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In re Asbestos Litigation

Superior Court of Rhode Island

January 22, 2016

In Re: Asbestos Litigation
v.
A.O. SMITH CORPORATION, et al., Defendants. RALPH DELMONICO and DONNA DELMONICO Plaintiffs,

PROVIDENCE, SC. SUPERIOR COURT

For Plaintiff: Vincent L. Greene, IV, Esq.

For Defendant: R. Bart Totten, Esq.; Mark O. Denehy, Esq.; Peter F.Mathieu, Esq.; Lawrence G. Cetrulo, Esq.; Jeffrey S. Brenner, Esq.; Anthony J. Sbarra, Esq.; Andrew J. Murray, Esq.; David A. Goldman, Esq.; James J. McKenna, Esq.; Mary C. Dunn, Esq.; Jonathan F. Tabasky, Esq.; Cassandra L. Feeney, Esq.

DECISION

GIBNEY, P.J.

Before this Court is Defendant CertainTeed Corporation's (CertainTeed or Defendant) motion to compel Plaintiffs to produce all exposure affidavits executed by Ralph Delmonico (Mr. Delmonico, or, with Donna Delmonico, Plaintiffs). This motion is made pursuant to Super. R. Civ. P. 34(b) and 37(a)(1). At issue is whether the exposure affidavits in question are protected by the work product privilege. After carefully considering the parties' arguments and conducting an in camera review of the exposure affidavits, the Court finds that, for the reasons set forth below, the exposure affidavits are not discoverable in this particular case.

I

Facts

Mr. Delmonico is a seventy-eight year old man who has been diagnosed with Stage IV lung cancer. Mr. Delmonico worked as a plumber for thirty-two years and allegedly worked with and/or around asbestos-containing products.

In May of 2014, Mr. Delmonico retained counsel to pursue claims related to his alleged exposure to asbestos. Mr. Delmonico met with counsel and discussed the basic facts of his claims including his employment history and the various products he worked with throughout his career. As a matter of course, Plaintiffs' counsel memorialized these discussions in the form of affidavits (exposure affidavits) that were finalized on June 2, 2014. These affidavits contain a basic recitation of Mr. Delmonico's work history including a list of work sites and products used or encountered at those work sites.

Just four days later, on June 6, 2014, the Complaint was filed. Both parties engaged in discovery. On June 16, 2014, Plaintiffs provided to Defendant answers to Rhode Island's standard asbestos interrogatories. Question six of these interrogatories asks about a plaintiff's employment history, work sites, and asbestos products use-essentially the same information already contained in the exposure affidavits. Plaintiffs contend that the information provided to Defendant on June 16 in answer to interrogatory number six included all of the information contained in the exposure affidavits.

Mr. Delmonico's discovery deposition started on July 17, 2014 and continued over the course of six nonconsecutive days, ending in October 2014. It is undisputed that Defendant had a full and fair opportunity to cross-examine Mr. Delmonico over the course of those six days of deposition. A videotaped trial deposition took place on May 15, 2015. Defendant again cross-examined Mr. Delmonico during this seventh day of deposition testimony. Over the course of these seven days of deposition, Defendant did not have access to the exposure affidavits but Defendant did have access to Plaintiffs' answers to interrogatories.

Upon learning of the exposure affidavits' existence, Defendant requested them from Plaintiffs. Plaintiffs declined to release the exposure affidavits, claiming privilege.

II

Standard of ...


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