Document 19gMGEM4q4zpmRpa259XMdrX

WELDON R. MOAKE, et al VS. OWENS-CORNING FIBERGLASS CORPORATION (a/k/aOWENS CORNING CORPORATION); et al NO. 90G2055 IN THE DISTRICT COURT OF BRAZORIA COUNTY. TEXAS " 239th JUDICIAL DISTRICT DEFENDANT KOCH PETROLEUM GROUP, L.P.'S AMENDED RESPONSES TO PLAINTIFF'S REQUEST FOR DISCLOSURE TO: Plaintiff, Weldon R. Moake, by and through his attorneys of record, Holly J.W. Huart and Stephanie Finch, Baron & Budd, The Centrum, 3102 Oak Lawn Avenue. #1100. Dallas. Texas 75219. COMES NOW, Defendant, Koch Petroleum Group, L.P., improperly designated as "Koch Refining Company (individually & successor to Suntide Refining Company and Sun Company. Inc.)," (hereinafter referred to as "Defendant"), and serves the following First Amended Responses to Plaintiff s Requests for Disclosure pursuant to Rule 194 of the Texas Rules of Civil Procedure: (a) The correct name of each party to this lawsuit; RESPONSE: This Defendant has answered in its proper name, but has also been named improperly as the "successor" of Suntide Refining Company and Sun Company, Inc.. This defendant has specifically denied that it is liable for acts or omissions of the owner of the premises in question prior to purchasing the refinery in November, 1981. (b) The name, address and telephone number of each potential party; RESPONSE: There are no additional potential parties to this suit not named in Plaintiffs' pleadings. PlaintiffsJiave named but not served the former owners of Koch's Corpus Christi refinery. (c) The legal theories and factual bases of your claims and defenses; G: 5220-19'Discovery rsp(amd) to req for disci.upd Page I RESPONSE: Defendant has generally denied Plaintiffs claims and insists that he prove the elements and facts to support it. In general. Defendant asserts that the injuries or diseases claimed by Plaintiff have not been shown, as of the date of this amended response, to have been related to any asbestos exposure which Mr. Moake may have received while working on any premises owned by Koch Petroleum Group. Likewise, this defendant asserts generally that, in the event his disease is shown to have been caused by asbestos, Mr. Moake caused his own injuries in whole or in part by his failure to take prudent steps to protect himself from exposure to harmful materials, that the sole responsibility of his current condition in relation to asbestos was his own negligence or, alternatively, the negligence of his various employers, for which he worked over the years and which were obligated to protect him from excessive exposure to asbestos-containing materials. Furthermore, as a salesman of asbestos containing materials and later as an executive with an insulation and asbestos remediation company (Thorpe Insulation), even before this defendant purchased the facility in question, Mr. Moake, his employer and his suppliers were all in the best position to know the level of his exposure, if any. to asbestos, and the hazards of asbestos containing material. Later, after this defendant purchased the refinery from the prior owners in 1981, it was Mr. Moakes's employer, Thorpe Insulation, which represented to customers like Koch that it was a sophisticated company which could perform asbestos remediation work in compliance with applicable governmental safety and health regulations, thereby protecting its workers from harmful exposures to asbestos containing materials. This Defendant also asserts that no vice principal of Koch was aware of any excessive asbestos exposure claimed by Plaintiff, and Koch denies that it committed any act of malice or negligence in connection with Plaintiff s alleged excessive exposure. Further, this defendant asserts that, pursuant to the contents of Chapter 95 of the Texas Civil Practice and Remedies Code, it is entitled to a favorable judgment for the reason that Plaintiff cannot demonstrate that this defendant retained control of the details of Plaintiffs work, or that it had actual awareness that the Plaintiff was being exposed to excessive quantities of asbestos while working on this defendant's premises and that this excess exposure was the cause of his disease. This defendant asserts that it is entitled to a credit for all settlements paid by other defendants to or on behalf of Plaintiffs, and that all