Document yYXb1yaEx2w78pjnqmBLxk4V

Cause No. 90G2055 mm PLAINTIFF'S I EXHIBIT pDUP-580 Weldon R. Moake and Janice I. Moake, et al. vs. OWENS-CORNING FlBERGLAS CORPORATION (a/k/a Owens Corning Corporation), et al. In the District Court Brazoria County, Texas 239th Judicial District DUPONT'S RESPONSE TO TEXAS RULES OF CIVIL PROCEDURE 194.2 DISCLOSURES TO: WELDON R. MOAKE, by and through his attorneys, Holly Huart and Stephanie Finch, whose address is Baron & Budd, The Centrum, 3102 Oak Lawn Avenue, Suite 1100, Dallas, Texas 75219. Pursuant to Rule 194.2 of the Texas Rules of Civil Procedure, E. I. du Pont de Nemours and Company makes the following disclosures in response to Plaintiffs Request for Disclosure dated June 14, 2000: 1. Rule 194.2(a) Disclosures Correct Name of Party The correct name of this party is E. I. du Pont de Nemours and Company. 2. Rule 194.2(b) Disclosures Potential Parties This defendant is unaware, at this time, of any other potential parties to this litigation. 3. Rule 194.2(c) Disclosures Legal Theories and Factual Bases of Claims or Defenses DuPont's legal theories and the factual bases of claims or defenses are still being developed at this time. The following legal theories and factual bases may be amended or supplemented as information is developed. DuPont was not negligent because it acted with reasonable care under the circumstances. DuPont's Response to Texas Rules Of Civil Procedure 194.2 Disclosures - Page l According to Plaintiffs' Fifth Amended Petition Plaintiffs' claims against DuPont are based solely on Mr. Moake's alleged exposure while working at DuPont's facilities in Victoria, Orange, and Beaumont, Texas. It is DuPont's legal theory that Plaintiffs' claims are barred by limitations. Discovery shows that Mr. Moake was diagnosed with an asbestos-related occupational injury or disease no later than 1990 and filed suit against asbestos products defendants in 1990, but Plaintiffs did not sue DuPont until nearly 10 years later, well after all applicable statutes of limitation had expired. It is DuPont's legal theory that Plaintiffs' injuries and damages were caused by Mr. Moake's negligence. Further, it is DuPont's legal theory that DuPont owed no duty to Plaintiff. Mr. Moake was an employee of a knowledgeable and sophisticated seller of asbestos-containing products and personally sold and installed such products, not only at DuPont but at many other locations. Mr. Moake held himself and his company out as experts with respect to asbestos-containing products. Mr. Moake and his employer had knowledge of potential hazards of asbestos. DuPont had no duty to warn Mr. Moake with respect to products that he was selling to DuPont or with respect to potential dangers of which he and his employer were aware. The vast majority of Mr. Moake's exposure occurred other than on DuPont's premises. Mr. Moake's exposure, if any, on DuPont, premises was the result of conduct, negligence, conditions or activities created by Mr. Moake himself or his employer over whom DuPont did not have or exercise a right of control, and therefore DuPont owed no legal duty. Mr. Moake's alleged illness was not caused, in whole or in part, by any act or omission of DuPont. In the alternative, to the extent it is determined that Plaintiffs have any claims against DuPont that accrued after September 1, 1996, it is DuPont's legal position that Chapter 95 of the Texas Civil Practice and Remedies Code would be applicable to some or all of such claims and that DuPont is not liable to Plaintiffs under that chapter because it did not exercise or retain control over the manner in which the work was performed, nor did it have actual knowledge and fail to warn of the alleged danger to Mr. Moake under the circumstances of the conditions or activities on its premises as they related to Mr. Moake. 