Document Eqjp7JXQe9X6p72Q5Eg6oa1g0

UNITED STATES DISTRICT COURT ' ' ' -02? FOR THE DISTRICT OF COLUMBIA U t?.:ct COURT CLEkiv-- DISTRICT Cr COLUmElA x TURNER & NEWALL PLC, Plaintiff, Civil Action No. 82-1339 (Judge Flannery) v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Defendant. x AFFIDAVIT OF PHILIP L. GRAHAM, JR. IN OPPOSITION TO DEFENDANT'S MOTION TO TRANSFER STATE OF NEW YORK ) |s COUNTY OF NEW YORK) \ t *i l Philip L. t and says: ss s x Graham, Jr., ^ being duly sworn, ' deposes 1. I am a member of the Bar of the State of New York and of the law firm of Sullivan & Cromwell, counsel for plaintiff Turner & Newall PLC ("T&N"). I have been admitted to practice before this Court with respect to the present action. ' 2. Since 1977 I have been the lawyer at Sullivan & Cromwell responsible for coordinating the defense of T&N *- in all of the c/^bestos-related litigation brought against it throughout the United States. As a result, I have personal EXHIBIT 18 / / knowledge of the cases that underlie the present insurance claims, of the location of documents and witnesses, and of numerous other aspects of the asbestos litigation. On that basis I set forth below some of the factual background upon which T&N relies in the memorandum being submitted to this Court in opposition to defendant's motion to transfer. 3. T&N is a large English corporation; however, it has no offices or operations in the United States. From 1934 until 1967 T&N owned stock in Keasbey & Mattison Company, a Pennsylvania corporation with factories in Pennsylvania, Missouri and California. 4. From 1934 until 1937 T&N owned a majority of the stock of Keasbey; from 1937 until the dissolution of Keasbey, T&N owned beneficially 100% of Keasbey*s stock. I During that period, T&N owned Keasbey's stock directly until -\ 1951. Thereafter, the stock was owned through a Canadian i . company, Turner & Newall (Overseas). The sole function of .Turner & Newall (Overseas) was to hold T&N's North American investments. At all times T&N owned 100% of the stock of Turner & Newall (Overseas). 5. In 1962 Keasbey*s assets were sold to several operating companies in the United States unrelated to T&N. Keasbey thereupon ceased doing business and filed a certifi cate of dissolution. * tive in 1967. The dissolution became finally effec 6. T&N has been sued in over two thousand cases brought by asbestos workers throughout the United States 2- - against most of the asbestos industry. Several hundred of these cases were brought against T&N by plaintiffs and third party plaintiffs on the theory that T&N is liable to plaintiff because it was a shareholder and/or the alleged alter ego of Keasbey. Claimants in these cases take the position that T&N is responsible for injuries caused by exposure to asbestos products manufactured, sold or distributed by Keasbey. 7. Claims against T&N with respect to Keasbey take several forms. In most of the more recent cases, % allegations regarding Keasbey are explicit. Attached as Exhibits A, B and C are examples of typical assertions of liability on account of the acts of Keasbey. Exhibit A alleges that T&N is the "former owner" of Keasbey, Exhibit B alleges that T&N is the "alter ego" of Keasbey, and Exhibit C alleges that T&N is the "successor" to Keasbey. Other j \' , complaints, such as Exhibit D, consist of boilerplate pleadings that do not on fheir face show a connection between the lawsuit.against T&N and the connection between T&N and Keasbey. In such instances, subsequent court papers may reveal that plaintiff has asserted a claim against T&N on account of the torts of Keasbey. Attached as Exhibit E is an example of such an assertion, relating to the boilerplate complaint attached as Exhibit D. 8. iy=:erican Mutual is a substantial insurance * company that ii^ncorporated in Massachusetts and does business in the District df Columbia, in every state and -3-' in Puerto Rico and Canada. Attached as Exhibit F is a copy of the relevant portion of Moody's Bank and Finance Manual showing pertinent financial information about American Mutual as well as the fact that it operates throughout the country. 