Document ybGJzvajzwo2LgOxqEM4GjBOD

County Court at Law No. 2 In die District and County Courts ofEl Faso El Paso County, Texas MARY HERMOSILLO, Ind., and Personal Representative ofdie Heirs of EDMUNDOI. HERMOSILLO v. OWENS-CORNING FIBERGLAS CORP., et al ) ) ) ) ) ) ) ) Cause No. 98-1338 ASARCO. INCORPORATED^ ANSWERS TO PLAINTIFFS SECOND SET OF INTERROGATORIES TO: PLAINTIFF MARY HERMOSILLO, Ind., and personal Representative of the Heirs of EDMUNDO I. HERMOSILLO, by and through her attorney of record, Patrick Haines, BARON & BUDD 3102 Oak Lawn Avenue, Suite 1100, Dallas, Texas 75219-4281. Comes now ASARCO, Incorporated ("ASARCO"), a Defendant in the above entitled and numbered cause, and pursuant to Tex. R. Civ. P. 168 hereby suhmits its Answers to Plaintiffs Second Set of Interrogatories. Defendant's Answers are attached hereto as Exhibit "A". Respectfully submitted, RAY, McGHRISTTAN & JEANS, P.C. A Professional Corporation 5822 Cromo, Suite 400 El Paso, Texas 79912 (915) 832-7230 Telephone (915) 832-7333 Facsimile Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofdie foregoing pleading was mailed, by certified mail, faxed or otherwise served on all attorneys of record on this j^fday of December, 1998. EXHIBIT "A" GENERAL OBJECTIONS 1. ASARCO, Incorporated ("ASARCO") objects to PlaimiiFs Second Set of Interrogatories on the ground that service of a second set of discovery is in violation of the Standing Order adopted by this Court that requires the Plaintiff to first reach agreement with this Defendant regarding the service of a set of discovery in addition to the Master Discovery. Plaintiff relieved ASARCO oftheobliption to answer the Master Discovery adopted by this Court. Insofar is no agreement wes obtained regarding the service of this set of discovery, the discovery violates the Standing Order because it was served without leave ofCourt. 2. ASARCO, Incorporated ("ASARCO") generally objects to any interrogatory, document request, definition, or instruction that purports to require ASARCO to respond to any discovery request in a manner or to an extern not required by the Texas Rules ofCivil Procedure. 3. ASARCO objects to any interrogatories or document requests which seek information protected by any privilege, including the attomeyclient and/or attorney work product privileges. 4. ASARCO objects to any interrogatory or document request to the extent dot they seek infonadon regarding trade secreu, confidential financial data, or other proprietary information. 5. ASARCO objects to any interrogatory or request to produce to the extern that it seeks mfonmuon that is not within the personal knowledge ofASARCO or its current employees. 6. ASARCO objects to any interrogatory or request for documents which seeks information that is not relevant to the subject matter involved in the pending action, that is not reasonably calculated to lead to the discovery of admissible evidence, that was prepared in anticipation of litigation or for trial by or for ASARCO's representatives, including attorneys, consultants, and agents, or that are otherwise beyond the scope ofdiscovery permitted by the Texas Rules of Civil Procedure. 7. ASARCO generally objects to any interrogatory or document request to the extent that it seeks information concerning a time period other than that during which ASARCO was an incorporated entity on the grounds that such imenoptories and requests are overty broad, unduly burdensome, and seek information that is neither relevant nor reasonably calculated to lead to the discovery ofadmissible evidence. 8. ASARCO generally objects to any interrogatories and document requests seeking information as to entities other than ASARCO on the grounds that such interrogatories and requesti are overly broad, unduly burdensome and seek information that is neither relevant nor reasonably calculated to lead to the discovery ofadmissible evidence. 9. ASARCO generally objects to the phrase "at any time" which is used throughout pJatntifPs interrogatories and document requests, on the grounds that such language rakes each such interrogatory and request overly broad and unduly burdensome. 10. ASARCO objects to answering any interrogatory or producing any documents other tfiui those pertaining to its El Pan, Texas facility at issue in this case on the grounds tint any such interroptoiy or request for such documents is overly broad, unduly burdensome, and seeks information and documents that are neither relevant nor reasonably calculated to lead to the discovery ofadmissible evidence. 