Document 0gjabzeb8Rq3QaRZDBMM3L72k

Robert R. MacMillan Berryman Green, ET William E. Bagos Edward L. Breeden, HI E. Leslie Gox George H. Bowers, Jr. David K. Sutelan John F. Newhard, Jr. T. Jeffrey Salb Law Offices Breeden, MacMillan 8c Green 1700 First Virginia Bank Tower lot St. Paul's Boulevard Norfolk, Virginia 23510 Telephone 622-1111 Area Code 804 Decen*be:c 6, 1985 S. Lawrence Dumville Michael R. Strong Michael T. Zugelder Thomas M. Haskins James H. Flippen, HI Allen W. Beasley Keith Denslow Edward L. Breeden, Jr. Counsel HAND DELIVERED* I Mr. Richard S. Glasser Glasser & Glasser 504 Plaza One Norfolk, VA 23510 RE: Elliott Rosenbaum et ux. v. Raymark Industries, Inc., et al Circuit Court of the City of Portsmouth At Law No. L85-518 Dear Richard: I am today hand delivering to your office a copy of the Response of Nicolet, Inc. to Plaintiffs' Initial Interrogatories in the captioned case. I have also mailed a copy of the Response to all counsel of record. Pursuant to the Rules of the Supreme Court of Virginia, I have retained the original Response in my files rather than mailing it to the Circuit Court of the City of Portsmouth. With kindest regards, I am Sincerely yours BREEDEN, MACMILLAN & GREEN Enclosure SLD/jf cc: All Counsel of Record By S. Lawrence Dumville VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH ELLIOTT ROSENBAUM and CHARLOTTE A. ROSENBAUM, Plaintiffs, v. RAYMARK INDUSTRIES, INC., et al, Defendants. AT LAW NO. L-85-518 RESPONSE OF NICOLET, INC. TO . PLAINTIFFS1 INITIAL INTERROGATORIES Law Offices 3REEDEN, MACMILLAN and Green General Objections 1. Nicolet objects to these Interrogatories as being overly broad, harassing, and unduly burdensome. The plaintiffs have propounded 46 different Interrogatories to this defendant alone, each Interrogatory with multiple subparts consisting of 92 typed pages. The number and scope of the Interrogatories exceeds the scope of discovery permitted under Rule 4:8 of the Rules of the Supreme Court of Virginia. 2. Nicolet objects to these Interrogatories as being overly broad, harassing, and unduly burdensome in light of the fact that there is no evidence that the plaintiff was ever exposed to any product manufactured or sold by Nicolet. The plaintiffs' attorneys have been involved in the asbestos liti gation concerning the Norfolk Naval Shipyard for approximately nine years, and have taken voluminous depositions of employees of the Norfolk Naval Shipyard, co-workers of the plaintiff, and Law Offices Breeden. MacMillan and Green of Nicolet. To respond to additional Interrogatories is oppressive. 3. Nicolet objects to providing the plaintiffs with a shopping list of asbestos-containing products. Plaintiff has the burden of proof that he was exposed to a particular defen dant's products. There should be some reasonable basis for belief that the plaintiff was exposed to a particular product before Nicolet should be subjected to the burden and expense of such extensive discovery. Answers Nicolet, Inc., without waiving its Objections to plain tiffs' Interrogatories herein, states as follows: 1. Please state the name, address and job title of each person who has supplied information used in answering these Interrogatories. ANSWER: The information used in preparing these Answers to Interrogatories has been provided by numerous employees of Nicolet and its attorneys. The majority of the information has been supplied by Guy G. Gabrielson, Jr. by depositions. 2. State whether Nicolet or any predecessor or sub sidiary corporation of Nicolet has, at any time, been engaged in the mining, manufacturing, producing, processing, compound ing or converting (hereinafter commonly referred to as "manu facturing" or "manufactured"), selling, merchandising, supply ing, distribution, and/or otherwise placing in the stream of 2- - Law Offices Breeden. MacMillan and Green commerce (hereinafter commonly referred to as "distributing", "distributed" or "distribution") of asbestos, material contain ing asbestos, asbestos products and compounds (hereinafter commonly referred to as "product(s) containing asbestos"). ANSWER: Yes. . If so: A. State the trade name(s) of each product contain ing asbestos manufactured and/or distributed by Nicolet. ANSWER: Objection. Nicolet objects to this Interrogatory as being overly broad and unduly burdensome. This Interrogatory is not limited to a time frame in which the plaintiff may have been exposed to asbestos-containing products, nor is it limited to a geographical area or a type of product to which the plain tiff claims to have been exposed. Further, Nicolet objects to providing the plaintiffs with a shopping list of asbestos- containing products. B. State the dates during which Nicolet manufac tured and/or distributed said products containing asbestos. ANSWER: See response to subparagraph A. C. State in detail all of the uses of each product containing asbestos manufactured and/or distributed by Nicolet. ANSWER: . See response to subparagraph B. -3- ilJ1ii,1 . 3. State in detail the manufacturing, labeling and licensing or product line sales history for each product con taining asbestos which Nicolet manufactured and/or distrib uted. Include identification of all other manufacturers, repackagers or distributors of each product containing asbestos which you bought from, traded raw materials or finished prod- i ucts with, and/or sold to for relabeled resale along with the beginning and ending dates of these material manufacturer and trade agreements. This information shall completely detail the history of each and every asbestos containing product in which your company or companies dealt in during its operational his tory, detailing whether and when products containing asbestos you manufactured which were finally sold under another com pany's brand name (include the alternative brand names in the | requested list). ANSWER: I Objection. Nicolet objects to this Interrogatory as j being overly broad, harassing, and unduly burdensome. This j Interrogatory is not limited to the time frame in which the ! plaintiff may have been exposed to asbestos-containing I products, nor is it limited to a geographical area or a type of j> I product to which the plaintiff claims to have been exposed, j Further, Nicolet objects to providing the plaintiffs with a Law Offices Breeden. MacMillan and Green I shopping list of asbestos-containing products. The Interroga! tory further is confusing and uses terms with legal definitions to which this defendant objects. For example, "product line" -4- has a specific legal connotation. The term "distributors" has a particular legal definition. Nicolet never had "distribu tors" as that term is generally understood. 