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In re Asbestos Litigation Bazor

Superior Court of Rhode Island

May 2, 2016

In Re: Asbestos Litigation KAY BAZOR, Administratrix of the Estate of ROBERT BAZOR, and Individually as Surviving Spouse Plaintiffs,
v.
ABEX CORPORATION, et al., Defendants.

Providence County Superior Court

Plaintiffs: Robert J. Sweeney, Esq.

Defendants: Peter F. Mathieu, Esq., Stephen J. Armato, Esq., Lawrence G. Cetrulo, esq., David A. Goldman, Esq., George E. Lieberman, Esq., Timothy M. Bliss, Esq., Jason Caron, Esq., Margreta Vellucci, Esq.

DECISION

GIBNEY, P.J.

Before this Court is Defendant Dana Companies, LLC's (Dana or Defendant) Motion to Dismiss for Lack of Personal Jurisdiction (Motion to Dismiss) and Plaintiffs Robert T. and Kay Bazor's (Plaintiffs) Opposition.[1] These motions are made pursuant to Super. R. Civ. P. 12(b)(2). At issue is whether Dana has forfeited its defense of lack of personal jurisdiction asserted in its Answer by participating in the litigation. The Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14. After carefully considering the parties' arguments, the Court finds that, for the reasons set forth below, Dana's active conduct constitutes forfeiture of the defense of lack of personal jurisdiction.[2]

I

Facts

A recitation of the facts of this case was previously provided by the Court in its July 16, 2015 Decision regarding Plaintiffs' Motion to Compel.[3] The Court will add facts as necessary to decide the instant motion.

Plaintiffs filed a Complaint on July 8, 2010 naming among other defendants, Dana, for Plaintiffs' injuries related to exposure to asbestos, alleging negligence, breach of duty to warn, and breach of the warranties of merchantability and implied fitness. Plaintiff Robert T. Bazor was deposed several months later on September 21–23, 2010. Dana was present at the deposition and had opportunity to question Mr. Bazor.

On January 26, 2012, Dana and three of its codefendants jointly filed their Answer. The Answer listed fifty-four defenses, including lack of personal jurisdiction.

More than four years after filing the instant Complaint and more than two years and nine months after filing its Answer, Dana filed its Motion to Dismiss for Lack of Personal Jurisdiction on November 11, 2014. Following a discovery dispute, this Court entered an order on July 16, 2015, granting in part and denying in part Plaintiffs' Motion to Compel further jurisdictional discovery.[4]

Between filing its Answer on January 26, 2012 and filing its Motion to Dismiss on November 11, 2014, Dana actively participated in the litigation in a number of ways. On January 31, 2012, Dana and two codefendants filed an objection to the pending 2012 trial date. After a series of correspondence between Plaintiffs and Dana, Mr. Bazor's deposition was reopened and conducted on March 12, 2012. Counsel for Dana participated in the March 12, 2012 deposition which focused, in part, on product identification and exposure for a product for which Dana may be liable. Also on March 12, 2012, Dana offered a list of its witnesses for deposition.

On April 4, 2012, one of Plaintiffs' experts was deposed, and counsel for Dana participated in the deposition by telephone. In response to a notice for deposition of Dana's corporate representative, on April 13, 2012, Dana filed an Objection to Plaintiffs' Notice of 30(b)(6) Deposition, but only objected to the deposition as it related to specific topics and did not object on jurisdictional grounds. By letter dated April 17, 2012, Dana advised Plaintiffs that it intended to rely upon the testimony of a particular witness and offered deposition dates for that witness. On the same date, Dana and five of its codefendants filed an expert witness designation list that included eight experts. On April 19, 2012, Dana and one of its codefendants filed fifteen Motions in Limine which sought to limit evidence and testimony to be produced at trial. On April 20, 2012, Dana individually filed its Expert Witness Designations. By letter dated April 20, 2012, Dana offered two additional experts for deposition. On April 24, 2012, the deposition of one of Dana's experts took place.

By letter dated May 4, 2012, Dana and one of its codefendants offered another expert for deposition. On May 17, 2012, Dana produced two reports prepared by one of its experts. On May 18, 2012, an expert retained by Dana and one of its codefendants was deposed. On May 25, 2012, and July 12, 2012, Dana produced reports of two of its jointly retained experts. On October 24, 2012, Dana provided responses and objections to Plaintiffs' Master Interrogatories and Requests for Production Directed to Defendant. Importantly, in its responses Dana did not mention any preservation of the defense of lack of personal jurisdiction.

On June 16, 2014, Dana produced a supplemental report issued by one of its experts. On October 20, 2014, Dana filed a Motion to Compel Plaintiffs to Produce Bankruptcy Trust Documents. Additionally, during this time period, Dana participated in at least ten status/settlement conferences. Not once during this discovery process did Dana assert its defense of ...


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