Document ExGBgD3G335J6nJ4ggVxevQpg
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
LEO MCDANIEL and JOAN MCDANIEL, Plaintiffs,
vs.
ARMSTRONG WORLD INDUSTRIES, INC., et al.,
Defendants.
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NO.87-3256
DEFENDANT, OWENS-ILLINOIS, INC.'S ANSWERS TO PLAINTIFF, LEO MCDANIEL'S FIRST SET OF
lows* ^ROGATORIES TO DEFENDANT. OWENS--tt.t.tnots INC.
PRELIMINARY STATEMENT Some of the events which may be relevant to the matters inquired about by Plaintiffs' Interrogatories apparently occurred more than thirty-five years ago. In addition, effective April 30, 1958, Owens-Illinois, Inc. disposed of the business involved in this action by way of sale of that business to Owens-Corning Fiberglas Corporation. Since that time, Owens-Illinois, Inc. has not engaged in any such business. It does not now and it has not since that sale manufactured, distributed or sold any asbestoscontaining products. As a result of the foregoing factors, many of the individuals who might have `had personal knowledge of the matters to which plaintiffs' interrogatories relate are deceased, or are otherwise unavailable to Owens-Illinois, Inc., and investigations to date indicate that at least some documents which relate to matters inquired about by these interrogatories may have been transferred to Owens-Corning Fiberglas Corporation
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0<lT. P, J917
A. 43.
This defendant ceased the manufacture, sale
and distribution of asbestos-containing products in 1958. This
defendant is aware that the following present or former employees
have testified at trial or by deposition in asbestos-related
litigation:
Edward C. Ames
10/8/79, 1/10/80, 2/12/81, ' 3/26/81 and 10/7/81.
Robert Grim
9/6 & 7/84, 10/11/84
Richard L. Grimmie
7/10/79, 10/24/79 (trial) and 10/29/79 (trial).
David Innis
9/27/83.
William Justice
7/11/79 and 5/3/82.
John Pershing
7/26/79.
John Rhoads
7/11/79.
June Welser
7/11/79.
Everett Shuman
4/26/79, 6/12/79, 7/15/80, 8/19/80, and 3/4/81.
Willis G. Hazard
2/11/80, 2/11/81, 3/27/81, 12/14/81, 1/27/82.
Richard R. Beck
4/1/81 and 8/12/82.
Samuel F. Schillaci
4/7/81, 7/31/81 (trial), 11/9/81 (trial), 11/17/81, 3/10/82, 4/26-27/82, 6/4/84, 8/28/84, 9/6/84, 11/14/84, 2/5/85, 3/4/85 (trial), 4/30/85, 12/19/85 (trial) and 10/8/86.
George N. Bates, M.D.
4/6/81.
Thomas A. Meehan, Esq.
8/3/81 (trial), 11/9/81 (trial), 12/15/83, 1/16/84, 8/28/84, 6/4/84, and 11/13/84.
Effective April 30, 1958, this defendant sold its asbestos-containing product manufacturing division to Owens
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/ AFFIDAVIT
STATE OF OHIO COUNTY OF LUCAS
)SS: )
A. H. SMITH, being duly sworn according to law, deposes and says that he is an Assistant Secretary of OwensIllinois, Inc., a defendant herein; that as such he is authorized to make an Affidavit on its behalf; and that the facts set forth in the foregoing DEFENDANT, OWENS-ILLINOIS, INC.'S ANSWERS TO INTERROGATORIES, are true and correct to the best of his knowledge, information and belief.
SWORN TO and subscribed before me
A. H. SMITH
Notary Public
My Commission Expires
BEVERLY A. McNEAR Rotary PuMc -- Stata o* OMo My CommtMtofl Explr** tao. 29,1990
IL027.ASB
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
LEO MCDANIEL and JOAN MCDANIEL,
Plaintiffs, vs. ARMSTRONG WORLD INDUSTRIES, INC., et al.,
Defendants.
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NO.87-3256
DEFENDANT, OWENS-ILLINOIS, INC.'S ANSWERS TO PLAINTIFF, LEO MCDANIEL'S FIRST SET OF
INTERROGATORIES TO DEFENDANT. OWENS-ILLINOIS. INC.