4. As to each asbestos containing product manufactured and/or distributed by Nicolet, state whether you have a sample of that product and, if so, state the name and current address of the custodian of the sample. ANSWER: Objection. Nicolet objects to providing the plain tiffs with a shopping list of asbestos-containing products. Nicolet does not maintain samples of historical products which it may have manufactured or sold in the past. 5. As to each asbestos containing product manufactured and/or distributed by Nicolet, state whether you have a sample of the package in which said product was received by you and, if so, state the name and current address of the custodian of the package. ANSWER: Objection. Nicolet objects to providing the plain tiffs with a shopping list of asbestos-containing products. This Interrogatory is incomprehensible as drafted. Nicolet states that, to the best of its knowledge, it does not have samples of packages in which any asbestos-containing products were received by it. Law Offices Breeden. MacMillan and Green 6. Has Nicolet consulted with any medical experts in | | order to determine the existence of any potential hazard of ! ! exposure to asbestos? -5- If so, state: A. The date of the consultation (s). experts. B. The names and current addresses of said medical C. What did you learn from said consultation. D. What did you do as a result of said consulta tion. . E. The name and current address of the custodian of the information received. ANSWER: Objection. Seeks discovery of attorney's work prod uct. 7. When did Nicolet first receive any information that exposure to asbestos might cause any illness or disease. ANSWER: Nicolet was aware as far back as the date of its i | incorporation in 19 39 that there was believed to be a connecI tion between exposure to asbestos fiber in the mines and tex tile mills for extended periods of time and asbestosis. Defen dant has no specific information, I acquired such awareness. however, as to how it . To the extent of the knowledge of the present manage ment of Nicolet, it, through its officers and management Law Offices )reeden. MacMillan and Green I employees, first learned about a possible relationship between I | heavy exposure to asbestos and incidences of lung cancer in the i mid-19 60s. ' -6- Law Offices Jreeden. MacMillan and Green 3. As to each asbestos associated disease (asbestosis, lung cancer, mesothelioma, etc.), of which Nicolet is presently aware, state the date that you first received any information that said disease process might be caused by exposure to asbestos. ANSWER: See Response to Interrogatory 7. 9. State the name(s), current address(es), employment address (es), and present whereabouts of all persons now employed or formerly employed by Nicolet who: A. Have information, knowledge or experience regarding the existence of or the possibility of danger to health by reason of use, handling^or exposure to asbestos. B. Are familiar with the dangers to health by reason of use, handling or exposure to asbestos. C. Have expressed an opinion or belief that use, handling or exposure to asbestos can be dangerous to your health. D. Have expressed an opinion or belief that warn ings or notifications should be given to users of asbestos regarding the existence of or possibility of danger to health by reason of exposure or use. ANSWER: Objection. This Interrogatory is overly broad, unduly burdensome, and harassing. It is conceivable that every person who ever worked for Nicolet has some knowledge which 7- - would be responsive to this Interrogatory. Nicolet has no way of knowing what knowledge its former employees may or may not have. Furthermore, this Interrogatory is not limited to a relevant time frame or geographical area. 10. List all published literature or medical articles of which Nicolet is aware which deal with illness, sickness or disease due to exposure to asbestos. Specify the date, month and year of each such article and how long after publication you became aware of the existence of the article. ANSWER: Objection. This Interrogatory is overly broad, unduly burdensome, and harassing. Nicolet has been involved in the asbestos litigation for approximately 10 years. During that time, Nicolet, through its attorneys and employees, has become aware of a number of medical articles concerning iI!; asbestos-related diseases. Nicolet does not maintain a medical l! library, nor does it maintain records of when any particular article or publication may have been received by it. 11. Does Nicolet or has Nicolet maintained a library wherein you subscribe or did subscribe to various periodicals, ji articles, magazines, texts, technical magazines, trade journals and/or medical journals or medical publications and the like, which in any way dealt with or had any dealing with any infor Law Offices Breeden. MacMillan and Green mation concerning the illnesses and/or diseases of any kind arising from the useage, handling or exposure to asbestos? If so, state: Law Offices Breeden. MacMillan and Green A. All such journals, periodicals, etc., setting forth the frequency of publication (i.e., annual, monthly, etc.). B. The date you first subscribed to each such journal, periodical, etc. C. Whether your subscription has continued from inception to the present on a continuous basis. ANSWER: Objection. Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, and harassing. Without waiving its objection, Nicolet states that it has no library as that term is generally understood. Employees of Nicolet do from time to time receive various periodicals, magazines, tech nical journals, and trade journals. Nicolet does not maintain a medical library, nor does it maintain a comprehensive list of such journals, periodicals, and magazines that its employees may have received. 12. State whether or not any research or tests were ever conducted by Nicolet or at your request, to determine any health hazards associated with the exposure to the products containing asbestos distributed by you. If your answer is in the affirmative, state the date of the research; the name and current address of anyone con nected with conducting said research, and the results of said research. -9- Law Offices Breeden. MacMillan and Green ANSWER: Yes. Nicolet sponsored research by William Weiss, M.D. in the 19 70s. Dr. Weiss was at that time associated with the Division of Occupational Medicine, Department of Medicine, Hahnemann Medical College and Hospital, 5th & Vine Streets, Philadelphia, Pennsylvania, 19102. The results of Dr. Weiss' research were published and are currently available to counsel for the plaintiffs. See, Weiss, "Mortality of a Cohort Exposed to Chrysotile Asbestos", 19 Journal of Occupational Medicine (November 1977)? and Weiss, "Pleuropulmonary Disease Among Asbestos Workers in Relation to Smoking and Type of Exposure", 20 Journal of Occupational Medicine (May 1978). Nicolet objects to further response to this Interrogatory as seeking attorney's work product or privileged information. 