11. Where ASARCO otherwise responds to an interrogatory or a document request, it does so by incorporating each of these General Objections by reference into each individual response, without waiving any ofits stated objections. OBJECTIONS TO DEFINITIONS ASARCO objects to plaintiffs definition of "Defendant", "You", "Your", and "Your computy" to the extern that it includes entities who are not parties to this case. ASARCO fiuther objects to this definition to the extern it includes former officers, directors, agents and employees over whom ASARCO no longer hu dominion and control. By way of fiuther objection, the use ofthere definitions transforms plaintiffs interrogatories and requests for documents into a fishing expedition and is, therefore, in violation ofthe Texas Rules ofCivil Procedure. ANSWERS TQJNTERROGATORIES INTERROGATORYNO. 1; Do you contend that chrysotiie asbestos does not cause the disease mesothelioma in humans? If the answer is anything other than "no", identify each and every fact which supports this contention. ANSWER: ASARCO states that the available medical literature, although inconsistent in its conclusions on causation, supports die contention that in very rare circumstances chrysotiie asbestos can cause pleural mcsothelooaa in susceptible individuals who have had a sufficient exposure over a sufficient period of time and with a sufficient latency period. The medical Iterative suggests that chrysotiie asbestos does net cause the development of peritoneal mesotheBoma in humans. INTERROGATORY NO. 1 Do you contend that PhmrifTs Decedent's injuries and damages, as alleged in this lawsuit, were the mult ofDecedent's own actions and/or alleged negligence? If the answer is anything other than "no", identify each and eveiy fact which supports this contention. * ANSWER: RawtilTs decedent failed to consistently wear protective equipment, incfading bat not imited ts mask or i aspirator, while working with or in dote proximity to asbestoscontaming products, as evidenced by the deposition testimony offered by his widow and personal representative, Mary Hermoiiflo, end his co-workers in this matter. Ia this manner, Edmondo HennosiDo contributed to his own injuries. Additionally, defendant reserves the right to amend its answer to this interrogatory as discovery continues. INTERROGATORYNO. 3: Do you contend thm Plaintiffs Decedem'i injuries and damages, as alleged in this lawsuit, were solely the mailt of the actions of other entities, over whom Defendant hid no right of control? Ifthe answer is anything other than "no", identify each and every feet which supports this contention. ANSWER: Yea. See answer to Supplemental Interrogatory No. 2. ASARCO fbrther contends that it had no control ever the manufacturers of the asbestos-containing products with which Mr. HennosiDo may have worked. Defendant reserves the right to amend its answer te this interrogatory at discovery continues. INTERROGATORY NO. 4: Do you contend that Defendant specifically warned Edmundo Heimosillo about the huaids of asbestos and asbestos-containing products? If the answer is anything other than "no", identify each and every feet which supports this contention. ANSWER No. INTERROGATORY NO. 5.: Identify all past and/or current employees, officers and/or directors of ASARCO, be. that were at any time an employee ofLake Asbestos of Quebec and/or an officer or director of Lake Asbestos ofQuebec. ANSWER Objection. This interrogatory is overly broad and unduly burdensome as it is not United in time or scope. It is also objectionable as it seeks the disclosure of information which is not relevant to this action. Without waiving these objections. ASARCO responds that since September 1952 it has had over 30,000 employees approximately. Out of this group of individuals, 99.9% of then have never been employees, officers or directors of Lac d'Amiante du Quebec, Ltee ("LAQ"), improperly identified as "Lake Asbestos of Quebec'* in PlaintifTs Interrogatory No. 5. The following past and/or current employees, officers and/or directors of ASARCO were at some time employees and/or officers or directors of LAQ: L Robert Richter 2. Fhuscis J. Goldtbwait 3. Morris B. Hecox, Jr. 4. John F. Hornbestel, Jr. 5. Homer Q. Strmgham 6. Robert X Plumb, Jr. 7. Hyman Shapiro S. W. T. Reed 9. George W. Mood It. M. M. Rosenberg 1L George A. Btuddngton 12. Harold L Goodenough 13L Harold Howe 14. W. F. Herberg 15. Charles E. Prior 16. Clement P. Pollack 17. Harry Smith IS. Victor L Mann 19. Lyman EL Hart 20. Darwin J. Pope 21. Robert J. Muth 21 Ralph O. Wiliams 23. Thomas C