PRELIMINARY STATEMENT Some of the events which may be relevant to the matters inquired about by Plaintiffs' Interrogatories apparently occurred more than thirty-five years a o. In addition, effective April 30, 1958, Owens-Illinois, Inc disposed of the business involved in this action by way of sale of that business to Owens-Corning Fiberglas Corporation. Since that time, Owens-Illinois, Inc. has not engaged in any such business. It does not now and it has not since that sale manufactured, distributed or sold any asbestoscontaining products. As a result of the foregoing factors, many of the individuals who might have had personal knowledge of the matters to which plaintiffs' interrogatories relate are deceased, or are otherwise unavailable to Owens-Illinois, Inc., and investigations to date indicate that at least some documents which relate to matters inquired about by these interrogatories may have been transferred to Owens-Corning Fiberglas Corporation
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with the transfer of the business in question in 1958. OwensIllinois, Inc. is engaged in a continuing investigation in an attempt to locate, confirm the transfer of, or confirm the absence of, such documents and is also engaged in a continuing investigation into the matters inquired about in these interrogatories. Unless otherwise stated in an answer to a specific interrogatory, the answers set out hereinafter are limited to the period during which Owens-Illinois, Inc. manufactured asbestos-containing insulation products and to the facilities related to that business. The following is a part of and is incorporated by reference in every answer provided hereinafter:
This answer is accurate as of the date made. However, Owens-Illinois, Inc.'s investigation is continuing, and Owens-Illinois, Inc. cannot exclude the possibility that it may be able to obtain more complete information or even information which indicates that the answer being supplied is incorrect. OwensIllinois, Inc. objects to answering this interrogatory in regard to any period of time other than the period during which it engaged in the business involved in this case which ended in mid-1958 or concerning any facility not related to that business, on the basis that any such answer would be irrelevant to the subject matter of the pending litigation, would not be reasonably calculated to lead to the discovery of admissible evidence, and would be burdensome and oppressive.
Furthermore, Owens-Illinois, Inc. objects to the instructions and definitions supplied by plaintiffs with regard to these interrogatories, on the basis that the definitions are overbroad, vague, and often inconsistent with the normal usage and meaning of such words, and the instructions are overbroad,
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burdensome and constitute an unreasonable expansion of the interrogatories themselves. Owens-Illinois, Inc. therefore gives notice that it does not consider itself bound by the instructions
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and definitions propounded by plaintiffs, and instead shall answer the interrogatories in a manner consistent with a normal understanding of the language used in the answer and to the extent necessary to fairly and fully answer the interrogatory.
Q. l.
Have these interrogatories been answered
fully and in good faith to the extent of the actual knowledge and
information available to defendant, Owens-Illinois, Inc., its
insurance carrier(s) and attorneys?
A. 1.
Yes. This defendant states that it has
referred to the relevant business records of the Owens-Illinois
Glass Company, which are still in the possession of Owens-
Illinois, Inc., in connection with the preparation of answers to
these interrogatories unless otherwise indicated.
Q. 2.
Is the defendant, Owens-Illinois, Inc., a
corporation? If so, state:
(a) the exact corporate name?
(b) the state of incorporation;
(c) the name and address and position
within defendant of the person providing sworn answers to these
interrogatories.
A. 2.
(a,b) Owens-Illinois Glass Company was
incorporated in the State of Ohio in 1929. Owens-Illinois Glass
Company changed its name to Owens-Illinois, Inc. on April 28,
1965. Owens-Illinois, Inc. was acquired pursuant to a tender
offer dated March 16, 1987 and is now a Delaware corporation.
The address of the principal place of business is One SeaGate,
Toledo, Ohio 43666.
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(c) Arthur H. Smith, Assistant Secretary of Owens-Illinois, Inc., One SeaGate, Toledo, Ohio 43666.
Q. 3.
Has anyone obtained from any person a
statement (whether oral or written, signed or unsigned)
concerning the occurrence involved in this cause of action? If
so, state as to each statement:
(a) the name and last known address of the
person making the statement;
(b) when, where and by whom the statement
was taken;
(c) is there any tangible preservation of
the statement, such as a document signed by the person making the
statement, a tape-recording, a transcript or a memorandum
purporting to reflect what was said?
(d) if your answer to (c) is affirmative,
state the name and address of the person having possession of the
tangible preservation of the statement.
A. 3.
This defendant objects to this interrogatory
as it seeks to discover work product of counsel and trial
preparation material.
Q. 4.
Has any private firm or company adjustor been
directed to investigate the occurrence or ask questions of
persons who may have knowledge of facts concerning the
occurrence? If so, state the full name and address of each firm
or adjustor.
A. 4.
This defendant objects to this interrogatory
as it seeks to discover work product of counsel and trial
preparation material.
Q. 5.
Do you have any information regarding Leo
McDaniel's physical condition other than that information
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furnished you by plaintiff's counsel? If so, state the nature of that information, the name and address of its source, and if documentary in nature, who now has each.
A. 5.
This defendant states that it has no such
information regarding plaintiff in its records. To the extent
that this defendant has such information, it was provided to this
defendant by plaintiff's counsel.
Q. 6.
Were any photos taken of Leo McDaniel? If
so, state the total number of photos, the date of each photo, and
who has each.
A. 6.
This defendant states that it has no such
information regarding plaintiff in its records. To the extent
that this defendant has such information, it was provided to this
defendant by plaintiff's counsel..
Q. 7.
Were you named or covered under any policy of
liability insurance, effective on the date of the occurrence,
which may be construed to provide coverage for any claim stated
in the Complaint? If so, as to each policy, state:
(a) the name of the company;
(b) the policy number;
(c) , the effective period;
(d) the maximum liability limits for:
(1) injury to any one person;
(2) aggregate personal injury
limits;
(e) what amounts, if any, have previously
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been paid under the policy which in the opinion of the carrier
reduces the coverage available;
(f) whether the carrier denied coverage or
tendered a defense under a reservation of rights;
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(g) whether the policy contains any first party medical pay or disability coverage, and, if so, describe the coverage.
