BALTUSKONIS v. FOSTER WHEELER COMPANY et al
MEMORANDUM IN SUPPORT OF ORDER RE: VARIOUS MOTIONS 1. 866, 948, 852, 800, 867 FILED ON THE MARITIME DOCKET. SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 4/18/2012; 4/19/2012 ENTERED AND COPIES MAILED AND E-MAILED AND FAXED. (APPLIES TO MARDOC GROUP 1 CASES).(kah, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: ASBESTOS PRODUCTS
LIABILITY LITIGATION (No. VI)
APR 18 io1Z
MDL DOCKET No. 875
CIVIL ACTION NO.
MICHAEL E. KUNZ, Clerk
CERTAIN DEFENDANTS By
MEMORANDUM AND ORDER
ELIZABETH T. HEY, MJ.
On April 13,2012, I heard argument on a series of discovery motions filed by
various defendants in the MARDOC asbestos cases. These motions have been filed with
respect to the cases in MARDOC Group 1, but relate to discovery issues that will apply to
the other groups as well. I
This docket consists of maritime cases filed by a single law firm 2 on behalf of
individuals who allege injury due to asbestos exposure during their work on commercial
ships. They were filed many years ago, and after being transferred into NIDL 875
remained dormant for years before being reactivated. Being advised that the cases would
be reactivated and put on scheduling orders, plaintiffs' counsel undertook a process of
identifYing the cases in which they planned to proceed, resulting in narrowing the docket
IBy separate Order, the deadlines are being extended in all Groups except Group 7.
2The cases were filed by attorneys of the Jacques Admiralty Law Firm. Recently
attorneys of Motley Rice LLC have also entered their appearances and are working
together with the Jacques firm on behalf of all plaintiffs.
from over 50,000 cases to approximately 3,500 cases. Following conference with
counsel, on October 4, 2011, Judge Robreno, together with the undersigned, entered
Administrative Order 25 (MARDOC only) which set forth certain administrative rules for
the cases as well as imposed certain initial discovery obligations. A025 also assigned the
duties of special master to Christopher Lyding, Esquire, to assist the court and parties in
managing the cases. The cases were divided into seven groups of approximately 500
each, and on November 21, 2011, seven separate Case Management and Scheduling
Orders were entered.
The scheduling orders, the wording of which was reached after lengthy
consultation among counsel and Mr. Lyding, impose heavy obligations on the parties to
complete the pretrial process preparing these cases for remand to their home district of the
Northern District of Ohio within an approximate two-year period. Although the court
acknowledges that the parties' discovery burdens are heavy, the parties have known for
years that these cases were pending.
This memorandum is addressed to defense motions arguing that plaintiffs'
responses to discovery requests are deficient in certain areas. For purposes of this
discussion, plaintiffs' discovery efforts fall roughly into three categories; documents in
plaintiffs' possession, authorizations to release records to allow defendants to gather
documents, and answering interrogatories including the identification of fact witnesses
for deposition. The pending motions address each category, and I address them
Documents in Plaintiffs' Possession
First, to the extent they are in possession of medical records, plaintiffs have
advised that they provided those records and continue to do so as they are received. I
previously clarified the timing for such records (Doc. 628), and conclude that plaintiffs
are in compliance with their obligation to produce medical records.
Second, I previously addressed the question of plaintiffs' production of bankruptcy
claim forms, and concluded that they were discoverable and that the parties should work
on a method for obtaining them. Doc. 721. Plaintiffs assert that the claims should be
obtained through the submission of authorization forms, and they have proposed a form
for the purpose. They further argue that it would be unduly burdensome and duplicative
to also produce the claim forms from plaintiff counsel's own records, and for the first
time at oral argument asserted that the claims are submitted electronically in such a way
that a claim form is not generated. Defendants assert that plaintiffs should be required to
produce the claim forms in their possession, and also provide authorizations on a form of
defendants' choosing. Upon review of these arguments, I conclude that both discovery
mechanisms should be used here. I directed the production of bankruptcy claim forms in
January, and no forms have yet been produced. Plaintiffs shall produce claims submitted
on plaintiffs' behalf, and shall also provide executed authorization forms for all claims,
excluding reference to settlement or paid amounts.
