In re All Asbestos Litigation ( 2008 )

FOURTH DIVISION
OCTOBER 16, 2008
Nos. 1-06-2163 and 1-06-2691 (Consolidated)
In re ALL ASBESTOS LITIGATION ) Appeal from the
--------------------------------------------------------------------- ) Circuit Court of
(Cooney and Conway, ) Cook County.
Plaintiff-Appellee, )
)
v. )
)
Lisa A. LaConte, as Counsel for )
Defendant Warren Pumps, LLC; and )
Christopher P. Larson, as Counsel for ) Honorable
Defendant Riley Stoker Corporation, ) William D. Maddux,
Contemnors-Appellants). ) Judge Presiding.
MODIFIED OPINION ON DENIAL OF REHEARING
JUSTICE CAMPBELL delivered the opinion of the court:
This consolidated appeal involves a discovery dispute arising out of ongoing consolidated
Cook County litigation entitled: In re: All Asbestos Litigation.1 The law firm Cooney and
Conway (C & C) represents multiple individuals who claim that they contracted various forms of
fatal cancer as a result of exposure to asbestos up to 40 years ago. On behalf of these plaintiffs,
C & C sued defendants Warren Pumps, LLC, a manufacturer of industrial pumps, and Riley
Stoker, a designer and manufacturer of steam generator boilers and fuel-firing equipment.2
1
"Asbestos litigation is the longest-running mass tort in United States history." Rand
Institute for Civil Justice, Asbestos Litigation Costs and Compensation, An Interim Report
(2002).
2
Riley Stoker dismissed its appeal prior to oral argument. This opinion concerns only the
appeal of Warren Pumps.
1-06-2163 and 1-06-2691 (Consolidated)
C & C served discovery requests upon Warren Pumps requesting product sales informa-
tion covering a 38-year period. Warren Pumps complied with the discovery requests. C & C
then served Warren Pumps with a motion to compel additional discovery. Lisa A. LaConte
(LaConte), attorney for Warren Pumps, refused to comply with the motion. The trial court
granted C & C's motion to compel discovery and entered an order of "friendly contempt," citing
LaConte $1.
On appeal, LaConte contends that the trial court erred in compelling discovery covering a
nearly 40-year period when C & C did not allege that any specific plaintiff was exposed to or
harmed by the products manufactured or sold by Warren Pumps any specific location in Illinois.
For the following reasons, we reverse, vacate the two orders of the trial court compelling
production and finding LaConte in contempt, and remand this matter for further proceedings
consistent with this opinion.
BACKGROUND
According to C & C, Cook County asbestos plaintiffs are typically union journeymen
tradesmen who worked at numerous commercial and industrial jobsites over the course of their
careers. All Cook County asbestos cases are consolidated into a special, segregated calendar
called, as noted above, In re: All Asbestos Litigation. Under a 1985 Cook County circuit court
case management order, asbestos defendants are required to produce records of sales of asbestos-
containing products in Illinois. Consolidated discovery includes master interrogatories and
requests to produce. All defendants named in Cook County asbestos litigation are required to
answer discovery requests one time only.
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1-06-2163 and 1-06-2691 (Consolidated)
Master discovery requests apply to thousands of cases and have a broader scope than
requests generated in individual, non-asbestos law division cases.
On February 27, 2006, C & C filed a motion to compel Warren Pumps to produce all
invoices, records, purchase orders, receipts, specifications, bills of lading, sales memoranda,
business records correspondence, publications, sales brochures, manuals, instruction sheets or
any other documents concerning the sales of Warren Pumps' products to any person or entity in
the State of Illinois, as well as documents indicating knowledge of hazards relating to asbestos
fibers or asbestine particles, from 1948 through 1986.
LaConte filed a response stating that Warren Pumps previously provided copies of its
answers to interrogatories and response to request for production to C & C on October 25, 2005.
LaConte later provided C & C additional copies of the discovery responses it filed in October
2005, and supplemented Warren Pumps' original response with documents relating to pumps sold
to specific jobsites at issue in the cases set for trial in 2006.
LaConte also submitted the affidavit of Roland Doktor, a Warren Pumps manager and
employee since 1978. Doktor averred that Warren Pumps' records were not maintained in a
manner that allowed them to be searched by geographic region; records for the State of Illinois
were not segregated but, rather, kept according to the customers who purchased products.
C & C did not file any written reply to Warren Pumps' response.
On May 3, 2006, the trial court entered an order granting C & C's motion to compel
Warren Pumps to respond to C & C's request for production. Warren Pumps objected and moved
for reconsideration or, in the alternative, immediate interlocutory appeal under Supreme Court
Rule 308(b) (155 Ill.2d 308(b)).
