Asbestos MDL Judge Grants Motion Precluding Plaintiffs’ Comprehensive Witness Lists

A federal magistrate judge for the Asbestos MDL in the Eastern District of Pennsylvania recently held that plaintiffs in 192 separate actions are precluded from relying on witness lists, unless the witnesses therein had been disclosed elsewhere. The Cascino Vaughan Law Offices (CVLO) represents 192 asbestos plaintiffs in the MDL and on each of their behalves served two lists. The lists provided, in the form of a chart, 1) the “names and addresses of all ‘site-workers’ at certain broadly described job sites where we are to understand certain CVLO plaintiffs may have worked”, and 2) the identity of all relevant transcripts by job site, providing the deponent’s name, the date of the testimony, whether the deponent is represented by CVLO, and in some cases, the name and case number for which the testimony was taken.

Several defendants moved to strike the lists on June 27, 2012. The court denied their motion on the grounds that the lists did contain some relevant information but warned CVLO of the lists’ deficiencies, including that the lack of specificity rendered them unusable by any defendant in any specific case. As such, over the next several months CVLO continued to expand and serve the lists. Two additional categories were added to the lists in an attempt to comply with the court’s warning and render the lists specific enough for use. CVLO added the product, equipment, or contractor about which each witness had some knowledge, and the approximate years about which the witness had knowledge. The two new categories did not always contain information. By October 1, 2012, the CVLO lists had grown to 1,490 pages and included over 15,000 identified witnesses.

Several defendants again moved to bar the witness lists for job sites in Illinois and Wisconsin, claiming that CVLO failed to properly disclose the witnesses. CVLO argued that the lists were supplemental to plaintiff’s answers to interrogatories. The court noted that none of the lists were signed by any individual plaintiff, or represented to be applicable to any specific case. For these reasons, and to the extent that CVLO argued that the lists were supplemental interrogatory responses, the court struck them as unverified.

Because the lists cannot be considered supplemental interrogatory responses, the court went on to note that, based on the lists, no defendant can discern whether any individual might have any connection to any particular plaintiff and, thus, whether that individual should be deposed. “Defendants cannot be left to guess who among the 15,000 or so names on the lists have knowledge of a given plaintiff and his or her exposure to a particular product.” As such, the court held that the lists could not be considered proper supplemental interrogatory responses, Rule 26(e) disclosures, or witness disclosures. The court concluded that the “individuals on these lists may only be disclosed as witnesses at trial or in rebuttal to a motion for summary judgment if they have been properly and timely disclosed elsewhere.”

The decision is a win for asbestos defendants throughout the country. The plaintiff’s bar is constantly refining and expanding its database of evidence against asbestos defendants. The decision by the Asbestos MDL court should signal to the plaintiff’s bar that their work in expanding the universe of evidence available to them must remain focused and specific, and that simply providing a catch-all list of potential witnesses does not satisfy the disclosure rules.