13. Has any employee or agent of Nicolet ever testified before any governmental agency or body regarding the hazards of exposure to asbestos? ANSWER: Yes. If so, state: . A. The name(s) and current address(es) of the per son (s) giving such testimony. ANSWER: Guy G. Gabrielson, Jr. 25 Skippack Pike Ambler, Pennsylvania 19002 -10- Law Offices Breeden. MacMillan and Green B. The governmental agency or body before whom such testimony was given and the date(s) of such testimony. ANSWER: U. S. Department of Labor - March 17, 19 72. C. Whether the person(s) testifying prepared a written statement of your position, and if so, state: . (1) Who prepared such statement. ANSWER: Unknown at this time. (2) When such statement was prepared. ANSWER: Unknown at this time. (3) The present location of such prepared statement, including the name and current address of the cus todian of such statement. ANSWER: Unknown at this time. D. Whether a transcript was made of the testimony given. ANSWER: Yes. To the best of the knowledge, information, and belief of Nicolet's current management, there was a transcript of the proceedings. E. Attach copies of all such transcripts, or, in the alternative, -identify such transcripts with such particu larity so as to enable same to be subject to a Motion for Pro- -11- duction of Documents, pursuant to Rule 4:9 of the Rules of The Supreme Court of Virginia. ANSWER: Nicolet does not currently have in its possession a full and complete copy of the transcript of the testimony and does not currently have knowledge of who would have a complete and full copy of such transcript. Nicolet believes that counsel for the plaintiffs may be able to obtain a copy of the transcript from the United States Department of Labor. 14. As to each product containing asbestos manufactured and/or distributed by Nicolet, state whether any of said prod ucts were shipped by you with any cautionary language on the product itself. ' ANSWER: See general objection. Nicolet has consistently and fully complied with the OSHA Regulations since their incep- | tion. Please refer to the text of warnings labels attached i | hereto as Exhibit "A". ! Additionally, Nicolet states that the warning labels were fixed by adhesive backing to all Nicolet packaging and/or products. The word "Caution" and the word "IMPORTANT" are in larger type than the rest of the wording of the label. 15. As to each product containing asbestos manufactured Law Offices Breeden. MacMillan AND GREEN and/or distributed by Nicolet, state whether you ever placed any cautionary language on the product itself. i I -12- Law Offices Breeden. MacMillan and Green ANSWER: See Response to Interrogatory 14. 16. As to each product containing asbestos manufactured and/or distributed by Nicolet, state whether any cautionary language ever appeared on the package. If the answer to the foregoing interrogatory is in the affirmative: A. State in detail the specific language that appeared, its size and locations on the package. B. State the specific dates during which said cau tionary language appeared. ANSWER: See Response to Interrogatory 14. 17. With regard to any product containing asbestos manu factured and/or distributed by Nicolet, without cautionary language on the package or on the product itself, has Nicolet ever recalled the product for the purpose of affixing caution ary language describing the hazards of exposure to asbestos and/or how the product could be safely used. ANSWER: No. 18. State in detail the use, instructions, warnings and cautionary notes supplied to the end user by Nicolet with each product containing asbestos manufactured and/or distributed by Nicolet. . ' -13- ANSWER: See Response to Interrogatory 14. In further response, Nicolet states that its asbestos-containing products were sold to contractors and sophisticated industrial users who would have the knowledge, training, and skills to safely use its asbestos-containing products. 19. Identify each lawsuit (including actions in which appeals are or may be pending, actions in which appeals are concluded, and actions which were subsequently settled) wherein the finder of fact, either Judge or jury, has found that Nicolet is liable for punitive damages due to an asbestos- induced injury (including death) or disease that was alleged to have been caused, in whole or in part, by asbestos-containing products that were alleged to have been manufactured, sold or distributed by Nicolet. For each lawsuit state the following: A. The name of the plaintiff? B. The name and address of the plaintiff's attorney? C. The name of the state where the lawsuit was filed? D. The name of the Court where the lawsuit was filed; E. The case number of the lawsuit? Law Offices 3reeden. MacMillan and Green i i F. The date of the Court or jury's finding; G. The amount of the Court or jury award? -14- Law Offices Breeden. MacMillan and Green H. The status of any appeal or post trial motions for judgment notwithstanding the verdict; I. Whether the award was paid or settled; J. Identify each lawsuit wherein the presiding judge or appellate court has issued a written opinion which addresses the issue of whether Nicolet is or may be liable for punitive damages due to an asbestos-induced injury (including death) or disease that was alleged to have been caused, in whole or in part, by asbestos-containing products that were alleged to have been manufactured, sold or distributed by Nicolet. For each such lawsuit, include: 1) The name of the plaintiff; (2) The name and address of the plaintiff's attorney; (3) The name of the state where the lawsuit was filed; (4) The name of the Court where the lawsuit was filed; (5) The case number of the lawsuit; (6) The date on which the written opinion was issued or filed; (7) The status of any appeal relative to the written opinion; (8) Whether the case was subsequently settled; (9) Whether the case is still pending; -15- Law Offices BREEDEN. MACMILLAN and Green (10) Produce a copy of each such written opinion. ANSWER: Objection. Nicolet objects to this Interrogatory as being overly broad, harassing, and unduly burdensome. This Interrogatory is also not intended to lead to the discovery of admissible evidence and is irrelevant and immaterial to the proceedings in this case. 20. Has Nicolet manufactured for and/or distributed to the United States of America or any agency thereof any products containing asbestos. If your answer is in the affirmative, state: A. The name of the agency. B. Whether said product(s) was manufactured and/or distributed by Nicolet directly or through an agent or sub sidiary. C. The date(s) said product containing asbestos was manufactured and/or distributed. D. The trade name of said product(s) manufactured and/or distributed. E. The quantity of said product(s) distributed. - F. The manufacturer(s) of said products containing asbestos. G. The name(s) and current address(es) of any indi vidual (s) employed by you or formerly employed by you who have knowledge of such distribution. -16- Law Offices jreeden. MacMillan and Green H. The name(s) and current address(es) of any indi vidual (s) employed by the United States or formerly employed by the United States who have knowledge of such distribution. ANSWER: Objection. Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, and harassing. Further more, this Interrogatory is not limited to a relevant time frame or to a relevant geographical area. Furthermore, Nicolet does not comprehend what information is being sought in this Interrogatory. 21. State the name(s), current address (es), employment address(es) and present whereabouts of all persons now employed or formerly employed by Nicolet who: A. Received orders for products containing asbestos from the United States or any agency thereof. B. Filled orders for products containing asbestos for the United States or any agency thereof. C. Made deliveries of products containing asbestos to the United States or any agency thereof. ANSWER: Objection. Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, and harassing. Nicolet objects to this Interrogatory as it is not limited to relevant times in which the plaintiff would have been exposed to its asbestos-containing products, nor to a geographical area or work sites. Without waiving its objection, Nicolet states that -17 j it does not know the identity of any past employees who would have received the information requested in this Interroga tory. Purchase orders from the United States Government or any governmental agency would be forwarded to Nicolet to its Sales Department by the U. S. Mail or through its various sales per sonnel. Nicolet does not keep a list of the names of indi viduals who would have processed any such orders. . 22. Describe the method by which Nicolet advised the purchasers and/or users of your products containing asbestos as to how the products should be used, including the name(s) and address (es) of all person(s) giving such advice, the type of written material used, the name(s) and address (es) of all per son (s) or entities preparing such material, the media used to disseminate said material, and the name(s) and address (es) of the current custodian of said material. ANSWER: i The purchasers of Nicolet's asbestos-containing prod ucts were generally contractors and industrial users who pre sumably had knowledge and training as to how to use its asbestos-containing ! Exhibit "A". products. In addition, please see 23. As to the previous interrogatory, explain fully how Nicolet received such information, identifying the specific information received, by whom received, the source(s) of said Law Offices 3reeden. MacMillan and Green information, and the name(s) and address (es) of the current i. ji custodian of all documents concerning this information. -13- i Law Offices iREEDEN, MACMILLAN and Green ANSWER: See Response to Interrogatory 22. 24. As to the products containing asbestos manufactured and/or distributed by Nicolet, have you ever advised the employees of the United States how to safely use these products? . If the answer to the following interrogatory is in the affirmative, then state the following: A. The name (s-) and address (es) of all persons employed or formerly employed by Nicolet who have knowledge of said advice. B. The name(s) and address(es) of all persons employed or formerly employed by the United States who have knowledge of said advice. ' C. The date(s) said advice was first given. ANSWER: See Response to Interrogatory 22. 25. Has Nicolet ever asked the United States what infor mation, if any, the United States had concerning any potential health hazards of exposure to asbestos? If so, state: A. When did you ask. B. What did you ask. C. The name and current address by whom it was asked. - -19- Law Offices 3reeden. MacMillan and Green . asked. D. The name and current address of whom it was E. What response was received. F. The name and current address of the custodian of any response received. ANSWER: Unknown. Investigation continuing. 26. Has Nicolet, at any time, advised the United States, orally or in writing, of any potential hazards of exposure to asbestos? If so, state: A. When such advice was given. B. What advice was given. C. The manner in which said advicewas given. D. To whom said advice was given. E. By whom said advice was given. F. If such advice was written, state the name and current address of the custodian of said written advice. ANSWER: See Response to Interrogatory 14. 27. Has the United States ever advised Nicolet of any potential hazards of exposure to asbestos? If so, state: A. When such advice was given. B. What advice was given. C. The manner in which said advice was given. -20- Law Offices Breeden. MacMillan and Green D. To whom said advice was given. E. By whom said advice was given. ANSWER: See Response to Interrogatory 25. 28. State whether Nicolet has ever made any changes in the work practices and/or equipment used by your employees to limit their exposure to asbestos. If so, state: A. The specific nature of each such change. B. When said change (s) were put into effect. C. How these changes were communicated to your employees. ANSWER: Objection. Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, and harassing. Further, Nicolet objects to this Interrogatory as being immaterial and irrelevant and not intended to lead to the discovery of admis sible evidence. 29. Has Nicolet ever given any information to your employees concerning any potential hazards of exposure to asbestos? If so, state: A. The specific information given. B. The date(s) on which said information was given. C. The manner in which said information was given. D. By- whom was said information given (give names and current addresses). -21- To whom was said information given (give names !i and current addresses). i F. The name and current address of the custodian of any printed information given. ANSWER: Objection. Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, and harassing. Further, Nicolet objects to this Interrogatory as being immaterial and irrelevant and not intended to lead to the discovery of admis sible evidence. 