A. 7.
This defendant objects to this interrogatory
on the grounds that it seeks information which is not relevant to
the subject matter of this litigation and is not calculated to
lead to the discovery of admissible evidence. Without waiving
the above objections, this defendant has liability coverage by
its insurer, Aetna, for some of the actions brought against it
which allegedly result from the use of asbestos-containing
products.
Q. 8.
Which, if any, of the carriers listed in your
answer to the preceding interrogatory are provided a defense to
this suit?
A. 8.
This defendant objects to this interrogatory
on the basis that it seeks information which is not relevant to
the subject matter of this litigation and is not reasonably
calculated to lead to the discovery of admissible evidence.
Q. 9.
Identify those expert witnesses (as defined
in Supreme Court Rule 229(a)(1)) from whom you may offer opinion
testimony at trial, and for each such expert, state:
(a) his name, current address, telephone
number, occupation, and employer; (b) the subject matter on which the expert
is expected to testify; (c)
his conclusions and opinions and the
basis therefore;
(d) his qualifications, including all
formal education subsequent to high school, a history of his
employment and the citation to each of his published writings;
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(e) the amount paid, or agreed to be paid to him, specifying his hourly rate of compensation;
(f) the name of the ffirst plaintiff, first defendant, the court in which filed and the cause number for every cause in which such expert has testified, whether at deposition or trial, and the date of his testimony.
A. 9.
The identity of expert witnesses to be called
at trial is not known at the present time. This defendant
reserves the right to designate at a later date expert witnesses
to be used at trial.
Q. 10. Has defendant ever had one or more persons whose primary responsibility included looking after or monitoring the health of defendant's employees, such as a medical director? If so, state the following as to each person who has held this position:
(a) the name and address of the person? (b) the name of the position he or she held; (c) the dates during which he or she held the position; (d) tl e address of his or her office during the time he or she he d the position; (e) state whether there was a written job description for that position at that time; (f) if there was a written job description, set forth the words of the description or attach a copy hereto.
A. 10.
(a-c) Charles Shook, M.D., deceased,
employed from March 25, 1946 until June 30, 1960 was the Medical
Director during the period in which this defendant manufactured,
sold or distributed asbestos-containing products.
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(d) This defendant's medical director was located in Toledo, Ohio, however, this defendant believes that his duties would have included a regular inspection of all this defendant's facilities.
(e) This defendant ceased the manufacture, sale and distribution of asbestos-containing products in 1958. This defendant has not found information in its records sufficient to enable it to answer this interrogatory.
(f) Refer to answer to Interrogatory No. 10(e).
Q. 11. Has defendant ever directed or contributed money toward a study of the effects of asbestos exposure upon the health of some or all of its employees? If so, state the following as to each such study:
(a) the description or title of the study; (b) the dates during which it was made; (c) the location or locations of the plants at which the employees were employed; (d) the number of employees studied; (e) brief description of the study; (f) whether any of the results were reported into written form, and if so, who now has a copy of the report.
A. 11. This defendant ceased the manufacture, sale and distribution of asbestos-containing products in 1958 and does not have any records from which it can obtain information sufficient to answer this interrogatory.
During May, 1979, various papers and reports were
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produced by an employee of the Trudeau Institute, Mr. Allan Logie, regarding animal experiments conducted at laboratories at Saranac Lake involving dust collected during the Kaylo manufacturing process. These papers and reports may contain information relating to the substance of this interrogatory.
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This defendant has not been able to find these papers and reports in its business records or correspondence although it has searched for and continues to search for them.
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This defendant's counsel obtained copies of some of the papers and reports produced by Mr. Logie. However, these copies constitute only a portion of a larger volume of papers and reports which this defendant has not copied. They are available at Milbank, Tweed, Hadley & McCloy, 1 chase Manhattan Plaza, New York, New York. This defendant also has reason to believe that plaintiffs' counsel has copies of the documents produced by Mr. Logie. Other documents possibly relating to this interrogatory may have been produced by Owens-Corning Fiberglas Corporation in the asbestos litigation.
Those documents found at Saranac Lake and at OwensCorning Fiberglas Corporation and elsewhere, indicate that during the period of time when Owens-Illinois was in the business of manufacturing asbestos-containing products, the state of government, industrial hygiene and medical community knowledge was that there was a recognized safe exposure level for asbestos dust and that persons installing insulation were not exposed to excessive or hazardous levels of asbestos dust. The foregoing documents also indicate that Kaylo plant employees were x-rayed periodically and displayed no asbestos-related chest disease; that this defendant made appropriate efforts to provide ventilation and to control the emissions of all dust omitted during the manufacturing process within recognized safe levels of exposure, including the use of respirators in some instances, dust collection equipment and other devices as necessary; and that therefore during the period in which this defendant was in the business of manufacturing Kaylo it had no reason to believe that the foreseeable use of Kaylo would create a hazard to users.
The documents produced by Owens-Corning Fiberglas Corporation indicate that the September, 1955 publication in the A.M.A. Archives of Industrial Health was a publication of inhalation experiments.
