Heather Isringhausen Gvillo Sep. 10, 2014, 10:23am

CLEVELAND (Legal Newsline) – An Ohio appeals court has held that disclosure is proper in an asbestos case where the defendant failed to provide information in its interrogatories detailing the company’s history and relationship with the asbestos-containing product at issue.

Judge Sean C. Gallagher delivered the Sept. 3 opinion in Ohio’s 8th District Court of Appeals for Cuyahoga County, affirming the lower court’s decision to deny in part a request for a protective order. Judges Larry A. Jones and Kenneth A. Rocco concurred.

Defendant CompuDyne Corporation appealed a decision out of the Cuyahoga County Court of Common Pleas, claiming the trial court erred when it ordered the disclosure of alleged privileged information contained in a document that should be protected.

William Rock, chief financial officer from 1996 until 2008, said CompuDyne is a financial holding company and has never manufactured or sold asbestos or asbestos-containing products.

In May 1969, CompuDyne merged with York-Shipley, Inc., (DE), a boiler manufacturer, leaving CompuDyne as the surviving corporate entity.

By virtue of the merger, CompuDyne acquired all liabilities of York-Shipley (DE) up to May 1969.

Rock indicated that following the merger, all of the assets of York-Shipley (DE) were transferred to York-Shipley (PA), which had been incorporated as a subsidiary of CompuDyne, and that thereafter, York-Shipley (PA) manufactured boilers, among other things.

CompuDyne was later dissolved in March 1993.

The document at issue is titled, “CompuDyne Annual Review National Coordinating Counsel January 20, 2011,” but is referred to as the Litigation Analysis. The defendant sought to protect the document from discovery under the attorney-client privilege and the work-product doctrine.

The trial court found that the Litigation Analysis was a privileged document for the most part. However, it concluded that protection was not appropriate for paragraphs 18(a) and (b) because they provided necessary information the plaintiffs could not obtain elsewhere.

Paragraph 18 addresses York-Shipley’s history and discusses the manner in which asbestos was used in various products.

Gallagher stated that while much of the Litigation Analysis is not relevant to this case, disclosure of paragraph 18 is proper despite the attorney-client privilege.

“Because the attorney-client privilege is an exception to the general rules of disclosure, where it obstructs the search for relevant information, the privilege should be strictly construed,” Gallagher wrote.

However, the appeals court noted that a limited portion of the disclosed section does contain legal impressions from Scott Henry, national coordinating counsel for the defendant, and should be subject to redaction.

Henry said he prepared the Litigation Analysis to serve as a comprehensive assessment of all pending claims against CompuDyne and should, therefore, be protected under the work-product doctrine.

The trial court offered CompuDyne the opportunity to amend its interrogatories or to propose a stipulation addressing the information in the Litigation Analysis, but an agreed stipulation was not reached. As a result, the court held that “the overriding issue of fairness required disclosure under the circumstances of this case.”

The appeals court held that although CompuDyne claims it provided accurate responses to the interrogatories, it avoided providing responses and information as to York-Shipley and the asbestos-containing products used in the boilers.

Furthermore, while the defendant never stated that it wasn’t responsible for the York-Shipley boilers, it still failed to provide the detailed information in its interrogatories that can be found in its Litigation Analysis.

“As the trial court recognized, CompuDyne indicated in the interrogatories that it had never engaged in the mining, manufacturing, selling, marketing, installation, or distribution of asbestos-containing products, and its response to the request for production that it had no predecessors doesn’t square with the corporate history outlined in the Litigation Analysis,” the appeals court found.

Because the information at issue here was not provided anywhere else and no living person who possesses the knowledge of the corporate history as described in the Litigation Analysis, disclosure was deemed proper.

Decedent Michael Tucker, his wife Betty Tucker and their minor children filed the lawsuit in December 2009 after Michael Tucker was diagnosed with mesothelioma. He later died from his illness in January 2011.

Before his death, Tucker testified that he worked for Steelman Cincinnati as a laborer from 1980 to 1981. As part of his job, he would assist technicians in servicing and repairing boilers at various work sites.

Tucker provided evidence that York-Shipley boilers were present at three of his work sites. The plaintiffs allege Tucker was exposed to asbestos while working on the York-Shipley boilers.

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

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