30. Has Nicolet ever given medical examinations to your I employees who were exposed to asbestos? \t j If so, state: j | A. When said examinations were given. i `j B. Whether chest x-rays were included in the exami- II nation. {[ || C. The names and current addresses of the persons ji 1||1 who conducted these examinations. D. Whether any employees who were found to have any j abnormality were so advised. ; ANSWER: . Objection. Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, and harassing. Further, Law Offices Breeden. MacMillan and Green Nicolet objects to this Interrogatory as being immaterial and irrelevant and not intended to lead to the discovery of admis sible evidence. -22- Law Offices 3REEDEN. MacMillan and Green 31. State when Nicolet received notice of any claim for illness, disease or death to any of your employees or members of their immediate families as a result of their exposure to asbestos. As to each claim state: A. The date said notice was received. . B. The name and current address of each claimant. C. The specific disease or illness complained of. D. The disposition of said claim, including bene fits paid, if any. E. The name and current address of the custodian of any and all documents concerning any such claim. ANSWER: Objection. Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, and harassing. Further, Nicolet objects to this Interrogatory as being immaterial and irrelevant and not intended to lead to the discovery of admis sible evidence. Notwithstanding its objection, please see Exhibit "Bn claims. attached hereto, list of workers* compensation 32. Has Nicolet ever been named as a defendant in an action to recover for disease or death as a result of exposure to asbestos? If so, state as to each claim: A. The date you were notified of the claim. B. The name and current address of the claimant. -23- C. The name and location of the court in which the claim was filed and the number of the action. D. The specific disease or illness complained of. E. claimant.. The name and address of the attorney for the F. The disposition of such action, whether settled, verdict or appeal; if funds paid, the total amount thereof and the amount contributed by each co-defendant. G. The name and current address of the custodian of the files involving the above actions. ANSWER: Yes. See Elliott Rosenbaum, et ux v. Raymark Industries, Inc., et al, in the Circuit Court of the City of Portsmouth, At Law No. L-85-518. Nicolet objects to any fur ther response to this Interrogatory as being overly broad, unduly burdensome, and harassing. Nicolet has been named as a j defendant in a number of lawsuits, and to simply list the law suits in the State of Virginia would be oppressive. Further more, this Interrogatory is not intended to lead to the dis covery of admissible evidence. 33. Has Nicolet, at any time, been a member of any "trade organization" or "association" composed of other miners, manu facturers, producers, processors, compounders, converters, Law Offices 3REEDEN. MacMillan and Green sellers, merchandisers, suppliers, distributors and/or anyone otherwise placing in the stream of commerce products containing asbestos? 24- Law Offices '.REEDEN. MACMILLAN AND GREEN ANSWER: Yes. If so, state: A. The name and address of each such association or organization. ANSWER: . Nicolet was a member of the Asbestos Information Association from 19 72 until 1980. It was a member of the Asbestos Textile Institute in 19 69 , 19 71, and 19 72. B. The dates during which time you were a member. ANSWER: See Response to Interrogatory 33 A. C. The names of any publications published by or written by-such association or organization. ANSWER: Nicolet does not maintain records of, and therefore does not know, what studies or research or publications were issued by those organizations. D. The names and dates of membership of all other members of such association or organization. ANSWER: Nicolet does not maintain records of, and therefore does not know, the names of all members of such organizations. 34. State in detail and with complete descriptions all components (with - amounts of each for each product containing asbestos manufactured and/or distributed by Nicolet). Include -25- all product specifications, formulas, and technical descrip tions for each product. For any product containing asbestos with particular colors and/or designs, provide accurate repre sentations in color of all products. ANSWER: Objection. Nicolet objects to providing the plain tiffs with a shopping list of asbestos-containing products. No evidence has been introduced by the plaintiff that he was ever exposed to any product manufactured by Nicolet. Nicolet fur ther objects to this Interrogatory as being overly broad, 1 unduly burdensome, and harassing. Nicolet further objects to this Interrogatory as seeking discovery of trade secrets and proprietal information. 35. Describe in detail Nicolet*s complete corporate his tory, including any mergers, consolidations, asset purchases, |; acquisitions or spin-offs having to do with the manufacture or !i distribution of asbestos-containing products. ANSWER: Objection. Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, harassing, and not intended to lead to the discovery of admissible evidence. Without waiving its objection, Nicolet states as follows: Nicolet, Inc. is a Delaware corporation and is the successor to Nicolet Industries, Inc., a Delaware corporation, Law Offices Breeden. MacMillan by name change registered November 18, 1974. Nicolet and Green j Industries, Inc. is the successor to Gama Industries, Inc., a -26 i l ' Law Offices Sreeden. MacMillan ANO GREEN Delaware corporation, by name change registered March 2, 1951. Gama Industries, Inc. is the successor to Asbestos & Metal Industries Corp., a Delaware corporation, by name change registered May 24, 1948. Asbestos & Metal Industries Corp. was incorporated on June 23, 1939. In addition, and without waiving its objection, N.icolet states that on September 25, 19 62, it purchased limited assets of the Industrial Products Division of the Keasbey & Mattison Company. In the 1930's until 1962, Keasbey & Mattison was a wholly owned subsidiary of Turner & Newall, Ltd., which today is the largest non-bankrupt asbestos manufacturing com pany in the world. The assets of Keasbey & Mattison purchased by Nicolet were producing less than 20% of the total revenues of Keasbey & Mattison and less than 5% of the total profits. Other divisions of Keasbey & Mattison Company were sold to Certain-Teed Products Corporation, Bird & Sons, Inc., and American Asbestos Textile Corporation. Prior to September 25, 1962, other divisions of Keasbey & Mattison were disbanded. Prior to September 25, 1962, Armstrong Contract & Supply Company had acquired Keasbey & Mattison1s license to distribute "Limpet", a spray-on asbestos-containing product manufactured by W. R. Roberts Corporation, a wholly owned subsidiary of Turner & Newall, Ltd. A. If you have sold any asbestos product line or stock in a company dealing in asbestos-containing products, state the date of the sale and identify the purchaser; -27- Law Offices Breeden. MacMillan and Green ANSWER: Not applicable. B. Identify each document related to the history or transaction(s) set forth above. ANSWER: Nicolet believes that it has previously produced to plaintiffs' counsel copies of all relevant documents pertaining to the purchase of the limited assets of Keasbey & Mattison Company. Nicolet objects to any further response to this Interrogatory as being overly broad, unduly burdensome, and harassing. In addition, Nicolet objects to this Interrogatory as being immaterial and irrelevant and not intended to lead to the discovery of admissible evidence. 