Document p4dMN8m104zoz5VkJG4gekbd

CAUSE NO. 96-05440-K SEATON, JESSE CHALMERS BEATTY WYNN MORGAN, ET. AL VS. OWENS-CORNING FIBERGLAS, ET AL IN THE DISTRICT COURT DALLAS COUNTY, TEXAS 192ND JUDICIAL DISTRICT DEFENDANTS1 RESPONSES TO PLAINTIFFS' REQUESTS FOR ADMISSION TO: Plaintiffs Beatty Wynn Morgan and Shirley Ann Morgan, by and through their attorney of record, Peter K. Kraus/Kimberly A. Castles, Baron & Bud, P.C., 3102 Oak Lawn Ave., Suite 1100, Dallas, Texas 75219 Defendants Norfolk Southern Railway Company (NSRC) and Norfolk Southern Corp. (NSC), pursuant to Rules 169 of the Texas Rules of Civil Procedure, hereby serve their Responses to Plaintiffs' Requests for Admission 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' Requests 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 ofthe foregoing factors, many of the individuals who might have had personal knowledge ofthe matters to which Plaintiffs' Requests 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. NSRCs investigation is continuing and should additional information surface, supplemental responses DEFENDANTS' RESPONSES TO PLAINTIFFS' REQUEST FOR ADMISSION Pagel will be submitted. The following is a part of and is incorporated by reference in every response provided hereinafter: This response is accurate as ofthe date ofthe Answers ofDefendant Norfolk Southern Railway Company to Plaintiffs' Requests 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 that NSRC allegedly employed Plaintiff; and to the area in and around the place where Plaintiff allegedly worked for NSRC. NSRC would also state that the answers to these Requests for Admission are not complete since the Defendants have not been supplied with information regarding the Plaintiffs work history. Therefore, NSRC is unaware of the exact dates and locations in which the Plaintiff allegedly work for NSRC. Finally, Defendant, Norfolk Southern Corporation objects to answering each and every request in this set ofRequests for Admission due to the fact that the Plaintiff was never an employee ofthis Defendant and it was not in existence at the time ofthe Plaintiffs alleged employment. Effective June 1, 1982, Southern Railway Company and Norfolk and Western Railway Company became sister corporations and the stock of each became owned by the Norfolk Southern Corporation, a non-canier holding company which has never operated a railroad. Each ofthe carriers continued to DEFENDANTS* RESPONSES TO PLAINTIFFS' REQUEST FOR ADMISSION Pace 2 -operate as separate legal entities, a practice which continues to date. Southern Railway Company subsequently changed its name to Norfolk Southern Railway Company, but never employed the Plaintiff. Norfolk Southern Railway Company remains a separate distinct entity. 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: Defendants object to the form and substance ofthis request on the following grounds: the request is overly broad; the request in unlimited in terms ofgeographic scope; the request is vague; the request is ambiguous; the overly broad nature ofthe request is such that it would be unduly burdensome and prohibitively expensive to gather the information necessary to respond to this request; and, 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. 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: Defendants object to the form and substance of this request on the following grounds: the request is overly broad; the request is unlimited in terms oftime; the request in unlimited in terms of geographic scope; the request is vague; the request is ambiguous; the request is multifarious; the request seeks information which is not relevant and which is not reasonably calculated to lead to the discovery of admissible evidence; 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, the request exceeds the scope of discovery permitted by Rule 166b ofthe Texas Rules of Civil Procedure. Subject to and without waiving the foregoing objections, this request for admission is denied as stated. DEFENDANTS* RESPONSES TO PLAINTIFFS* REQUEST FOR ADMISSION Page 3 "REQUEST FOR ADMISSION NO. 3: Admit or deny that Defendant used or implemented on Defendant's railroad, asbestos-containing products. RESPONSE: Defendants object to the form and substance ofthis request on the following grounds: The request is overly broad; the request is unlimited in terms oftime; the request in unlimited in terms of geographic scope; the request is vague; the request is ambiguous; the request is multifarious; 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, 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 Plaintiffworked on or around were unreasonably dangerous and unfit because of the presence ofand/or use of asbestos-containing products. RESPONSE: Defendants object to the form and substance of this request on the following grounds: The request is overly broad; the request is vague; the request is ambiguous; the request is multifarious; and, 