Federal Judge Quashes Defendant Corporate Depositions in Asbestos Cases Absent Product Identification


Magistrate Judge M. Faith Angell of the Federal Multi-District Litigation has issued two decisions quashing plaintiffs' attempts to take defendants' corporate representative depositions where no product identification exists. In In re Asbestos Products Liability (No. IV): Sunsoon Doucet v. Asbestos Corp. Ltd, et al., MDL-875, No. 11-CV-67223, 2012 WL 2160977 (E.D. Pa. June 14, 2012) and in In re Asbestos Products Liability Litigation (No. IV):  Mikethurmon, et al. v. A.W. Chesterton, Inc. et al., MDL-875, No. 11-CV-63953, 2012 WL 2104833 (E.D. Pa. July 31, 2012), Magistrate Judge Angell ruled that a plaintiff was not entitled to corporate representative depositions of several equipment manufacturer defendants "without some evidence to connect a particular product/products of Defendants to [plaintiffs'] alleged asbestos exposure." These decisions impact Federal Rules of Civil Procedure Rule 30(b)(6) governing proper notice of depositions upon organizations.

In the Sunsoon case, a plaintiff sought to compel depositions of GE, Elliott Company, United Technologies Corporation, and Goodyear Tire and Rubber Company corporate representatives after the close of discovery. The court decided, except in the case of Elliott Company, that there had been no product identification tying each defendant to the decedent's alleged asbestos exposure. Despite plaintiff's contention that a defendant needs to "participate in discovery" for the plaintiff to prove product presence during the plaintiff's 35-year work history, the court ruled that:

"[n]oticing a 30(b)(6) deposition to obtain testimony from a defendant identifying all products it supplied, sold or distributed to various worksites where the decedent was present over an approximate thirty-five year period is not proper."

With respect to Elliott Company, against which there was product identification evidence, the court limited the scope of plaintiff's deposition to worksites at which Elliott Company had been identified. The Court reasoned that, despite the fact that the deposition notice requested defendant's sales records for each of plaintiff's workplaces, the notice wrongly sought records for all worksites and all products instead of only those worksites at which that defendant's products were identified. The court also limited the scope to the products identified utilizing the same rationale.

Subsequently, Magistrate Judge Angell was presented with a similar issue in Mikethurmon. In this case, defendants Scarpa Waycross, Honeywell International, and Warren Pumps filed motions to quash plaintiffs' 30(b)(6) deposition notices arguing, inter alia, that the deposition notices were improper because plaintiffs had not produced any witnesses who identified specific products of the defendants allegedly causing inhalation over the plaintiffs' work history spanning 60-years. The Court ruled that "Plaintiffs are not entitled to testimony of a corporate representative without some evidence to connect a particular product/products of Defendants to the decedent's alleged asbestos exposure." The court based its decision on the Rule 30(b)(6) requirement that a deposition notice "describe with reasonable particularity the matters for examination." The court essentially stated that where no evidence of exposure is present, the deposition notice does not set forth topics with particularity.

For more information about protecting your corporate representatives from fishing-expedition discovery or for more information about toxic tort matters in general, contact David Governo ([email protected]) or Toby Stull ([email protected]).