Plaintiffs' claims are legally barred by the statute of limitations or latches, because Mr. Moake and his spouse knew that he had an asbestos related disease as early as 1990, when he sued a number of asbestos product manufacturers. (e) The name, address and telephone number of each individual having knowledge of facts relevant to this lawsuit and a brief statement as to how each such individual is connected to this case; ~~ RESPONSE: . . .T Marc K. Powell 8200 San Diego Li Odessa. Texas 19165 Industrial Hygiene and Safety Department G: 5220-19'Discovery rsp(amd) to req tor discl.wpd Page 2 Jonathan M. Haas 1765 Preserve Point Terrace Orange Park, Florida 32073 7 (904)264-7939 Industrial Hygiene and Safety Department J. L. Laird 7545 Sweetwind Circle Boerne. Texas 78004 830-981-5106 7 Mr. Laird is a former employee of Sun and Koch who has knowledge of refinery operations in Corpus Christi. the relationship between those companies and independent contractors, such as Thorpe Insulation, and related information. Leland Glasgow 5302 Wentworth Corpus Christi. Texas 78401 361-993-4569 I. Mr. Glasgow is a former employee of Sun and Koch who has knowledge of refinery operations in Corpus Christi, the relationship between those companies and independent contractors, such as Thorpe Insulation, and related information. Tom Hayes P. O. Box 260910 Corpus Christi, Texas 78426 Mr. Hayes is a former employee of Sun and Koch who has knowledge of refinery operations in Corpus Christi, the relationship between those companies and independent contractors, such as Thorpe Insulation, and related information. John Kampfhenkel 1308 Circle Lane Bedford. Texas 76022 817-685-8476 _ 7 Former employee of Sun with knowledge of refining operations and environmental engineering. N. M. Clements 14837 Quaterdeck Drive Corpus Christi, Texas ' (361)949-0167 "7 Former employee of Sun and Koch who worked as the plant nurse. G: 5220-19'Discovery rsp(amd) to req for disci.wpd Page 3 Robert E. Fleming Human Resources Department 9625 Paula Drive Corpus Christi. Texas (361) 241-7371 ~ Mr. Fleming is a former employee of Sun and Koch who has knowledge of refinery' operations in Corpus Christi, the relationship between those companies and independent contractors, such as Thorpe Insulation, and related information. R. C. (Roger) Reyes r Lead Refinery Project Engineer -- 4802 Eider Drive Corpus Christi, Texas 78413 __ Mr. Reyes is a former employee of Sun and Koch who has knowledge of refinery operations in Corpus Christi, the relationship between those companies and independent contractors, such as Thorpe Insulation, and related information. James Hershel Alston Senior Project Engineer 114 Sharon Drive Boerne, Texas 78006 (830) 249-6209 Mr. Alston is a former employee ofSun and Koch who has knowledge of refinery operations in Corpus Christi, the relationship between those companies and independent contractors, such as Thorpe Insulation, and related information. R. E. Martiello Safety Engineer and Fire Chief 11101 Leopard Box 1035 Corpus Christi, Texas 78401 (361)241-8331 Mr. Martiello is a former employee of Sun and Koch who has knowledge of refinery operations in Corpus Christi. the relationship between those companies and independent contractors, such as Thorpe Insulation, and related information. H. H. Schaefer Route 2. Box 152 Alice, Texas 78332 (361)664-1201 G: 5220-19 Discovery rsp(armi) to req tor discl.wpd Page 4 Mr. Schaefer is a former employee of Sun and Koch who has knowledge of refinery operations in Corpus Christi, the relationship between those companies and independent contractors, such as Thorpe Insulation, and related information. Patti Carre11 Koch Petroleum Group P.O.Box 2608' Corpus Christi, TX 78403 361-241-4811 7 Ms. Carrell is an employee of Koch with knowledge of purchasing. Willis Jernigan Koch Petroleum Group P. O. Box 2608 Corpus Christi, TX 78403 361-241-4811 Mr. Jernigan is an employee of Koch with knowledge of safety and health policies. Dan Shisler Koch Industries, Inc. P.O.Box 2256 Wichita, Kansas 67201 316-828-5026 2 Mr. Shisler is an employee of Koch with knowledge of claims and insurance. Gary Carriger Koch Industries, Inc. P.O.Box 2256 Wichita. Kansas 67201 316-828-5026 Mr. Carriger is an employee of Koch with knowledge of records retention and