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Lepore v. A.O. Smith Corporation

Superior Court of Rhode Island

May 10, 2017

CAROL A. LEPORE, Individually and as Legal Representative for the Estate of LEONARD L. LEPORE, Plaintiff,
v.
A.O. SMITH CORP., et al., Defendants.

         Providence County Superior Court

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

          For Defendant: Mark P. Dolan, Esq. Andrew R. McConville, Esq.

          DECISION

          GIBNEY, P.J.

         Defendants Rhode Island Hospital and The Miriam Hospital (collectively, Defendants) bring a motion for a protective order in response to Plaintiff, Carol A. Lepore's (Plaintiff), Super. R. Civ. P. 30(b)(6) (Rule 30(b)(6)) deposition notice. The Defendants contend that the scope of the deposition is overly broad and unduly burdensome and that such a deposition should be limited according to a previous order of the Court. The Plaintiff contends that the scope of the deposition should not be so limited according to a decision which was published approximately three years ago. The Plaintiff also maintains that she is entitled to inquire about subsequent remedial measures in said deposition according to Rhode Island Rule of Evidence 407. This Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14.

         I Facts and Travel

         During the 1960s and 1970s, Leonard L. Lepore was a sheet metal worker with Delix Weigand & Son. Although not employed directly by the Defendants, Mr. Lepore removed and installed ductwork at various hospital buildings on Defendants' campuses as a subcontractor that was hired by the general contractors. The Defendants hired the general contractors directly. The Plaintiff alleges that while Mr. 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 Mr. Lepore's work area. The Plaintiff claims that as a result of this work and asbestos exposure, Mr. Lepore contracted malignant mesothelioma and later died in late 2012.

         In 2014, the Plaintiff brought a motion for permission to propound interrogatories in excess of thirty, pursuant to Super. R. Civ. P. 33(b), and a motion to compel further discovery responses from Defendants, pursuant to Super. R. Civ. P. 37(a)(2). In those discovery requests, the Plaintiff sought to determine whether and when Defendants became aware of both the presence of asbestos in the Defendants' hospitals and of the health hazards associated with inhaling asbestos fibers. The Defendants objected to both motions, contending that the requests were overly broad and unduly burdensome because their scope was unlimited. Accordingly, this Court issued its decision on May 23, 2014, in which it limited the scope and timeframe of the discovery requests. The Court found that the Plaintiff's requested information was critical to her claims, but that the discovery should be limited to the timeframe that Mr. Lepore worked at the hospitals and to the buildings that were in existence at the time of that employment. Ultimately, the Plaintiff and Defendants agreed to a relevant timeframe of 1960-1987.

         The Plaintiff has now served Rule 30(b)(6) deposition notices to the Defendants, along with Schedules A and Exhibits A attached[1], which identify relevant subject matters and request the production of documents. In response, Defendants object and request a protective order from the Court. The Defendants ask that the Court apply its previous 2014 decision to the Rule 30(b)(6) depositions in order to limit the scope and timeframe of the depositions to the years during which Mr. Lepore worked at the hospitals and to the buildings in existence at that time.

         II Parties' Arguments

         The Defendants contend that the Court's previous 2014 decision should apply to the current Rule 30(b)(6) depositions because to allow otherwise would constitute an unduly broad and burdensome discovery request. The Defendants maintain that the Plaintiff's Rule 30(b)(6) deposition notices identify sixteen subject matter topics and include a twenty-two-part document request that largely mirrors the Plaintiff's written discovery requests that were the subject of the 2014 decision. The Defendant contends that such a request constitutes an attempt to circumvent the Court's 2014 decision.

         The Plaintiff contends that the Court's 2014 decision applied specifically to Plaintiff's previous discovery requests; namely, Plaintiff's second and third sets of supplemental interrogatories and the Plaintiff's second, third, and fourth sets of requests for production of documents. The Plaintiff argues that the Court did not prospectively apply the decision to future depositions. The Plaintiff maintains that-even if the Court were to reapply its decision to the current discovery matter-the Plaintiff is entitled to inquire about subsequent remedial measures. Since such evidence is admissible under the Rhode Island Rules of Evidence, the Plaintiff argues that it should be allowed to inquire into the Defendants' knowledge or actions relating to asbestos removal which occurred outside of the previously permitted 1960-1987 timeframe.

         III Standard of Review

         The trial court is afforded broad discretion in handling discovery requests. Pastore v. Samson, 900 A.2d 1067, 1073-74 (R.I. 2006) (citing Cullen v. Town Council of Lincoln, 850 A.2d 900, 903 (R.I. 2004)). Rhode Island Rule of Civil Procedure 26(b)(1) states that, in general, the scope of discovery should be limited to matters "relevant to the subject matter involved in the pending action[.]" Super. R. Civ. P. 26(b)(1). Rule 26(c) of the Superior Court Rules of Civil Procedure permits the Court to issue "any order which justice requires ...


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