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To the extent that this interrogatory seeks the production of documents, such documents, as outlined in this response, have not been found as part of this defendant's records and, to the extent that this defendant is in possession of copies of documents, it possesses copies only of documents collected in preparation for litigation. This defendant objects to producing the same. The documents are available from their proper source.
Q. 12.
Have there been any studies of the effect of
asbestos exposure upon the health of any of defendant's
employees? If so, state:
(a) the description or title of the study;
(b) the dates during which it was made;
(c) the location or locations of the
plants at which the employees were employed;
(d) the number of employees studied;
(e) brief description of the study;
(f) whether any of the results were
reported into written form, and if so, who now has a copy of the
report.
A. 12. This defendant incorporates by reference its answer to Interrogatory No. 11.
Q. 13. as asbestosis?
Is there a disease or disease process known
A. 13. This defendant objects to this interrogatory on the grounds that it is argumentative and harassing. This defendant has reason to believe that plaintiff already possesses knowledge of such a disease. This defendant further objects to this interrogatory on the grounds that it calls for a medical opinion which this defendant is not qualified to render.
Q. 14.
Is asbestosis caused by exposure to asbestos? 10
A. 14.
During the period of time in which this
defendant engaged in the manufacture, sale and distribution of t
its asbestos-containing products, it was this defendant's
understanding that the inhalation of asbestos dust in excessive
amounts over a prolonged period of time (years), under certain
conditions, could lead to the potential hazard of contracting a
disease known as asbestosis. However, in 1958 and before and for
some years thereafter, the state of the medical and scientific
knowledge was to the effect that there was a safe level of
asbestos to which a person could be exposed without risk of
injury and to the effect that persons such as plaintiffs were not
exposed to excessive amounts of asbestos.
Q. 15.
If your answer to the preceding interrogatory
is in the affirmative, when did defendant first learn that
asbestosis was caused by exposure to asbestos?
A. 15.
Refer to objection to Interrogatory No. 14.
Q. 16. as lung cancer?
Is there a disease or.disease process known
A. 16. This defendant objects to this interrogatory on the grounds that it is argumentative and harassing. This defendant has reason to believe that plaintiff already possesses knowledge of such a disease. This defendant further objects to this interrogatory on the grounds that it calls for a medical opinion which this defendant is not qualified to render.
Q. asbestos?
17.
Can lung cancer be caused by exposure to
A. 17.
This defendant objects to this interrogatory
on the basis that the term caused is vague, ambiguous and
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unintelligible. Defendant also objects on the basis that its present knowledge is irrelevant to this action in that evidence of a causal connection between cancer and asbestos was first accepted by medical science after the period of time defendant ceased the manufacture of asbestos-containing products. Without waiving its objections, defendant is informed and believes that at no time prior to 1958 was there reason to believe that the medical and scientific community accepted that there was a causal connection established between exposure to asbestos and a risk of contracting cancer.
Q. 18.
If your answer to the preceding interrogatory
is in the affirmative, when did defendant first learn that lung
cancer can be caused by exposure to asbestos?
A. 18.
Refer to objection to Interrogatory No. 17.
Q. 19.
Does exposure to asbestos increase the
incidence of lung cancer?
A. 19. This defendant objects to this interrogatory on the basis that the phrase increased incidence is vague, ambiguous and unintelligible. Defendant also objects on the basis that its present knowledge is irrelevant to this action in that evidence of a causal connection between cancer and asbestos was first accepted by medical science after the period of time defendant ceased the manufacture of asbestos-containing products. Without waiving its objections, defendant is informed and believes that at no time prior to 1958 was there reason to believe that the medical and scientific community accepted that there was a causal connection established between exposure to asbestos and a risk of contracting cancer.
Q. 20.
If your answer to the preceding interrogatory
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is in the affirmative, state when defendant first learned that exposure to asbestos increased the incidence of lung cancer.
A. 20. Refer to answer to Interrogatory No. 19.
Q. 21. as mesothelioma?
Is there a disease or disease process known
A. 21. This defendant objects to this interrogatory on the grounds that it is argumentative and harassing. This defendant has reason to believe that plaintiff already possesses knowledge of such a disease. This defendant further objects to this interrogatory on the grounds that it calls for a medical opinion which this defendant is not qualified to render.
Q. asbestos?
22.
Can mesothelioma be caused by exposure to
A. 22.
This defendant objects to this interrogatory
on the basis that the term caused is vague, ambiguous and
unintelligible. Defendant also objects on the basis that its
present knowledge is irrelevant to this action in that evidence
of a causal connection between mesothelioma and asbestos was
first accepted by medical science after the period of time
defendant ceased the manufacture of asbestos-containing products.
Without waiving its objections, defendant is informed and
believes that at no time prior to 1958 was there reason to
believe that the medical and scientific community accepted that
there was a causal connection established between exposure to
asbestos and a risk of contracting mesothelioma.
Q. 23.
If your answer to the preceding interrogatory
is in the affirmative, when did defendant learn that mesothelioma
can be caused by exposure to asbestos?