availability at the Corpus Christi facility. H. Allan Caldwell Koch Industries, Inc. P. O. Box 2256 Wichita, Kansas 67201 316-828-5026 I . Mr. Caldwell is an attorney employee of Koch with knowledge of the terms of the purchase of the refinery in question. G: 5220-10'DiscoveryTsp(amd) to req for disci.vvpd Page 5 ;jBiaflBi;A,JiililllLi^,ai:j Walter Greer Koch Petroleum Group P. O. Box 2608 Corpus Christi. TX 78403 361-241-481 1 Mr. Greer is an employee of Koch who works as an industrial hygienist at the refinery in question. Phillip Nessler 507 Bora Bora Galveston. Texas 77554 (409) 938-8366 2 -- Mr. Nessler may testify regarding the content and application of certain OSHA regulations and any related worker safety, compliance or corporate/industry practice issues. Sharon M. D'Orsie, Ph.D. Eagle Environmental Health, Inc. 2600 Southwest Freeway, #810 Houston, TX 77098-4614 713-523-2453 . Dr. D'Orsie will testify in the field of industrial hygiene and the state-of-the-art knowledge as it existed from time to time relating to the health effects of asbestos exposure. Francis W. Weir, Ph.D. 8131 Wycomb Drive Houston, Texas 77070 (713)893-4003 Dr. Weir is an expert industrial hygienist and toxicologist who may testify generally, among other related subjects, on the subjects of toxicology and industrial hygiene as they relate to asbestos; dose response characteristics of asbestos and similar dust; the state of knowledge (or state of the art) among scientists, doctors and industry about the effects of asbestos on humans as it has developed in the last one hundred years; the American Congress of Industrial Hygiene standards, the OSHA standards and similar standards, together with changes therein and reasons for such changes over the years: the effects of cigarette smoking on the human body; the links between asbestos and disease and the causal nexus between any asbestos exposure and the complaints and/or diseases of which Plaintiffs complain in this case; industrial hygiene practices during the relevant time periods relating to asbestos in refinery and similar environments; dose response as related to asbestos exposure; the placement of responsibility for worker safety upon employers by OSHA and similar workplace safety standards: the practices and marketing efforts of manufacturers of asbestos products over the years: the specific safety practices of defendants at their various facilities during the applicable time and the adequacy thereof; other possible causes of any disability or condition claimed by Plaintiffs: and G: .5220-19'Discovery rsp(amd) to req for disci.wpd Page o whether and to what extent Plaintiffs' risk of cancer has been increased by any possible exposure to asbestos at any location. (f) The following information regarding testifying experts: 1. name, address and telephone number; 2. the subject matter of the expert's testimony; 3. the general substance of the expert's mental impressions and opinions, a brief summary of the basis for such opinions or if the expert is not retained by you or otherwise subject to your control, all documents reflecting the experts' impressions, opinions and the basis therefor. 4. For each expert employed or otherwise controlled by you, produce: (A) all documents, tangible things, reports, models, or data compilations provided to, reviewed by, or prepared by or for each expert in anticipation of such expert's testimony; and (B) each expert's resume and bibliography. RESPONSE: See the attached separate expert designation filed by this defendant, which is made a part hereof for all purposes. The defendant further adopts by reference all designations of experts made by the plaintiffs and all co-defendants, and. without endorsing oradopting the opinions of such experts or acknowledging their qualification to testify on the subjects for which they are designated, reserves the right and privilege to call each such expert to testify during the presentation of its case. (g) Any discoverable indemnity and insuring agreements; RESPONSE: This defendant is attempting to locate any applicable contracts with Thorpe Insulation, and will make any such contract(s) and associated documents which are located an exhibit in this case. These will be among the documents available for inspection at the offices of the