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Lepore v. A.O. Smith Corp.

Superior Court of Rhode Island

May 23, 2014

LEONARD L. LEPORE and CAROL A. LEPORE
v.
A.O. SMITH CORP., et al.

Providence County Superior Court

ATTORNEYS:

For Plaintiff: Robert J. McConnell, Esq., Donald A. Migliori, Esq. Vincent L. Greene, Esq.

For Defendant: Mark P. Dolan, Esq.

DECISION

GIBNEY, P. J.

Carol A. Lepore (Plaintiff) and her late husband, Leonard L. Lepore (Lepore), filed this asbestos-related negligence claim against a number of defendants, including Rhode Island Hospital and Miriam Hospital (Defendants or the Hospitals). Before the Court is Plaintiff's Motion for Permission to Propound Interrogatories in Excess of Thirty, pursuant to Super. R. Civ. P. 33(b) (Rule 33(b)), and Plaintiff's Motions to Compel Further Discovery Responses from Defendants, pursuant to Super. R. Civ. P. 37(a)(2). Defendants object to each of Plaintiff's motions. For the reasons below, Plaintiff's Motion for Permission to Propound Interrogatories in Excess of Thirty and Motions to Compel Further Discovery Responses from Defendants are granted, subject to the limitations outlined herein.

I

Facts and Travel

During the 1960s and 1970s, Lepore was a sheet metal worker with Felix Weigand & Son. As part of his job, he removed and installed ductwork at various buildings on the Hospitals' campuses on a number of occasions throughout the 1960s and 1970s. During this time, Lepore was not employed by Defendants directly; rather, he worked as a subcontractor hired by the general contractors that Defendants hired directly. Plaintiff alleges that while Lepore was working at the Hospitals, he was exposed to asbestos from insulation in the walls and ceilings of Defendants' buildings, as well as from products that other workers hired by Defendants brought into Lepore's work area. Plaintiff further claims that, as a result of this asbestos exposure, Lepore contracted malignant mesothelioma, from which he died in late 2012.

Accordingly, Plaintiff asserts a premises liability claim against Defendants, asserting that they owed Lepore a duty to provide him with a safe work environment and that they breached that duty by failing to either provide Lepore with safety devices that would have protected him from inhaling asbestos fibers or warn him of the existence of asbestos in their buildings. In a January 15, 2014 Decision denying Defendants' motion for summary judgment in this case, this Court noted that in order to satisfy her burden of proof on her premises liability claim, Plaintiff must show, inter alia, that Defendants knew or reasonably should have known of the existence of asbestos on their properties in the areas where Lepore worked and that Defendants knew or reasonably should have known that exposure to asbestos could be hazardous to human health. See Lepore v. A.O. Smith Corp., No. PC-12-1469, Jan. 15, 2014, Gibney, P.J.

In an effort to make this evidentiary showing, Plaintiff has propounded numerous discovery requests seeking to determine whether and when Defendants became aware of both the presence of asbestos in the Hospitals and of the health hazards associated with inhaling asbestos fibers. In particular, Plaintiff submitted thirty interrogatories to Defendants in her standard master interrogatories. The parties' case management order further allows Plaintiff to submit an additional ten interrogatories to Defendants, which Plaintiff did in her first set of supplemental interrogatories. Plaintiff then propounded an additional thirty-seven interrogatories to Defendants—three in her second set of supplemental interrogatories and thirty-four in her third set. Plaintiff has also served Defendants with numerous requests for production of documents.

Defendants, however, have objected to most of Plaintiff's discovery requests, asserting that they seek irrelevant information and are overly broad and unduly burdensome because they are "unlimited in time and scope." In particular, Defendants have objected to and declined to substantively answer Plaintiff's second and third sets of supplemental interrogatories and Plaintiff's second, third, and fourth sets of requests for production of documents. Additionally, Defendants object to Plaintiff's second and third sets of supplemental interrogatories on the grounds that they exceed the number of interrogatories permitted by Rule 33(b) and the parties' case management order.[1] In response, Plaintiff has filed a post-hoc Motion for Permission to Propound Interrogatories in Excess of Thirty, urging the Court to compel Defendants to respond to each of her interrogatories on the grounds that the various complex factual matters at issue in the case necessitate that she be permitted to file more interrogatories than the Rhode Island Rules of Civil Procedure or the parties' case management order would ordinarily allow.

II

Standard of Review

A

Motion to Propound Interrogatories in Excess of Thirty

Rule 33(b) permits a party to submit up to thirty interrogatories to an opposing litigant without Court permission. In order to propound more than thirty interrogatories on a single opposing party, the rule requires litigants to show "good cause" and to obtain Court permission. Rule 33(b). "[I]n making decisions whether to relax the restrictions" on the number of interrogatories a party may submit, "a trial justice has discretion" in determining whether the party has shown sufficiently good cause. Eleazer v. Ted Reed Thermal, Inc., 576 A.2d 1217, 1220 (R.I. 1990); see also Francis v. Barber Auto Sales, Inc., 454 A.2d 703, 705 (R.I. 1983) (noting that the decision "to relax the restrictions [on the number of interrogatories allowed] for good cause shown" is "of a discretionary nature"). Rule 33(b)'s limitation of "the number of interrogatories at thirty as a matter of right was never intended to be a fixed, never-to-be-exceeded maximum." Eleazer, 576 A.2d at 1220. Rather, "[i]n view of the liberal spirit of the rules, the court should be disposed to grant such discovery as will accomplish full disclosure of facts, eliminate surprise, and promote settlement." Crowe v. Chesapeake & O. Ry. Co., 29 F.R.D. 148, 151 (E.D. Mich. 1961). Accordingly, a party may establish ...


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