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A. 23.
Refer to objection to Interrogatory No. 22.
Q. 24.
Does exposure to asbestos increase the
incidence of mesothelioma?
A. 24.
This defendant objects to this interrogatory
on the basis that the phrase increased incidence is vague,
ambiguous and unintelligible. Defendant also objects on the
basis that its present knowledge is irrelevant to this action in
that evidence of a causal connection between mesothelioma and
asbestos was first accepted by medical science after the period
of time defendant ceased the manufacture of asbestos-containing
products. Without waiving its objections, defendant is informed
and believes that at no time prior to 1958 was there reason to
believe that the medical and scientific community accepted that
there was a causal connection established between exposure to
asbestos and a risk of contracting mesothelioma.
Q. 25.
If your answer to the preceding interrogatory
is in the affirmative, state when defendant first learned that
exposure to asbesi-ns increased the incidence of mesothelioma.
A. 25. Refer to answer to Interrogatory No. 24.
Q. 26. Is there a disease or disease process known as cancer of the gastrointestinal tract?
A. 26. This defendant objects to this interrogatory on the grounds that it is argumentative and harassing. This defendant has reason to believe that plaintiff already possesses knowledge of such a disease. This defendant further objects to this interrogatory on the grounds that it calls for a medical opinion which this defendant is not qualified to render.
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Q. 27.
Can cancer of the gastrointestinal tract be
caused by exposure to asbestos?
A. 27.
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This defendant objects to this interrogatory
on the basis that the term caused is vague, ambiguous and
unintelligible. Defendant also objects on the basis that its
present knowledge is irrelevant to this action in that evidence
of a causal connection between cancer and asbestos was first
accepted by medical science after the period of time defendant
ceased the manufacture of asbestos-containing products. Without
waiving its objections, defendant is informed and believes that
at no time prior to 1958 was there reason to believe that the
medical and scientific community accepted that there was a causal
connection established between exposure to asbestos and a risk of
contracting cancer.
Q. 28.
If your answer to the preceding interrogatory
is in the affirmative, when did defendant first learn that cancer
of the gastrointestinal tract can be caused by exposure to
asbestos?
A. 28.
Refer to objection to Interrogatory No. 27.
Q. 29.
Does exposure to asbestos increase the
incidence of cancer of the gastrointestinal tract?
A. 29. This defendant objects to this interrogatory on the basis that the phrase increased incidence is vague, ambiguous and unintelligible. Defendant also objects on the basis that its present knowledge is irrelevant to this action in that evidence of a causal connection between cancer and asbestos was first accepted by medical science after the period of time defendant ceased the manufacture of asbestos-containing products. Without waiving its objections, defendant is informed and believes that at no time prior to 1958 was there reason to
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believe that the medical and scientific community accepted that there was a causal connection established between exposure to asbestos and a risk of contracting cancer..
Q. 30.
If your answer to the preceding interrogatory
is in the affirmative, state when defendant first learned that
exposure to asbestos increased the incidence of cancer of the
gastrointestinal tract.
A. 30. Refer to answer to Interrogatory No. 29.
Q. 31. List the following information for each claim brought against defendant by a present or former contract-unit employee of defendant or the spouse or child of a deceased such employee alleging a disease or condition of ill-being caused by asbestos:
(a) the name and address of the person alleged to be diseased or in a condition of ill-being;
(b) when the alleged disease or condition of ill-being began;
(c) the circumstances under which the employee is alleged to have come into contact with asbestos;
(d) whether the person is represented by an attorney, and if so, the name and address of his attorney;
(e) the agency where the claim was filed, the docket number of the claim and the date the claim was filed.
A. 31. Not applicable to this defendant. This defendant has never formed nor maintained a group or groups known as "contract units," such "contract units" being a division or group within or maintained by the corporation which, inter alia, engaged in the actual installation of insulation products containing asbestos at job sites.
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Q. 32.
List the following information for each
claim, not identified in your answer to the preceding
interrogatory, brought against defendant by a present or former
employee of defendant or the spouse or child of a deceased
employee alleging a disease or condition of ill-being caused by
asbestos:
(a) the name and address of the person
alleged to be diseased or in a condition of ill-being;
(b) when the alleged disease or condition
of ill-being began; (c)
the circumstances under which the
employee is alleged to have come into contact with asbestos;
(d) whether the person is represented by
an attorney, and if so, the name and address of his attorney;
(e) the agency where the claim was filed,
the docket number of the claim and the date the claim was filed.
A. 32.
This defendant objects to this interrogatory
on the basis that it seeks information which is not relevant to
the subject matter of this litigation and is not reasonably
calculated to lead to the discovery of admissible evidence.
Without waiving the above objection, during the period
in which this defendant engaged in the manufacture of its
asbestos-containing products, it received no workers'
compensation claims for any asbestos-related disease.
