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Harry D. Weist and Diane M. Weist, His Spouse v. E.I. Dupont De Nemours and Company

March 31, 2011

HARRY D. WEIST AND DIANE M. WEIST, HIS SPOUSE, PLAINTIFFS,
v.
E.I. DUPONT DE NEMOURS AND COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #4. Following Chief Judge Arcara's recusal, the matter was transferred to the Hon. William M. Skretny. Dkt. #64.

Currently before the Court is plaintiffs' motion to compel the deposition of John Bowman (Dkt. #123), and defendant E.I. DuPont De Nemours and Company's ("DuPont's"), motion for a protective order. Dkt. #126. For the following reasons, plaintiffs' motion is granted in part and defendant's motion is denied.

BACKGROUND

Plaintiff Harry D. Weist has been employed at Goodyear Tire and Rubber Company ("Goodyear"), since December 21, 1977. Dkt. #1, ¶ 7. During the period of 1981 through 1990, he alleges workplace exposure to ortho-toluidine, a chemical which was manufactured and distributed to Goodyear by the defendants. Dkt. #1, ¶ ¶ 7-8; Dkt. #22-2, ¶ 1. Plaintiffs allege that this exposure caused Harry D. Weist to suffer personal injuries, including bladder cancer, and that his wife, Diane M. Weist, suffers loss of consortium. Dkt. #1, ¶¶ 9 & 24. Plaintiffs seek to hold defendants responsible on theories of strict liability and negligence, including a claim of negligent entrustment. Dkt. #1. Specifically, plaintiffs allege that defendants failed in their duty to evaluate Goodyear's handling of [orthotoluidine], counsel Goodyear on the safe use of this product, and discontinue sale of the product to Goodyear in order to prevent further unsafe exposure to the product and force the implementation of corrective action.

Dkt. #1, ¶ 20(g).

Defendants moved to dismiss the negligent entrustment claim, arguing there was no legal basis to impose a duty upon a chemical manufacturer to evaluate their customers' handling of that chemical, to counsel their customers on the safe use of the chemical or to discontinue sales of a chemical to prevent unsafe exposure or to force corrective action. Dkt. ##18 & 19. By Decision and Order entered March 31, 2008, Judge Skretny denied defendants' motion without prejudice to renewal following completion of sufficient discovery as to whether defendants' had any reason to question Goodyear's competence to handle ortho-toluidine. Dkt. #91.

As set forth in this Court's Report, Recommendation and Order, "the tort of negligent entrustment is based on the degree of knowledge the supplier of a chattel has or should have concerning the entrustee's propensity to use the chattel in an improper or dangerous fashion." Dkt. #82, p.10, quoting Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 237 (2001). Thus, the Court identified the relevant issue to be resolved as "whether there is any evidence to suggest that defendants knew or should have known that Goodyear was likely to mishandle ortho-toluidine." Dkt. #103, p.6. As a result, the Court ordered defendants to disclose any investigation or evaluation they conducted regarding Goodyear's use of ortho-toluidine and to produce representatives for deposition regarding defendants' product stewardship program. Dkt. #95. Thereafter, by Order entered April 27, 2009, the Court ordered DuPont to produce a witness pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure who could testify as to DuPont's investigation, evaluation and/or knowledge of Goodyear's handling practices, safety protocols, etc., with respect to ortho-toluidine prior to 1991. Dkt. #105.

Plaintiffs assert that DuPont has failed to produce a single document concerning any investigation or evaluation regarding Goodyear's use of othro-toluidine. Dkt. #123-2, ¶ 11. Plaintiffs also assert that DuPont's 30(b)(6) witness, William C. Haaf, never had any involvement with the Goodyear plant during his employment with DuPont and admitted at his deposition that he had not been provided with any information concerning DuPont's investigation or evaluation of Goodyear's use of orthotoluidine in connection with seven lawsuits by other Goodyear workers with bladder cancer. Dkt. #123-2, ¶ 13. Plaintiffs contend that the defendants gathered sufficient knowledge of the inadequacies of Goodyear's ortho-toluidine handling practices from their investigation into and discovery conducted during the course of seven civil lawsuits filed against DuPont between 1985 and 1990 by ten Goodyear workers who had developed bladder cancer. Dkt. #123-2, ¶ 6.

DuPont states that in response to the Court's Order, it produced memos documenting meetings between DuPont and Goodyear personnel in 1989 and 1990 concerning the safe handling of ortho-toluidine and a July 1990 meeting with Goodyear personnel at DuPont's Chambers Works regarding the proper handling of orthotoluidine. Dkt. #126-2, p.5.

On March 10, 2010, plaintiffs served DuPont with a notice for the deposition of DuPont's retired corporate counsel, John R. Bowman. Dkt. #123-2. Plaintiffs argue that Mr. Bowman "is the only remaining repository of information on the issue of what DuPont knew of Goodyear's ortho-toluidine handling practices" and insist that they "need to take Mr. Bowman's deposition and determine the facts which he obtained from the litigated claims" in order to defend against a renewed motion for partial summary judgment. Dkt. #123-2, ¶ 20.

DuPont objected to the deposition on the grounds that any possible testimony would be protected by both the attorney-client and the attorney-work product privileges. Dkt. #123-5.

DISCUSSION AND ANALYSIS

Plaintiffs argue that there is nothing privileged about Mr. Bowman's factual knowledge of the conditions inside the Goodyear plant. Dkt. #128, p.8. ...


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