Heather Isringhausen Gvillo Feb. 6, 2014, 4:41pm

PROVIDENCE, R.I. (Legal Newsline) - A Rhode Island superior court ruled last week that an asbestos claimant must disclose claims forms submitted to the trusts of bankrupt asbestos defendants, revealing all claims filed with those trusts.

Defendant Crane Co. filed a Motion for Reconsideration in the Providence County Superior Court in August, renewing its discovery request for claim forms submitted by plaintiff Rosie Sweredoski on behalf of her late husband Douglas Sweredoski.

Following the motion, the superior court ordered an in camera review of the claim forms in order to determine whether or not they were discoverable or confidential.

Ultimately, the court found the documents were discoverable for a limited evidentiary purpose.

In the opinion filed Jan. 30, Justice P.J. Gibney wrote that Rhode Island promotes broad discovery among parties, granting requests for information regarding any information relevant to the subject matter involved in the pending action.

"Even information that is not admissible may be discoverable it if 'appears reasonably calculated to lead to the discovery of admissible evidence,'" Gibney wrote.

In Crane Co.'s argument, it used Garlock Sealing Technologies' recent bankruptcy ruling to exemplify how plaintiffs have made different statements regarding their asbestos exposure in their bankruptcy trust claim forms than in their trial.

During Garlock's bankruptcy trial in the U.S. Bankruptcy Court in the Western District of North Carolina, Judge George Hodges allowed Garlock to initiate full discovery into 15 selected cases and partial discovery into hundreds more.

Garlock found that plaintiffs' lawyers withheld evidence of asbestos exposure to products other than Garlock's gaskets and delayed filing claims with bankruptcy trusts until after obtaining inflated recoveries from Garlock, revealing "a startling pattern of misrepresentation," Hodges wrote in his ruling.

Using this example, Crane Co. argues the claim forms could help "impeach" the plaintiff's credibility in alleging Crane Co.'s products caused Douglas Sweredoski's illnesses if the allegations are inconsistent.

"Therefore, on reconsideration, this court grants Crane's Motion to Compel Disclosure of Plaintiff's asbestos bankruptcy trust submissions for the limited purpose of finding admissible impeachment evidence," Gibney wrote.

The Sweredoskis fought the disclosure request, arguing that the claim forms are confidential and protected by the work product doctrine.

Gibney described the work product doctrine as containing two categories: opinion work product and factual work product.

Factual work product "encompasses 'any material gathered in anticipation of litigation,' and is subject only to qualified protection." However, claim forms do not fall under this category because the claims forms were not prepared in anticipation of litigation but were prepared for bankruptcy trust submissions, he wrote.

Opinion work product consists of an attorney's mental impressions, conclusions, opinions or legal theories and is immune from discovery.

The plaintiff argues the claim forms include opinion and mental impressions from her attorneys, but Gibney wasn't convinced.

"On the contrary, the claim forms contain only objective facts concerning Sweredoski's exposure to asbestos products, which plaintiff's counsel transcribed into the forms," Gibney wrote. "Therefore, because the claim forms at issue 'merely report objective facts or data, untainted by counsel's mental impressions, theories or trial strategy,' the opinion work product doctrine does not apply to them.

Sweredoski also argued that the claim forms were created under confidentiality agreements between her and the bankruptcy trusts, prohibiting Crane Co. from discovery.

However, the burden of establishing that a privilege applies to prevent a defendant from discovery rests on Sweredoski, but she has failed to meet this burden because her forms failed to include the operative confidentiality provisions, Gibney stated.

"Even assuming that the claim forms are subject to such agreements, the court is unconvinced that a private confidentiality agreement would constitute a legal privilege from discovery," Gibney wrote.

While Gibney approved Crane Co.'s request for discovery, there are some limitations.

The claim forms do not contain any information about Crane Co.'s products or information that would disprove that the plaintiff was exposed to Crane Co.'s asbestos-containing products.

"Thus, to the extent that information in the claim forms demonstrates non-party liability, nothing in the instant decision should be taken to alter this court's prior findings that such information is neither relevant to nor reasonably calculated to lead to the discovery of admissible evidence relating to plaintiff's burden of proof on the issue of causation," Gibney stated.

The opinion also makes no ruling regarding the admissibility of the claim forms.

"The court will, therefore, reserve judgment on the admissibility of the claim forms for when, and if, the parties are in such an evidentiary dispute," the opinion stated.

Gibney ordered Sweredoski to submit all claim forms and supporting documentation submitted to bankruptcy trusts to Crane Co.

However, Sweredoski is not required to produce amounts paid by bankruptcy trusts.

"In the event the bankruptcy trust documents contain specific instances of offers of compromise, as opposed to factual assertions, plaintiff may withhold such information and documentation," Gibney wrote.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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