Document 0637KpZvR47jK49J1L1QqwnYJ

RICHARD A. ANDERMAN ROBERT S. APPEL STEVEN. R. BERGER JAMES S. BOYNTON JOHN F. CAMBRIA ANTHONY J. CARROLL ARTHUR H. CHRISTY L. DAVID CLARK, JR. RUSSELL J. DaSILVA RICHARO M. ESTES WILLIAM F. GRAY, JR. P. GREGORY HESS DAVID G. LEVERE JEROME M. LcWINE LAURENCE S. MARKOWITZ JON J. MASTERS WAYNE C. MATUS RICHARD SALOMON SALVATORE A. SANTORO DANIEL J. SULLIVAN KENNETH W. TABER FRANKLIN B. VELIE JOHN D. V1ENER ___ BY HAND 8Christy c Vieinter 620 FIFTH AVENUE NEW YORK, NEW YORK 10020 (212) 632-5500 PLAINTIFF'S ! EXHIBIT CED-2 FACSIMILE (212) G32-5SS5 DIRECT DIAL NUMBER (212) 32- December 18, 1991 Hon. Charles P. Sifton United States District Judge United States Courthouse 225 Cadman Plaza East Brooklyn, New York 11201 Re: Federal Powerhouse Consolidation; NYAL-PH-8888 (CPS) Dear Judge Sifton: We write, as counsel for Owens-Corning Fiberglas Corpo ration ("OCF"), to re-tender, on a more limited basis, several of the documents that Your Honor today ruled could not be offered on the basis originally proposed. Industrial Code Rule 12 OCF seeks to introduce New York Industrial Code Rule 12, which in 1956 adopted the 5 MPPCF TLV, on the following limited bases: 1. The 1958 version of the Rule (OCF-General Ex. 117), would be admitted against the three parties who appear on the 1958 mailing list for that rule (OCF-General Ex. 61A) : General Motors Corporation, General Electric Company and DuPont. 2. As against Con Edison, Combustion Engineering, Burns & Roe, Foster-Wheeler and Ebasco, Rule 12 would be admitted for the limited purpose of giving meaning to the contracts each such party entered, expressly requiring "Dust or Fume Control," where, under those contracts, the specific dusts or fumes to be controlled were to "be as defined by 12/18/91 12:26am 10052933 Christy & Viener Honorable Charles Sifton Page 2 December 18, 1991 the Industrial Board of the State Labor Department." (See OCF-General Exs. 1, 10, 12, 41, 61B.) Since Rule 12 was the specific Industrial Board rule that identified the dusts or fumes the Industrial Board believed harmful -- including asbestos dust -- the version of Rule 12 in effect at or about the time of each such contract should be admitted against those contracting parties, as follows: Party Con Edison Combustion Engineering Burns & Roe Ebasco Foster-Wheeler Year of Contract 1958 (OCF Gen. Ex. 1) 1962 (OCF Gen. Ex. 41) 1969 (OCF Gen. Ex. 10) 1970 (OCF Gen. EX. 12) 1956 (OCF Gen. Ex. 61B) 1956 (OCF Gen. Ex. 61B) 1969 (OCF Gen. Ex. 10) 1970 (OCF Gen. Ex. 12) 1970 (OCF Gen Ex 12) Rule 12 Version Applicable 1958 (OCF Gen. Ex. 117) 1962 (OCF Gen. Ex. 117) 1963 (OCF Gen. Ex. 118) 1971 (OCF Gen. Ex. 119) 1956 (OCF Gen. Ex. 66) 1956 (OCF Gen. Ex. 66) 1963 (OCF Gen. Ex. 118) 1971 (OCF Gen. Ex. 119) 1971 (OCF Gen. Ex. 119) Since these 5 parties opted to leave to the Industrial Board the definition of their contractual term "harmful dust or fumes," the version of Rule 12 applicable at the time of contract performance should be admitted into evidence. 3. The 1956 and 1971 versions of Rule 12 (OCF-General Exs. 66, 119) would be admitted against all parties who were employers within the State of New York at the times those regulations were in effect. Both the 1956 and 1971 versions of Rule 12 applied to all employers within the state; neither was limited just to factories. There is not now, nor has there ever been, any dispute in these cases that from 1956 to 1958, and then beginning again in 1971, Rule 12 12/18/91 12:26am 10052933 CHKISTT & VlENEH Honorable Charles Sifton Page 3 December 18, 1991 applied to all New York employers and all sites of employment.1 4. Finally, the 1956, 1958, 1963 and 1971 versions of Rule 12 (OCF General Exs. 66, 117, 118, 119) should be admitted as part of OCF's proof on its state-of-the-art defense (as contrasted with OCF's affirmative proof on its third-party claims). These New York TLV regulations have routinely been admitted in prior asbestos personal injury cases, as part of the manufacturing defendants' state-ofthe-art defense. I am advised that Judge Weinstein, Judge Patterson, Judge Knapp, Judge Telesca and Justice Freedman have all previously admitted these regulations when proffered by defendants on this basis. Th.g-S.ax_B_Q.Qk OCF now seeks to introduce the 1951, 1958 and 1968 Editions of the Sax book (OCF-General Exs. 70, 103, 104) only against Con Edison. The basis for this proffer is the direct' reference to the Sax book in an internal Con Edison memorandum (OCF-General Ex. 51) . That memorandum states, in pertinent part: "According to N.I. Sax, 'Dangerous Properties of Industrial Materials,' at least 4-7 years of exposure are required before a serious degree of fibrosis (fibrous degeneration) results." This Con Ed memorandum leaves no doubt that Con Ed had, and referred to, the Sax book in assessing the hazards of asbestos. The Sheridan Workers* Compensation File OCF proffers the Sheridan Workers' Compensation File (OCF-General Ex. 57) only against defendant Con Edison.2 The basis for the proffer is that these are public records which indicate that, on November 4, 1951, a New York Department of Labor Industrial Hygiene Physician actually met and discussed Mr. The 1958 and 1963 versions of Rule 12 (OCF-General Exs. 117, 118) were, by contrast, limited to factories. TheSheridan workers compensation file was not one of those introduced by OCF against Robert A. Keasbey Company, because Mr. Sheridan was not a Keasbey employee. 12/18/91 12:26am 10052933 Christy & Vieneh Honorable Charles Sifton Page 4 December 18, 1991 Sheridan's case, at Con Ed's headquarters, with Jack Keane. Mr. Keane was then in charge of personnel for Con Ed. One of the issues discussed at that time -- according to the file -- was whether Mr. Sheridan had been exposed to "injurious levels" of asbestos dust during his employment at Con Ed, from 1921 to 1950. Because the Sheridan file establishes that a senior Con Ed manager not only knew about this total disability case, but was also interviewed in connection with Mr. Sheridan's exposure to potentially injurious asbestos dust. Con Ed plainly received notice of this workers' compensation claim. Accordingly, the Sheridan file should be admitted against Con Ed. Unibestos Invoice References The Court has directed that the specific references to Unibestos products, by name, in a series of post-1971 invoices be redacted so as not to prejudice unfairly Pittsburgh-Corning. In order to accomplish the Court's goal, while still preserving these documents as evidence of Con Ed's post-1971 use of asbestos-containing products, we propose that in place of the Unibestos references, the phrases "asbestos pipecovering" or "asbestos p/c" be substituted. With the Court's permission, we are prepared now to offer them in this modified form. Respectfully submitted. Kenneth W. Taber cc: All parties (by distribution in Court December 18, 1991) 12/18/91 12:26am 10052933