IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`
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`
`
`
`
`
`
`SUZANNE HOLMES, INDIVIDUALLY,
`and as ADMINISTRATRIX of the ESTATE
`of RONALD C. HOLMES, Deceased,
`
`
`
`
`
`Plaintiff,
`
`
`
`vs.
`
`
`THE NASH ENGINEERING COMPANY, et
`al.,
`
`
`
`Defendants.
`
`CIVIL DIVISION - ASBESTOS
`
`G.D. No. 18-011084
`
`
`PRETRIAL STATEMENT OF THE NASH
`ENGINEERING COMPANY
`
`
`
`Filed on behalf of Defendant, The Nash
`Engineering Company
`
`Counsel of Record for this Party:
`
`Edward A. Smallwood, Esquire
`PA I.D. No. 80919
`smallwood@litchfieldcavo.com
`
`
`LITCHFIELD CAVO LLP
`603 Stanwix Street
`10Th Floor
`Two Gateway Center
`Pittsburgh, PA 15222
`
`P. (412) 291-8240
`F. (412) 586-4512
`
`
`JURY TRIAL DEMANDED
`
`
`
`
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`
`

`

`
`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`
`
`SUZANNE HOLMES, INDIVIDUALLY,
`and as ADMINISTRATRIX of the
`ESTATE of RONALD C. HOLMES,
`Deceased,
`
`
`
`
`
`
`
`Plaintiff,
`
` CIVIL DIVISION - ASBESTOS
`
`G.D. No. 18-011084
`
`
`
`vs.
`
`
`THE NASH ENGINEERING COMPANY,
`et al.,
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`PRETRIAL STATEMENT OF THE NASH ENGINEERING COMPANY
`
`Defendant, The Nash Engineering Company ("Nash"), by and through its undersigned
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`counsel and the law firm of Litchfield Cavo LLP, pursuant to the Pennsylvania Rules of Civil
`
`Procedure and the Case Management Order governing this case, files the within Pretrial
`
`Statement as follows:
`
`
`
`
`
`I.
`
`GENERAL RESERVATIONS AND INCORPORATIONS
`
`Nash may call any and all witnesses listed in any Disclosure of Witnesses filed on behalf
`
`of any party or in any Supplemental Disclosure of Witnesses, including any medical, liability,
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`opinion, condition, damage, expert or records witnesses. By this incorporation and subsequent
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`incorporations, Nash does not intend to incorporate by reference any proposed testimony which
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`identifies any product distributed, supplied or sold by Nash.
`
`
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`Nash reserves the right to call any witness to offer factual or opinion testimony for
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`purposes of impeachment or rebuttal, whether or not such a witness has been identified on the
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`Witness List of any party.
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`3
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`Nash reserves the right to call any and all of the witnesses named in any pleading of
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`record, depositions and/or discovery responses.
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`
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`Nash reserves the right to call any or all of Plaintiff's treating, consulting and examining
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`physicians which are now known or which later become known.
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`Nash reserves the right to call as a witness, any photographer, subpoena server, or investigator of
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`Plaintiffs or any Defendant.
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`
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`Nash reserves the right to call as a witness, all parties and any present or former agent,
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`servant, employee, representative or officer of any party.
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`
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`Each of the above inclusions and provisions pertains to each of the following categories
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`of witnesses and should be read so as to be included in each category.
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`
`
`II.
`
`1.
`
`NARRATIVE STATEMENT
`
`Plaintiffs allege that Ronald Holmes developed lung cancer as a result of direct and
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`indirect exposure to products, which allegedly contained asbestos, manufactured and/or supplied
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`by the defendants, including Nash, during his work at various industrial sites in the 1960s until the
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`2000s. With regard to Nash, Plaintiff alleges that Nash manufactured or sold pumps that
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`incorporated asbestos-containing components to which Mr. Holmes was allegedly exposed during
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`his working career. These allegations are denied. There is insufficient evidence to establish that
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`Nash manufactured or sold any asbestos-containing components related to any Nash products that
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`Mr. Holmes might have worked near during his career. Moreover, Plaintiffs cannot establish that
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`Mr. Holmes was exposed to a sufficient dose of asbestos allegedly shed from Nash products, that
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`was capable of and did in fact cause or substantially contribute to his development of lung cancer.