4. Rule 194.2(d) Amount and any Method of Calculating Economic Damages DuPont denies that Plaintiffs are entitled to recover any damages, economic or otherwise, against it. Furthermore, as of the making of this disclosure, Plaintiffs have not provided DuPont with any calculation by them of any economic damages that they may be claiming; therefore, DuPont is unable at this time to respond to any method of calculation that Plaintiffs may employ. Any method used to calculate economic damages should be limited by all statutory and common-law limitations on the amount of recovery. DuPont's Response to Texas Rules Of Civil Procedure 194.2 Disclosures - Page 2 5. Rule 194.2(e) Disclosures Persons with Knowledge of Relevant Facts Based on the limited information available to DuPont at this time regarding the nature and circumstances of Plaintiffs' alleged claims, it is believed that those listed below may have knowledge of relevant facts. As the facts of the case are further developed, this response will be supplemented. Michael K. Ahlstrom 407 Taos Drive Victoria, Texas 77904 (512) 578-3279 Connection with case: DuPont Victoria employee - maintenance and engineering Cefarino Aquillon 417 Londonderry Victoria, Texas 77901 (512) 573-6923 Connection with case: DuPont Victoria employee - production and training James D. Billings 501 Dundee Victoria, Texas 77904 (512) 573-6620 Connection with case: DuPont Victoria employee - production and management James E. Borden, Jr. 2908 Arroyo Drive Victoria, Texas 77901 (512)573-3135 Connection with case: DuPont Victoria employee - fire and safety James Carroll Rural Route 4, Box 95 Yoakum, Texas 77995-9558 (512)741-5553 Connection with case: DuPont Victoria employee - maintenance and production Espiridion Castillo DuPont's Response to Texas Rules Of Civil Procedure 194.2 Disclosures - Page 3 258 Whispering Wind Georgetown, Texas 78628 Connection with case: DuPont Beaumont employee - safety Greydon Baldwin 412 Bridalwreath St. Orange, Texas 77630 I Connection with case: DuPont Orange/Sabine River employee - safety Nelson Derrick 6 Encore Street Orange, Texas 77630 Connection with case: DuPont Orange/Sabine River employee - construction and safety James W. Gaskins PO Box 415 Norway, South Carolina 29113 Connection with case: DuPont Orange/Sabine River employee - safety Sam Hattman 213 3 Tremont Lane Orange, Texas 77630 Connection with case: DuPont Orange/Sabine River employee - safety Leroy Kadow 236 Green Lane Newark, Delaware 19711 Connection with case: DuPont Orange/Sabine River employee - safety Jack Moore 3309 Montrose Orange, Texas 77632 Connection with case: DuPont Orange/Sabine River employee - safety Paul Thibodeaux 2101 Ann Street Vinton, Louisiana 70668 Connection with case: DuPont Orange/Sabine River employee - safety William E. Baldwin DuPont's Response to Texas Rules Of Civil Procedure 194.2 Disclosures - Page 6 142 Baker Drive Tryon, North Carolina 28782 Connection with case: DuPont Orange/Sabine River employee - plant physician Joseph E. Sharp 119 Lytle PI. Abilene, Texas 79602 Connection with case: DuPont Orange/Sabine River employee - plant physician Phil J. White 6702 Moss Lake Drive Hixson, Tennessee 37343 Connection with case: DuPont Orange/Sabine River employee - plant physician To the extent persons are allowed to testify at the trial in this matter, DuPont hereby crossdesignates persons with knowledge of relevant facts and co-workers of Weldon Moake listed by all parties. 6. Rule 194.2(f) Disclosures Testifying Experts 1. Morton Corn. Ph.D. Department of Environmental Health Sciences The Johns Hopkins University 615 North Wolfe Street, Room 6010 Baltimore, Maryland 21205 (410) 955-3602 (410) 955-9334 facsimile Dr. Morton Com is a professor emeritus with the Johns Hopkins University's Department of Environmental Health Sciences in Baltimore. He is currently Director, National Institute of Occupational Safety and Health (NIOSH) Educational Resource Center in Occupational Safety and Health for Training Physicians, Nurses, Hygienists and Safety Professionals, and Director, Division of Environmental Health Engineering. Dr. Com is an industrial hygienist with long-standing experience in addressing asbestosrelated issues from the perspective of an industrial hygienist and government regulator. He received his Ph.D. degree in Industrial Hygiene and Sanitary Engineering from Harvard University's Division of Engineering and Applied Physics in 1961. He served as Assistant Secretary of Labor for the Occupational Safety and Health Administration ("OSHA") from 1975 to 1977 during the Ford Administration. DuPont's Response to Texas Rules Of Civil Procedure 194.2 Disclosures - Page 7 Dr. Com may testify concerning the following subjects: (a) the uses and characteristics of asbestos and asbestos-containing products; (b) the development of industrial hygiene and occupational safety and health in the United States; (c) the evolution of knowledge