St. Clair County Associate Judge Randall Kelley ordered Union Pacific to comply with a former employee’s discovery requests in a suit alleging he developed cancer from exposure to creosote and solar radiation.

Clarence Mayberry filed his lawsuit on June 17 against Union Pacific Railroad Company.

He claims that during the course of his employment with the defendant from 1968 to 2009, he was exposed to creosote and solar radiation.

Mayberry alleges the exposures caused him to develop basal cell carcinomas on his face, ears, head and neck.

He alleges Union Pacific failed to provide equipment or other products to protect Mayberry from creosote and excessive solar radiation and failed to educate and train him on how to reduce or eliminate exposure to creosote and solar radiation.

Mayberry filed a motion to compel on Nov. 2 through attorney William Gavin of Gavin Law Firm in Belleville. He seeks an order compelling the defendant to comply with his discovery requests.

He argues that the defendant’s responses “are replete with non-answers, spurious objections, assertions of privilege without compliance … self-serving assertions, and incomplete and evasive responses.”

Mayberry claims the defendant’s preliminary statements include “self-serving statements apparently in an attempt to justify Defendant’s non-compliance with numerous Illinois Supreme Court Rules.”

He adds that the defendant made “broad, non-specific” objections to the production requests.

Union Pacific filed an opposition to the plaintiff’s motion to compel or for a protective order on Nov. 22 through attorneys Tracy Jonathan Cowan and Karen Volkman of Hawkins Parnell Thackston & Young in St. Louis.

Union Pacific claims it has produced thousands of pages of documents in response to Mayberry’s requests.

The defendant argues that discovery is not limitless, and the plaintiff “failed to properly limit the scope of his requests to the relevant exposures, the time period at issue, the type of work performed, the relevant equipment, or the locations where plaintiff worked.”

“Discovery also cannot be used for purposes of harassment or as a fishing expedition,” the opposition states.

The defendant also claims Mayberry’s request for deposition of Betsy Gassaway “seeks privileged information and is otherwise improper.”

“Ms. Gassaway is a member of Union Pacific’s Law Department, and any knowledge Ms. Gassaway has about the compilation of any information responsive to Plaintiff’s discovery is protected by the attorney-client privilege and not open to discovery,” the opposition states.

The defendant added that other courts considering Gassaway’s deposition request in similar suits have entered protective orders prohibiting a deposition from going forward.

Union Pacific argues that the plaintiff failed to describe how its discovery responses’ preliminary statements were “self-serving” or “justifying.”

However, the defendant offered to withdraw the offensive statements from the responses in an effort to resolve the issue.

Union Pacific further argues that it is unable to determine in what manner its responses are not specific enough.

“Therefore, Plaintiff has failed to demonstrate why the Court should order Union Pacific to provide further information or what that further information should be,” the opposition states.

Kelley filed his order on Nov. 23, demanding Union Pacific to comply with the plaintiff’s interrogatories and to provide a privilege log for any information withheld from its answers to the first interrogatories.

Union Pacific must include the date of the withheld documents, the name and title of the author of the documents, name and title of each recipient of the documents and an accurate description of the document sufficient to enable the court to determine whether the claimed privilege or work product doctrine is applicable.

Union Pacific also filed a motion to dismiss or transfer the complaint on Oct. 27.

The defendant alleges Mayberry is a resident of Randolph County.

While Mayberry has objected to the defendant’s discovery requests, Union Pacific claims it believes the plaintiff primarily worked for the defendant and its predecessor in Missouri and various locations in Illinois outside of St. Clair County.

Kelley scheduled a status conference for Jan. 30.

St. Clair County Circuit Court case number 16-L-319

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