Motion to Compel, Essay Example

Introduction

Plaintiff is an American by the name of John Doe who accuses his former employee, Mays Williams and Covey, of manufacturing products which caused him to develop a cancer called Mesothelioma. Plaintiff has withheld documents regarding his condition despite the court’s holdings that he reveals such documents relevant to the trial. The Plaintiff has also failed timely responses regarding special interrogatories regarding the request for production of documents and request for admissions. Defendants reserve the right to view documents revealing the status of the Plaintiff’s health in regards to his claim in order for the dispute to be resolved. For this reason, defendant’s motion to compel should be granted to defendants.

Statement of facts

Plaintiff allegedly was diagnosed with Mesothelioma. Mesothelioma is a cancer developed when working with products containing the chemical asbestos which he had worked with his entire career. The Plaintiff claims that the defendants produce asbestos-containing products which caused him to develop Mesothelioma.

The plaintiff has yet given timely responses to the defendant’s request for admissions. These admissions are needed to determine the condition the plaintiff allegedly developed by working for the defendants.

ABC Corporation, Defendant, by and through their attorney Mark A. Smith under Mays Williams & McCovey, requests that this Honorable Court compel Plaintiff, John Doe, to answer Interrogatories and Request for Production of Documents and to deem admitted Requests for Admission.   In support, Defendant’s arguments are as follows:

Legal arguments

Federal Rule of Civil Procedure 26(b)(1) provides that: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Fed. R. Civ. P. (26(b)(1), 28 U.S.C. (West 1999).

The United States Supreme Court has held that Federal courts are to construe discovery rules liberally in ______ case to provide the defendant with “broad access to all plaintiffs’ medical records regarding the diagnosis of Mesothelioma”. This would include chest x-rays, reliable test results, medical billings, and doctor’s diagnosis.

All that must be shown is that the discovery requested possibly might be relevant or reasonably calculated to lead to the discovery of admissible evidence.

“Asbestos” can be defined as material which includes chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, and any of these minerals that have been chemically treated and/or altered.

Asbestos-containing material (ACM) means any material containing more than 1% asbestos.

“Employee exposure” means that exposure to airborne asbestos that would occur if the employee were not using respiratory protective equipment. Which should be provided by any corporation suspected of producing materials containing asbestos.

Plaintiff needs to provide sustainable documents proving his condition

A chest x-ray will not be able to detect the asbestos fibers themselves, yet will be able to detect any early signs of lung disease which can be caused by asbestos. A test such as gallium 67 lung scanning using a tomography (high-resolution) can detect changes in the lungs. A reliable test also to determine exposure to asbestos is the detection of asbestos fibers in pieces of lung tissue, which can be obtained by surgery.

Asbestos fibers can also be detected in mucus, urine or feces. Only higher levels of exposures can cause Mesothelomia, which requires the inhalation of products containing asbestos.

Plaintiff needs to provide documents clearly stating that he has been diagnosed with high exposures of asbestos

Asbestos can be present other than in the workplace

Asbestos was common in construction material during the 1800s as well as the 1900s, it can be found in plaster, ceramics as well as tiles. Once determined if the plaintiff does have high-exposure to asbestos, which caused his alleged condition, then the timeframe of his exposure can be determined.

The defendants hold all the plaintiff’s work records, the timeframe of when the plaintiff was exposed to the asbestos needs to be matched with the timeframe in which the plaintiff was employed in ABC Corporation.

Asbestos in the workplace has been banned and/or regulated by the California Occupational Safety and Health act during the early 1980s.

“Presumed Asbestos Containing Material” means thermal system insulation and surfacing material found in buildings constructed no later than 1980.” CA Control of Hazardous Substances Article 110.

Any high exposure to asbestos by means of construction work during the 1980s should have immediately resulted immediate deterioration of health. A complaint filed thirty years after the regulation of asbestos in the workplace proves to be suspicious, if the plaintiff claims to only have been experiencing recent symptoms of Mesothelioma.

Plaintiff is required to support his case by providing documentation that he was indeed exposed to asbestos in recent times, which will also support that he was employed by ABC Corporation at the time of the exposure.

Plaintiff is requested to prove exposure through exposure monitoring of the workplace.

Determinations of employee exposure shall be made from breathing zone air samples that are representative of the 8-hour TWA [The employer shall ensure that no employee is exposed to an airborne concentration of asbestos in excess of 0.1 fiber per cubic centimeter (0.1 f/cc) of air as an eight (8)-hour time-weighted average] and 30-minute short-term exposures of each employee.

Exposure to asbestos in the workplace would result in multiple cases of Mesothelomia among the employees.

The plaintiff has been the first to file a complaint with regards to developing Mesothelioma through the exposure to asbestos-containing products in the workplace. If there were such chemicals to be found in the workplace in where John Doe was employed, his co-workers would have had the same levels of exposure. The plaintiff is required to provide documentation supporting his claim.

Exposure to asbestos can be transferred to the home via debris on work clothes Asbestos can also be inhaled from debris found on clothes if there were such exposures. Anyone in the family of the allegedly exposed victim may have also developed the same disease.

Conclusion

For the reasons stated above, defendant’s Motion to Compel Responses to Plaintiff’s First Set of Interrogatories, Responses to Requests for Production of Documents and Responses to Deposition Questions should be granted and Plaintiff’s ordered to produce all responsive documents and a privilege log within seven days.