Third, plaintiffs are in possession of some Coast Guard discharge certificates,
which identify each voyage a plaintiff was on, including ship, dates and the plaintiffs
position or rating on the ship. The work summaries that plaintiffs have thus far provided
are based on these certificates, although plaintiffs' counsel represents that they may no
longer be in possession of complete records of the actual certificates due to passage of
time (decades in most cases), deterioration of the documents and also because they may
have returned the original certificates at a client's request without retaining a copy.
Defendants seeks production of the discharge certificates in plaintiff counsel's possession
as well as from the Coast Guard through authorizations. Plaintiffs maintain that these
documents should be obtained through the authorization process, and that it would be
burdensome for them to produce them now as well as duplicative of those that can be
obtained directly from the Coast Guard. I again conclude that both methods of discovery
should be used here. These are highly relevant records, and there is no guarantee that the
Coast Guard records will be any more complete than plaintiffs'. Plaintiffs should have
anticipated that the records would need to be produced in discovery, as they may be the
only direct proof that a plaintiff was on a given ship.
I have already addressed certain authorizations in the preceding discussion, but
there are additional authorizations at issue. In a previous order I denied defendants'
request that I compel plaintiffs to use defendants' third-party vendor and forms for
collecting plaintiffs' medical, tax, military and personnel records. Doc. 628 ~ 2.
However, defendants represent that certain of the forms plaintiffs provided, in particular
Internal Revenue and Social Security forms, have been rejected because they were out of
date. I am loathe to compel plaintiffs to repeat the process, particularly because their
efforts to obtain these authorizations were made promptly to comply with A025 at an
early stage of this process. However, I see no alternative as these records must be
obtained, and will therefore direct that usable authorization forms be provided.
Defendants have moved to compel plaintiffs to provide verifications to their
discovery responses, and plaintiffs respond that they are doing their best to obtain the
verifications as quickly as they can. Plaintiffs will be required to complete the process
promptly, and in the future verifications will have to be provided within the same
deadline as for the discovery responses themselves.
Identification of products and witnesses
The most complex discovery dispute concerns the adequacy of plaintiffs'
responses to interrogatories requesting the identification of fact witnesses, and the
depositions of fact witnesses. Plaintiffs' interrogatory responses have not identified any
witnesses, other than by referring defendants to their document extranet. That is,
plaintiffs have opted to post all their discovery responses to an electronic database,
accessed through the internet, which each defendant enters using a unique username and
password. For each discovery group, there are a number of links on the extranet, for
example to responses to discovery, exhibits, death certificates and expert reports. For
each plaintiff, there is a link for the IDF (initial data form) provided at the outset of the
discovery schedule, which contains each plaintiff s sailing history, including for each
voyage the employer/ship owner, dates of the voyage, name of ship and rating.
There is also a link entitled "Co-worker Vessel Service Histories," where one
begins to search for potential co-worker witnesses. By selecting a given plaintiff, one
finds a link to that plaintiffs vessel service history and then also links for the vessel
service history of all witnesses who shared an overlapping period of service on a ship
with that plaintiff.3 The number of co-workers is estimated at 14,000. For certain co
workers, there are also links for exposure affidavits. These affidavits provide limited
information relating to rating and vessels and in some cases to products, but no details as
3Plaintiffs' counsel states that they represent every single co-worker witness.