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`
`
`III. WITNESSES
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`
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`4
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`

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`
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`A.
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` Liability/Damage Witnesses
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`In order to avoid duplication, Nash reserves the right to incorporate by reference the names
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`and reports of all witnesses, including liability, economic, and medical expert witnesses, listed in
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`the Pretrial Statement of any party to this action and, furthermore, reserves the right to incorporate
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`by reference the names and reports of all expert witnesses listed in the Pretrial Statement of any
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`party to any other action which is consolidated in this action. Nash further reserves the right to
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`supplement this pretrial statement to include additional witnesses as they become known to it. In
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`addition to those witnesses, Nash may call as liability/damage witnesses any or all of the following:
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`Plaintiffs (by deposition) as well as any and all Personal Representatives
`1.
`and/or family members of Plaintiffs, if applicable
`
`Any and all corporate representatives, fact witnesses and/or co-workers
`2.
`identified in the Plaintiffs' response to any and all Motions for Summary Judgment filed in this
`action
`
`Any party deposed in reference to this action including but not limited to
`3.
`corporate representatives, fact witnesses and/or co-workers
`
`All corporate representatives, fact witnesses and/or co-workers
`4.
`referenced and/or identified during the course of discovery undertaken in this action, including
`but not limited to those persons identified in Interrogatories, Requests for Production of
`Documents, Depositions and/or Requests for Admission
`
`5.
`
`Representative/records custodian of all defendants
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`Any witnesses necessary to provide a foundation for and/or authenticate
`
`6.
`any and all exhibits
`
`
`7. Any or all persons referenced in Plaintiff's medical records including but not limited to
`treating physicians
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`8. Any physicians, medical practitioners, or other health care providers who have examined or
`treated Plaintiff, or examined x-rays, tissue slides or biopsy materials taken from Plaintiff.
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`9. Any independent medical examiner, if applicable
`
`10. Any or all persons referenced in the Plaintiff's employment records
`
`5
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`11. Records custodian/representative of the Internal Revenue Service
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`12. Records custodian/representative of all employers of Plaintiff
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`13. Records custodian/representative of the Social Security Administration
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`14. Records custodian/representative of any and all health care providers of Plaintiff
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`15. Records custodian of military records (if applicable) of Plaintiff
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`16. Any and all persons referenced in any discovery undertaken in this action
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`17. Any or all persons referenced in any Co-Worker and/or Fact Disclosure filed by any and all
`parties named in this action
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`18. Records custodian/representative of any bankrupt entity in which a claim was made in this
`case including but not limited to the Manville Personal Injury Settlement Trust
`
`19. Any and all persons referenced in any Pre-Trial Statements filed by any and all parties
`named in this action
`
`20. Corporate Representatives/Employees/Authorized Agents and/or other fact witnesses of any
`and all defendants, including but not limited to all such individuals set forth in the Pretrial
`Statement or Witness Disclosures of any party
`
`21. Corporate Representatives or Designees of The Nash Engineering Company, including, but
`not limited to, David Nash
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`22. Custodian of the records of The Nash Engineering Company
`
`23. Marc Plisko
`
`Senior Project Manager
`Environmental Profiles, Inc.
`8805 Columbia 100 Parkway
`Suite 100
`Columbia, MD 21045
`
`24. Paul A. Nony, PhD., CIH
`
`Center for Toxicology and Environmental Health, LLC
`
`
`
`25.
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`
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`
`
`Frank E. Gomer, Ph.D.
`Gomer Consulting Group
`10605 E. Cactus Road, Suite 100
`
`6
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`Scottsdale, AZ 85259
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`
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`B. Expert Witnesses
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`In order to avoid duplication, Nash reserves the right to incorporate by reference the names
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`and reports of all witnesses, including liability, economic, and medical expert witnesses, listed in
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`the Pretrial Statement of any party to this action and, furthermore, reserves the right to incorporate
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`by reference the names and reports of all expert witnesses listed in the Pretrial Statement of any
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`party to any other action which is consolidated in this action, including experts retained by lead
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`defense counsel. Nash further reserves the right to supplement this pretrial statement to include
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`additional witnesses as they become known to it. In addition to those witnesses, Nash may call as
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`expert witnesses any or all of the following:
`
`1.