undersigned. (h) The existence, contents and a copy of any settlement agreement in this case: RESPONSE: None available to this defendant.. (i) A copy of any witness statements; RESPONSE: None. G; 5220-19'Discovery rsp(amd) to req tor disci.wpd Page 7 (k) all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party. RESPONSE: Any such records will be made available or confirmed to be in the possession of Plaintiff prior to trial. Respectfully submitted, "1 WERNER & KERRIGAN, L.L.P. Philip Werner State Bar No. 21190200 1300 Post Oak Blvd., #2225 Houston, TX 77056 Telephone: 713-626-2233 Facsimile: 713-626-9708 Counsel for defendant, Koch Petroleum Group. L.P.. improperly designated as '`Koch Refining Company (individually & successor to Suntide Refining Company)" CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been forwarded by certified mail, return receipt requested, to Plaintiffs counsel listed below, and by U.S. First Class Mail to all known defense counsel of record on this 18th day of September, 2000: Holly J. W. Huart Stephanie Finch Baron & Budd, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, Texas 75219 G:'5220-19 Discovery\rsp(amd) to req tor disci.wpd Paae $ KaagaBMiiililglttaliMiil a i m msilltlijisliffiij WELDON R. MOAKE, et al VS. OWENS-CORNING FIBERGLASS CORPORATION (a/k/a OWENS CORNING CORPORATION); et al NO. 90G2055 IN THE DISTRICT COURT OF BRAZORIA COUNTY, TEXAS 239th JUDICIAL DISTRICT DEFENDANT KOCH PETROLEUM GROUP, L.P.'S DESIGNATION OF EXPERT WITNESSES COMES NOW, Defendant, Koch Petroleum Group, L.P., improperly designated as "Koch Refining Company (individually & successor to Suntide Refining Company and Sun Company, Inc.)," (hereinafter referred to as "Defendant"), and files the following Designation of Expert Witnesses: Phillip Nessler 507 Bora Bora Galveston, Texas 77554 (409)938-8366 Mr. Nessler may testify regarding the content and application of certain OSHA regulations and any related worker safety, compliance or corporate/industry practice issues. Sharon M. D'Orsie, Ph.D. Eagle Environmental Health, Inc. 2600 Southwest Freeway, #810 Houston, TX 77098-4614 713-523-2453 Dr. D'Orsie will testify in the field of industrial hygiene and the state-of-the-art knowledge as it existed from time to time relating to the health effects of asbestos exposure. Francis W. Weir, Ph.D. 8131 Wycomb Drive Houston, Texas 77070 (713) 893-4003 1 Dr. Weir is an expert industrial hygienist and toxicologist who may testify generally, among other related subjects, on the subjects of toxicology and industrial hygiene as they relate to asbestos; dose G:\5220-l9\Discovery\designation of experts, wpd Page 1 response characteristics of asbestos and similar dust; the state of knowledge (or state of the art) among scientists, doctors and industry about the effects of asbestos on humans as it has developed in the last one hundred years; the American Congress of Industrial Hygiene standards, the OSHA standards and similar standards, together with changes therein and reasons for such changes over the years; the effects of cigarette smoking on the human body; the links between asbestos and disease and the causal nexus between any asbestos exposure and the complaints and/or diseases of which Plaintiffs complain in this case; industrial hygiene practices during the relevant time periods relating to asbestos in refinery and similar environments; dose response as related to asbestos exposure; the placement ofresponsibility for worker safety upon employers by OSHA and similar workplace safety standards; the practices and marketing efforts ofmanufacturers of asbestos products over the years; the specific safety practices of defendants at their various facilities during the applicable time and the adequacy thereof; other possible causes of any disability or condition claimed by Plaintiffs; and whether and to what extent Plaintiffs' risk of cancer has been increased by any possible exposure to asbestos at any location. The above-designated witnesses may also give testimony about the historical "state-of-the- art," the development of medical knowledge about asbestos, and presence or absence of medical consequences relating to low dose exposure to asbestos emanating from asbestos-containing products. They may offer general testimony relating