CAROL A. LEPORE, Individually and as Legal Representative for the Estate of LEONARD L. LEPORE, Plaintiff,
A.O. SMITH CORP., et al., Defendants.
County Superior Court
Plaintiff: Vincent L. Greene, IV, Esq. Robert J. McConnell,
Esq. Donald A. Migliori, Esq.
Defendant: Mark P. Dolan, Esq. Andrew R. McConville, Esq.
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.
Facts and Travel
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.
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
Plaintiff has now served Rule 30(b)(6) deposition notices to
the Defendants, along with Schedules A and Exhibits A
attached, 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.
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.
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
Standard of Review
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 ...