`
`2.
`
`3.
`
` Marc Plisko
`Senior Project Manager
`Environmental Profiles, Inc.
`8805 Columbia 100 Parkway
`Suite 100
`Columbia, MD 21045
`
` Paul A. Nony, PhD., CIH (report attached hereto as Exhibit A)
`Center for Toxicology and Environmental Health, LLC
`
` Frank E. Gomer, Ph.D.
`Gomer Consulting Group
`10605 E. Cactus Road, Suite 100
`Scottsdale, AZ 85259
`
`Gregory J. Fino, MD, FCCP
`Clinical & Occupational Pulmonary Associates, LLC
`St. Clair Hospital
`1000 Bower Hill Road, Suite 211
`Pittsburgh, PA 15243-1899
`
`
`Stanley J. Geyer, M.D.
`Pathologist
`
`7
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` 4
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`5.
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`Geyer Pathology Services, LLC
`3 Willow Farms Lane
`Pittsburgh, PA 15238
`
`Peter D. Kaplan, M.D.
`Allegheny Pulmonary & Critical Care
`490 East North Avenue – Suite 300/301
`Pittsburgh, PA 15212
`
`Suresh H. Moolgavkar, M.D., Ph.D.
`Corporate Vice President and Principal Scientist
`Exponent
`149 Commonwealth Drive
`Menlo Park, CA 94025
`
`Fionna S. Mowat, Ph.D.
`Principal Scientist and Director of Health Sciences Center
`Exponent
`149 Commonwealth Drive
`Menlo Park, CA 94025
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`6.
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`7.
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`8.
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`Sheldon H. Rabinovitz, Ph.D, C.I.H.
`9.
`Rabinovitz Consulting, Inc.
`
`14712 Botany Way
`
`N. Potomac, MD 20878
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`
`
`Donna M. Ringo, CIH
`10.
`DMR & Associates, Inc.
`
`604 Pennyroyal Way
`
`Louisville, KY 40223
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`
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`11. Michael J. Warhol, M.D., F.C.A.P.
`
`Pathology Consulting Network, Inc.
`
`135 Allgates Drive
`
`Haverford, PA 19041
`
`
`
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`
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`IV. EXHIBITS
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`Records of each hospital or other treating or diagnostic facility to which Plaintiff has been
`1.
`admitted as an in-patient, outpatient, or emergency room patient.
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`2. Records of each of Plaintiffs treating, consulting or examining physicians or other medical care
`providers.
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`8
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`3. Records of each of Plaintiff's current or former employers.
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`4. Reports prepared or documents relied upon by any of the experts identified by Plaintiff or other
`defendants.
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`5. All Exhibits listed in the Pretrial Statements and/or Fact Witness or Exhibit Lists filed
`by Plaintiffs and any other Defendant or Additional Defendant that have been filed or
`will be filed.
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`6. All documents identified or produced in discovery or any pre-trial submission by
`Plaintiffs and defendants including, but not limited to, exhibits identified and/or
`attached to Motions for Summary Judgment and responses to the same.
`
`7. All documents prepared, identified and/or produced by settling non-parties and by
`parties necessary to apportion liability, including any and all releases signed by
`Plaintiff.
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`8. All documents produced or identified in discovery and/or pretrial statements in this
`matter, including but not limited to Answers to Interrogatories, depositions, and
`expert reports.
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`9. All maps, schematics, diagrams, pictures, photographs, drawings, or videos of
`Plaintiff's work site(s).
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`10. Personnel file(s) from each of Plaintiff's current or former employers.
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`11. All social security records of Plaintiff and any dependents.
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`12. All Defendants' Answers to Interrogatories in this case or any other case which are
`necessary to apportion liability among defendants.