Osborne 24. Michael J. Messel 25. Charles E. Stiefken 26. R Worth Vaaghn 27. Edward McL. Tittmaun 23. Simon 0. Strauss 29. Oscar S. Straus 30. Richard deJ. Osborne 3L John D. MacKrniie 31 Ralph L Hannebach 31 Forrest 6. Hamrick 34. Aknnder X Gillespie, Jr. 31 Kenneth C Brownell 31 Robert D. Bradford 37. Charles F. Barber ASARCO'i investigation is continuing and therefore it reserves the right to amend and/or supplement its answer to this interrogatory. INTERROGATORY NO. 6: Were any asbestos products containing either amosite or crecidolite asbestos ever used, installed, removed and/or manipulated at Defendant's El Paso facility between the yean 1MO1975? If so, please identify all such products. ANSWER; Defendant objects to the use of the term "manipulated" as vague, unclear and illdefined in this interrogatory. Without waiving this objection, ASARCO responds as follows: According to documents previously produced by ASARCO la response to plaintiff's request for the production of documents, specifically Bates numbers HER 0001950 through HER 0001971, some asbertos-contaiaing materiab that were in piece in certain iscatioas of the plant contained some amount ofamosite or croddoEte. ASARCO is not in pomamion of any information which would allow it to determine when sneb materiab may have been installed or repaired. Despite this absence of information, ASARCO dees net contend that asbestos-containing materiab containing either amosite or crocidoEte were never used, installed, removed and/or worked on at its El Faso facility between the yean 1940 to 1975. INTERROGATORY NO. 7: Do you contend that Edmundo Heimosillo was not exposed to asbestos while working at the ASARCO facility in El Paso? If the answers is anything other than "no", identify each and every fact which supports this contention. ANSWER; No. INTERROGATORY NO. 8: Please identify all current and/or past employees, agents, retained experts, consultants and/or representatives of Defendant, LAQ and/or CAPCO who attended the October 1964 Conference on the Biological Effects ofAsbestos held in New York. ANSWER: No current and/or past employees, agents, retained experts, consuttaats and/or representatives ofLAQ or CAPCO attended the October 1964 Conference on the Biological Effects of Asbestos held in New York. The fellswing ASARCO employees attended: Sherman Pinto and Kenneth Nebou. INTERROGATORY NO. 9: Do you contend that Defendant, Defendant's representatives, insurance carriers and/or agents performed any measurements and/or studies prior to 1970 to determine the quantity of ubesms fibers in the air at the El Paso facility? Ifthe answer I anything other than "no", identify each and every feet which supports this contention. ANSWER At this time, ASARCO is net in possession of any evidence to support a contention that ASARCO, ill representatives, insurance camera sad/br agents performed any measurements aad/er studies prior to 1970 to determine the quantity of asbestos fibers in the air at the El Paso fodKty. ASARCO reserves the right to supplement this answer tbronghant the conttnoiag coarse of discovery. INTERROGATORY NO. 10: Please identify all cunem and/or past employees, agents, retained experts, consultants and/or representatives of Defendant, LAQ and/or CAPCO who attended the Seventh Saranac Symposium in 19S2. ANSWER No current and/or past employees, agents, retained experts, consultants and/or representatives of ASARCO, LAQ or CAFCO attended the Seventh Saranac Symposium in 1952. INTERROGATORY NO. 11: Do you contend that Defendant provided dust masks and/or respirators to Pdnsmdn Heimosillo, specifically for the purpose of protection from the hazards of asbestos and asbestos* containing products? Ifthe answer is anything other than "no", identify each and every fact which supports this contention. ANSWER At this tine, ASARCO has no specific evidence that it ever provided dost masks and/or respiraters to Edaundo Hermoiiflo. ASARCO reserves the right to supplement this interrogatory answer throughout the continuing course of discovery. INTERROGATORY NO. 12: Do you contend that Ednundo Henmosillo did not suffer from menthelioma? If the answer is anything other thut "no", identify each and eveiy feet which supports this contention.