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

March 19, 2012

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 for sanctions. Dkt. #156. For the following reasons, plaintiffs' 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.

On April 10, 2008, the Court conducted a status conference to discuss plaintiff's requests for discovery with respect to the negligent entrustment claim and subsequently entered a detailed Decision and Order outlining the discovery to be completed with respect to this issue. Dkt. #95. Specifically, the Decision and Order directed counsel for defendants to: (1) survey their respective clients, including in-house and outside counsel, to determine whether defendants participated in any "stewardship program;" (2) disclose when any such program was first established and produce copies of any such programs as created and as amended from the time of their creation until December 31, 1990; (3) disclose what, if any, investigation or evaluation was conducted regarding Goodyear's use of the product in question, to wit, ortho-toluidine, and produce any records and/or files relating to such investigation or evaluation; (4) produce appropriate privilege logs and have any such documents available for in camera inspection if any such records and/or files are alleged to contain privileged materials; and (5) designate an appropriate Rule 30(b)(6) representative for deposition regarding any such stewardship program and any records and/or files produced by the defendants. Dkt. #95.

As a result of numerous discovery disputes (Dkt. ##98, 100, 101 & 102 & 105), the deadline for deposition of DuPont's 30(b)(6) witness regarding DuPont's investigation, evaluation and/or knowledge of Goodyear's handling of ortho-toluidine prior to 1991 was extended to June 30, 2009. Dkt. #105. DuPont designated William C. Haaf as its Rule 30(b)(6) witness for this purpose. However, his deposition was delayed while the Court considered plaintiffs' motion to compel disclosure of documents relating to DuPont's investigation, evaluation and/or knowledge of Goodyear's handling practices with respect to ortho-toluidine which were withheld as privileged. Dkt. #122.

On March 10, 2010, without having deposed DuPont's Rule 30(b)(6) witness, William C. Haaf, plaintiffs served DuPont with a notice for the deposition of DuPont's retired corporate counsel, John R. Bowman. Dkt. #123-2. Plaintiffs argued 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 that they needed to take Mr. Bowman's deposition to "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. More specifically, plaintiffs claimed that

It is undisputed that, between 1985 and 1990, all information gathered by DuPont's outside counsel flowed through Mr. Bowman's office. What Mr. Bowman learned about Goodyear's handling practices for ortho-toluidine is relevant to this Court's ultimate ruling on the negligent entrustment cause of action. These facts are not privileged.

Dkt. #123-3, p.3.

Despite DuPont's argument that any possible testimony would be protected by both the attorney-client and the attorney-work product privileges, the Court granted the motion to compel in part, stating

It bears repeating that the question plaintiffs seek to answer with respect to the negligent entrustment claim is "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 in-house counsel during at least portions of plaintiff's exposure and the prior lawsuits, Mr. Bowman is in a position to clarify the extent of DuPont's knowledge of conditions inside the Goodyear plant during the period of plaintiff's exposure and DuPont's investigation and/or inspection of Goodyear's handling practices and plant conditions. Having retired prior to the commencement of this action, there is less concern that Mr. Bowman's deposition will unduly burden DuPont's defense of this action. Finally, although the Court is sensitive to the fact that Mr. Bowman, as prior counsel to DuPont, possesses information protected by the attorney client and ...


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