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. RESPONSE: Defendants object to the form and substance of this request on the following grounds: The request is vague; the request is ambiguous; and, 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. NSC denies this request for Admission. DEFENDANTS* RESPONSES TO PLAINTIFFS* REQUEST FOR ADMISSION Pife 4 REQUEST FOR ADMISSION NO. 6: 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: Defendants object to the form and substance ofthis request on the following grounds: The request is overly broad; the request is vague; the request is ambiguous; the request is multifarious; and, 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 ofNSRC, therefore, NSRC is unable to admit or deny Request No. 6. NSC denies this request for Admission. REQUEST FOR ADMISSION NO. 7: Admit or deny that Defendant was aware during the periods oftime Plaintiff worked for Defendant that airborne asbestos dust created a potential health hazard to those who breathed such dust. RESPONSE: Defendants object to the form and substance ofthis request on the following grounds: The request is overly broad; the request is vague; the request is ambiguous; and, the request is argumentative. Subject to and without waiving the foregoing objections, this request for admission is denied. REQUEST FOR ADMISSION NO. 8: Admit or deny that Plaintiff was employed by Defendant or by a predecessor-in-interest ofDefendant. RESPONSE: Defendants object to the form and substance of this request on the following grounds: The request is overly broad; the request is vague; the request is ambiguous; and, 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 ofNSRC, therefore, NSRC is unable to admit or deny Request No. 8. NSC denies this request for Admission. DEFENDANTS* RESPONSES TO PLAINTIFFS' REQUEST FOR ADMISSION Page 5 '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: Defendants object to the form and substance ofthis request on the following grounds: The request is overly broad; the request is vague; the request is ambiguous; and, 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 ofNSRC, therefore, NSRC is unable to admit or deny Request No. 9. NSC denies this request for Admission. 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. RESPONSE: Defendants object to the form and substance ofthis 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. NSC denies this request for Admission. REQUEST FOR 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 h. asbestos cement and/or machinery requiring the i. asbestos block use of asbestos or asbestos- j- asbestos packing containing products and/or k. boilers materials I. brake shoes b. asbestos tiles m. brake linings c. asbestos millboard n. clutch linings d. asbestos friction products 0. firebrick e. asbestos pipecovering f asbestos gaskets g- asbestos joint compound P- refractories/castables q- turbines DEFENDANTS* RESPONSES TO PLAINTIFFS' REQUEST FOR ADMISSION Page 6 >RESPONSE: Defendants object to the form and substance of this request on the following grounds: The request is overly broad; the request in unlimited in terms ofgeographic scope; the request is vague; the request is ambiguous; the request is multifarious; the request is argumentative; the request seeks information which is not relevant and which is not reasonably calculated to lead to the discovery of admissible evidence; and, the overly broad nature ofthe 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. 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: Defendants object to the form and substance ofthis request on the following grounds: The request is overly broad; the request in unlimited in terms of geographic scope; the request is vague; the request is ambiguous; the request is multifarious; and, 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 ofthe presence of and/or use of asbestos-containing products at the Railroad during the time period Plaintiff was employed by Defendant. RESPONSE: Defendants object to the form and substance of this request on the following grounds: The request is overly broad; the request in unlimited in terms ofgeographic scope; the request is vague; the request is ambiguous; the request is multifarious; the request is argumentative; the request seeks information which is not relevant and which is not reasonably calculated to lead to the discovery of admissible evidence; the overly broad nature ofthe request is such that it would be unduly burdensome and prohibitively expensive to gather the information necessary to respond to this request; and, 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. DEFENDANTS* RESPONSES TO PLAINTIFFS* REQUEST FOR ADMISSION Page 7 REQUEST FOR ADMISSION NO. 14: Admit or deny that Defendant became aware ofthe potential health hazards of airborne asbestos during the time periods in which Plaintiff was employed by Defendant. RESPONSE: Defendants object to the form and substance ofthis