Q. 33.
List the following information for each claim
or report, not identified in your answer to the two preceding
interrogatories, alleging a disease or condition of ill-being
caused by asbestos or an asbestos-containing product sold by
defendant:
(a) the name and address of the person
alleged to be diseased or in a condition of ill-being;
(b) when the alleged disease or condition
of ill-being began;
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(c) the circumstances under which the employee is alleged to have come into contact with asbestos;
(d) whether the person is represented by an attorney, and if so, the name and address of his attorney;
(e) the agency where the claim was filed, the docket number of the claim and the date the claim was filed.
A. 33. This defendant objects to this interrogatory on the basis that it is overly broad, burdensome and harassing, seeks information which is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence.
Q. 34. List the following information regarding each document (as defined in Supreme Court Rule 201(b)(1)) authored by an employee of defendant in the course of his employment, dealing in whole or in part with the consequences of exposure to asbestos:
(a) name, title or other means of identification of the document;
(b) name, position at time document authorized, and current address, position and employer of each author of the document;
(c) dj te prepared or published; (d) the name and address of the entity responsible for its publication and/or distribution; (e) if available in typewritten or printed form, the number of pages.
A. 34. This defendant objects to this interrogatory as being vague, ambiguous, unintelligible, irrelevant, overly broad, burdensome and oppressive, not reasonably calculated to lead to the discovery of admissible evidence and not limited to any issue which is the subject of this case.
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Q. 35.
When did defendant first sell asbestos or
products containing asbestos?
A. 35.
Owens-Illinois Glass Company began limited
pilot plant operations involving the production of "Kaylo"
asbestos-containing products in 1943. It began the manufacture
of commercial quantities of "Kaylo" asbestos-containing products
in about 1948 and continued such manufacture until about April
30, 1958.
Q. 36.
Does defendant still sell asbestos or
products containing asbestos? If not, when did defendant stop
selling?
A. 36. No. This defendant ceased the manufacture, sale and distribution of asbestos-containing products in 1958. It does not now, and it has not since that time, manufactured, sold or distributed any asbestos-containing products.
Q. 37.
List the following information about each
different type (as opposed to different sizes of the same type)
of asbestos-containing building and/or insulation product
manufactured or sold by defendant:
(a) brand or trade name;
(b) description;
(c) uses defendant recommendedof it;
(d) asbestos content;
(e) dates of manufacture and/orsale.
A. 37.
(a) (b)
Kaylo.
i
The asbestos-containing products
manufactured by this defendant were intended to be used for
industrial high temperature thermal insulation such as pipe
covering and block insulation, and to increase fireproofing and
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fire protection and for insulation through use as a roof deck or fireproof material or door core material.
(c) The asbestos-confaining products manufactured by this defendant were intended to be used for industrial high temperature thermal insulation such as pipe covering and block insulation, and to increase fireproofing and fire protection and for insulation through use as a roof deck or fireproof material or door core material.
(d) This defendant ceased the manufacture, sale and distribution of its asbestos-containing products in 1958. Its investigation as to the composition of each such product, including the type of asbestos contained therein (i.e., amosite or chrysotile) and the quantitative percentage of asbestos, is continuing, although this defendant now believes that this defendant's commercially produced asbestos-containing products were hydrous calcium silicates containing between 13% and approximately 20% asbestos. Chrysotile asbestos was the primary type apparently used. Amosite was used to a lesser extent.
(e) Owens-Illinois Glass Company began limited pilot plant operations involving the production of "Kaylo" asbestos-containing products in 1943. It began the manufacture of commercial quantities of "Kaylo" asbestoscontaining products in about 1948 and continued such manufacture until about April 30, 1958.
Q. 38. Has defendant, at any time since it began selling asbestos or asbestos-containing products, issued a warning concerning the consequences of exposure to asbestos, which warning was intended by defendant to reach those persons who would breath or ingest asbestos or asbestos-containing products during their distribution and/or use? If so, state as to each such warning:
(a) the language of the warning; (b) date first issued or distributed;
20
(c) date last issued or distributed;
(d) the method of communication or
distribution used;
(e) the name, position at the time, and
current address, position and employer of each person ordering or
recommending the warning.
A. 38. This defendant ceased the manufacture, sale and distribution of asbestos-containing products in 1958. This defendant has not found information in its records sufficient to enable it to answer this interrogatory. However, it does not appear that any warning concerning asbestos was given in that it does not appear that this defendant had reason to believe that the use of its products would result in a foreseeable risk of harm.
Q. 39.
If your answer to the preceding interrogatory
is in the affirmative, state the following as to the first
information defendant received that exposure to asbestos caused
disease:
(a) the form in which it was received,
e.g., orally, in writing;
(b) if orally, the name and address of the
person from whom received;
(c) if the information was received in
written form, give the author, title of the document, and date of
the document;
(d) the name and address of the employee
or employees who received the information;
(e) briefly describe the information.
A. 39. Not applicable to this defendant. answer to Interrogatory No. 38.
Refer to
21
Q. 40.
If your answer to the second preceding
interrogatory was affirmative, list the name and address of each employee who was responsible to investigate, whether:
(a) the warnings were reaching the persons
who were breathing and/or ingesting the asbestos from the
asbestos-containing products;
(b) the warnings were being read by the
persons who were breathing and/or ingesting the asbestos from the
asbestos-containing products;
(c) the warnings were being understood by
the persons who were breathing and/or ingesting the asbestos from
the asbestos-containing products;
(d) the warnings were being heeded by the
persons who were breathing and/or ingesting the asbestos from the
asbestos-containing products.
