UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BRENT A. ADKINS, Case No. 1:17-cv-643

 Plaintiff, Dlott, J. 

 Litkovitz, M.J. 

 vs.

MARATHON PETROLEUM ORDER

COMPANY, LP,

 Defendant.

This matter is before the Court on briefs plaintiff Brent Adkins and defendant Marathon 

Petroleum Company, LP (Marathon) submitted to the undersigned following an informal 

discovery conference held on May 7, 2018.1 See Docs. 34, 37. The Court ordered the parties to 

address three issues related to the Industrial Hygiene (IH) studies requested by plaintiff and 

Plaintiff’s First Request for Production of Documents (RFP) Nos. 28, 29, and 30. See Doc. 34-4. 

Those issues are: (1) the relevance of the IH studies to the litigation; (2) the specific documents 

Marathon has produced to date in response to RFP Nos. 28, 29, and 30; and (3) Marathon’s 

explanation as to why it believes it is not necessary to provide any additional material to satisfy 

these specific document requests. See Doc. 37. 

Plaintiff’s claims in this lawsuit arise out of injuries plaintiff allegedly sustained during his 

employment with Marathon as a result of his purported exposure to certain products and 

emissions. See Doc. 18, Second Amended Complaint. Plaintiff alleges that while employed with 

Marathon from November 2008 to May 26, 2012, he worked as a crew member and American 

Seaman on various tugboats, and towboats operated primarily on the Mississippi and Ohio Rivers. 

Id., ¶¶ 9, 10, 34. Plaintiff alleges that he was “negligently and chronically” exposed to H2S and 

other hydrocarbon emissions by Marathon over the sustained course of his employment with the 

 1 The parties’ briefs are attached to this Order.

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company. Id., ¶¶ 38, 55. Plaintiff alleges that he suffered injuries as a result of his “exposure to 

fumes and contact with liquid Asphalt, H2S gas, and VGO hydrocarbon fumes, heated VGO and 

Asphalt fumes.” Doc. 18, ¶ 72; see also ¶ 55. 

In discovery, plaintiff has requested specified data and information related to any IH 

studies Marathon has performed to determine the presence of H2S gas emissions aboard its 

“tugboats and/or barges carrying VGO, asphalt and/or styrene” (RFP No. 28); all IH records or 

other writings reflecting descriptions of “the hydrocarbon type and relative concentrations of the 

fuels and liquid cargoes moved by [Marathon] and all results of monitoring of H2S and/or benzene 

exposure to crews serving on all tugboats and barges, including . . . the tugboats Plaintiff ate and 

slept on, including all IH studies for the time period” (RFP No. 29); and “all [IH] or other reports . 

. . that comment on or document the level of airborne asphalt, VGO, styrene and/or H2S fumes, 

and/or any other ambient chemical or hydrocarbon fumes, during the time period (RFP 30).” See

Doc. 34-4. 

Marathon argues in its discovery brief that RFP Nos. 28, 29, and 30 request documents that 

are not relevant to plaintiff’s claims. Marathon alleges that plaintiff appears to request documents 

related to Marathon boats on which plaintiff never worked; concerning other crew members with 

no connection to plaintiff or his claims; having no bearing on plaintiff or the work he performed; 

and involving Marathon divisions with which plaintiff had no contact. Deft. Brief, p. 9. 

Marathon objects that RFP No. 28 includes no time limitation. Id., p. 10. Marathon also objects 

to RFP No. 30 as overbroad because it is not limited to documents related to Marathon’s marine 

operations or to matters that have any connection to plaintiff or his work for Marathon. Id. 

Marathon concludes that it knows of no IH reports “for the date and location of Plaintiff’s only 

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known incident aboard [a Marathon] vessel - the May 26, 2012 incident aboard the M/V 

Garyville2 - other than those that have already been produced,” and it has not located “any IH 

studies for the TT&R3

/Marine division that cover the time period at issue and report on deck crew 

exposure to H2S, other than what has been previously produced.” Deft. Brief, p. 11. 

Plaintiff denies that Marathon has provided the requested discovery. Plaintiff contends 

that Marathon can satisfy the document requests by complying with RFP Nos. 29 and 30 as 

initially presented and by producing documents in response to a modified version of RFP No. 28 

which seeks:

28(a) Lab analysis on the amount of THS and H2S in the typically 

transported asphalt and VGO products;

28(b) For asphalt and VGO, those IH samples taken during loading and 

unloading and/or on the barges carrying same, whether by Marathon or a 

contractor firm.

28(c) The certificate of analysis for the testing performed in 28(a).

28(d) For any sampling IH reports produced in 28(b), include identity of the 

product tested, which should have a lab number to match any certificate of 

analysis. 