request on the following grounds: The request is overly broad; the request is vague; the request is ambiguous; and, 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: Defendants object to the form and substance ofthis request on the following grounds: The request is overly broad; the request in unlimited in terms of geographic scope; the request is vague; the request is ambiguous; the request is multifarious; and 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: Defendants object to the form and substance ofthis request on the following grounds: The request is overly broad; the request in unlimited in terms of geographic scope; the request is vague; the request is ambiguous; the request is multifarious; the request is argumentative; the request seeks information which is not relevant and which is not reasonably calculated to lead to the discovery ofadmissible evidence; and, 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. 17: Admit or deny that during the time Plaintiffwas 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. DEFENDANTS* RESPONSES TO PLAINTIFFS* REQUEST FOR ADMISSION Page 8 RESPONSE: Defendants object to the form and substance of this request on the following grounds: The request is overly broad; the request in unlimited in terms ofgeographic scope; the request is vague; the request is ambiguous; the request is multifarious; the request is argumentative; the request seeks information which is not relevant and which is not reasonably calculated to lead to the discovery of admissible evidence; 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, the request exceeds the scope of discovery permitted by Rule 166b of the Texas Rules ofCivil Procedure. Subject to and without waiving the foregoing objections, this request for admission is denied. REQUEST FOR ADMISSION NO. 18: Admit or deny that Plaintifffiled suit against Defendant within three (3) years ofthe date of discovering his asbestos-related condition or the existence ofany asbestosrelated causes of action. RESPONSE: Defendants object to the form and substance ofthis 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. NSC denies this request for Admission. REQUEST FOR ADMISSION NO. 19: Admit or deny that Defendant is liable for Plaintiffs asbestos related illness. RESPONSE: Deny. 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: Defendants object to the form and substance of this request on the following grounds: The request is overly broad; the request in unlimited in terms of geographic scope; the request is vague; the request is ambiguous; the request is multifarious; the request is argumentative; and, the request exceeds the scope of discovery permitted by Rule 166b ofthe Texas Rules ofCivil Procedure. Subject to and without waiving the foregoing objections, this request for admission is denied. DEFENDANTS' RESPONSES TO PLAINTIFFS' REQUEST FOR ADMISSION Page9 REQUEST FOR ADMISSION NO, 21: Admit or deny that Defendant consciously decided not to warn its employees ofthe 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: Defendants object to the form and substance ofthis request on the following grounds: The request is overly broad; the request in unlimited in terms of geographic scope; the request is vague; the request is ambiguous; the request is multifarious; the request is argumentative; the request seeks information which is not relevant and which is not reasonably calculated to lead to the discovery of admissible evidence; and, 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. RESPONSE: Defendants object to the form and substance of this request on the following grounds: The request is overly broad; the request in unlimited in terms ofgeographic scope; the request is vague; the request is ambiguous; and, 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: Defendants object to the form and substance ofthis request on the following grounds: The request is overly broad; the request is vague; the request is ambiguous; the request is multifarious; and, the request is argumentative. Subject to and without waiving the foregoing objections, this request for admission is denied. DEFENDANTS' RESPONSES TO PLAINTIFFS* REQUEST FOR ADMISSION Page 10 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: Defendants object to the form and substance of this request on the following grounds: The request is vague; the request is ambiguous; the request is argumentative; and the request is multifarious. Respectfully submitted, JACKSON WALKER L.L.P. 112 East Pecan Street, Suite 2100 San Antonio, Texas 78205 Telephone (210) 978-7700 Telecopier (210) 978-7796 Leo D. Figueroa State Bar No. 06984100 ATTORNEYS FOR DEFENDANT, NORFOLK AND SOUTHERN RAILWAY COMPANY AND NORFOLK SOUTHERN CORPORATION CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe 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^^H^day of August, 1997. 1617589 DEFENDANTS* RESPONSES TO PIAINTIFFS* REQUEST FOR ADMISSION Page 11