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Kraus v. Alcatel-Lucent

United States District Court, E.D. Pennsylvania

September 24, 2019

ROBERT J. KRAUS, and MARGARET M. KRAUS
v.
ALCATEL-LUCENT, et al.

          OPINION

          JACOB P. HART, UNITED STATES MAGISTRATE JUDGE

         In this case, plaintiffs Robert and Margaret Kraus are suing various defendants, including Space Systems/Loral, LLC (“SSL”) with regard to damages Robert Kraus suffered from exposure to asbestos. Plaintiffs have filed a motion to compel discovery from Northrop Grumman Corporation, which was assigned to the undersigned by the honorable Timothy J. Savage. For the reasons set forth below, Plaintiffs’ motion will be granted in part and denied in part.

         I. Applicable Legal Standards

         Under Federal Rule of Civil Procedure 37, a party may move for an order compelling disclosure or discovery after conferring, or attempting to confer, with good faith with the opposing party in an attempt to obtain it without court action. F. R. Civ. Pr. 37(a)(1). Such a motion may be filed where a party fails to answer an interrogatory submitted under Rule 33, or fails to either produce documents or permit inspection, as requested under Rule 34. Id. at (a)(3)(B). Evasive or incomplete answers and responses are treated as a failure to answer or respond. Id. at (a)(4).

         A party may also seek sanctions from the court where the opposing party has not obeyed a discovery order. Fed. R. Civ. Pr. 37(b)(2)(A). These may include directing that the matters embraced in the order be taken as established for purposes of the action. Id. at 7(b)(2)(A)(i).II.

         II. Discussion

         A. Interrogatories

         Interrogatory No. 3: Please state whether or not you are a corporation. If so, state: (a) your current corporate name; (b) the state of incorporation; (c) the date of your incorporation; (d) the address of your principal place of business; (e) the addresses of any other places of business; (f) whether or not you have ever held a certificate of authority to do business in this state (g) whether or not you have a registered agent for the purpose of accepting service in this state, and if so, the name and present address of that agent; (h) state your corporate purpose; (i) state whether or not you have or have had subsidiary or predecessor corporation(s) and/or corporations whose liabilities for asbestos you have assumed hereafter predecessor [sic] if so: (1) the name of each subsidiary and/or predecessor; (2) its date(s) of incorporation, if a corporation, of each such corporation; (3) state(s) of each such corporation (4) the corporate purpose of such corporation.

         Northrop Grumman has responded to all parts of this interrogatory except subsection (i). In its response to this motion, however, it states that it will respond to subsection (i) “as to Hallicrafters and Litton for the three products alleged to be at use.” I will therefore direct it to respond to subsection (i).

         Interrogatory No. 4: State whether you, a subsidiary, or your predecessors have at any time directly or indirectly been engaged in the mining, manufacturing, producing, processing, compounding, converting, selling, merchandising, supplying, distributing, and/or otherwise placing in the stream of commerce of raw asbestos or finished asbestos products or products designed or intended to contain asbestos. If so, be specific in your answer and state or furnish as to each such asbestos product: (a) the trade name, general name and/or other identification of each such asbestos product, raw or finished: (b) the dates during which you mined, manufactured, supplied, distributed, and/or otherwise placed in the stream of commerce each such asbestos product; (c) the intended use of each such asbestos product; (d) a complete description of each such asbestos product including the type of asbestos contained therein and the percentage of asbestos contained in said product; (e) a description of the physical appearance including color of each such asbestos product specifying whether the said product was/is sold in a solid, loose, powdered or other form; (f) identify the location of each plant or facility which produces each of the aforesaid asbestos products; (g) set forth for which of the products on plaintiff’s alphabetical list of Cambria Electronic (attached) are you responsible for and if any contained asbestos.

         Despite having asserted a number of objections to this Interrogatory, Northrop Grumman represents in its response to Plaintiffs’ motion that it “has already notified Plaintiffs that it is in the process of investigating” whether or not it has responsive materials as to the three products which have been identified by Plaintiffs as having been on board the USS Cambria, at the time during which Mr. Kraus served on this ship. These products are AN/SPS-40, AN/UPX-1, and AN/ULQ-6A.

