Document 44bL96gmd31kbbrqXYKYOB0vV

FILE NAME: National Gypsum (NG) DATE: 1975 May 16 DOC#: NG012 DOCUMENT DESCRIPTION: Legal Letter to Armstrong Cork RE Appropriate Warnings as to Asbestos Products P * ' ' r n ^ u - s . i . v t u : . U i t g ,, , , B l u .v , : & H : ' y * * 4<tt4 Ml M a. ** *## A t t o u x c y n a t La w 3400 Mau in c Mi u u m , Cisarrta jBOTTALO. N' nw Vo UK tsou ****'." 6426 ' y uWs . R tS E A9nM * 91 JU 3 -- 1 Mays, E sq 7) Xagai Deparisent1 ^1 Secretary49 Offico . Acsstrong Cork Cocoany Lancaster, Pennsylvania 17604 L i s L (j u c^cubJL i Dear Mr. Mays ..-Li- .aJLa . <5 43 wr^ ^ >a9 yu thia lotter to further anolifv the , coc" ant*. ^ our Phono conversation regarding approo-lata7^ if acbestos products. After considerable roflectiJ^narniago f i ^ len:,1it ia counsel for S S J n S S c " 2 ; that, while aone added benefit eav oosaibly acc-uiP f ^ C^;Ji | who aakoa special reference to a.beitocio ind linier o i S f f . of boatos products, that ooseible benefit L I hi L l ? A* ; outweighed by the additional la w u i t / f S 2t yb5 t S references to arbestosis and cancer on lcbili. 7 CCastaoft Accordingly, ve think it would be advinahl " y ,ueh a houl<1 *> included ia he Tiew in based chiefly on four factors* 1. Our concern whether do re lawsuits will ha **icb othervine would not her brought 2m Our belief that to include such terns nav ha *n ovexxeaction to the unfortunate facts of the. Boro! decision* 0ur belief that the OCITA reguirod label oivoo ^deguato warning since the averago vortean must realiae * J? acrioua bodily harn* thnt nay bo caused by- C" Dly r""r " PU>1. serious A* Zarl Hays R g e r A O O U P C M T C ^ 16( 1S7S . 6427 4* O u r belief that anbestos c e m e n t products such a those purchased by Armstrong from Motional prcbably vould not involve any violation of current OSHA standards since the asbestos fibers are locked in, the products are precut and involve very little cutting on the job because they can be scored and snapped without cutting * _ ,Ia rereading the Borel case (493 F . 2 d 1076) with this question, in mind, our attention was drawn to a number of consents A brief review of those cements may be helpful. ' Z i r s t , tho Court noted Borel*s ignorance that anv serious Illness could result. . -- ** ___ A t p a g e 1081* "... he [Borel] never realized that i t could cause any serious or terminal lllnese. Borel emphasized . that he and his rellow workers thought that the - . d u s t 'dissolves as it hits y o u r l u n g s ' * A t page 1093* . For present purposes, it is that Borel testified that he inhaling asbestos dust could illness ...* sufficient to note did not know that cause serious ---- -- . A t page 1098: "Borel testified that he never realized that Inhaling asbestos dust could cause serious illness. . . -- ------ A t page 1104* . " he never realized that it could cause any serious or terminal illness. ---- . warning* Secondly, the Court noted the complete lack of any At paga 1090i ... during Borel's working career no manufacturer ever warned contractors or insulation workers, including Borel, of the dangers associated with inhaling asbestos dust. PLAINTH 1 EXHIBI 1765 (2 A. Sa r i Mays ^(TQPADPU PCMTCR - 3 " 6428 Mfly l* 1575 A i t o r roforring to b o l a t c i --rr.li^s that inhalation in excessive quantities ovor Iona p eriods of tics c a y bo haraful, the Court noted at page 1104 * none o f these so-called 'cautions* intisatad the gravity of the ris k ... * At page 1099s " ... defondants gave no instructions- or warnings . at all.' . A t page 1103: * - Uero, thero was asluty t o apeak, but the defendants remained silent." . - A t page 1105* * -Thus, thare voro no warnings when they could have effectively allowed Borel to cake the choice of encountering or not encountering a known risk. O n p a g e 1105 appears w h a t is see n i n g l y the cnl^r basis in the decision for caking a specific label reference to csbestosi* or cancer: our roforences to failure to warn refer to ' failuro to warn of the gravity of the danger, that exposure to asbestosis, ncsot..c-icna and othor cancers ....* s '&s s l s ssasra xsss, Thirdly, it noted that failia? to follow propcr ln.tnc- dangerous products: . ... ft oroduct is u n r e a s o n a b l y d a n g e r o u s o nly vha" i t is 'dangerous to an extent boycr.d that^contccplat by tho ordinary conoucer who purchases it .... stated* It aoorovod tho Trial Court's charge at page 1098 which *... if you find <t. that the doceased know of tho dangerous naturo of the asbestos products w i t h which. X. Earl May rcMjR 6429 Hay 15' 1375 i notingt ho was working and appreciated the danger ... the n y o u would find agai n s t tho p l a i n t i f f .. Zt reiterated that approval at pages 1107 and 1108 . "If y o u f i n d ... that the d e c eased k now of the d a n gerous nature ... and t hat he assu m e d the risk b y continuing hia work* then y o u w o u l d find ... * in favor of the defendants." On page 1099 it referred specifically to tvo Texas decisions where the p l a i n t i f f (s. failure to follow the c anufactorer* s instructions were found to bo nisuao and a valid defense to the claim against the manufacturer. f We certainly recognise all sollers of asbostos products the nov difficult position in which find themselves but vo do believe that there nay be considerable merit in avoiding reforencot to asbastosis, a t o m probably unknown to tho avorago reader, and to cancer, a too well known end ecary tern that might generate otherwise unbrought lawsuits. Z certainly appreciate the opportunity to discuss this question with you and will look forward to hearing further iron you when you have had a chance to reconsider it. Bhl CCS Mr. A. it. r a y Mr. w. B . *Hoffman Mr. r. U. Z i m m e r m a n X. L. Beck, Esq. v"*' Mr. r, 2. Z i e g l e r n P* 1V E O MAY 20 ^375 ^ 1