A. 40. Not applicable to this defendant. answer to Interrogatory No. 38.
Refer to
Q. 41.
Did defendant ever have one or more employees
who routinely performed the task of sawing asbestos containing
pipe covering?
If so, state the following:
(a) the name and address of each plant at
which the process was conducted, and the inclusive period of
years during which the process was conducted, at that plant;
(b) the number of employees who performed
the task for one year or more;
(c) the name and address of each employee
who performed the task for one year or more at one of defendant's
plants and who was known by defendant to be free of asbestos
disease 25 years or more after having first performed the task
for at least one year.
22
A. 41.
No. This defendant has never formed nor
maintained a group or groups known as "contract units," such
"contract units" being a division or group within or maintained
by the corporation which, inter alia, engaged in the actual
installation of insulation products containing asbestos at job
sites.
Q. 42.
List the following information regarding each
worker or group of workers who, as of 1960, had used asbestos-
containing building or insulation products for 25 years or more
and were known by defendant to be free of asbestos disease:
(a) current name and address;
(b) location(s) and inclusive dates of
asbestos product usage;
(c) date(s) of the examination(s) which
revealed the worker to be free of asbestos disease.
A. 42. This defendant objects to this interrogatory on the basis that it seeks information which is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Without waiving the above objection, not applicable. This defendant ceased the manufacture, sale and distribution of asbestos-containing products in 1958.
Q. 43.
List the following information regarding each
instance where an employee of defendant testified (at deposition
or trial) in asbestos disease litigation:
(a) name of employee;
(b) date and place testimony was given;
(c) first named plaintiff and defendant,
case number and court in which pending; (d) name and address of reporter; (e) whether you have a transcript of the
testimony.
23
A. 43.
This defendant ceased the manufacture, sale
and distribution of asbestos-containing products in 1958. This
defendant is aware that the following present or former employees
have testified at trial or by deposition in asbestos-related
litigation:
Edward C. Ames Robert Grim Richard L. Grimmie David Innis William Justice John Pershing John Rhoads June Welser Everett Shuman Willis G. Hazard Richard R. Beck Samuel F. Schillaci
George N. Bates, M.D. Thomas A. Meehan, Esq.
10/8/79, 1/10/80, 2/12/81, 3/26/81 and 10/7/81.
9/6 & 7/84, 10/11/84
7/10/79, 10/24/79 (trial) and 10/29/79 (trial).
9/27/83.
7/11/79 and 5/3/82.
7/26/79.
7/11/79.
7/11/79.
4/26/79, 6/12/79, 7/15/80, 8/19/80, and 3/4/81.
2/11/80, 2/11/81, 3/27/81, 12/14/81, 1/27/82.
4/1/81 and 8/12/82.
4/7/81, 7/31/81 (trial), 11/9/81 (trial), 11/17/81, 3/10/82, 4/26-27/82, 6/4/84, 8/28/84, 9/6/84, 11/14/84, 2/5/85, 3/4/85 (trial), 4/30/85, 12/19/85 (trial) and 10/8/86.
4/6/81.
8/3/81 (trial), 11/9/81 (trial), 12/15/83, 1/16/84, 8/28/84, 6/4/84, and 11/13/84.
Effective April 30, 1958, this defendant sold its asbestos-containing product manufacturing division to Owens-
24
Corning Fiberglas Corporation. At that time certain employees who worked in the division, some of whom are mentioned above, transferred to Owens-Corning Fiberglas Corporation. These individuals have been deposed with regard to asbestos-related litigation involving Owens-Corning Fiberglas Corporation.
This defendant objects to the production of copies of the transcripts of these depositions on the basis that said transcripts are filed with various courts around the country, they are therefore matters of public record, and therefore plaintiffs have equal access to such documents. Defendant reserves the right to advance additional arguments against the production of such documents if and when plaintiffs file a request for production.
Q. 44.
List the following information regarding
each instance where an individual whom you had listed, retained
or called as an expert witness testified (at deposition or trial)
in asbestos disease litigation:
(a) name of employee;
(b) date and place testimony was given;
(c) first named plaintiff and defendant,
case number and court in which pending;
(d) name and address of reporter;
(e) whether you have a transcript of the
testimony.
A. 44. This defendant objects to this interrogatory on the basis that it seeks information which is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence.
Q. 45.
List the name and address of all
international unions and local unions which have represented
employees of defendant while the employees were using asbestos-
containing products or were being exposed to asbestos, and
25
indicate the address of the plant or group of employees represented and the date of such representation.
A. 45.
This defendant objects to this interrogatory
on the basis that it seeks information which is not relevant to
the subject matter of this litigation and is not reasonably
calculated to lead to the discovery of admissible evidence.
Q. 46.
Did any of the unions listed in your answer
to the previous interrogatory ever instruct, advise or caution
your employees on the safe handling of asbestos or precautions to
be taken when working in airborne asbestos?