         This being the case, I will grant Plaintiff’s request in this regard and direct Northrop Grumman to respond to this Interrogatory as it pertains to the three products identified by Plaintiffs. If Northrop Grumman has not yet identified any relevant material, it shall so state in a written and verified interrogatory response.

         Interrogatory No. 6: Did you sell raw asbestos or finished asbestos products to the Navy for the Cambria or to the GE plants on Chestnut Street in Philadelphia or Valley Forge during or immediately prior to the periods of employment of plaintiff in the Navy or at GE or asbestos containing parts for RCA televisions? If yes, identify (a) dates of sales; (b) amounts of sales; (c) names of finished asbestos containing products sold; (d) amount of raw asbestos sold; Invoice records can be attached to answer this interrogatory.

         Similarly, despite having asserted a number of objections to this Interrogatory, Northrop Grumman represents in its response to this motion that it “has already notified Plaintiffs that it is in the process of investigating” whether or not is has responsive materials as to the three products which have been identified by Plaintiffs as having been on board the USS Cambria, at the time during which Mr. Kraus served on this ship.

         Again, I will grant Plaintiff’s request in this regard and direct Northrop Grumman to respond to this Interrogatory as it pertains to the three products identified by Plaintiffs. If Northrop Grumman has not yet identified any relevant material, it shall so state in a written and verified interrogatory response.

         Interrogatory No. 12: Were you ever advised by any member of the medical profession or other profession such as industrial hygienists occupational hazard professionals or other persons to utilize hazard labels on your products and to give clear and explicit warnings concerning the possibility of cancer, and/or mesothelioma and/or serious illness and diseases but not limited to asbestos [sic “asbestosis”?] to those who might use, handle, or be exposed to your asbestos products after they have left your control? Identify this individual or individuals or company, set forth the date of this advice, and attach copies of this advice if written.

         Northrop Grumman objected to this interrogatory on the bases that (a) it is overly broad; (b) there is an absence of product identification evidence which would tie Mr. Kraus on a Northrop Grumman product; (c) Norden Systems, an alleged predecessor of Northrop Grumman, did make the AN/SPS40B radar, but it was not installed on Navy vessels until 1971, four years after Mr. Kraus left the Navy, and one year after the USS Camden was decommissioned. It added, however, that “investigation was continuing.”

         In its Amended Supplemental Response to Plaintiffs’ motion to compel, Northrop Grumman now concedes that Plaintiffs’ claim against it is now focused on AM-1365/URT; AN/ULQ-6A; and AN/UPX-1. Amended Supplemental Response at 3. Therefore, the interrogatory does not now appear overbroad. Also, the objection regarding the AN/SPS40B is no longer relevant.

         The issue of product identification is somewhat more complex. Plaintiffs motion to compel discovery relied heavily upon the anticipated testimony of Joe Landrum and Roger Gossett, which they argued would demonstrate that Kraus was exposed to products on the USS Camden which either contained asbestos, or were repaired with asbestos. These depositions occurred on August 13 and 20, 2019, during the pendency of this motion.

         According to Northrop Grumman, neither Landrum nor Gossett “provided the promised testimony”, so that there is “zero evidence” that Mr. Kraus ever encountered the three products identified. Amended Supplemental Response at 2 and 3.

         However, Landrum confirmed that, although Mr. Kraus had no “hands-on” work on any radar equipment, Mr. Kraus’s job took him to every part of the ship, and he “would be called in when he didn’t understand what work we were doing, and he needed to be brought up to speed so he could tell someone else.” Joe Landrum Deposition Excerpt, attached to Northrop Grumman’s Amended Supplemental Response as Exhibit H, at 167-8. Landrum was not able to remember the identification numbers for any equipment present on the ship.

         Gossett, like Landrum, had no specific memory of seeing Mr. Kraus with any ...


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