DENT v. CBS CORPORATION et al

Filing 55

MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 1/4/10. 1/4/10 ENTERED AND COPIES MAILED, E-MAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA R E G IN A L D DENT v. W E S T IN G H O U S E , et al. : : : : : C O N S O L ID A T E D M D L 875 E D P A CIVIL ACTION N O : 08-83111

M E M O R A N D U M AND ORDER E L IZ A B E T H T. HEY U N IT E D STATES MAGISTRATE JUDGE J a n u a ry 4, 2010

W a rre n Pumps, a defendant in this asbestos action, has filed a motion to c o m p e l Plaintiff to respond to certain interrogatories and requests for production of d o c u m e n ts . Specifically Warren Pumps seeks information regarding the settlement of any c la im asserted in Plaintiff's complaint.1 The thrust of Warren Pumps' argument is that " th e discovery of each additional asbestos-containing product which Mr. Dent claims c a u s e d his mesothelioma makes it that much less likely that his mesothelioma was caused b y exposure to any Warren Pump, and makes Plaintiff's assertions to the contrary less and le s s credible." Resp. at 3. Plaintiff responds that Warren Pumps has failed to make a p a rtic u la riz e d showing that disclosure of any settlement information will lead to the d is c o v e ry of admissible evidence. A request for settlement information lies at the crossroads of Federal Rule o f Civil Procedure 26 and Federal Rule of Evidence 408. Rule 26 governs discovery and s ta te s that parties "may obtain discovery regarding any matter not privileged, which is

P la in tif f sued a total of ten defendants in this action, seven of which have b e e n dismissed. Def.'s Br. at 2-3.

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relevant to the claim or defense of any party . . . ." Fed. R. Civ. P. 26(b)(1). "[R]elevant in f o rm a tio n need not be admissible at trial if the discovery appears to be reasonably c a lc u la te d to lead to . . . admissible evidence." Id. Rule 26 is subject to liberal c o n s tru c tio n and favors the discovery of relevant information. In contrast, information re g a rd in g settlements and negotiation is inadmissible if offered to prove liability for, in v a lid ity of, or amount of a claim pursuant to Federal Rule of Evidence 408. As e x p la in e d by several courts, Rule 408 recognizes the strong public policy promoting s e ttle m e n t. See Dutton v. Todd Shipyards Corp., No. 09-62916, 2009 U.S. Dist. LEXIS 1 0 7 9 3 6 , at *2-3 (E.D. Pa. Nov. 17, 2009) (Rueter, C.M.J.); Block Drug Co. v. Sedona L a b s ., Inc., No. 06-350, 2007 WL 1183828, at *1 (D. Del. Apr. 19, 2007); Fidelity Fed. S a v . & Loan Assn. v. Felicetti, 148 F.R.D. 532, 534 (E.D. Pa. 1993) (Joyner, J.). Warren Pumps argues that Rule 408 pertains to the admissibility of e v id e n c e , and is inapplicable to this discovery dispute. See Def.'s Br. at 4 (citing D ire c T V , Inc. v. Puccinelli, 224 F.R.D. 677, 685 (D. Kan. 2004)). Although Rule 408 s p e a k s in terms of admissibility, the judges of this circuit have concluded that a h e ig h te n e d showing is required for the discovery of settlement information. "Courts in th is circuit and others, to effectuate the goals of both rules, have required a more `p a rtic u la riz e d showing' that the evidence [of settlement] sought is relevant and c a lc u la te d to lead to the discovery of admissible evidence." Block Drug, 2007 WL 1 1 8 3 8 2 8 , at *1 (citing Lesal Interiors, Inc. v. Resolution Trust Corp., 153 F.R.D. 561, 562