36. Please state whether or not Nicolet or any of its predecessors or subsidiaries at any time purchased, assumed, or in any other manner acquired any of the assets and/or liabili ties of any corporation or entity engaged in the manufacture of asbestos-containing products. If so, please identify each document governing the terms and conditions of any such transaction and/or acquisi tion, and state: A. The name of each corporation or entity acquired by Nicolet and the name of Nicolet at the time of acquisition; ANSWER: Objection. Nicolet objects to this Interrogatory as asking legal conclusions which this defendant is not prepared -23- I! Law Offices 3reeden, MacMillan and Green to make. Furthermore, Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, and irrelevant. There has been no showing by the plaintiff that he was exposed to any product manufactured by any alleged predecessor or successor of Nicolet, Inc. Without waiving its objection, Nicolet would refer counsel to Response to Interrogatory 35. B. The manner in which each such corporation or entity, or interest therein, was acquired (e.g., assets pur chase, merger, consolidation, change of name, transfer, or purchase of assets or product line); ANSWER: See Response to Interrogatory 36. C. The date of each such acquisition; ANSWER: See Response to Interrogatory 36. D. effected; The state in which each such acquisition was ANSWER: See Response to Interrogatory 36. E. The state law governing each such acquisition if specified by contract; ANSWER: See Response to Interrogatory 36. F. The state of incorporation and principal place of business of each corporation acquired or of each corporation in which an interest was acquired; -29- ANSWER: See Response to Interrogatory 36. G. Whether Nicolet became legally responsible for the past torts of each such corporation or entity. ANSWER: Objection. This Interrogatory seeks a legal con clusion. Notwithstanding this, Nicolet states that Judge Jackson L. Kiser, United States District Court Judge, Western District of Virginia, Roanoke Division, on August 20, 1985, ruled that Nicolet was not a successor in interest to the Keasbey & Mattison Company. In Re: FELA Asbestos Litigation, W.D. Va. (C/P 84-1) (Order entered October 25, 1935). 37. Does Nicolet contend that Plaintiff or the United States of America improperly used products containing asbestos manufactured and/or distributed by you? If so, please set out in detail in which respect each said product containing asbestos was improperly used. ANSWER: Nicolet is not aware of any evidence that the plain tiff ever used or worked around any of its products? therefore, this defendant is unable to answer this Interrogatory as it pertains to the plaintiff. Nicolet is not aware as to how the United States of America may have used any of its asbestos- Law Offices Breeden. MacMillan and Green containing products to which the plaintiff may have been exposed. Nicolet states that the United States of America did misuse asbestos-containing products that it purchased from a i i -30- [i Law Offices REEDEN. MACMILLAN and Green number of different manufacturing companies, and the United States of America failed to take measures to protect the health of its workers and to enforce safe work practices and to edu cate its employees. 38. What expert witnesses does Nicolet intend to call to testify at trial. (This is a continuing interrogatory). As to each expert witness state: A. The name and current address of each such expert witness. ANSWER: Nicolet, Inc. has not made a determination as to what expert witnesses, if any, it will call at the trial of this case. In further response, Nicolet states that it may call the persons identified below: Howard E. Ayer Professor of Environmental Health University of Cincinnati Medical Center Kettering Laboratory (ML56) 3223 Eden Avenue Cincinnati, Ohio 45267-0056 B. The field of expertise of said expert witness. - ANSWER: Objection. Beyond the scope of discovery permitted pursuant to Rule 4:1 of the Rules of the Supreme Court of Virginia. C. Whether said expert witness has ever testified in any other litigation; and if so, state: -31- Law Offices Jreeden. MacMillan and Green ANSWER: Objection. Beyond the scope of discovery permitted pursuant to Rule 4:1 of the Rules of the Supreme Court of Virginia. . (1) Date, court and style of such litigation. ANSWER: See objection to subpart C. (2) Whether there is a transcript of said tes timony. ANSWER: See objection to subpart C. D. The testimony expected to be given by each said expert witness. ANSWER: Objection. Beyond the scope of discovery permitted by Rule 4:1 of the Rules of the Supreme Court of Virginia. 39. State whether or not Nicolet intends to rely upon the defense of "sophisticated user" of Plaintiff's employer in this case. If the answer to this Interrogatory is in the affir mative: . A. Identify and give the name and current address of all witnesses whose testimony you intend to use at trial to support said defense. B. Identify all documentary evidence that you intend to use at trial to support said defense. -32- Law Offices 3REEDEN. MACMILLAN and Green ANSWER: Objection. This Interrogatory seeks discovery of attorney's work product and theory of defense. This decision is within the sole discretion of Nicolet's defense attorneys. 40. What information, if any, was ever given by Nicolet to Raybestos-Manhattan, Inc. (now Raymark Industries, Inc.), Owens-Corning Fiberglas Corporation, Owens-Illinois Glass Company, Pittsburgh Corning Corporation, GAF Corporation, The Celotex Corporation, Garlock Inc. (Colt Industries), H. K. Porter/Southern Textile Company, Eagle-Picher Industries, Inc., Keene Corporation, Fibreboard Corporation, and/or C. E. Thurston & Sons, Inc. regarding the potential health hazards of exposure to asbestos? If so, state: A. The date(s) such information was given. B. The name(s) and current address (es) of person (s) to whom such information was given. C. Provide a copy of said notice or information, or, in the alternative, state in full the contents thereof, identifying same with such particularity so as to enable same to be made subject to a Motion for Production of Documents, pursuant to Rule 4:9 of the Rules of The Supreme Court of Virginia. ANSWER: Objection. Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, harassing, and not intended to lead to the discovery of admissible evidence. -33- law offices Breeden. MacMillan and Green , 41. What information, if any, was ever given by Raybestos-Manhattan, Inc. (now Raymark Industries, Inc.), Owens-Corning Fiberglas Corporation, Owens-Illinois Glass Company, Pittsburgh Corning Corporation, GAF Corporation, The Celotex Corporation, H. K. Porter/Southern Textile Company, Garlock, Inc. (Colt Industries), Eagle-Picher Industries, Inc., Keene Corporation, Fibreboard Corporation and/or C. E. Thurston & Sons, Inc. to Nicolet regarding the potential health hazards of exposure to asbestos? If so, state: A. The date(s) such information was given. B. The name (s) and current address (es) of person(s) to whom such information was given. C. The name(s) and address (es) of person (s) who gave such information. ANSWER: Objection. Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, harassing, and not intended to lead to the discovery of admissible evidence. 42. Please state the name and address of each business entity from whom Nicolet has ever bought or received raw asbestos fiber, and as to each such transaction please state the following: A. The date of each sale or providing of asbestos fiber, as well as the amount received; B. The seller or provider of the asbestos fiber; -34- Law Offices 3reeden. MacMillan and Green C. The type of asbestos fiber sold or provided (e.g., amosite, chrysotile, or crocidolite); D. The use made of each sale or supply of asbestos fiber. ANSWER: Objection. Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, and harassing. In addi tion, Nicolet states that this information is not intended to lead to the discovery of admissible or relevant evidence. Without waiving its objection, Nicolet states that from time to time it has purchased asbestos fibers from the following entities: Lac d'Amiante du Quebec, Ltee Kaiser Trading Corporation Vermont Asbestos Group Lake Asbestos of Quebec, Ltd. Bell Asbestos Mines, Ltd. Canadian Johns-Manville Asbestos Corporation, Ltd. Huxley Trading Corporation North American Asbestos Company General Services Administration Nicolet Asbestos Mine Cary Canadian Mines, Ltd. Flintcote Mines, Ltd. H. K. Porter Corp., Inc. Jacguay's Mining Corp. Johns-Manville Products Corp. Philip Cary Manufacturing Company Philip Cary Corp. Asbestos Corporation of Canada, Ltd. Certain-Teed Products 43. Please state whether Nicolet at any time ever dis cussed or considered the possible impact that warning users about asbestos hazards would or could have on sales as well as what impact greater public knowledge of asbestos hazards would or could have on sales. -35- Law Offices 3reeden. MacMillan and Green If so, please identify and produce all documents pertaining to each such discussion or consideration. ANSWER; Objection. Nicolet objects to this Interrogatory as being overly broad, unduly burdensome, and harassing. In addi tion, Nicolet states that this information is not intended to lead to the discovery of admissible or relevant evidence.. 44. If the product containing asbestos was advertised by you in newspapers, magazines or other periodicals from the year 1930 to present, please state for each such advertisement: A. The name of the magazine or newspaper or peri odical in which it appeared, including the date and page number; B. A complete transcript of the advertisement and a description of any pictures accompanying it; C. The name and address of the person or agency that was responsible for approving each such advertisement; D. The name and address of the person who has cur rent custody of the above-described advertising literature. ANSWER: Nicolet did not "advertise" as that term is commonly or generally understood. 45. Does Nicolet agree that: A. Asbestos inhalation causes asbestosis; -36- Law Offices reeden. MacMillan and Green ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. B. Asbestos inhalation causes mesothelioma; ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. C. Asbestos inhalation causes lung cancer? ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. D. Asbestos inhalation causes bronchogenic cancer; ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. E. Asbestos inhalation causes laryngeal cancer? ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. ,F. Asbestos inhalation causes esophageal cancer? ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. G. Asbestos inhalation causes gastro-intestinal cancer? - -37- Law Offices 3reeden. MacMillan and Green ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. H. Asbestos inhalation causes colon cancer; ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. I. That a portion of the inhaled asbestos fibers present in the lung after being inhaled in the human body are not eventually expelled; ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. J. The diseases caused by asbestos inhalation usually have a long latency period and may not manifest them selves until many years after the initial inhalation of asbestos; ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. K. Exposure to and use of asbestos materials previ ously manufactured by Nicolet can cause or contribute to vari ous occupational diseases such as asbestosis, cancer and meso thelioma; -33- ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. This Interrogatory also calls for a legal conclusion which is beyond the scope of discovery permitted by the Rules of the Supreme Court of Virginia. L. The possibility of developing asbestos-related disease extends not only to workers handling asbestos products but also to others in the area where the products are used; ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. This Interrogatory also calls for a legal conclusion which is beyond the scope, of discovery permitted by the Rules of the Supreme Court of Virginia. M. The possibility of developing asbestos-related disease extends not only to workers handling asbestos products but also to members of families of such workers. ANSWER: Objection. This Interrogatory calls for a medical opinion, which this defendant is incapable of giving. This Interrogatory also calls for a legal conclusion which is beyond the scope of discovery permitted by the Rules of the Supreme Court of