Document 2KwVnzDxYxLzpnNVRwgV1bzr

Law Offices Of LAUGrHLIN FALBO LEVY <fc MORE SI A Partnership Including Professional Corporations REDDING Te l e p h o n e (916) 222-0268 SACRAMENTO Te l e p h o n e (916) 441-6045 OAKLAND Te l e p h o n e (415) 893-8222 ICEHOUSE II 151 UNION STREET-SUITE 300 SAN FRANCISCO, CALIFORNIA 94111-1221 Te l e p h o n e (415)781-6676 June 2, 1988 MICHAEL W. I-AUGHUN' GERALD A. FALBO* ROGER A- LEVY* ALFONSO J. MORES1 JOHN T. BENNETT. JR. JAMES R. WESOLOWSKI PATRICIA E. GOULD PHILLIP J. KLEIN BARRY M. LESCH BERTA J. GILMAN MARK H. BARBER FREDERICK L. WALTER. JR. LUCILLE M. ARTIGUES CLARK W. PATTEN STEVEN D. TUAN HENRY M. SLOWIK DAVID \V. BOSTON RONALD J. TONEGATO RAYMOND C. WIESER. JR. GARY J. LEE BENJAMIN CINTZ SANDRA L. DISARIO CHERISSE C. DYAS WILLIAM F. HOFFMANN** GERALD R. BURKE BERT S. ARNOLD DIANE M. WILLIAMSON JUDITH A. LEICHTNAM DEMETRA G. JOHAL MILTON LATHAN A PROFESSIONAL CORPORATION '* ADMITTED VIRGINIA PRACTICE LIMITED TO FEDERAL COURT OP COUNSEL WILLIAM W. WERTZ RITA F. GILMORE John F. King, Esq. Sherwin-Williams Company 101 Prospect Ave., N.W. Cleveland, Ohio 44115-1075 REDACTED Re: v. Kaiser Shipyard #3, et al. WCAB CASE NO: OAK 141-300 Claim No: 918 31408/SMBS No: 144.054 Dear Mr. King: The above matter was on the Workers' Compensation Appeals Board conference calendar on May 23, 1988. The purpose of the conference was to discuss the subpoena that had in fact been issued by co-defendant Hartford Accident & Indemnity Company. In addition to that issue we were able to identify with the assistance of the Workers' Compensation Appeals Board's records the appropriate workers' compensation carriers for entire period of time M worked for Sherwin-Williams. We now identified the following information: 1. Liberty Mutual provided coverage for Sherwin-Williams as far back as 1948 going through December 1, 1977; 2. Aetna Casualty & Surety Company provided coverage from December 1, 1977 to August 1, 1981; 3. INA provided coverage from August 31, 1982 to July 1, 1984. N40148 0007-SWP-005803612 CONFIDENTIAL John F. King, Esq. Sherwin-Williams Company June 2, 1988 Page Two Re d a c t e d There is still a gap of coverage for the time period August 1, 1981 to August 31, 1982 and why that gap occurs we do not know but we would like you to double check to see if you know who your carrier was for that approximate year and one month. Now that all the carriers have been identified there will be no further financial responsi bility from Sherwin-Williams' standpoint concerning payment of any potential award that a may receive. The carriers of course will indemnify Sherwin-Williams pursuant to their contracts of insurance. We still had the isue to resolve concerning production of Sherwin-Williams records and we were very interested in that matter, not only to protect the interests of SherwinWilliams but the interests of the recently joined workers' compensation carriers. They of course will have a number of defenses to present and we did not wish to provide the co-defendant with everything he demanded because we felt that it was in fact burdensome and was on many occasions irrelevant. INA did retain counsel and he was present and joined in our arguments against produc tion of the records as originally subpoenaed. It was Judge Mason's feeling that if the parties worked through this matter they would probably be able to reach a compro mise concerning production of the records. He did feel that many of the records were relevant but overall tended to agree with us that the subpoena in and of itself was overly broad. After a great deal of discussion we were able to narrow down the area of subpoena to three specific areas and further limit production in those areas. We purposely left the language somewhat broad so that we can interpret it in a manner which would be least burdensome to Sherwin-Williams in production of the various records. The resolution was to produce the following records: . 1. Any information that Sherwin-Williams may have concerning products that were manufactured by Sherwin-Williams from 1952 to 1984 that contained asbestos or used asbestos in the manufacturing process; 2. Any information concerning any other claims for asbestos related injury filed by any Sherwin-Williams employee at the Emeryville plant for the time period 1952 to 1984. In addition to asbestos injuries the judge agreed with counsel that any information con cerning lung cancer injuries at the Emeryville plant for that period would also be necessary; 3. Any and all information availabel concerning use of safety equipment and more specifically safety equipment related to inhalation of irritants. In that regard, counsel was referring to items such as face masks, respirators, and safety equipment used to control the general air quality. This latter item is somewhat general and we do not know if you can answer it in Cleveland but perhaps local plant manager or safety personnel can. 0007-SWP-005803613 CONFIDENTIAL John F. King, Esq. Sherwin-Williams Company June 2, 1988 Page Three REDACTED After you have had an opportunity to review the request for these three items, it would be greatly appreciated if you could contact us as to how long it will take you to conduct the search of your records to produce these materials and if it will in fact be possible to produce these materials. The one item that Judge Mason was totally against producing and we were totally against providing was that of any and all building specs for the time period 1952 to 1984 at the Emeryville facility. It was our own observation that a plant that large and in existence for so many years has probably undergone a number of modifica tions over the years and this request is overly burdensome and perhaps even irrele vant in that there is no indication that applicant's lung disease is related to any thing other than asbestos exposure. Counsel for INA agreed with us and Judge Mason did as well, indicating that if counsel is that interested in exactly where Mr. worked at the Sherwin-Williams plant he should perhaps begin by taking depositions of plant managers and sfaety personnel at Sherwin-Williams before asking that they produce a burdensome number of records which may have no relevancy to the issues before the Board. COMMENTS We believe the subpoena as now issued is not nearly as burdensome as originally issued and something that can probably be complied with without too much difficulty. Counsel for IN A indicated that it was his feeling that when all the carriers are repre sented by counsel, that depositions of Sherwin-Williams personnel may be the starting point for further discovery. This seems to make a great deal of sense to us since at this time no one is too terribly clear on exactly what . did for Sherwin- Williams from 1952 to 1984. Additionally, counsel for INA indicated that if counsel for Kaiser Shipyards and Hartford would focus on defense of his claim he might be better off rather than trying to implicate subsequent employment as being partially causative of / lung cancer. By focusing on a co-defendant he may miss the real issues concerning defense of the claim before the Workers' Compensation Appeals Board and the Department of Labor in connection with the concurrently filed Longshore and Harbor Workers' claim. We will continue to keep you apprised of progress in regards to movement of the case before the Oakland Workers' Compensation Appeals Board but as stated above, if you have any questions concerning our request for production of the records listed above, please feel free to contact the undersigned. Very truly yours,