Document dQkMQ34QE1Nq67obp3m4j59yb

HOAGIAND I0N60 MO BAN, DONS! ft BOUKAS. IIP ATTO R NE Y S at LAW 40 Paterson Street New Brunswick, NJ 08901 Tel: (732) 545-4717 Fax: (732) 5454579 www.hoaglandlongo.com Daniel R. Kuszmerskt Associate dkuszmerski@hoaglandlongo.com December 31,2015 Leah Kagan, Esq. Simon Greenstone Panatier Bartlett, PC 3780 Kilroy Airport Way Suite 540 Long Beach, CA 90806 Re: Dalis, Valerie Jo vs. Whittaker Clark & Daniels Docket No.: MID-L-4821-I5 Dear Leah: In response to your good faith letter dated November 30, 2015, setting forth Whitaker, Clark & Daniels, Inc.'s ("WCD") alleged deficiencies to Plaintiffs Supplemental Interrogatories and Document Demands, please find the following Supplemental Interrogatories: S5. Defendant WCD's response is non-responsive. Plaintiffs have requested that Defendant WCD identify the mine and mill sources from which WCD obtained, purchased, and/or received talc it sold, supplied, and/or distributed to Colgate/Mennen between 1946 and 1996. Defendant WCD has stated that it is still investigating this request. Pursuant to R. 4:17-7 and R. 4:18-1, Defendant WCD has a continuing obligation to provide a response to this Interrogatory. Moreover, Defendant WCD is aware of the talc codes/grade supplied to Colgate/Mennen during this time period and as such is aware of the mine/mill sources of those grades. Indeed, WCD has provided similar information in both discovery responses and testimony of its representatives in previous matters, including but not limited to Argento, Fishbain, Gilvin, Kaenzig, and Keller. Accordingly, Defendant WCD is aware of what mines/mills correlate to the talc codes already provided in this case and is obligated to provide a specific response to this Interrogatory. Response: Supplemental interrogatory number 5 was limited only to Colgate. As previously responded in supplemental interrogatory 3, the only talc and/or talc-containing products ever sold and/or distributed to Colgate-Palmolive was talc Product Nos. 1629,3351 and 123. Product No. 1629 was a blend of two ores, one from Pfizer in Montana and one from Australia. Product No. 3351 used ore from China. Product No. 123, which was supplied to Colgate, was an ore from Pfizer in Montana. S8. Defendant WCD's response identifies a number of deposition and trial transcripts. Please produce the following transcripts: Michael C. Argyelan (August 23, 2000 in New Castle County, DE), Dennis St. George (November 6, 2008 in Gerber - New York), Dennis St. George (February 4, 2009, March 6, 2009, and March 20, 2009 in Scarduzio -'Illinois), Dennis St. George (December 3, 2013 in Cirkles - Illinois), PLAINTIFFS E X H IB IT WCD-309 Page 2 Dennis St. George (August 10, 2010 in Bemie - PA), and Theodore Hubbard (August 28, 2015 in Kangas). Response: Defendant WCD is not deficient in its response to the interrogatory as requested, as no production was asked for. Plaintiff is seeking a notice to produce, out of time and without leave of court, for additional materials. However, without waiving any objections please see the attached transcripts. S9. Defendant WCD's response is inaccurate and incomplete. Defendant WCD claims to have "no records of any current or former employee suffering from asbestosis, talcosis, lung cancer, or mesothelioma." Defendant WCD has admitted, in court, under oath, that there is at least one Workers Compensation claim filed against WCD for lung cancer. Plaintiffs demand a full, complete, and truthful response to this Interrogatory. Response: Defendant WCD disagrees with Plaintiffs counsel's recitation of the testimony provided by this Defendant, which was neither cited nor provided. Regardless, this Defendant again responds that it has no knowledge of any current or former employee who has suffered or is suffering from asbestosis, talcosis, lung cancer or mesothelioma. Document Demands: 7. Defendant WCD is not permitted to unilaterally limit the scope of any discovery demand. Pursuant to R. 4:18-l(b)(2), the "burden is placed on the party on whom the demand was served to seek the aid of the court if relief from the demand or its time constraints is required." Indeed, Defendant WCD is not permitted simply to redraft Plaintiffs' demands to fit whatever response WCD has chosen to provide. Therefore, Plaintiffs demand a full and complete response to this demand as it was phrased by Plaintiffs. Response: Without waiving any objection, nor commenting on Plaintiffs legal theories, in addition to the previously provided responses, see attached documents. 11. Defendant WCD states it has no documents responsive to this demand which requests maps, geological surveys, studies, photographs, and diagrams depicting the mines and mills from which WCD obtained the talc it sold, supplied, delivered, or distributed to Colgate/Mennen. Defendant WCD's response is in direct contradiction to its response to Supplemental Interrogatory S5 in which WCD states it is still investigating the mine and mill sources. How can WCD know it has no documents responsive to this request if it is still investigating the mines and mills which are the subject of this request? Pursuant to Defendant WCD's continuing obligation under R. 4:17-7 and 4.18:-1, Plaintiffs demand a full, complete, and accurate response to this demand. Response: After further investigation, WCD has no documents responsive to this request. As with all requests, WCD is aware of it continuing obligations pursuant to the Court Rules. Page 3 15. Defendant WCD's response is inaccurate and incomplete. Defendant WCD claims to have no documents responsive to this demand which requests all records, results, analysis, correspondence, summaries, data, bench sheets, XRD curves, photomicrographs, SAED patterns, reports, charts, files or materials and other documents relating to the testing and/or analysis for asbestos of talc and/or talccontaining products WCD sold, distributed, supplied, and/or retailed to Colgate/Mennen between 1946 and 1996. Plaintiffs are aware, as is WCD, that WCD does indeed possess records, results, correspondence, data, XRD curves, files and other documents relating to testing and/or analysis for asbestos of the talc WCD sold to Colgate/Mennen because WCD has produced some of this information in prior litigation. Indeed, WCD possess, and plaintiffs demand WCD produce, the complete testing files for grades 1615, 4609, 5141, 4619, 1629, 2450, 3351, 3355, 3455, 3464, 1709, 123, and 1629, all of which have been identified as being sold by WCD to Colgate/Mennen. Response: Plaintiffs request no. 15 was limited only to Colgate. Attached please find any responsive documents this defendant has as to product nos. 1629,3351 and 123. 