^ ANSWER ASARCO does not contend that Mr. HermosiDo did net sutler from peritoneal mesortinhoins. INTERROGATORY NO. 13: Do you contend tint at no time during the time frame between 1940-1975, Defendant did not have the right to advise or, if necessary, control the activities of employees of contractors, working on the premises of the El Paso facility, who were engaged in activities which could be potentially haardoui to either themselves or ASARCO, Inc. employees? If the answer is anything other than "no", identify each and every feet which supports this contention ANSWER Defendant objects to this Interrogatory on the basis that the term "controb" used therein is vague, and difficult to define and further that the subjects inquired about in this interrogatory are over broad and cal for legal conclusions. Without waiving these objections, the deposition testimony of the plaintiffs decedent's eo-wwkers supports ASARCO's contention that generally it did not intervene in the work performed by independent contractors and their employees except to ensure that the work was being dene properly or to submit chaage orders. The interactions were generally between the independent contractors' foremen on the site and a representative of ASARCO. No one at ASAJICO ever interacted directly with employees of independent cootractors regarding work quality, safely and the like. The contractors were considered experts in their respective fields and were therefore left to implement proper safety measures commensurate with the requirements and responsibilities of their job assignments at given sites. INTERROGATORY NO. 14: Do you contend that Edmundo Hexmosiilo's exposure to asbestos at ASARCO's El Paso facility was not a substantial contributing factor in causing his mesothelioma and/or his death? If the answer is anything other than "no", identify each and every fact which supports this contention. ANSWER: ASABCO objects to this interrogatory as it calls lor a medical opinion which this defendant is not qnafified to render. To the extent that ASARCO does contend that Edmnndo HermotiUo's exposure to asbestos at ASARCO's El Paso facility was not a substantial contributing factor in causing his mesothelioma and/or his death, it wil rely upon the testimony of Mr. Hermosillo's co-workers concerning the relative time spent by Mr. HenaosiDo at various work-sites. INTERROGATORY NO. IS: Did Defendant enter into any contncts with the Federal Government or any ofits agencies between 1960 and 1972, wherein the amount ofsaid contract exceeded $10,000? ANSWER: ASARCO objects to this interrogatory as burdensome, overly broad, and irrelevant It seeks detailed information which is not reasonably cakulatad to lead to the discovery of admissible evidence. As such, this discovery request constitutes n fishing expedition which is prohibited by the Texas Rales of Civil Procedure and Loftm w Afertiit, 776 S.W.2d 145 (Texas 19) and Able Supply Co. n Moye, 898 S.W.2d 766 (Texas 1995). Without waiving said objections, ASARCO responds that it has been unable to determine whether it bus entered into any contracts with the Federal Government or any of its agencies between 1960 and 1972, wherein the amount of said contract cmeeded $10,000. ASARCO reserves the right to amend and/or supplement this interrogatory answer throughout the continuing coarse of discovery. INTERROGATORY NO. 16: If the answer to Interrogatory No. 15 is "yes", did any ofthe materials, supplies, articles or equipment namfaentred or furmshed under said contracts originate from the El Ptro fhcflhy? ANSWER: Inapplicable. See answer to Interrogatory No. IS. INTERROGATORY NO. 17: For each individual ASARCO employee or former employee listed below, please identify all trade and/or professional organizations to which said individual belonged at any time. (a) K.W. Nelson (b) Michael 0. Varner (c) JofanB. Richardson (d) Douglas H. Soutar (e) Dr. Charles H. Hines ANSWER: ASARCO objects to this interrogatory to the extent it seeks information which pertains to former and/or deceased employees and, as such, is no longer in ASARCO's pocsenion or control. Without waiving these objections, the following is a fist of trade and/or professional organization to which ASARCO belonged and/or in which some of the above-referenced individoak may have participated: American Industrial Hygiene Association ("AIHA"), International Lead and Zinc Research Organization ("TLZRO"), American Institute of Mining and MefaOavgical Engineers ("AMEP), National Anodation of Secondary Materials Industries fNASMT), Lead Industries Association, American Mining Association, Cadmium Council, Smelter Environmental Research Association, American Academy for the Advancement of Science, American Academy of Industrial Hygiene, American Chemical Sodety, American Institute of Mining A Metallurgical Engineers, British Occupational Hygiene