in the industrial hygiene community concerning the potential health hazards associated with exposure to dust and asbestos; (d) the characteristics of asbestos dust and fibers and measurements of airborne concentrations ofasbestos dust and fibers; (e) standards, guidelines, procedures and practices relating to the control of potential exposure to dust and asbestos dust; (f) exposure assessment and associated exposures for non-asbestos workers and the general public; (g) DuPont's industrial hygiene practices and procedures; and (h) DuPont's practices, programs and procedures for the health and safety of its employees. Dr. Com is expected to address these subjects in a general context, and also as they relate to DuPont. Dr. Com is expected to discuss the specific factual allegations by plaintiffs regarding conditions, procedures, and practices at DuPont. Dr. Corn's testimony is based upon (1) his extensive experience and training in the fields of industrial hygiene and occupational health and safety, (2) knowledge of relevant literature, (3) review of documents, discovery, and testimony regarding plaintiffs allegations, (4) review of relevant DuPont documents; and (5) review of the record in this case. 2. Richard J. Lee. Ph.D. RJ Lee Group 350 Hochberg Road Monroeville, Pennsylvania 15146 (724)325-1776 Dr. Richard J. Lee is President of the RJ Lee Group, Inc., a consulting firm and analytic laboratory in Pittsburgh. Prior to his affiliation with the RJ Lee Group, Dr. Lee was head of the U.S. Steel Technical Center's Electron Microscopy and Surface Analysis Section for 12 years. He is a theoretical physicist by training, and received his Ph.D. degree from Colorado State University. Dr. Lee was a member of the Health Effects Institute's Literature Review Panel on Asbestos in Buildings, commissioned by Congress. He has also performed work for the EPA and served on various EPA panels and committees regarding asbestos issues. He has also performed investigations of naturally occurring asbestos and other minerals and methods for detection and identification of such minerals. This has included analysis of bulk, air, water, soil and dust samples. The subject matters on which Dr. Lee may testify include: (a) the history of the guidelines and standards governing exposure to asbestos; (b) the development ofscientific knowledge regarding the measurement of asbestos in the air; (c) the aerodynamics of fibers; (d) exposure levels of various activities in the workplace and in public, commercial and private residences including relevant DuPont facilities; (e) analysis and production of bodies of air sampling data for the Environmental Protection Agency and other governmental and private entities regarding naturally occurring forms of asbestos in the environment; (f) the release of asbestos from clothing; and (g) the results of experiments conducted by himself and others. DuPont s Response to Texas Rules Of Civil Procedure 194.2 Disclosures - Page 8 Dr. Lee is expected to testify based on (1) his extensive experience and training, (2) knowledge of relevant literature and data, (3) review of documents, discovery, and testimony regarding the plaintiffs' allegations, and (4) review of relevant DuPont documents. 3. James M. Crapo. M.D. Chairman, Department of Medicine National Jewish Medical and Research Center 1400 Jackson Street Denver, Colorado 80206 (303)398-1436 Dr. Crapo is a physician specializing in pulmonary medicine. He is Chairman of the Department of Medicine at the National Jewish Medical and Research Center in Denver, Colorado. He is a former Professor of Medicine and Professor of Experimental Pathology at Duke University Medical Center. Dr. Crapo has carried out extensive research into the mechanisms of pulmonary disease resulting from the inhalation of particulates, including the processes associated with asbestos-related disease. Dr. Crapo is expected to testify generally about the reactions of the lungs to inhaled particulates and foreign substances in both industrial and non-industrial environments. Dr. Crapo is expected to discuss, in particular, the biological effects of exposure to asbestos dust, and the etiology of asbestos-related disease. Dr. Crapo is expected to testify that the risk of asbestos-related lung disease is related to dose, and will provide his opinions regarding the levels of asbestos exposure necessary to produce