9. Although American Mutual has stated that it has no office in this District, it advertises in the yellow pages of the Washington, D.C. telephone directory and lists itself both in the yellow pages and white pages of this directory as having an office in Towson, Maryland with a "Washington Area" telephone number. Attached as Exhibit G is a copy of these telephone listings. I am informed that Towson, Maryland is an hour or less by car from the courthouse. , :* 10. P,rior to commencing this action T&N conducted l` an extensive investigation, including converations with \ American Mutual, to determine the extent of coverage that .Keasbey had under policies issued by defendant. Although the details of our case on the merits are not relevant to this motion, it may be useful to set out the basis on which we conclude that standard form insurance policies were issued to Keasbey over a period of many years. a. Prior to the commencement of this litigation American Mutual was apparently sued * by injured asbestos worker plaintiffs. In that series of actions, the first of which is entitled Brandon, et ux. v. American Mutual Liability Insurance Company, et al., No. 1-387-80 (Circuit Court, Knox County, Tennessee), American Mutual admitted in its court papers that it was "the insurer of Keasbey & Mattison for a period from approximately 1946 through 1965. Coverage was written for products liability, comprehensive general liability and liability." American Mutual attached to its papers in that action standard form insurance policies that it .said had been issued to Keasbey during the time period indicated. b. American Mutual supplied to T&N index cards purportedly showing each policy issued by American Mutual to Keasbey along with the i \* effective dates of those policies. It was from this set of^ cards that T&N compiled Exhibit A to plaintiff's complain^'which organizes all the policies listed by prefix and places them in chronological order. . . c. For the later years, unequivocal . business records of Keasbey & Mattison now in the possession of Turner & Newall in England reflect the existence of products liability coverage. An example of such records, showing products lability in the amount of $250,000 per person with an aggregate limit of $500,000 under the policy is attached hereto as Exhibit H. 11. Sullivan & Cromwell has been nationwide coordinating counsel for T&N throughout T&N's involvement in the asbestos litigation. For a substantial portion of that period, lawyers responsible for T&N's defense were located in Sullivan & Cromwell's Washington office. Although those lawyers are no longer with the firm, the staff of our office in Washington is fully familiar with the litigation and the best means of communicating with Turner & Newall in England, both directly and by courier through Sullivan & Cromwell's London office. Teletype facilities in our offices allow easy direct connection with Turner & Newall's offices from our offices here. In addition', Sullivan & Cromwell has compu- j terized typing facilities that permit briefs, affidavits and other documents ' typed, in Washington to be typed automatically - i. on compatible equipment in our London office. From there, transmission of physical documents to Turner & Newall's headquarters is quite simple. Rapifax communications are similarly available for transatlantic photocopying of rele vant documents. A paralegal in our Washington office has been working on many aspects of the T&N asbestos cases for several years. 12. Sullivan & Cromwell has no office in Philadelphia and, although -- at a price -- facilities of the kind described above are probably available, the cost to T&N will undoubtedly be higher. This is a major consideration -6- given the ever-increasing cost of the asbestos litigation and the fact that T&N has incurred very substantial losses worldwide for several years. 