Society, and New York Academy of Science^ and Air and Waste Management Association. ASARCO's investigation is cootinning and it therefore reserves the right to amend and/or supplement its answer to this interrogatory. INTERROGATORY NO. 18: Please identify all employees of ASARCO, CAFCO and/or LAQ who attended meetings ofand/or received minutes ofthe meetings of QAMA, die Asbestos Information Association the Asbestos Textile Institute and/or the Asbestosis Research Council. ANSWER: Kenneth W. Nelson, Rolend P. Gagnon, Edward A. Farrell, Michael J. Mead, Liond C Pine, EJL RJmbault, Charles E. Stiefkea, Ronald W. Godfrey, Andre Gauthier, Raymond LeFebvrn Robert J. Muth, John Gilford, Peter Bucholtz, Jean Dopere, Harold 7X Plata, Gastan Veneank, Victor Puskar, J. Philip Wiser, Yvonnic Bolduc, Ralph L Hennehach, W.BL Soatar, Michael a Varner, &.IX Weaver, Wiliam Horace Beasley, Charim H. Hlae, Stanley G. Cothria, Warren T. Whitley, Rex Beckstend, Charles Z. CanvU-Forcynjki, and WilBam R Whitener. INTERROGATORY NO. 19: Please identify the date when Defendant first provided any warnings to hs own employees regarding the potential health haanls associated with asbestos. ANSWER: ASARCO is not capable of determining exactly when it first provided any warnings to its own employees regarding the potential hazards of asbestos. ASARCO has never engaged in the mining or miffing of asbestos or the manufacture of asbestos-containing products. ASARCO has long known that inhalation of excessive quantities of asbestos over prolonged periods of time could be hazardous to the health of certain susceptible individual ASARCO states that by the 1930s governmental and private industrial hygienists, occupational physicians and sophisticated manufacturing concerns were aware of flte possibilty that susceptible persons who are exposed to excessive amounts of asbestos fibers over a prolonged period of time might develop the disease ubestosis. Medical and scientific literature on the potential dangers of asbestos had been published in a variety of medical and scientific periodicals, textbooks and other pubicationi which were readily available to any interested entity or individual. ASARCO is and was aware that by the 1930s contradictory articles on whether there was an association between asbestosis and an increased incidence of bag cancer appeared in the medical htentore. Most authors who reported the possibility of inch an association recognized that both the methodology of the studies and limited number of cues reported prevented any firm conclusion. Further, many researchers had reported a lack of association between asbestos exposure and long cancer and asbestosis and bog cancer. Additionally, ASARCO is and wis aware that throughout the 19d0'i new studies regarding die health effects of asbestos inhalation were published. Certain of thou studies suggested that person exposed to asbestos-containing products might have an increased risk of devetoping lung cancer, mesothelioma and certain gastro-intmfinal cancers. ASARCO would have provided at least a verbal warning to any of its workers who were engaged in an activity that resulted in prolonged exposures to excessive concentration of asbestos dost at or about the time that ASARCO became aware ofsuch hazards. CERTIFICATION STATE OF NEW YORK COUNTY OF NEW YORK 3 t J BEFORE ME the undersigned authority, on this the date ofDecember. 1991, personally appeared on his oath deposed and aid thashe has read the foregoing Answers to Plaintiff's Second Set of Interrogatories and verifies that they are true and correct dUnwof' SWORN AND SUBSCRIBED TO BEFORE ME, on the 9 dare ofDecenter, 1998 13^ NOTARY PUBLIC BRUCE t STANTON Notan Puwte. CUsa cl n**rsifc w CeothiicMiii mi**** *v Ray, McChrishan & Jeans Attorneys end Counselors at Law A Professional Corporation 5822 CroiM. Saitt 400 El Paso, Texas 79912 (915) 832-7200 Tdepkoi# (915) 832-7333 Facnwilc December 9,1998 _____ via FACSIMILE Ms. Alicia Half Baron & Budd 3102 Oak Lawn Avenue, Suite 1100 Dallas, Texas 75219-4281 Rota Collm** MictadX.Dm Duid H. Hcruodcx JimaJ. IwTmw' DtvidS. Jm John W. McChriitat, Jr.* Edusdo Mimdi Juki a. mmm, III LdidiNuncx* JeffRay-- Carlo* Rincon Mirk Romero ^ *iram muntml *Ki < -- RE: Hermosillo v. ASARCO County Court at Law No. Two Cause Number 98-1338 _______ RMJ Number 390-18 Dear Ms. Half: Enclosed, please find ASARCO Incorporated's Answers to Plaintiff's Second Set of Interrogatories, filed with the District Clerk in El Paso County today. Sincerely, cc: All Counsel ofRecord F. Fazio end. James J. Isennan