to the development of asbestos-related diseases, cigarette smoking, cancer of various organs, pneumonia, chronic obstructive lung disease, the pathology of cigarettes and asbestos, the pathogenesis of cigarette-related diseases, and the pathogenesis of asbestos-related diseases. These witnesses may also testify generally about specific abnormalities that might be in the plaintiffs' medical. These witnesses may also testify about the presence or absence of health disease or health risks associated with exposure to low levels of asbestos emanating from asbestos-containing products. They may also testify specifically about diseases, such as chronic obstructive pulmonary disease, even though in some cases they may not have seen plaintiffs, or reviewed medical records of the plaintiffs. While Plaintiffs have neither tendered testifying experts for deposition nor have they produced written reports from any such experts, upon receipt of such deposition or report, this defendant reserves the right to designate responsive experts not heretofore designated. Defendant will supplement with further information in this regard, once Plaintiffs have produced such GA5220-19\Discovery\designation of experts, wpd Page 2 information regarding their testifying experts to this Defendant, as is permitted under the Texas Rules of Civil Procedure. Defendant reserves the right to supplement its expert witness disclosure, and supplements thereto, once Plaintiffs disclose the identity of their experts and the nature of each of their expert witness' testimony. Defendant cross-designates any and ail expert witnesses of any party to this lawsuit, including, without limitation, the following: Mark R. Wick, M.D., Pathologist 301 Peacock Drive Charlottesville, Virginia 22903-9716 (Dr. Wick's report was previously provided to Plaintiffs by Defendant Exxon Mobil Corporation.). Defendant reserves the right to call any and all expert witnesses designated by any Defendant in this case. Defendant reserves by designation the right and privilege to call to testify the experts which may in the future be designated by Plaintiffs and/or other defendants, but without necessarily adopting or endorsing any of their opinions, and without waiving Defendant's right to challenge Plaintiffs' experts on any issues, including without limitation qualifications, conclusions and opinions. Further, Defendant reserves the right to cross-examine Plaintiffs' expert witnesses and reserve the right to use Plaintiffs' experts' documents in the cross-examination of Plaintiffs' experts and direct examination of experts. Defendant cross-designates those experts designated by Plaintiffs; however, nothing in this cross-designation implies or requires that this Defendant has in any way adopted the testimony of Plaintiffs' experts. Defendant further reserves the right to call undesignated expert witnesses in rebuttal, whose identities and testimony cannot reasonably be foreseen until Plaintiffs' named experts have written reports in this case and/or have presented evidence at trial. G:\5220-19\Discovery\designation of experts,wpd Page 3 Defendant reserves the right to withdraw the designation of expert witnesses and aver positively that any such previously designated expert will not be called as an expert witness at trial, and to re-designate same as consulting expert who cannot be called by opposing counsel. Defendant reserves whatever additional rights they may have with regard to experts, pursuant to the Texas Rules of Civil Procedure, the Texas Rules of Civil Evidence, this Court's ruling concerning designation of experts in case-in-chief and rebuttal, and other laws of the state. Respectfully submitted, WERNER & KERRIGAN, L.L.P. State Bar No. 21190200 1300 Post Oak Blvd., #2225 Houston, TX 77056 Telephone: 713-626-2233 Facsimile: 713-626-9708 Counsel for defendant, Koch Petroleum Group, L.P., improperly designated as "Koch Refining Company (individually & successor to Suntide Refining Company and Sun Company, Inc.)" CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served upon all known counsel of record by telecopy, hand delivery, certified mail, return receipt requested, and/or U.S. First Class Mail on this the 15th day of September, 2000. G:V5220-19\Discovery\designation of experts, wpd Page 4