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`13. All corporate representative depositions of Defendants in this case and any other case
`necessary to apportion liability among defendants.
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`14. All exhibits to depositions of fact witnesses listed by this Defendant or any other party
`in this case.
`
`15. Photographs of any product manufactured by The Nash Engineering Company.
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`9
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`16. Model of alleged Nash product(s) at issue, as well as blow-up of alleged component part(s)
`in such product(s).
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`
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`17. Documents related to alleged Nash product(s), as well as any alleged component part(s)
`in those product(s) at issue in this case, including specifications, drawings, diagrams,
`instructions, and descriptive documents.
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`18. Drawings/illustrations of the alleged Nash product(s) at issue in this case and
`drawings/illustrations of alleged component part(s) in the product(s) at issue in this
`case
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`19. Photographs of the alleged Nash product(s) at issue in this case and photographs of the
`alleged component part(s) in the Nash product(s), including blow-ups of such
`photographs.
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`20. Documents to be used by The Nash Engineering Company's experts, including charts,
`diagrams, illustrations and photographs.
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`21. Photographs, illustrations and records pertaining to the alleged Nash product(s) at issue
`in this case, as well as the alleged component part(s) in those product(s) at issue in this
`case, including product literature, diagrams, drawings, blueprints, specifications,
`marketing materials, manuals and instructions.
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`22.Products or exemplars of products and/or photographs and/or product literature
`information regarding all products identified in this case from other parties and
`nonparties involved in Plaintiff's work and/or exposure.
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`9
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`
`V.
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`VOIR DIRE STATEMENT AND ADDITIONAL VOIR DIRE PURSUANT
`TO LOCAL RULE 212.2 AND 220.1 AND OBJECTIONS TO PLAINTIFFS'
`VOIR DIRE
`STATEMENT AND
`PROPOSED VOIR DIRE
`
`Pursuant to Local Rule 212.2 and 220.1, Nash hereby submits a proposed Voir Dire
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`Statement and additional Voir Dire, as Exhibit "A" and Exhibit "B," respectively. In addition,
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`Nash hereby submits Objections to Plaintiffs' Voir Dire Statement and Proposed Voir Dire
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`as Exhibit "C".
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`Respectfully submitted,
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`
`
`LITCHFIELD CAVO LLP
`
`/s/ Edward A. Smallwood
`By:
`Edward A. Smallwood, Esquire
`Two Gateway Center, 10th Floor
`603 Stanwix Street
`Pittsburgh, PA 15222
`(412) 291-8240
`
`Counsel for Defendant,
`The Nash Engineering Company
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`10
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the foregoing Pre-Trial
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`Statement has been served on this December 15, 2020 by U.S. first-class mail, postage prepaid, to
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`the following Plaintiffs’ counsel and notice of same to all known defense counsel via electronic
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`mail:
`
`Mark D. Troyan, Esquire
`ROBERT PEIRCE & ASSOCIATES, P.C.
`707 Grant Street, Suite 125
`Pittsburgh, PA 15219
`
`
`
`
`
`
`LITCHFIELD CAVO LLP
`
`
`/s/ Edward A. Smallwood
`By:
`Edward A. Smallwood, Esquire
`Two Gateway Center, 10th Floor
`603 Stanwix Street
`Pittsburgh, PA 15222
`(412) 291-8240
`
`Counsel for Defendant,
`The Nash Engineering Company
`
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`11
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`EXHIBIT A
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`EXHIBIT A
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`VOIR DIRE STATEMENT OF THE NASH ENGINEERING COMPANY
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`The Plaintiffs sued dozens of companies claiming that they are all responsible for Mr.
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`Holmes’ lung cancer. We represent one of those companies, The Nash Engineering Company.
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`Nash manufactured industrial equipment, including pumps which are at issue in this case. Mr.
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`Holmes never worked for Nash. Rather, Mr. Holmes worked for Union Railroad at numerous
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`industrial sites from the late 1960s until the 2000s. With regard to Nash, Plaintiff alleges that
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`Nash manufactured or sold pumps that incorporated asbestos-containing components to which
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`Mr. Holmes was allegedly exposed during his working career.
