Bayer told discovery responses inadequate

By John O'Brien | Jun 24, 2013

WHEELING – Bayer Material Science has not been specific enough in its responses to several discovery requests made by a former employee who alleges he was fired because he has cancer, a federal magistrate judge says.

Magistrate Judge James Seibert, of the Northern District of West Virginia, on June 19 granted several of the requests made by David A. Smith, a Wetzel County man who worked at Bayer’s facility in Marshall County until 2012. His lawsuit was filed in October in Marshall Circuit Court before Bayer removed it to federal court.

Smith is seeking information about any other legal actions taken by employees, as well as information about those employees, information about his own employment and information regarding the relationship between Bayer Material Science and Bayer Credit Union.

“Any objection to discovery requests must be lodged with some specificity so the requesting party, and the Court if it becomes involved, can ascertain the basis for the objection,” Seibert’s order says.

“Accordingly, generalized, boilerplate objections that regurgitate the language from Rule 26 (of the Federal Rules of Civil Procedure) – irrelevant, overly broad and unduly burdensome – are highly disfavored and will usually result in a waiver of the objection.”

Seibert made a similar ruling in April in a discrimination case against Consol Energy. In that order, he wrote that the defendants were “admonished for engaging in this practice.” U.S. District Judge Frederick Stamp affirmed the decision.

In the ruling in the Bayer case, Seibert was not pleased that Bayer responded to a discovery request with the argument it sought information “which is irrelevant and which is not reasonably calculated to lead to the discovery of admissible evidence.”

Seibert said it was an example of the most flagrant disregard of the specificity requirement.

“The Court finds it important to recommend to Defendant that rather than chastising Plaintiff in its response to the motion to compel, Defendant might better spend its time in making sure it is in compliance with the Rules,” Seibert wrote.

Smith’s complaint says he was absent from work for almost 11 months as a result of throat cancer and is considered disabled by the West Virginia Human Rights Act.

When he returned to work in July 2011, he was in a weakened condition mentally and physically and required “reasonable accommodations” for his disability, he said.

He called off work twice in the next month under Bayer’s short notice rules, leading to an Aug. 4, 2011, meeting. He said he was told his attendance must improve at the meeting.

In January 2012, he was fired for asking the wrong supervisor if he could have New Year’s Eve off and because he did not go to the dispensary to confirm he wasn’t injury after a fall on Bayer’s premises.

Smith is represented by H. Joseph Craycraft and Bradley K. Shafer of Swartz Campbell in Wheeling.

Seibert made several discovery rulings and the attorneys will get: Smith’s personnel file and information about the decision to fire Smith; information in the individual defendants’ personnel files; information about any other discrimination actions filed by an employee at that facility within the past five years; the names and last known addresses of employees who were disciplined or terminated for similar reasons at that facility within the past five years.

From the West Virginia Record: Reach John O’Brien at

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