Papineau v. Brake Supply Company, Inc. (W.D. Ky., Jan. 30, 2020)

Our plain-English summary of Papineau v. Brake Supply Company, Inc. (U.S. District Court, Western District of Kentucky, January 30, 2020).

Jack Papineau and his wife Holly sued several companies, including Honeywell International, alleging that Mr. Papineau developed malignant mesothelioma from exposure to asbestos-containing brake products. The Papineaus asked the court to make Honeywell answer one interrogatory and one document request about other lawsuits alleging exposure to Honeywell's asbestos-containing friction products. The Magistrate Judge ordered Honeywell to comply, then denied its request for rehearing. Honeywell objected to the District Judge, arguing that the Magistrate Judge refused to consider undue burden and proportionality because its affidavit from national coordinating counsel was filed late. The District Judge reviewed the orders for clear error or legal error. He found the Magistrate Judge had considered burden and proportionality and had found Honeywell offered only generalizations and guesses. Ignoring an affidavit filed after argument closed was within his discretion. The objection was overruled and the discovery order stood.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Western District of Kentucky
• Decided: January 30, 2020
• Docket: Civil Action No. 4:18-CV-00168-JHM
• Stage: Appeal from discovery or evidence ruling
• State: Kentucky

Outcome. The district court overruled Honeywell's objection and left in place the Magistrate Judge's orders compelling Honeywell to answer an interrogatory and a document request, so the Papineaus prevailed.

What the court held. A magistrate judge's discovery order is reviewed only for clear error or being contrary to law, and the party resisting discovery bears the burden of showing undue burden or disproportionality. Declining to consider an affidavit filed after argument closed was within the magistrate judge's discretion.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Jack Papineau: mesothelioma

The defendants

• Honeywell International, Inc. (manufacturer)
• Brake Supply Company, Inc. (supplier)
• Pneumo-Abex, LLC (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Papineau v. Brake Supply Company, Inc. (March 27, 2020). The court granted Rudd Equipment's motion to dismiss Brake Supply's amended third-party complaint, dismissing the common law indemnity claim for lack of facts, while noting Brake Supply keeps its right to seek an apportionment instruction at trial.
• Papineau v. Brake Supply Company (May 12, 2020). The court denied third-party defendant Fras-le S.A.'s motion to dismiss Brake Supply's third-party complaint without prejudice, reserving judgment on service and personal jurisdiction and ordering 120 days of limited jurisdictional discovery.
• Papineau v. Brake Supply Company (November 13, 2020). The court granted third-party defendant Fras-le North America's motion for summary judgment on Brake Supply's indemnity and apportionment claims and denied Brake Supply's motion to hold that motion in abeyance.
• Papineau v. Brake Supply Company, Inc. (April 2, 2021). The court denied the Papineaus' motion to sever or bifurcate Brake Supply's third-party claims against Fras-le and Carlisle Industrial, so all claims will be tried together.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

JACK PAPINEAU and HOLLY PAPINEAU, Plaintiffs,

v.

BRAKE SUPPLY COMPANY, INC., etal, Defendants.

Civil Action No. 4:18-CV-00168-JHM.

January 30, 2020.

United States District Court, W.D. Kentucky, Owensboro Division.

Jack Papineau & Holly Papineau, Plaintiffs, represented by Gary E. Schaaf, Saladino, Oakes & Schaaf, PLLC, J. Garrett Cambron, Satterley & Kelley PLLC, James E. Kiser, Satterley & Kelley PLLC, Joseph D. Satterley, Satterley & Kelley PLLC, Paul J. Ivie, Satterley & Kelley PLLC & Paul J. Kelley, Satterley & Kelley PLLC.

Brake Supply Company, Inc., Defendant, represented by Matthew R. Parsons, Stoll Keenon Ogden PLLC & Palmer G. Vance, II, Stoll Keenon Ogden PLLC.

Honeywell International, Inc., Individually and as Successor in Interest to Allied Signal Corp., Allied Chemical, Wilputte Coke Oven and The Bendix Corporation, Defendant, represented by Bruce T. Bishop, Willcox & Savage, Jack Reiter, Gray Robinson, PA, Kevin Greene, Willcox & Savage, P.C., Michele Fanney Dallman, Wilcox & Savage, PC, Scott Allen Davidson, Boehl Stopher & Graves, LLP & Steven Hoeft, McDermott, Will & Emery LLP.

Pneumo-Abex, LLC, Successor in Interest to Abex Corporation, Defendant, represented by Calvin R. Fulkerson, McBrayer PLLC, David J. Quigg, DeHay & Elliston LLP & Kyle M. Virgin, McBrayer PLLC.

Rudd Equipment Company, Inc., ThirdParty Defendant, represented by Melissa Norman Bork, Dentons Bingham Greenbaum LLP.

Brake Supply Company, Inc., ThirdParty Plaintiff, represented by Matthew R. Parsons, Stoll Keenon Ogden PLLC & Palmer G. Vance, II, Stoll Keenon Ogden PLLC.