 

Pltf. Brief, p. 11.

To resolve the parties’ discovery dispute, the Court must look to the scope of plaintiff’s 

claims in the litigation which, in turn, determines the scope of proper discovery. Rule 26(b)

allows discovery “regarding any nonprivileged matter that is relevant to any party’s claim or 

defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1); N.T. by and through 

 

2 Plaintiff alleges he was unloading VGO on that date when “he became dizzy, over-heated, and he experienced 

shortness of breath” and was transported from work to the hospital. Doc. 18, ¶ 22. 

3 Terminal, Transport & Rail

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Nelson v. Children's Hosp. Med. Ctr., No. 1:13cv230, 2017 WL 5953432, at *4 (S.D. Ohio June 

30, 2017). 

First, there is a question here as to the relevant time period at issue. In arguing that 

Marathon has produced all relevant discovery documents related to the IH studies and RFP Nos. 

28, 29, and 30, Marathon appears to construe plaintiff’s claims as limited to a single incident 

which occurred on May 26, 2012, plaintiff’s last day of work at Marathon, and to also construe the 

only relevant documentation as information that relates to the date and location of that incident. 

See, e.g., Deft. Brief, pp. 7, 8, 11. But plaintiff’s claims are not confined to an isolated workplace 

incident. Plaintiff alleges that he was “negligently and chronically” exposed to harmful products 

and emissions over the course of his employment with Marathon. Doc. 18, ¶ 55. The relevant 

time period for discovery purposes is therefore the entire period of time during which plaintiff 

performed worked for Marathon. To the extent the documents plaintiff has requested in RFP Nos. 

28, 29, and 30 are otherwise relevant, Marathon must produce those documents for the period of 

November 2008 through May 26, 2012. See Id., ¶ 9. 

Second, there is an issue as to the types of products covered by plaintiff’s document 

requests. Plaintiff has not limited the scope of his document requests to the products he has 

identified in the second amended complaint as the source of the harmful exposure leading to his

injury. Plaintiff alleges he was injured by “exposures to fumes and contact with liquid Asphalt, 

H2S gas, and VGO hydrocarbon fumes, heated VGO and Asphalt fumes.” See Doc. 18, ¶ 72; see 

also ¶ 55. The documents plaintiff has requested are relevant only insofar as they relate to these 

specific products and fumes to which plaintiff was allegedly exposed and which purportedly

caused his injuries. Marathon must therefore produce documents in response to RFP Nos. 28, 29, 

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and 30 only to the extent the documents relate to those products identified in the second amended 

complaint as the cause of plaintiff’s injuries.

Third, there is an issue as to whether documents that do not directly relate to plaintiff’s 

work on specific vessels at Marathon are relevant. Plaintiff requests documents pertaining to 

vessels to which he was not assigned and that he did not actually work on, such as samples and 

exposure levels of crew members on other vessels owned or operated by Marathon. Information 

related to crew members who performed work on other vessels owned or operated by Marathon is 

not relevant to whether plaintiff was exposed to and injured by products and fumes on the vessels 

to which he was assigned. The documents requested in RFP Nos. 28, 29, and 30 are relevant only 

to the extent they pertain to the vessels on which plaintiff worked. Marathon is not required to 

provide documents that are unrelated to vessels to which plaintiff was assigned during his 

employment with the company in response to RFP Nos. 28, 29, and 30. 

IT IS THEREFORE ORDERED THAT:

(1) Defendant Marathon shall respond to RFP No. 28, as revised by plaintiff and further 

limited by the terms of this Order, by providing the following documents for the time period 

November 2008 through May 26, 2012: (a) lab analysis on the amount of H2S and other 

hydrocarbon emissions of the products transported on the vessels plaintiff was assigned to from 

November 2008 through May 2012; (b) the IH samples for asphalt and VGO taken on the barges, 

and during the loading and unloading of the barges, that plaintiff worked on which carried those 

products; (c) the certificate of analysis for any testing performed related to these products on the 

vessels that plaintiff worked on; and (d) for any sampling IH reports produced in connection with 

the asphalt and VGO samples on the barges described in (b), the identity of the product tested, 

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including a lab number to match any certificate of analysis. 

(2) Defendant shall respond to RFP Nos. 29 and 30 to the extent they relate to the relevant

time period (November 2008 through May 26, 2012); and the relevant products identified in this 

Order (asphalt, VGO, H2S gas, and other hydrocarbon emissions); which were transported by the 

vessels to which plaintiff was assigned during his employment with Marathon. 

 

Date: May 14, 2019 s/ Karen L. Litkovitz

Karen L. Litkovitz

United States Magistrate Judge

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