to what the co-worker observed or what testimony he could provide. As described by
plaintiffs' counsel, these affidavits are used for purposes of submission to bankruptcy
The process of extracting information from the extranet, according to defendants,
is quite cumbersome, involving hours of tedious "drilling down" through the vessel
histories. This is particularly true for plaintiffs who served on many ships, which is
typical as these merchant sailors may have made hundreds of different voyages. It is also
particularly true for defendants who owned or are responsible for many ships. Moreover,
defendants complain that plaintiffs have the ability to organize the information to easily
list each relevant co-worker for each plaintiff but have refused to do so. At the hearing,
plaintiffs' counsel did not dispute that they had the ability to do this, although insisted
that the information is on decades-old databases (punch-card format in some cases)
making it at least as cumbersome for them as for defendants to sort the information as
The process is also far from perfect. Specifically, the vessel service history lists do
not actually identify a witness who can speak about a plaintiff or even a person in the
plaintiff's position; all they identify is someone who was on the ship during at least one
day when the plaintiff was on the ship. Defendants argue that their experience thus far
shows that the coworkers they identify through this laborious process have turned out to
have no useful information. This was shown by the process of noticing depositions. For
example, counsel for one group of shipowner defendants went through the abovedescribed process to develop a list of co-workers for deposition. Upon receiving the
deposition notice, plaintiffs went through the list and eliminated many of them upon
learning that they were deceased, infirm or for some other reason unavailable. Plaintiffs
then identified those defendants about whom the witness would offer relevant testimony,
by serving a cross-notice of deposition. 4 This is the very list that the defendants insist
should be provided to them at the outset. The parties debate the relative usefulness of the
information gleaned from the few depositions that did go forward.
The manufacturing defendants argue that the process is even more challenging for
them. Unlike the shipowners, who at least know which plaintiffs and co-workers are
alleged to have served on their ships, the manufacturing defendants have been unable to
learn through the vessel service history lists anything about how plaintiffs were allegedly
exposed to their products on the ships. Plaintiffs have offered no answer to this question,
other than to point defendants to their own discovery obligations and to exposure
affidavits to the extent they exist.
Defendants' argument rests in part on the wording of paragraphs 9 and 10 ofthe
Case Management and Scheduling Orders. As previously noted, the specific language of
these orders was reached after lengthy consultation among counsel and Mr. Lyding.
41 quashed these cross notices on the ground that they gave insufficient time for
other parties to prepare.
These paragraphs appear in the section describing the parties' fact discovery obligations.
Paragraph 9 states that "All deposition notices shall include ... the plaintiff's/injured
party's list of employers, list of vessels aboard which the injured party served as well as
full and complete notice of all plaintiffs and products a deponent is prepared to address."
Paragraph 10 states that "Plaintiffs shall provide to Defendants the names of the cases,
vessels and products about which a co-worker witness will testify." The thrust of
plaintiffs' position is that they do not need to provide the information set forth in
paragraph 10 until they receive a deposition notice. This interpretation is not based on the
wording of the Orders, nor is it reasonable. Plaintiffs' obligations under paragraph 10 are
affirmative, and do not rest on any prior action or query from defendants.
Plaintiffs use of the extranet is certainly designed to handle volumes of
information in an efficient manner. However, the question is whether plaintiffs have
satisfied their discovery obligations through use of the extranet. Although plaintiffs do
not rely on it, Rule 33 provides a helpful analogy here. That Rule gives a party the option
of producing business records as an alternative to answering an interrogatory in the
If the answer to an interrogatory may be determined by
examining, auditing, compiling, abstracting, or summarizing a
party's business records (including electronically stored
information), and if the burden of deriving or ascertaining the
answer will be substantially the same for either party, the
responding party may answer by:
(1) specifying the records that must be reviewed, in
sufficient detail to enable the interrogating party to
locate and identify them as readily as the responding
party could; and
(2) giving the interrogating party a reasonable
opportunity to examine and audit the records and to
make copies, compilations, abstracts, or summaries.
Fed. R. Civ. P. 33(d). The records at issue are not business records, and thus by its terms
Rule 33 does not apply. However, the notions of weighing relative burdens and
specificying records to enable the other party to locate the relevant information are
helpful here. Measured by this analogy, plaintiffs' production falls short. Although
plaintiffs protest that the burden on them is equal to the burden on the defendants to sift
through the vessel service histories and other documents to identify witnesses, that simply
cannot be the case as the information originated with them. Plaintiffs created these
documents as a way to bring their cases, and can fairly be expected to make use of them
to assist the defendants in identifying and investigating the evidence to be offered against
them. Additionally, plaintiffs are obliged to have and to share the type of information
contained in paragraph 10 of the scheduling orders. When dealing with 14,000 potential
witnesses, many of whom are now deceased or infirm, and all of whom are or were
represented by plaintiffs' counsel, it is not reasonable to expect defendants to identify the
witnesses against them nor the likely testimony that will be provided. That burden rests
with the plaintiffs here.
An appropriate Order follows.
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