21. Defendant WCD's response is deficient and does not comply with R. 4:18-1. Defendant WCD is not permitted to unilaterally limit the scope of any discovery demand. Pursuant to R. 4:18-1(b)(2), the "burden is placed on the party on whom the demand was served to seek the aid of the court if relief from the demand or its time constraints is required." Indeed, Defendant WCD is not permitted simply to redraft Plaintiffs' demands to fit whatever response WCD has chosen to provide. Whether WCD was or was not the manufacturer or the finished products Plaintiff Valerie Jo Dalis was exposed to have no bearing on Plaintiffs' demand or WCD's liability. WCD is certainly aware that as a distributor of the talc to the manufacturer of the finished product which Mrs. Dalis was exposed to, WCD is equally responsible for any defects in that product which caused Mrs. Dalis' injuries. Accordingly, Plaintiffs demand a full and complete response to this demand as it was phrased by Plaintiffs. Response: Without waiving any objection, nor commenting on Plaintiffs legal theories, in addition to the previously provided responses, see attached documents. 22, Defendant WCD's response is deficient and does not comply with R. 4:18-1. Pursuant to R. 4:18- 1(b)(2), the "burden is placed on the party on whom the demand was served to seek the aid of the court if relief from the demand or its time constraints is required." Indeed, Defendant WCD is not permitted to simply deem a request irrelevant and not respond. Moreover, as Defendant WCD is aware, Workers Compensation records are not protected by attorney-client privilege or the attorney work product doctrine. This Court, including the Honorable Ann McCormick, Honorable Vincent LeBlon, and most recently the Honorable Ana Viscomi, have all ruled consistently that Workers Compensation records are discoverable and shall be produced. Further, Defendant WCD's claim that no such records exist is inaccurate in light of WCD's own admission during the Kaenzig trial specifically identifying at least one Workers Compensation claim involving lung cancer. Plaintiffs demand a full and complete response to this demand. . Response: Defendant's response is not deficient. This Defendant did not deem this request irrelevant, nor did it not respond. Defendant disagrees with Plaintiffs counsel's recitation of the testimony provided by this Defendant, which was neither cited nor provided. Notwithstanding the same, this Defendant Page 4 does not have any documents responsive to this request. Please see this Defendant's previous response. 26. Defendant WCD's response is in direct contradiction to admissions made by WCD in Court under oath in the Kaenzig and Fishbain matters regarding the relationship between WCD and MPSI/Brenntag. Accordingly, Plaintiffs demand Defendant WCD provide a full and complete response and all documents responsive to this demand. Response; Defendant disagrees with Plaintiffs counsel's recitation of the testimony provided by this Defendant, which was neither cited nor provided. Therequest was for documents, files or materials related to the relationship between MPSI and Brenntag NA. This Defendant is neither, nor has it ever been, MPSI nor Brenntag NA. As such it has no documents responsive to this request. 27. Defendant WCD's response is in direct contradiction to admissions made by WCD in Court under oath in the Kaenzig and Fishbain matters regarding the relationship between WCD and MPSI/Brenntag. Accordingly, Plaintiffs demand Defendant WCD provide a full and complete response and all documents responsive to this demand. Response: Defendant disagrees with Plaintiffs counsel's recitation of the testimony provided by this Defendant, which was neither cited nor provided. Therequest was for documents, files or materials related to the relationship between MPSI and Brenntag S. This Defendant is neither, nor has it ever been, MPSI nor Brenntag S. As such it has no documents responsive to this request. 28. Defendant WCD's response is deficient and objections misplaced. Pursuant to R. 4:18-l(b)(2), the "burden is placed on the party on whom the demand was served'to seek the aid of the court if relief from the demand or its time constraints is required," Defendant is not permitted to object and refuse to provide a response simply because Defendant believes Plaintiffs' demand is objectionable. More importantly, Defendant WCD's objections to confidential financial information is utterly inaccurate. Indeed, the cases cited by WCD speak only to discovery of income tax returns and do not prevent the discovery of the returns but govern what is discoverable within the returns. Plaintiffs' demand seeks all documents, files or materials related to WCD's profits and financial condition. Indeed, Herman, and Harmon reaffirm Plaintiffs' right to confidential financial information. If Defendant WCD believes that Plaintiffs' request invades confidential financial information, WCD is obligated to seek a protective order. WCD is not permitted to just not comply with discovery. Moreover, any claim of privileged must be accompanied by a privilege log describing the nature of the information and documents being withheld in order to "enable other parties to assess the applicability of the privilege or protection" pursuant to R. 4:10-2. Accordingly, Plaintiffs demand Defendant WCD provide a full and complete response and all documents responsive to this demand, including a privilege log in compliance with R. 4:10-2 or that WCD immediately move for a protective order. Response: This Defendant stands by its previous response. See also, this Defendant's Opposition Filed on December 23,2015, pursuant to the Recommendation filed by the Court on December 18,2015. Page 5 Should you have any questions and/or comments regarding this matter or any other, please feel free to contact our office at your convenience. Have a Happy New Year! Very truly yours, DRK:m Enclosures DANIEL R. KUSZMERSKI