Hill and Griffith Co. v. Bryant
| Decision Date | 21 January 2004 |
| Docket Number | No. 12-03-00091-CV.,No. 12-03-00092-CV.,12-03-00091-CV.,12-03-00092-CV. |
| Citation | 139 S.W.3d 688 |
| Parties | The HILL AND GRIFFITH COMPANY, Adams & Coffey, P.C., and Pamela Neale Williams, Appellants, v. Lloyd BRYANT, C.V. Sessions, Jimmy Dell Wyatt, and Jimmie Harper, Appellees. |
| Court | Texas Court of Appeals |
Appeal from the County Court at Law, Smith County, Randall L. Rogers, J Wade C. Crosnoe, John Sepehri, Thompson Coe Cousins & Irons LLP, Dallas, for appellants The Hill and Griffith Company.
Thomas V. Murto, III, Stradley & Wright, Dallas, for appellants Adams & Coffey, P.C. and Pamela Neale Williams.
Richard I. Nemeroff, New York, NY, Lisa Renee Kivett, Kevin Duane McHargue, Baron & Budd, P.C., for appellees.
Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
Appellants Hill and Griffith Company ("H & G"), Adams & Coffey, P.C. ("Adams & Coffey"), attorneys of record for H & G, and Pamela Neale Williams ("Williams"), an Adams & Coffey shareholder, appeal an award of monetary and community service sanctions for discovery abuse. In three issues, H & G contends that the trial court abused its discretion in ordering it to pay $17,500.30 as a sanction for discovery abuse. In two issues, Adams & Coffey and Williams contend that the trial court abused its discretion in ordering Williams to perform fifty hours of community service for withholding a document. We affirm.
In April 2001, Lloyd Bryant, Jimmie Harper, Russell Shackelford, and C.V. Sessions ("Plaintiffs") filed suit against several companies, including H & G, for failing to warn of the dangers of silica. Plaintiffs alleged that their exposure to silica caused them to suffer serious illnesses and that H & G had sold these silica products to their employer, Tyler Pipe Industries, Inc. On November 14, 2001, Plaintiffs served H & G with interrogatories and requests for production of documents. Interrogatory number 15 specifically asked for details about any document relating to the potential health hazards of silica-based products and who with the company would have possession of each such document. Additionally, request for production number 4 asked H & G to produce all internal memoranda of any of its companies relating to the marketing of silica-containing products sold to Plaintiffs' employer.
H & G responded to interrogatory number 15 and request for production number 4 with virtually the same language, which in part stated:
"Defendant objects to this interrogatory [or request] because it is vague, ambiguous, overly broad and burdensome and is an impermissible `fishing expedition'".
Counsel for Plaintiffs and H & G verbally jousted back and forth over the ensuing months regarding H & G's lack of responsiveness to these and other discovery requests. Meanwhile, on July 18, 2002, the trial court entered its amended scheduling order and discovery control plan, which set the matter for trial on September 30, 2002. The jousting between counsel for Plaintiffs and H & G reached its peak in early August when Plaintiffs filed a motion to compel.
On August 30, 2002, the trial court held a hearing on Plaintiffs' motion to compel. At this hearing, Williams represented to the court that Adams & Coffey had turned over every document that H & G had provided to them in response to Plaintiffs' discovery requests. After hearing argument of counsel on each of the interrogatories and requests, including interrogatory number 15 and request for production number 4, the trial court overruled H & G's objection. The court also specifically ordered that interrogatory number 15 be fully answered and all documents relating to request for production number 4 be delivered to Plaintiffs' counsel by September 11, 2002. This deadline would ensure that the requested answers and documents were available for Plaintiffs' counsel's use in questioning the H & G executives and employees whose depositions were scheduled for September 18 and 19 in Cincinnati, Ohio.
On September 11 and 12, H & G delivered amended interrogatory answers and documents to Plaintiffs' counsel. The documents included copies of three warning labels relating to Red Chief Dry Core Paste, Pyrostal Classic, and EZ Dry Plastic Mold Spray, three of the silica-based products sold by H & G. Steve Neltner ("Neltner"), corporate manager of quality for H & G, appeared for his deposition on September 18. Neltner had been prepared for this deposition by David Eriksen ("Eriksen"), an attorney with the law firm of Thompson, Coe, Cousins & Irons, L.L.P. ("Thompson and Coe"). Although Williams was present at Neltner's deposition, Eriksen was responsible for interacting with Plaintiffs' counsel and for making objections and other statements for the record. Although neither Eriksen or Thompson and Coe were ever named as H & G's attorneys of record in the lawsuit, it is clear from the record that they were heavily involved in H & G's tactical and strategic preparation for trial.