13. Defendant suggests that Philadelphia is a logical forum for this litigation because Keasbey & Mattison operated there. Our investigations have shown, however, that there is nothing to be gained by conducting this litigation in Philadelphia. Keasbey's assets were all sold in 1962 and were absorbed into ongoing businesses unrelated to T&N. None of the principal officers of Keasbey at the time of its dissolution remains in Philadelphia. The president of Keasbey, for example, moved to California, the next senior officer moved to Montreal and the corporate secretary moved to Baltimore. We are not 'aware of any Keasbey files located I anywhere in Philadelphia. i v The only relevant extant Keasbey documents of which we are aware; are now located at T&N's offices in England. s 14. Several years' ago we did write to one Patricia Light, at the Bryn Mawr office of American Mutual, seeking information about the whereabouts of Keasbey policies. Ms. Light did not supply any information and, in subsequent # conversations with American Mutual's internal counsel and claims personnel, I was told that it had been foolish to write about such a matter to Ms. Light rather than addressing * my questions tc^American Mutual at its corporate headquarters _ in Massachusetts.. In the course of those same meetings I was also told by Mr. Lake, Assistant Vice President of American 7- -' Mutual, and Mr. Brady, Assistant Vice President and General Counsel of American Mutual, that no pertinent documents were located in Philadelphia and that its only documents relating to insurance coverage of Keasbey were moved some time ago to American Mutual's offices in Massachusetts. Indeed, Lake produced from the Wakefield, Massachusetts files of American Mutual the index cards from which T&N compiled Exhibit A to plaintiff's complaint. Lake represented that the only other pertinent documents still in existence were copies of standard form policies in effect during the relevant time periods. He subsequently supplied me with copies of those policies from his office in Wakefield, Massachusetts. 15. Like American Mutual, we thought it possible that relevant doi cuments would be found in the court files re- i maining from an antitrust action brought by the United States against Johns-Manville and Keasbey many years ago. We sought those files first by a Freedom of Information Act inquiry in .Washington and subsequently by a supplementary search of files in the courthouse in Philadelphia. We found nothing of relevance to the insurance litigation, and doubt that American Mutual will fare any better. In any event, litigation need not be pending in Pennsylvania in order for American Mutual's New York counsel to visit the Philadelphia courthouse to make that inspection. '4 0 -8- 1< 16. Despite months of investigation, we axe not aware of a single witness likely to testify at trial who lives in Pennsylvania or of a single document likely to be offered in evidence that is located at present in Pennsylvania. Significantly, American Mutual names no such witness and identifies no such document despite its Rsr'c>r h C'-J-ess Crtniy 'Quern* C=. Cl-'s Ka. tW?U73 'C*;n:o r:~d - N. Y. Co. Cli's Clp.it /.'crch 33, 1734 -9- CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was mailed, postate prepaid, this /<=>// day of , 1986 to LAW OFFICES ASHCRAFT & GEREL SUITE 700 2000 L STREET. N. W. WASHINGTON. D. C. 20036 202*783*640 SUITE 220 4660 KENMORE AVENUE ALEXANDRIA. VA. 22304 703*781-7400 SUITE 1002 ONE CENTRAL PLAZA I 1300 ROCKVILLE PIKE ROCKVILLE. MD. 20652 301*770.3737 SUITE 101 METRO 400 BUILDINO LANDOVER. MD. 20709 SUITE 808 0 EAST BALTIMORE STREET BALTIMORE. MD. 21201 301-629-1122 5 4 24A H. Patrick Donohue, Esq. DONAHUE, EHRMANTRAT & MONTEDONICO, CHARTERED 51 Monroe Street Suite 700 Rockville, Maryland 20850 Attorney for Atlas Turner, Inc. and Bell Asbestos Mines, Ltd. Patrick J. Attridge BROMLEY, BROWN AND WALSH 51 Monroe Street Suite 806 Rockville, Maryland 20850 Attorney for United States Mineral Products Company Edward J. Lopata, Esq. JORDAN, COYNE, SAVITS & LOPATA 1030 15th Street, N.W. Suite 