. the request is vague; 4. the request is ambiguous; and, 5. the request is argumentative. REQUEST FOR ADMISSION NO. 24: Admit or deny that Defendant acquired knowledge, during the 1930's of the Alton Railroad's responses to the Illinois Occupational Diseases Act. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is overly broad; 2. the request is vague; 3. the request is ambiguous; 4. the request is multifarious; and, 5. the request is argumentative. Subject to and without waiving the foregoing objections, this request for admission is denied. REQUEST FOR ADMISSION NO. 25: Admit or deny that Defendant was a member of the National Claims Registry which reported information regarding injury claims of railroad workers. RESPONSE: Defendant objects to the form and substance of this request on the following grounds: 1. the request is vague; and, 2. the request is ambiguous; 3. the request is argumentative; and 4. the request is multifarious. 1592036 DEFENDANTS' OBJECTIONS AND RESPONSES TO PLAINTIFFS' REQUEST FOR ADMISSION Page 13