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1-06-2163 and 1-06-2691 (Consolidated)
On June 13, 2006, the trial court entered an order denying Warren Pumps' combined
motion.
On July 7, 2006, LaConte filed a motion advising the trial court that Warren Pumps was
unable to comply with the court's order of May 3, 2006. LaConte explained that although the
court required the production of sales records in all 102 Illinois counties, Warren Pumps
undisputedly did not provide its product to any jobsites listed in any of the 193 Illinois
complaints filed by C & C that named Warren Pumps as a defendant. LaConte again explained
that Warren Pumps supplemented master discovery and identified 13 additional cases where it
was reasonable to expect that a plaintiff or witness would testify about working with pumps
manufactured by Warren Pumps. LaConte stated that the trial court's order extended far beyond
Warren Pumps' good-faith attempt to comply with discovery, respectfully advised the trial court
that it would not comply with further discovery, and requested a finding of friendly contempt
and/or interlocutory appeal. C & C filed no response.
On July 11, 2006, the trial court entered an order finding friendly contempt against
LaConte based on her advice to the court that Warren Pumps was unable to and refused to
comply further with the order of May 3, 2006. The trial court imposed a fine of $1 as a sanction.
LaConte filed a timely notice of appeal on July 25, 2006, pursuant to Rule 304(b)(5) (155 Ill. 2d.
R. 304(b)(5)).
OPINION
On appeal, LaConte contends that C & C's motion to compel discovery was overbroad in
that C & C did not allege that any specific plaintiff was exposed to or harmed by Warren Pumps'
products in any specific location. LaConte asserted that a manufacturer may not be compelled to
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1-06-2163 and 1-06-2691 (Consolidated)
produce all records pertaining to all products sold in the State of Illinois over a nearly 40-year
period.
Supreme Court Rule 201(b)(1) provides that a party may obtain full disclosure of any
matter "relevant to the subject matter involved in the pending action." 166 Ill. 2d R. 201(b)(1).
Likewise, under Supreme Court Rule 214, any party may direct a written request to any other
party to produce documents, etc. "relevant to the subject matter of the action." 166 Ill. 2d R. 214.
In line with supreme court rules, the right of discovery is traditionally limited to
disclosure of matters relevant to the case at issue. In order to protect against abuses and
unfairness, a court should deny discovery requests when there is insufficient evidence that the
requested discovery is relevant or will lead to such evidence. Leeson v. State Farm Mutual
Automobile Insurance Co, 190 Ill. App. 3d 359, 366, 546 N.E.2d 782 (1989).
LaConte agues that C & C failed to demonstrate that its discovery request is relevant to
any particular case pending against Warren Pumps in Cook County. Out of the 193 cases where
Warren Pumps is a named defendant, C & C's complaints show a total of 1,444 separate jobsites
or locations for which there is merely a blanket allegation of exposure to asbestos. Out of these
1,444 jobsites, 1,160 jobsites are located in Illinois. LaConte argues that C & C's motion to
compel production effectively forces Warren Pumps to search its records for possible sales
pumps in all 102 counties in Illinois and to produce these documents despite the fact that C & C
has alleged exposure in only 48 of the 102 counties.3 LaConte also notes that pumps are often
shipped to multiple locations after leaving the manufacturing plant and that Warren Pumps lacks
3
C & C lists only 17 counties with multiple jobsites; C & C lists no jobsites for 54 Illinois
counties.
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1-06-2163 and 1-06-2691 (Consolidated)
the financial and manpower resources to track 17,000 manufacturers in Illinois to determine
whether its pumps were rerouted to different geographic locations. LaConte asserts that Warren
Pumps is capable of searching for pumps at particular sites based only on the name of the
customer at the time of purchase.
LaConte characterizes C & C's requests as an improper fishing expedition aimed not at
supporting existing claims but at finding new ones. In support, LaConte relies primarily on a
Texas asbestos case, In re Sears, Roebuck & Co., 123 SW.3d 573 (Tex. App. 2003). There, a
Michigan plaintiff suffering from mesothelioma sued Sears and 37 other defendants in Texas
alleging life-long asbestos exposure via his family plumbing business, his work as a plumber's
apprentice, and his career as a 24-year union plumber. The plaintiff listed 11 categories of
products made by 24 manufactures as potential culprits. Of those products, only two--Hobart
boilers and water heaters--were connected to Sears and the plaintiff's exposure to those products
would have occurred prior to his 24-year career as a union plumber doing commercial jobs.
Sears, 123 SW.3d at 574.