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`We understand that some of what you are going to hear over the next period of days is
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`tough. It is normal to feel emotional and we too are saddened. The judge will instruct you and we
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`will also caution that while you can and should feel sympathy, you cannot allow that sympathy
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`to affect your ability to listen to the facts and apply the law. If you do that job, and it is a very
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`important job and one we thank you for, we anticipate you will notice some problems with the
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`alleged evidence and the unsupported leaps you are being asked to make. We will address this
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`further during the actual trial. For now, we thank you for your time.
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`EXHIBIT B
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`EXHIBIT B
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`ADDITIONAL VOIR DIRE
`
`1. The law does not favor individuals over corporations—each stands equally before the law.
`Do you think you can treat individuals and corporations equally in this case, or would you
`favor one over the other?
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`2. Have you, a family member, or close friend ever gotten sick or developed some type of
`medical condition or problem as a result of being exposed to a hazardous substance?
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`3. Have you ever cared for a terminally ill person?
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`4. Do you have any personal experiences that you believe would impact upon your ability to
`give both the plaintiff and defendants a fair trial?
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`5. Do you believe that any exposure to asbestos, no matter how small, is dangerous?
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`EXHIBIT C
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`EXHIBIT C
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`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
` CIVIL DIVISION - ASBESTOS
`
`G.D. No. 18-011084
`
`
`
`SUZANNE HOLMES, INDIVIDUALLY,
`and as ADMINISTRATRIX of the
`ESTATE of RONALD C. HOLMES,
`Deceased,
`
`
`
`Plaintiff,
`
`
`
`
`
`vs.
`
`
`THE NASH ENGINEERING COMPANY,
`et al.,
`
`
`Defendants.
`
`
`
`
`
`
`
`OBJECTIONS TO PLAINTIFF’S PROPOSED
`VOIR DIRE STATEMENT AND VOIR DIRE
`
`It is anticipated that some or all of Plaintiff’s Voir Dire Statement will conflict with
`
`
`1.
`
`the ultimate evidence presented in this case and the jury instructions that will be provided by this
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`Court.
`
`2.
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`Moreover, Plaintiff’s Voir Dire Statement is inflammatory and argumentative in
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`nature and will only serve to confuse and mislead the jury.
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`3.
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`Likewise, some of Plaintiff’s Proposed Voir Dire should be stricken and not
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`proposed to the jury panel because they are overly suggestive of an outcome and argumentative.
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`4.
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`The purpose of voir dire is to secure a competent, fair, impartial and an
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`unprejudiced jury. See Commonwealth v. Futch, 366 A.2d 246 (Pa. 1976). While considerable
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`latitude should be permitted on voir dire, the inquiry should be strictly confined to disclosing
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`qualifications of a juror and whether a juror has formed an opinion or may otherwise be subject to
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`disqualification for cause. Commonwealth v. McGrew, 100 A.2d 467 (Pa. 1953). Questions of a
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`

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`direct or hypothetical nature designed to disclose a juror’s present opinion or what his opinion or
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`decision would be under certain facts are prohibited. See Commonwealth v. Johnson, 305 A.2d 5
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`(Pa. 1973). Further, voir dire in the nature of a legal instruction is not proper. See Commonwealth
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`v. Rainey, 363 A.2d 1148 (Pa. 1976).
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`5.
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`Plaintiff’s Proposed Voir Dire Statement and Additional Voir Dire are
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`inflammatory, argumentative, highly suggestive, and will not aid in any way in impaneling an
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`impartial jury.
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`For the reasons set forth above, this Defendant respectfully requests that this Honorable
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`Court enter an order striking Plaintiff’s Proposed Voir Dire Statement and Additional Voir Dire.
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`Respectfully submitted,
`
`LITCHFIELD CAVO LLP
`
`/s/ Edward A. Smallwood
`By:
`Edward A. Smallwood, Esquire
`Two Gateway Center, 10th Floor
`603 Stanwix Street
`Pittsburgh, PA 15222
`(412) 291-8240
`
`Counsel for Defendant,
`The Nash Engineering Company
`
`
`
`
`
`