disease. He may also testify concerning his asbestos-related studies and publications as well as other literature and studies related to asbestos-related diseases. Dr. Crapo may also review the x-rays and other medical records of Mr. Moake and render opinions regarding the presence or absence of asbestos-related abnormalities in Mr. Moake's lungs. Dr. Crapo is expected to describe the diagnostic criteria and methods used in the diagnosis of asbestosis and other asbestos-related conditions. Dr. Crapo may critique the diagnostic reports of the plaintiffs' experts as they relate to plaintiffs' alleged conditions. Dr. Crapo may render opinions regarding the probable cause or causes of Mr. Moake's condition. 4. Dr. Bruce W. Karrh 7 Blackhawk Trail Savannah, Georgia 31411 (912) 598-8992 Dr. Bruce W. Karrh was the Vice President for Integrated Health Care for DuPont from 1993 until 1996 when he retired. Dr. Karrh received a Bachelor of Science degree in Chemistry from the University of Alabama at Tuscaloosa in 1958 and a Medical degree from the Medical College of Alabama in Birmingham in 1962. He entered the United States Army and performed a rotating DuPont's Response to Texas Rules Of Civil Procedure 194.2 Disclosures - Page 9 internship in 1963 at Brooke General Hospital, Fort Sam Houston, Texas. From 1963 to 1965, Dr. Karrh was a flight surgeon in the U.S. Army medical corps, and from 1965 to 1970, he was in private practice in Athens, Alabama. In 1970, Dr. Karrh became the Medical Supervisor for DuPont's Spruance Plant where he remained until 1973. At that time he became the Research Manager of the Environmental Sciences Group at Haskell Laboratory until 1974. DuPont then appointed Dr. Karrh Assistant Medical Director and then Medical Director in 1977. In 1983, Dr. Karrh was named General Director, Medical, Safety and Fire Protection for DuPont. He was then named Vice President for Safety, Health and Environmental Affairs in 1984 - a position he held until 1993. Dr. Karrh was a long-standing DuPont employee experienced in addressing health and safetyrelated topics and issues at DuPont. As part of his duties at DuPont, Dr. Karrh gained knowledge, both historical and current, regarding DuPont's history of and practices regarding safety throughout the company. In the course of his duties, Dr. Karrh became familiar with the history of and practices regarding DuPont's approach to workers' safety and health issues involving exposure to dust and asbestos dust. Much of Dr. Karrh's testimony will be fact testimony; however, he may express opinions in some areas that may be considered expert opinions. Out of an abundance of caution, DuPont is designating Dr. Karrh as an expert because he may be asked to provide such opinions. Dr. Karrh may testify concerning the following subjects: (a) DuPont's history of providing for health and safety of its employees; (b) policies, procedures and programs for the health and safety of workers including those addressing dust and asbestos dust; (c) medical screening, monitoring and surveillance of DuPont employees; and (d) evolution and understanding of potential health hazards posed by exposures of workers to dust and asbestos dust. Additional Expert Designations Plaintiffs have not provided adequate information about Mr. Moake's alleged diseases, current medical conditions and testifying experts to allow DuPont to determine which additional experts it may need in this case. Further, Plaintiffs have not provided reports from their experts regarding what opinions they may assert with respect to DuPont or Plaintiffs' claims against DuPont, nor have Plaintiffs made their experts available to DuPont for deposition. As recognized by the new Texas Rules on discovery and expert designations, DuPont is not in a position to make more extensive expert designations under these circumstances. To require a party to retain experts without the benefit of this essential information puts the party to an undue burden and unnecessary expense. DuPont will supplement this designation, if necessary, after adequate information is provided with respect to Plaintiffs' testifying experts. 