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Sheppard v. Liberty Mutual Insurance Co.

United States District Court, E.D. Louisiana

January 23, 2017

JESSE FRANK SHEPPARD
v.
LIBERTY MUTUAL INSURANCE COMPANY, ET AL.

         SECTION "R" (3)

          ORDER

          DANIEL E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE

         On January 4, 2017, three motions came on for oral hearing before the undersigned. Present were Gerolyn Roussel on behalf of plaintiff and Susan Kohn, James Guidry, Jennifer Adams, John Hainkel, and David Stein on behalf of various defendants. After the oral hearing, the Court took the motions under advisement. Having reviewed the pleadings and the case law, the Court rules as follows.

         I. Background

         The complaint alleges as follows. On February 11, 2016, plaintiff filed his Petition for Damages in the Civil District Court for the Parish of Orleans alleging the defendants, which plaintiff collectively refers to as the “asbestos companies, ” caused or contributed to his development of asbestos-related lung cancer. In particular, plaintiff claims that from approximately 1967 through 1992 during his employment “in various positions by and on the premises of Freeport‘s Port Sulphur facility, Grand Isle facility, Garden Island Bay facility, Caminada facility, as well as various drilling rigs, ” he was exposed on a “daily basis” to “asbestos and asbestos-containing products manufactured, distributed, and sold by the ‘asbestos companies.'” The alleged years of asbestos-exposure are extended to 1994 in the following paragraph. All defendants are alleged to be “jointly, severally, and in solido liable” to plaintiff.

         Defendants removed the case to this Court on March 22, 2016 on the basis that this Court possesses original jurisdiction under the Outer Continental Shelf Lands Act (“OCSLA”).

         II. The Motions to Quash

         A. The Parties' Arguments

         Two of the motions before the Court are near-identical motions: Plaintiff's Motion to Quash Subpoena and Notice of Records Deposition [Doc. #175] and Plaintiff's Motion to Quash Subpoena and Notice of Records Deposition and Motion for Protective Order [Doc. #264]. Both motions present substantially the same arguments and will be combined for purposes of this Order.

         On December 15, 2016, counsel for The McCarty Corporation (“McCarty”) issued a Notice of Records Deposition and Subpoena to Timothy J. Young of The Young Firm, which seeks production of any documents or information provided to any bankruptcy trusts as well as any and all settlement documents and checks reflecting payments made to Jesse Frank Sheppard by any bankruptcy trusts.

         The Young Firm represented Sheppard in an earlier asbestosis suit that was dismissed. Current counsel represents Sheppard on a claim based on his diagnosis with cancer. Citing case law from other circuits, Sheppard contends that courts have held that settlement documents, including statements of exposure in settlement releases, are not discoverable. Sheppard argues that allowing such discovery would deter settlement in asbestos litigation. Sheppard notes that in Davis v. Johns-Manville Products, 1990 WL 162844, *1 (E.D. La. October 16, 1990), the court held that the disclosure of settlements would not lead to the discovery of admissible evidence because such information would not prove liability, would not influence the amount of contribution to which a defendant may be entitled, and would not result in a reduction of a final judgment against the defendant.

         Sheppard asks the Court to quash the notice of deposition to Young and find that the information sought is neither relevant nor proportionate to the needs of the case.

         On December 22, 2016, counsel for General Electric Company (“GE”) issued a Notice of Records Deposition and Subpoena to Malissa Antonucci, Manville Personal Injury Settlement Trust, which seeks production of (Topic Nos.) (3) any and all claims made to the Manville Personal Injury Settlement Trust by or on behalf of Jesse Frank Sheppard; (4) any and all claims documents referencing any claim(s) made to the Manville Personal Injury Settlement Trust by or on behalf of Jesse Frank Sheppard; and (5) any and all sworn statements, affidavits, and/or depositions given by or on behalf of Jesse Frank Sheppard. Sheppard seeks to quash the foregoing topic numbers in the subpoena for the same reasons that he seeks to quash the subpoena propounded on Young.

         McCarty[1] notes that Sheppard did not sue it in the earlier litigation, Aarons v. Phillips 66 Company, in which Young represented Sheppard. During his deposition, counsel showed Sheppard an “Affidavit of Exposure” produced to counsel for Chevron by Young in the earlier litigation. Sheppard acknowledged the document and his signature. McCarty seeks to discover whether Sheppard filed other claims with other ...


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