500 Washington, D.C. 20005 Attorney for W. R. Grace Company Louis G. Close, Jr., Esq. Edward M. Buxbaum, Esq. WHITEFORD, TAYLOR, PRESTON, TRIMBLE & JOHNSTON 500 Brawner Building 888 17th Street, N.W. Washington, D.C. 20006 Attorneys " - Gypsum, a ASHCRAFT & GEREL Suite 700 2000 L Street, N.W. Washington, D.C. 20036 (202) 783-6400 2- JORDAN, COYNE, SAVITS & LOPATA DONAHUE, EHRMANTRAT & MONTEDONICO 'Susan Marjset .Banningan/ 1030 15th Street, N.W* Suite 500 Washington, D.C. 20005 Counsel for W.R. Grace & Co. 6026A ?atr'ic?lc" Do'hahue fl Monroe Street Suite 700 Rockville, Maryland 20850 Counsel for Atlas Turner, Inc., and Bell Asbestos Mines, Ltd. LAW OFFICES ASHCRAFT ft GEREL SUITE 700 2000 L STREET. N. W. WASHINGTON, D. C. 20090 202-703*6400 SUITE 220 4660 KENMORE AVENUE ALEXANDRIA. VA. 22904 709*781*7400 SUITE 1002 ONE CENTRAL PLAZA I 1900 ROCKVILLE PIKE ROCKVILLE. MD. 20S92 901*770-9797 SUITE 101 METRO 400 BUILDING LANDOVER. MD. 207BB 901 *480*0400 SUITE SOS 0 EAST BALTIMORE STREET BALTIMORE. MD. 21202 301*919*1122 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FLETCHER MCDANIEL, et ux. Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., et al. Defendants. ) ) ) ) ) Civil Action No. 83-3520 ) ) Judge Thomas A. Flannery ) ) FILED ) ) ) FEB 12 1986 CLERK, U.S. DISTRICT COURT STIPULATION OF VOLUNTARY DISMISSAL district -- Columbia 1 It is hereby stipulated that the above entitled action against defendants Atlas Turner, Inc., Bell Asbestos Mines, Ltd., United States Mineral Products Company and W.R. Grace & Co. may be dismissed without prejudice, each party to bear his own costs. In so dismissing these defendants, plaintiffs LAW OFFICES ASHCRAFT A GEREL SUITE 700 2000 I. STREET. N. W. WASHINGTON. D. C. 20036 202-703-6400 SUITE 220 4660 KENMORE AVENUE ALEXANDRIA. VA. 22304 703-791-7400 SUITE ONE CENTRAL FLAZA 1 1300 ROCKVILLE PIKE ROCKVILLE. MD. 2069^ reserve their right to institute a new action against these defendants in the event that Fletcher McDaniel develops an asbestos-related cancer. Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C. Cir. 1982) BROMLEY, BROWN & WALSH 301-770-9737 SUITE IOI METRO 400 BUILDING LANDOVER. MD. 20780 2000 L Street, N.W. Suite 700 Washington, D.C. 20036 Attr idf 51 Monrcrie Street Suite 806 Rockville, Maryland 20850 301-466-6400 SUITE SOS IO EAST BALTIMORE STREET BALTIMORE, MD. 21202 Counsel for Plaintiffs Counsel for United States Mineral Products Company 901-636-1122 % -l-L-ZU if' UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FLETCHER MCDANIEL, et al., Plaintiffs v. ARMSTRONG WORLD INDUSTRIES, et al.. Defendants 0 R PER ) Civil Action No ) 83-3520 FILED JAN 2 81986 This matter came before the court at a pretrial conference held on January 24, 1986. After consultation with counsel, it is, by the court, this day of January, 1986, ORDERED that defendants must file their final list of exhibits no later than January 31, 1986; and it is further ORDERED that plaintiff must asterisk their list of exhibits to show those to be used at trial no later than January 31, 1986; and it is further ORDERED that both sides shall file briefs on the issue of whether evidence relating to cancer is admissible no later than January 31, 1986; and it is further ORDERED that the parties shall file a list of depositions to be used at trial no later than January 31, 1986; and it is further ORDERED that plaintiff shall respond to defendants' motion in limine on the issue of use of depositions at trial no later than January 27, 1986. * UNITED STATES DISTRICT JUDGE CO-384 New 2/84 CLERK'S OFFICE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WASHINGTON, D.C. 20001 NOTICE ebzL Plainti vs. C.A. No. /jbr-ld (J Defendantfitl r- -T\ The following material has been filed and assigned these numbers on the docket sheet: Number(s) assigned: Material Filing Date UH Deposition(s) Transcripts Bulky Pleadings Exhibits Sealed Material THIS NOTICE IS PLACED IN THE FILE JACKET TO ACCOUNT FOR NUMBERS ASSIGNED TO MATERIAL FILED IN THIS CASE BUT NOT FILED IN THE CASE JACKET