Carlisle Industrial Brake and Friction, Inc., ThirdParty Defendant, represented by Patrick W. Gault, Napier Gault Schupach & Stevens PLC.

Fras-Le North America, Inc., ThirdParty Defendant, represented by Chad E. Wallace, Baker Donelson Bearman Caldwell & Berkowitz, PC & Nora Ann Koffman, Baker Donelson Bearman Caldwell & Berkowitz, PC.

MEMORANDUM OPINION AND ORDER

JOSEPH H. McKINLEY, JR., Senior District Judge.

This matter is before the Court on Defendant Honeywell International Inc.'s objection to the Magistrate Judge's orders entered on November 19, 2019 and January 6, 2020. [DN 161, DN 186]. Fully briefed, this matter is ripe for decision. For the following reasons, Honeywell's objection [DN 213] to the Magistrate Judge's orders is OVERRULED. I. BACKGROUND

Plaintiff Jack Papineau alleges that he has malignant mesothelioma from exposure to asbestos-containing brake products. [DN 1 at 4]. The Papineaus sought an order from the Magistrate Judge to compel Honeywell to answer one interrogatory and respond to one request for production concerning lawsuits alleging exposure to Honeywell asbestos-containing friction products. [DN 98]. Honeywell opposed providing such information. [DN 123].

Per the Magistrate Judge's order, the Papineaus filed an amended request that limited the scope of the requested documentation. [DN 147]. Honeywell responded to the supplemental request and attached, among other things, the affidavit of Ellen Tenebaum, the national coordinating counsel for Honeywell regarding their docket of Bendix Brake related cases.

[DN 160]. The next day the Magistrate Judge granted the Papineaus' motion to compel. [DN 161]. Honeywell requested a rehearing, which the Magistrate Judge denied. [DN 163, DN 186]. Honeywell now requests that this Court sustain its objections and quash the Magistrate Judge's orders. [DN 213].

II. STANDARD OF REVIEW

A party may submit objections to a magistrate judge's ruling on non-dispositive matters, such as discovery orders. FED. R. CIV. P. 72(a). The district court reviews an order by a magistrate judge on a non-dispositive matter under the "clearly erroneous or contrary to law" standard. 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a).

III. DISCUSSION

"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case" under Rule 26(b)(1) of the Federal Rules of Civil Procedure. Honeywell argues that the Magistrate Judge ruled that he would not consider undue burden or proportionality because the Tenebaum affidavit was filed untimely. [DN 213 at 12]. The Magistrate Judge did consider undue burden and proportionality. [DN 186 at 2-4]. He said, "Honeywell's undue burden argument relies primarily on an affidavit from Ellen Tenenbaum. . . . But this affidavit has no import on this Court's decision. The affidavit was submitted after argument on the issue was closed." [Id. at 3]. The Magistrate Judge furthered reasoned that Honeywell only provided generalizations and guesses when articulating the undue burden and disproportionality of the discovery requests. [Id. at 3-4]. Honeywell did not meet its burden to show that the discovery was disproportionate or that it was an undue burden. See United States Parcel Serv. Co. v. DNJ Logistic Grp., Inc, No. 3:16-CV-00609-GNS, 2018 WL 3199475, at [*9] (W.D. Ky. April 16, 2018) ("The party seeking to resist discovery still must specifically object and must still show that the requested discovery does not fall within Rule 26(b)(1)'s broad scope of relevance or would impose an undue burden or expense or is otherwise objectionable."); Brown v. Tax Ease Lien Servicing, LLC, No. 3:15-CV-208-CRS, 2016 WL 10788070, at [*8] (W.D. Ky. Oct. 11, 2016) ("It is the party resisting discovery that still bears the burden to show that the discovery sought is disproportionate."). Contrary to Honeywell's assertions, the Magistrate Judge never required an affidavit; instead, he reasoned that the affidavit should have been filed before the close of arguments on the issue, which was not contrary to law.

Citing no caselaw, Honeywell also asserts that "it is clearly erroneous that a party is precluded from presenting renewed objections and, if warranted, an affidavit in support of such objection" in the face of a court ordered amended production. [DN 213 at 14]. The Magistrate Judge's decision to not consider the affidavit was not contrary to law and within his discretion since the affidavit was presented after the close of arguments on the issue. [DN 186 at 3].

The Magistrate Judge's order compelling the discovery at issue was not contrary to law because the caselaw that he relies on supports his reasoning. The discovery is relevant and proportional to the needs of the case for the reasons explained in Magistrate Judge's orders. [DN 161, DN 186].

IV. CONCLUSION

For the reasons set forth above, IT IS HEREBY ORDERED that Honeywell's objection [DN 213] is OVERRULED.

Sources

• The opinion on Google Scholar
• Kentucky asbestos laws
• Kentucky asbestos exposure sites