5. It is anticipated that a radiologist with specialized training and experience in "B" Readings will be necessary to review, interpret and render opinions regarding x-rays of Mr. Moake. This expert is expected to testify generally about presentations seen on x-rays and to explain the presentation that is seen. It is also anticipated that this expert would testify specifically about the DuPont's Response to Texas Rules Of Civil Procedure 194.2 Disclosures - Page 10 findings seen on Mr. Moake's x-ray films and is anticipated to render an opinion regarding the absence or presence of the findings of any asbestos-related condition of the lung. 6. It is further anticipated that a pulmonologist will be designated to discuss the physical condition of Mr. Moake and also to discuss Mr. Moake's medical records. This expert is also expected to discuss the anatomy and function of the respiratory system in the human body. This expert is expected to discuss the nature of asbestos, the symptomatology, disease process and diagnosis of asbestosis and cancers associated with the respiratory and related systems. It is also anticipated that this expert will testify regarding the methods of diagnosis of alleged asbestos- related diseases as compared to other non-asbestos related diseases. It is anticipated that this expert will also discuss historical and/or medical literature pertaining to asbestos-related conditions and other diseases of the respiratory and related systems. 7. To the extent any experts designated by other parties are allowed to testify at the trial in this matter, DuPont hereby cross designates all experts listed by all parties. 8. The following are listed by Plaintiff WELDON MOAKE as treating physicians or health care facilities where he sought treatment. To the extent any of these physicians or. representatives of health care facilities are listed by Plaintiff WELDON MOAKE as experts or fact witnesses, DuPont reserves the right to call them as witnesses and to elicit opinions from them. Dr. Keil Corpus Christi, Texas Dr. M. H. Blaine 3314 South America Corpus Christi, Texas Dr. Fred B. Brackett 613 Elizabeth, Suite 612 Corpus Christi, Texas 78404 Dr. Donald L. Iden 4521 South Staples Corpus Christi, Texas 78411 Dr. David Garza Corpus Christi, Texas Dr. Charles Hedberg (Deceased) Corpus Christi, Texas DuPont's Response to Texas Rules Of Civil Procedure 194.2 Disclosures - Page 11 Dr. John Richard Porter 612 Elizabeth Street Corpus Christi, Texas 78404 Dr. Paul W. Heath 1521 South Staples, Suite 704 Corpus Christi, Texas 78404 Dr. Sergio Tavares 612 Elizabeth Street, Suite 302 Corpus Christi, Texas 78404 Dr. Daniel Jackson (Deceased) Houston, Texas Dr. John R. Kelsey, Jr. Kelsey-Seabold Clinic West 1111 Augusta Drive Houston, Texas Dr. Bobby Chu 1001 Cross Timbers, Suite 1250 Flower Mound, Texas 75028 Dr. David C. May 614 Edmonds Lane, Suite 101 Lewisville, Texas 75067 Dr. Glenn Genevese 651 Cross Timbers, Suite 104 Flower Mound, Texas 75028 Dr. Dennis Costa 475 West Elm, Suite 101 Lewisville, Texas 75057 Dr. Lyle Brown Denton, Texas Dr. Dong Moon Shin 1515 Holcombe Boulevard Houston, Texas 77030 DuPont's Response to Texas Rules Of Civil Procedure 194.2 Disclosures - Page 12 MiMErfe.......--.alia IMS. Dr. Garrett L. Walsh 1515 Holcombe Boulevard Houston, Texas 77030 Dr. Donald E. Schwarz Presbyterian Hospital of Dallas 8200 Walnut Hill Lane Dallas, Texas 75231 Dr. Clark Byroad 575 North Valley Parkway, Suite 100 Lewisville, Texas 75067 Dr. Katherine Pisters 1515 Holcombe Boulevard Houston, Texas 77030 Dr. Reuben Lewisville, Texas Dr. Goldberg Lewisville, Texas U. S. Army Hospital Frankfurt, Germany Spohn Memorial Hospital 2606 Hospital Boulevard Corpus Christi, Texas 78405 St. Luke's Episcopal Hospital 6720 Bertner Avenue Houston, Texas 77030 University of Texas M. D. Anderson Cancer Center 1515 Holcombe Boulevard, Box 506 Houston, Texas 77030 Medical Center of Lewisville 500 West Main Lewisville, Texas 75057 DuPont's Response to Texas Rules Of Civil Procedure 194.2 Disclosures - Page 13 State Bar No. 04706400 S. Jan Hueber State Bar No. 20331150 Kirkley Schmidt & Cotten, L.L.P. 2700 City Center II 301 Commerce Street Fort Worth, Texas 76102-4127 (817) 338-4500 (817)335-4599 Fax Attorneys for Defendant E. I. du Pont de Nemours and Company CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing was served on Plaintiffs' counsel by certified mail, return receipt requested, and a copy of the correspondence letter was served on all other known counsel by regular U.S. mail on this the / 7^ay of July, DuPont's Response to Texas Rules Of Civil Procedure 194.2 Disclosures - Page 15