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(D.N.J. 1994)); see Felicetti, 148 F.R.D. at 534. I join the judges of this circuit and will re q u ire Warren Pumps to make a particularized showing that the evidence related to s e ttle m e n t is relevant and calculated to lead to the discovery of admissible evidence. This is sound logic. To do otherwise would retard the settlement-promoting purpose of Rule 408. Warren Pumps also argues that it is not seeking the information for any p u rp o s e prohibited by Rule 408, which bars the use of settlement information "to prove lia b ility for, invalidity of, or amount of a claim . . . ." F.R.E. 408(a). Among other p u rp o s e s , Rule 408 specifically permits settlement evidence to show a witness's bias or p re ju d ic e . F.R.E. 408(b). Such was the case in the limited discovery permitted in G o o d ye a r Tire & Rubber Co. v. Dow Deutschland GmbH & Co., No. 08-1118, 2009 U.S. D is t. LEXIS 100435 (N.D. Ohio Oct. 28, 2009), in which the court permitted discovery of p o rtio n s of a settlement agreement related to a cooperation agreement between the p la in tif f and a settling defendant. The court reasoned that the cooperation agreement re la te d to that defendant's credibility and bias. Id. at *8-9. W a rre n Pumps contends that it seeks the settlement information to test the c re d ib ility of Plaintiff's claims. However, this seems to merely repackage the motives f o rb id d e n by Rule 408 by placing them under the guise of credibility. Warren Pumps a d m its it seeks the information to determine whether the dismissed codefendants were d is m is s e d for lack of evidence or on the basis of a settlement. In the case of the former,

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Warren Pumps wants to impugn the credibility of Plaintiff's claims against Warren P u m p s by virtue of his meritless claims against the dismissed codefendants. See Def.'s B r. at 3. Thus, Warren Pumps seeks the information to prove the invalidity of the claims a g a in s t it, a use which Rule 408 prohibits. Similarly, Warren Pumps admits it seeks the s e ttle m e n t information to determine the amounts of those settlements. "[I]f Mr. Dent s e ttle d with a codefendant more or less equal to Warren for a certain sum of money, and th u s established the value of his damages in regard to that codefendant, it would not be c re d ib le for him to seek a sum many times higher from Warren." Def.'s Br. at 3. Thus, W a rre n Pumps seeks the settlement information to establish the amount of Plaintiff's c la im against Warren Pumps. Again, this is forbidden by Rule 408. As previously mentioned, Warren argues that the settlement information is re le v a n t because "the discovery of each additional asbestos-containing product which Mr. D e n t claims caused his mesothelioma makes it that much less likely that his mesothelioma w a s caused by exposure to any Warren pump, and makes Plaintiff's assertions to the c o n tra ry less and less credible." Def.'s Br. at 3. This is the essence of the evil that Rule 4 0 8 seeks to prevent. Warren Pumps' arguments are similar to those presented by a defendant in a n o th e r asbestos case currently in this district. In Dutton v. Todd Shipyards, Corp., No. 0 9 -6 2 9 1 6 , 2009 U.S. Dist. LEXIS 107936 (E.D. Pa. Nov. 17, 2009), my colleague, the

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Honorable Thomas Rueter rejected an argument that settlement documentation would be u s e d to impeach Plaintiff. [ T ]h e court finds that defendant has not made a sufficient s h o w in g of how production of the settlement agreements will le a d to admissible evidence. The court rrejects the claim that d e f e n d a n t needs the agreements to `impeach' plaintiff. Defendant already knows that plaintiff filed claims against o th e r asbestos manufacturers in state courts. Defendant has a c c e s s to all state court pleadings. Defendant may impeach p la in tif f with his state court filings to suggest that his e x p o s u re to asbestos occurred at times and places having n o th in g to do with defendant's conduct. While disclosure of th e settlement agreements will reveal the amount of money p la in tif f received from other asbestos manufacturers, the s e ttle m e n t amounts cannot be used to prove the extent of p la in tif f 's exposure to asbestos from another manufacturer's p ro d u c t. Id . at *3. For the foregoing reasons, I will deny Warren Pumps' motion to compel w ith respect to Warren's request for settlement information. (Interrogatories 116 and 1 1 7 , and Request for Production 41). Based on the representation of Plaintiff's counsel th a t they have resolved the other issues presented in Warren Pumps' Motion to Compel, I w ill dismiss the remainder of the motion as moot. An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA R E G IN A L D DENT v. W E S T IN G H O U S E , et al. : : : : : ORDER A N D NOW, this 4th day of January , 2010, upon C O N S O L ID A T E D M D L 875 E D P A CIVIL ACTION N O : 08-83111

c o n s id e ra tio n of Warren Pumps' Motion to Compel, the response, thereto, and for the re a s o n s stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the M o tio n is DENIED in part and DISMISSED as moot in part. To the extent Warren P u m p s seeks settlement information, the motion is DENIED. The remainder of the M o tio n is DISMISSED as moot based on Plaintiff's representation that counsel have re s o lv e d the other issues raised in the Motion.

BY THE COURT: /S/ELIZABETH T. HEY

ELIZABETH T. HEY UNITED STATES MAGISTRATE JUDGE