Petruska v. Johns-Manville

83 F.R.D. 32, 28 Fed. R. Serv. 2d 966, 5 Fed. R. Serv. 595, 1979 U.S. Dist. LEXIS 12718
District Court, E.D. Pennsylvania·Decided April 30, 1979·No. Civ. A. No. 77-3341·Published·Cited by 15 cases

Opinion

OPINION

POLLAK, District Judge.

This diversity action was commenced in 1977 to recover damages for asbestos poisoning. The complaint puts forward two novel theories of liability. First, it seeks to impose liability on defendant Johns-Man-ville Products Corporation (hereinafter “Products”) for asbestos-related diseases— mesothelioma and asbestosis—contracted by plaintiff’s decedent John R. Petruska as a result of his residency in a town in which Products operated an asbestos-using plant. Second, it seeks to impose liability on defendant Canadian Johns-Manville Company, Ltd., (hereafter “Canadian”) for distributing to Products asbestos “which [it] knew . or should have known [was] deleterious, poisonous and highly harmful to plaintiff-decedent’s body, lungs, respiratory system, skin and health.”

The case is now before the Court on plaintiff’s motion to compel defendants to produce the following documents: (1) records of medical examinations of its employees made by defendant, Canadian, during the period 1920-1960; (2) records of occupational disease and workmen’s compensation claims filed by employees of Canadian claiming asbestos-related health problems from 1920—1960; (3) copies of all minutes of the Quebec Asbestos Mining Association in the possession of Canadian; and (4) a copy of any list of mesothelioma cases for employees of Canadian. Plaintiff proposes that inspection take place at the Philadelphia office of defendants’ counsel, with the understanding that plaintiff will reimburse defendants for all photocopying expense. Defendants argue that the proposed discovery is tardy, and that in any event production of the requested documents would (1) contravene Quebec law, and (2) as to some of the documents, be a “breach of privilege.”

1. Defendants contend that plaintiff’s demand is out of time, arguing that the Court’s extension of the discovery deadline to February 1, 1979, was merely to facilitate completion of outstanding discovery, not to permit new discovery. The Court’s order was not so limited.

2. Defendants argue that the documents concerning Canadian employees are not relevant to this case since John Petruska is not claiming a work-related impairment. But evidence concerning defendants’ knowledge of the danger to their employees is probative of their knowledge of the danger, if any, to residents of communities in which they operate plants. In Karjala v. Johns-Manville Products Corp., 523 F.2d 155, 158 (8th Cir. 1975), the Court of Appeals approved a jury charge which read in part:

It is admitted that Johns-Manville knew as early as 1942 that asbestos would cause asbestosis when inhaled by factory workers. Mr. Karjala, however, is not a factory worker. He is an insulation installer. It is for you to decide whether or not Johns-Manville knew in fact of the [35] danger to Mr. Karjala of contracting asbestosis ... In reaching your decision you may consider the knowledge which Johns-Manville had relative to factory workers and whether or not this knowledge would put Johns-Manville on notice of the danger to Mr. Karjala as an installation worker.

Therefore, the requested documents appear relevant within the meaning of Rule 401 of the Federal Rules of Evidence and also within the meaning of Rule 26(b)(1) of the Federal Rules of Discovery.

3. Defendants argue that all medical records are privileged. Since this is a diversity action, this Pennsylvania federal court must follow the privilege law which would be applied if this case had been brought in a state court. Federal Rule of Evidence 501.1 And this means that if the state court would apply the privilege law of another jurisdiction, the federal court must follow suit. Cf. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The Pennsylvania Supreme Court’s adoption, in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), of a modern approach to choice of law suggests that a Pennsylvania state court would look to the privilege law of Quebec where the doctor-patient relationships between Canadian’s employees and Canadian’s physicians arose. See Panko v. Consolidated Mutual Insurance Company, 423 F.2d 41, 43 (3d Cir. 1970). Defendants, who have the burden of proving a privilege, have not cited any Quebec statute or case law setting forth the protection claimed. The Court’s research—which can make no claim to being exhaustive, but it is all the law which is available to us—suggests that Quebec follows the common law rule that communications entrusted to a medical ad-visor are not privileged. Regina v. Potvin (1971) 16 C.R.N.S. 233 (Quebec Court of Appeal) (criminal case). See also Regina v. Burgess (1974) 4 W.W.R. 310 (British Columbia).2 Defendants may wish to redact patient names to insure confidentiality; plaintiff has advised the Court that such limited redaction is acceptable.

4. Defendants argue that Quebec Asbestos Mining Association records can be secured directly from the Association. But it is “not usually a ground for objection that the information is equally available to the interrogator or is a matter of public record.” 8 Wright and Miller, Federal Practice and Procedure, Civil § 2014 at 111. Here, plaintiff may have difficulty obtaining records from a foreign association, and the records sought are only tho.se in defendants’ possession.

5. Defendants’ final argument against the proposed discovery is the most sweeping: because the demanded documents “are Canadian records of Canadian concerns,” they “are therefore governed by Chapter 278 [of the Business Concerns Records Act of the Province of Quebec] and cannot be released to plaintiff or plaintiff’s counsel.” Article 2 of the cited Quebec statute provides in pertinent part:

[36] . nul ne peut, á la suite ou en vertu d’une requisition émanant d’une au-torité legislative, judiciaire ou administrative extérieure á la province, transporter ou faire transporter, ou envoyer ou faire envoyer, d’un endroit quelconque dans la province á un endroit situé hors •de celle-ci, aucun document ou résumé ou sommaire d’un document relatif á une entreprise.3

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Petruska v. Johns-Manville, 83 F.R.D. 32, 28 Fed. R. Serv. 2d 966, 5 Fed. R. Serv. 595, 1979 U.S. Dist. LEXIS 12718 (E.D. Pa. 1979).

83 F.R.D. 32 (Petruska v. Johns-Manville) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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