Two months before trial, the plaintiff served a discovery request on Sears requesting the
name, date of manufacture and sale and asbestos content of each product it sold or made
available for sale, including 200 items ranging from bath rugs and shower curtains to lawn
mowers and sewing machines. Sears objected; the plaintiff moved to compel production; and the
plaintiff died in the interim. The trial court overruled Sears' objections and compelled discovery
for the period 1940-78, omitting only mundane household items. Sears, 123 SW.3d at 575.
The Texas appeals court noted that the plaintiff identified only two Sears products as
potential sources of asbestos exposure, yet the trial court's order required production of far more.
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1-06-2163 and 1-06-2691 (Consolidated)
Recognizing the substantial obstacles faced by asbestos plaintiffs attempting to connect their
exposure to specific products, the appeals court nevertheless observed: "Fuerstenau's death from
an asbestos-related disease does not entitle his estate to recover money from all companies
selling asbestos products." Sears, 123 S.W.3d 579, citing Gaulding v. Celotex Corp., 772
S.W.2d 66 (Tex. 1989). The court reversed and remanded the case to the trial court, holding that
the trial court's order compelling Sears to comply with discovery was overbroad: "[D]iscovery
requests must be reasonably [related] to*** the case." See, In re Alford Chevrolet-Geo, 997
S.W.2d 173, 180 (Tex. 1999). The court concluded that the discovery requests could have been
more narrowly tailored. Sears, 123 S.W.3d at 579.
Although there is a dearth of authority in Illinois addressing the mechanics of discovery
in asbestos litigation, our courts generally hold that that wide, sweeping discovery requests are
considered an abuse of discretion. See, e.g., People ex rel. General Motors Corp. v. Bua, 37 Ill.
2d 180, 226 N.E.2d 6 (1967); Leeson, 190 Ill. App. 3d 359, 546 N.E.2d 782. In General Motors,
the plaintiff in a personal injury action sought production of all records relating to the Corvair
automobile for model years 1960 through 1965, notwithstanding the fact that the plaintiff's injury
involved only the 1961 Corvair model. In Leeson, the trial court compelled an independent
examining physician to produce 2,100 benefits claims submitted to a single medical office for an
unrelated case involving a single insurance claim. The treating physician testified that it would
take him 40 hours and cost $2,000 to $3,000 to photocopy the unrelated documents. This court
found the order vexatious and oppressive. Leeson, 190 Ill. App. 3d at 366.
C & C responds that the nature of the consolidated asbestos docket is unlike typical
discovery and, as such, requires a unique response. C & C balks at the notion that it is on a
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1-06-2163 and 1-06-2691 (Consolidated)
"fishing expedition," noting that merely identifying a defendant's product at a jobsite where a
plaintiff worked is insufficient to establish asbestos exposure. Naden v. Celotex Corp., 190 Ill.
App. 3d 410, 546 N.E.2d 766 (1989); Thacker v. U N R Industries, Inc., 151 Ill. 2d 343, 603
N.E.2d 449 (1992). C & C argues that because the asbestos litigation involves consolidated
discovery, the Cook County asbestos docket belies a case-by-case approach and that full
production of sales records is relevant to proving the material element of exposure to asbestos.
In support, C & C cites Pemberton v. Tieman, 117 Ill. App. 3d 502 , 453 N.E.2d 802
(1983), for the proposition that " '[r]elevancy is determined by reference to the issues, for
generally, something is relevant if it tends to prove or disprove something in issue.' " Pemberton,
117 Ill. App. 3d at 505, quoting Bauter v. Reding, 68 Ill. App. 3d 171, 175, 385 N.E.2d 886, 890
(1979). C & C distinguishes Leeson on the issue of relevancy, noting that Leeson sought
insurance coverage for medical bills in connection with a single automobile accident.
Warren Pumps points out, however, that case management order No. 18, which vacated
and superseded case management order No. 1, provides that discovery in the consolidated
asbestos litigation should be specific as to the case, the jobsite and the defendant:
"3. The standing schedule for pretrial activity on the
independent asbestos calendar shall be as follows:
a) Plaintiffs shall provide defendants with answers to
standard consolidated interrogatories in the form approved by this
Court not later than 270 days before trial. With respect to
witnesses expected to testify on issues of product exposure or
premises exposure, answers to interrogatories shall specify the
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1-06-2163 and 1-06-2691 (Consolidated)
defendant(s) against which the witness' testimony will be offered;
the product(s) about which the witness will testify; the job site(s)
about which the witness will testify; the time frame(s) about which
the witness will testify; whether the witness is represented by
counsel, and if so, the identity of counsel; and if not represented by
counsel, a current and accurate address for the witness." (Emphasis
added). Cook Co. Cir. Ct. Case Management Order No. 18 (eff.