Virginia. Nicolet further objects to this Interroga tory as not being, relevant or material to this case. -39- 46. If any part of Interrogatory No. 45 is answered in the affirmative, state for each such affirmative answer: A. When Nicolet reached such conclusion; B. What information Nicolet relied upon in reaching that conclusion? C. What, if anything, Nicolet did to notify the public of the conclusion reached? D. What, if anything, Nicolet did to notify the users of their product of the conclusion. ANSWER: Objection. See objection to Interrogatory 45. NICOLET, INOr- v S. Lawrence Dumville Keith D. Denslow Breeden, MacMillan & Green 1700 First Virginia Bank Tower Norfolk, Virginia 23510 (S 04) 622-1111 I hereby certify that on the day of December, 1985, | true copies of the foregoing Response to Initial interroga tive tories were mailed,wto all counsel of record. Law Offices Breeden. MacMillan and Green Attorney -40- Since July, 1372 until sometime in 1977, all Nicolet products were sent out with the following warning: ` - CAUTION - CONTAINS ASBESTOS FIBERS AVOID CREATING DUST - , BREATHING ASBESTOS DUST MAY CAXJSE SERIOUS BODILY HARM - except Compressed Asbestos Sheet Packing which was sent out with the above warning commencing in January, 1975. Since approximately 1377, all Nicolet products were sent out with the following warning: . - CAUTION - . . AVO1D CREATING DUST BREATHING THE ASBESTOS FIBER CONTAINED IN THIS PRODUCT MAY CAUSE .ASBESTOS1S, CANCER OR OTHER ` FATAL DISEASES. DUST CONTROL EQUIPMENT SHOULD BE USED - ' WHEN RECOMMENDED BY YOUR SUPERVISOR. * SMOKING GREATLY INCREASES RISK OF'LUNG CANCER. ' .' In addition, the following warning has .also been sent out with all Monolithic Products since July, 1 372': .* IMPORTANT - POWER TOOLS WITHOUT DUST . COLLECT0RS ` ' "SHOULD NOT BE USED FOR MACHINING, - CUTTING OR SANDING THIS-PRODUCT IF THIS -IS NOT PRACTICAL, OPERATOR SHOULD BE PROVIDED WITH A U.S. BUREAU OF MINES APPROVED RESPIRATOR 9/81 Exhibit "A" Workmen's Compensation Claims SvndP, Ice. 6064 Uberty-Fairfield M. Hamilton, Ohio. #57554. Reported to employer - 7/27/56. Asbestosis. Clerk, Joseph, 107 5. Chestnut St., Ambler, PA. #0464-2719. Date of loss - 2/1/64. Asbestosis. Fedele, Salvatore, 64 S. Bethlehem Pike, Ambler, PA. #047410136. Date of loss r 4/10/64. Asbestosis. ' Pistilli, Georoe, 279 Kaple St., Ambler. PA #0476-5005. Injured June 1955. Asbestosis. Ashton, Emery, 250 Highland Are., Ambler, PA #04645724. Hearing 12/16/65. Asbestosis. Gaskins, Alfred, 8 Korth St., Ambler, PA SS#380-02-9224. Hearing - 11/2/66. Asbestosis. Durante, Nicholas. Date of disability 5/19/67. Asbestosis. Haloizi, Antonio, 211 Kt. Pleasant Ave., Ambler, PA #0464. Totally disabled - 8/3/63. Asbestosis. Schumann, Ellwood, 320 Shearer St., North Wales, PA Dismissed - 12/2/65. Paone. Frank, 3 Oranoe Ave., Ambler, PA. SSf159-32-5159. Case withdrawn - S/16/74. HcCrork, Valter (Katherine Lindquist). 426 Renfrew Ave., Ambler, PA. SS#162-15-2244. Claim petition to Nicolet 1/17/77. Asbestosis. Vennere, Domenico, 220 S. Chestnut St., Ambler, PA. SS#162-05-2051. Totally disabled 12/20/76. Asbestosis. Kahoney, Robert A., 216 Highland Ave., Ambler, PA. SS#223-26-3536. Claim #675626. " Accident 9/16/77. Asbestosis. Girerdi, Peter, 350 Kaple St., Warminster, PA. Claim #975015. Accident 12/21/77. S5#162-03-2679. Asbestosis. Bonfiglio, Salvatore, 232 Trinity Ave., Ambler, PA. Claim No. 975212. Accident 8/1/7B. Asbestosis. ' Williams, Johnnie, 130 E. Washington Lane, PhiU, PA. Claim #725245. Accident 10/16/78. Asbestosis. Timbers, Russell, 109 S. Chestnut St., Ambler, PA. SS#lS2-20-0636. Claim petition ' to Nicolet - 11/16/7B. Asbestosis. Gaskins, Robert A., 39 Orange Ave., Ambler, PA. SSf202-07-2762. Claim petition to Nicolet - 2/7/79. Asbestosis. Rocchino, Vincent, 404 W. Hontoomery Ave., North Wales, PA. S5#162-05-2B71. Date of alleged injury - 6/4/79. Claim #975169. Asbestos-related disease. Lee. Ralph. SS#162-05-2SS7. Award denied - 5/15/70. Speranza, Peter. #0470-4793. Date of loss 5/6/70. Gaskins, Albert, 209 Locust St., Ambler, PA. SS/23-0S-2259. Petition filed 5/22/73. Asbestosis. Oliver, Elmer, 119 Shearer St., North Wales, PA. <975096. Date of loss 1/1/75. Asbestosis. Barrinoer, Arthur, 27 E. Ridge Ave., Sellersville, PA. <975233. Date of accident - 1/17/75. Asbestosis. Turner, Jeremiah, 13 N. St., Ambler, PA Claim petition to Nicolet - 6/19/79. S5/1B4-09-433S. Asbestosis. Caruso, Frank, 1397 Rothly Ave., Roslyn.'PA. SS#191-12-03S5. Date of illeoed injury 12/2B/79. Claim #975111. Asbestosis. Mustacchio, Jerry, 724 E. Fornance St., Norristown, PA. $S#02S-16*SS02. Claim # 975125. Accident 1/31/80. Mesothelioma. Coleman, Bernard, 620 Arcyle, Ambler, PA. Claim #S75130. Accident 2/22/80. Asbestosis. Grariano, DcmeMc, 308 North Wales Rd.. North Wales, PA. Claim #975211. Accident 4/1/80. Asbestosis. Sons, Edoar V., 211 5. B" St.; Hamilton, Ohio. SS#404-09-012D. Compensation application filed 4/3/75. Pneumoconiosis. Haouire, Ooseph, 5503 Coruson St., PMla, PAl SSf1B7-12-8272. Claim filed 7/13/76. Asbestosis. Bailey, Wardell H., 4274 Viola St., PMla., PA. SS/28S-12-1857. Claim #975176. Date of injury - 8/16/80. Asbestosis. Serrao, Gregorio, 422 Renfrew Ave., Ambler, PA. SS#194-46-0052. Aliened date of injury 10/9/SI. Claim #975218.'Petition filed 11/17/BI. Asbestosis. Bruno, Domenic, 24 Church St., Leber, Benjamin, 215 Pennsylvania Ave., Ambler, PA. #975237. Accident - Chalfont, PA. SS#168-24-?490. Alleged date of 10/1/76. Asbestosis. injury - 10/3/82. Date petition filed 12/27/E2. Asbestosis. Gaskins, James, 33 Orange Ave., Ambler, PA. SSf190-18-8706. Claim petition to Nicolet - 5/26/77. Asbestosis. Exhibit "B" V70RKI1AN ' S COMPENSATION CLAIMS pq. 2 Schlagenhaufer, Benjamin 2126 N. Line St., Lansdale, Pa. Date of.injury - 5/31/83. Petition - 7/28/83, Asbestosis. Fiorillo, Joseoh Anthony, 627 Clay Drive, Conshohocken, PA. Claim #: 173-16-3725. Date of injury - 1/13/84, Asbestosis. COMMONWEALTH OF PENNSYLVANIA ) ) ) ) COUNTY -OF MONTGOMERY SS: El 1Iott Rosenbaum and Charoltte A. Rosenbaum v. Raymark Industries, Inc., et al Lawrence R. Lo Russo, being duly sworn, deposes and says that he is Vice President of Nicolet, Inc., Defendant within named; that he is authorized to execute this affidavit on its behalf; that the facts set forth in the foregoing answers of Defendant Nicolet, Inc. to Plaintiff's Initial Interrogatories * have been assembled by authorized employees and counsel for Nicolet, Inc., and deponent is informed that the facts stated therein are true and correct to the best of their information and belief. Sworn to and subscribed bbeeffoorree mmee tthhiiss $zl day of 1985 O - /) JANE BELLI, Notary Public V:y commission Expires Nov. 15,1SS3 Lawrence R. Lo Russo