During the deposition, Neltner intimated that there were interoffice documents about H & G's warning labels other than those that Plaintiffs' counsel had asked him about. Both during and after Neltner's deposition, Plaintiffs' counsel requested that any unproduced documents about H & G's warning labels be turned over in compliance with the trial court's ruling at the hearing on the motion to compel. H & G's counsel contended they had no other documents that were responsive to Plaintiffs' discovery requests. On the morning of Monday, September 30, pretrial began, and Plaintiffs' counsel filed a motion for sanctions against H & G for failure to produce the documents Neltner referred to in his deposition. Later in the afternoon, while pretrial continued in the case, H & G's counsel delivered to Plaintiffs' counsel an interoffice memorandum detailing the history of the labels previously produced and the development of warning labels by H & G in response to federal regulations ("Labeling Memo"). The Labeling Memo stated as follows:
To: Gary Follmer
From: Lori Yeager
Date: May 26, 1998
In response to your request concerning product labeling, I have summarized to the best of my ability the history of our labeling process. In 1986 the Hazard Communication Standard was added to the OSHA Regulations. This standard required labeling of all containers within a facility that would be used by more than one employee for more than one shift. Hill and Griffith probably began labeling their products in accordance with this regulation. In 1987 the International Agency for Research on Cancer (IARC) found that there was sufficient evidence in laboratory animals that crystalline silica could cause cancer (IARC Designation 2A). This warning was added to all Material Safety Data Sheets (MSDS) and should have appeared on labels if the material did in fact contain some form of crystalline silica. The IARC recently changed the cancer designation for crystalline silica from a 2A to a 1 (known human carcinogen). We have changed the warning on our labels to reflect this change. MSDSs have been changed [and] are in the process of being distributed to our customers.
I did find current labels for Pyrostal (now known as Pyrostal Classic), EZ Dry Plastic Mold Spray, and Red Chief Dry Core Paste. I have no records for Silk Box, # 1 Ebony Core Compound, or Core Compound # 1.
For Premix Products, we began adding the silica warning to the Seacoal bags as of January 1, 1998. As soon as our current inventory is depleted, we will begin using the preprinted bags. The bags for Western Bentonite have had the warning on them, I would presume since 1987 when the IARC results were published. Kleen Kast should not have any crystalline silica in it. The Dow HV90 is a silicone emulsion. The MSDS for this product lists no known carcinogens and does not list crystalline silica as a hazardous ingredient.
Please let me know if I can be of further assistance. I hope this information helps you somewhat.
cc: Steve Neltner
The next day, Tuesday, October 1, while continuing to hear pretrial matters in the case, the trial court took up Plaintiffs' motion for sanctions. Plaintiffs' counsel explained to the trial court that Plaintiffs had been prejudiced by the withholding of the Labeling Memo because the memo was not available when the depositions of certain H & G executives and employees were taken in Cincinnati on September 18 and 19. Counsel informed the court that in a products liability case where failure to warn is alleged, a document discussing the thought processes in developing warning labels is relevant and an important part of discovery. Counsel further contended that H & G and their attorneys had taken active, overt steps to keep secret this Labeling Memo prior to the September 18 and 19 depositions. Consequently, Plaintiffs' counsel asked the trial court to strike H & G's pleadings. The trial court granted the motion for sanctions. However, the court stated that death penalty sanctions were inappropriate in the matter and informed the parties that it would not strike H & G's pleadings. The court recessed the sanctions hearing for approximately thirty minutes to allow the parties an opportunity to work out a settlement on sanctions. After the recess, Kent Adams ("Adams"), the lead attorney of record for H & G, requested more time to settle the sanctions issue, which the court allowed.
On Wednesday, October 2, Eriksen, after being briefed on the sanctions hearing by Adams, contacted Rick Nemeroff ("Nemeroff"), the lead attorney for Plaintiffs, in an attempt to agree on appropriate sanctions. The parties did not reach a settlement, and the trial court resumed the sanctions hearing late on the afternoon of Thursday, October 3. Jury selection had begun that same morning.
When the sanctions hearing resumed, Williams testified that she made the decision to withhold the document from Plaintiffs after H & G sent it to her in...
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Is It Discoverable?
...discoverable; such documents could be relevant to the jail operator’s policy, custom, or practice. 3 Hill and Griffith Co. v. Bryant , 139 S.W.3d 688 (Tex. App. Tyler 2004). Discovery proceedings have as their aim and purpose the administration of justice by allowing the parties to obtain t......
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Is It Discoverable?
...discoverable; such documents could be relevant to the jail operator’s policy, custom, or practice. 3 Hill and Griffith Co. v. Bryant , 139 S.W.3d 688 (Tex. App. Tyler 2004). Discovery proceedings have as their aim and purpose the administration of justice by allowing the parties to obtain t......