March 19, 1997).
In light of the record, we find that C & C's discovery requests exceed the requirements of case
management order No. 18. Although the asbestos litigation is without a doubt complex and
distinct from the typical personal injury case, C & C's discovery request is overbroad and does
not comply with the discovery rules and related limitations provided in case management order
No. 18. We therefore vacate the trial court's order to compel discovery.
In light of our decision, we also vacate the citation of friendly contempt against LaConte.
LaConte's conduct in advocating for her client's position was neither contumacious nor did it
subject the court to disdain or scorn. See, e.g., Kraima v. Ausman, 365 Ill. App. 3d 530, 850
N.E.2d 840 (2006); Dufour v. Mobil Oil Corp., 301 Ill. App. 3d 156, 703 N.E.2d 448 (1998).
For the reasons stated herein, we reverse the judgment of the trial court compelling
Warren Pumps to produce excessive documentation. We vacate the order to compel, vacate the
friendly contempt citation entered against attorney LaConte, and remand this matter to the trial
court for further proceedings consistent with this opinion.
Reversed and vacated; cause remanded.
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1-06-2163 and 1-06-2691 (Consolidated)
O'BRIEN and MURPHY, JJ., concur.
10
DIGEST OF OPINION
In re ALL ASBESTOS LITIGATION
--------------------------------------------------------
CASE NAME: (Cooney and Conway,
Plaintiff-Appellee,
v.
Lisa A. LaConte, as Counsel for
Defendant Warren Pumps, LLC; and
Christopher P. Larson, as Counsel for
Defendant Riley Stoker Corporation,
Contemnors-Appellants).
1-06-2163)
FIRST 1-06-2691) (Cons.) CALVIN C. CAMPBELL JUNE 5, 2008
District Docket # Authoring Judge Date Filed
PANEL MEMBERS: O'BRIEN and MURPHY, JJ., concur.
SUMMARY:
This consolidated appeal involved a discovery dispute arising out of ongoing consolidated
Cook County Asbestos Litigation. The law firm Cooney and Conway (C & C) represented
multiple plaintiffs who claimed that they contracted various forms of fatal cancer as a result of
exposure to asbestos up to 40 years ago. On behalf of these plaintiffs, C & C sued Warren
Pumps, LLC, a manufacturer of industrial pumps, and served discovery requests upon Warren
Pumps requesting product sales information covering a 38-year period. Warren Pumps complied
with the discovery requests.
C & C then served Warren Pumps with a motion to compel additional discovery. Lisa A.
LaConte (LaConte), attorney for Warren Pumps, refused to comply with the motion. The trial
court granted C & C's motion to compel discovery and entered an order of "friendly contempt,"
citing LaConte $1. LaConte appealed, contending that the trial court erred in compelling
discovery covering a nearly 40-year period when C & C did not allege that any specific plaintiff
was exposed to or harmed by the products manufactured or sold by Warren Pumps any specific
location in Illinois.
On appeal, we held that the trial court's order was over broad under Supreme Court Rules
201(b)(1) and 214, which permit disclosure of "relevant" subject matter, and vexatious to Warren
Pumps under Illinois case law authority pertaining to discovery. C & C's blanket allegation of
plaintiffs' exposure to asbestos in 102 counties across Illinois was an improper fishing expedition
where Warren Pumps only operated job sites in 48 Counties. We reversed the trial court, vacated
the two orders compelling production and finding LaConte in contempt, and remand this matter
for further proceedings consistent with this opinion.
Reversed, vacated, remanded with instructions.
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
In re ALL ASBESTOS LITIGATION
--------------------------------------------------------
CASE NAME:
(Cooney and Conway,
Plaintiff-Appellee,
v.
Lisa A. LaConte, as Counsel for
Defendant Warren Pumps, LLC; and
Christopher P. Larson, as Counsel for
Defendant Riley Stoker Corporation,
Contemnors-Appellants).
Nos. 1-06-2163 and 1-06-2691 (Consolidated)
Appellate Court of Illinois
First District, Fourth Division
JUNE 5, 2008
JUSTICE CAMPBELL delivered the opinion of the court:
O'BRIEN and MURPHY, JJ., concur.
Appeal from the Circuit Court of Cook County.
The Honorable William D. Maddux, Judge Presiding.
For APPELLANT, Heyl, Royster, Voelker & Allen, of Peoria
(Karen L. Kendall, of counsel).
For APPELLEE, Cooney and Conway, of Chicago (Kathy Byrne, of counsel).