If so, please state for each instruction, advice or
warning:
(a) the name and address of the union and
person instructing, advising or warning your employees;
(b) the method and content of the
instruction, advice or warning;
(c) the dates of the instruction, advice
or warning;
(d) whether the union ever promulgated,
recommended or bargained for any regulations, standards or
guidelines concerning the safe handling of asbestos or
precautions to be taken when working in airborne asbestos.
A. 46. Not applicable. Interrogatory No. 46.
Refer to answer to
Q. 47. Did defendant sell, ship or deliver any
asbestos-containing products to any of the sites on Exhibit A on
or before January 16, 1987? If so, state the following: (a) the type and quantity sold, shipped or
delivered;
(b) the date;
26
(c) describe or attach the documents evidencing such sale or shipment.
A. 47.
This defendant objects to this interrogatory
on the basis that no time periods relative to plaintiff's
employment have been provided. Without waiving the above
objection, this defendant states that it has found no records
indicating that it ever sold or otherwise supplied any of its
asbestos-containing products to any of the locations listed on
Exhibit A.
Q. 48.
List the following information regarding each
instance known to defendant where an individual has testified (at
deposition or trial) that a product manufactured or sold by
defendant was present or used at any if the sites on Exhibit A
(in lieu of providing the answers to the following, you may
provide a transcript of the testimony and plaintiff's lawyer will
pay your charges for providing the same):
(a) name and address of witness;
(b) first named plaintiff, case number,
and court in which case is pending;
(c) date of testimony;
(d) name and address of reporter;
(e) whether you have a transcript of the
testimony.
A. 48. This defendant ceased the manufacture, sale and distribution of asbestos-containing products in 1958. This defendant has no such information in its records.
Q. 49.
On what date did defendant first become aware
that asbestosis was a compensable occupational disease under a
State Worker's Compensation Act? (Source: GAF's Int. 53 in
Reed. 83 L 68).
27
A. 49.
This defendant objects to this interrogatory
on the basis that it seeks information which is not relevant to
the subject matter of this litigation and is not reasonably
calculated to lead to the discovery of admissible evidence.
Q. 50.
Please describe the date, place and
circumstances under which defendant first become aware that any
adverse effects of exposure to asbestos and asbestos-containing
materials may be cumulative in nature and that continued exposure
to such materials by one suffering from asbestosis or related
illnesses might have a significant adverse effect upon the extent
and severity of such illness. In addition, please state:
(a) the specific identity of each source
of information providing or leading to such awareness; and
(b) any change in defendant's behavior,
work rules, etc., precipitated by such awareness. (Source:
GAF's Int. 54 in Reed. 83 L 68).
A. 50. To the extent this interrogatory inquires as to asbestos-containing products manufactured or sold by other defendants, this defendant states that it does not have any records from which it can obtain information sufficient to answer this interrogatory, nor can it locate any present employees with knowledge thereof.
Insofar as this interrogatory inquires as to asbestoscontaining products manufactured by this defendant, this defendant states that it ceased the manufacture, sale and distribution of asbestos-containing products effective April 30, 1958 and has not engaged in any such business since.
During May, 1979, various papers and reports were produced by an employee of the Trudeau Institute, Mr. Allan Logie, regarding animal experiments conducted at laboratories at Saranac Lake involving dust collected during the Kaylo manufacturing process. These papers and reports may contain information relating to the substance of this interrogatory.
28
This defendant has not been able to find these papers and reports
in its business records or correspondence although it has
searched for and continues to search for them. This defendant's counsel obtained copies of some of the
papers and reports produced by Mr. Logie. However, these copies
constitute only a portion of a larger volume of papers and
reports which this defendant has not copied. This defendant also
has reason to believe that plaintiffs' counsel has copies of the
documents produced by Mr. Logie. They are available at Milbank,
Tweed, Hadley & McCloy, 1 Chase Manhattan Plaza, New York, New
York. Other documents possibly relating to this interrogatory
may have been produced by Owens-Corning Fiberglas Corporation.
Those documents indicate that experiments referred to in the
documents produced by Mr. Logie were published in an AMA
publication in September, 1955. As with the documents produced
by Mr. Logie, the documents produced by Owens-Corning Fiberglas
Corporation have not been found as part of this defendant's
records.
The foregoing documents indicate that during the time
in which this defendant engaged in the manufacture, sale and
distribution of asbestos-containing products, its products
contained a relatively small proportion of asbestos when compared
to other asbestos-containing products in use during and prior to
the same period of time.
It appears that this defendant's
employees at its asbestos product manufacturing plants were x-
rayed periodically and displayed no asbestos-related chest
disease, although in the course of their employment they were
exposed to the raw materials of this defendant's products as well
as the dust of the finished product. Furthermore, these
documents indicate that there were no worker's compensation
claims filed by its employees for asbestos-related diseases.
It was this defendant's understanding of the state of
medical and industrial hygiene knowledge that exposure to
asbestos in excessive amounts over a prolonged period of time
(years), in the conditions typically experienced in factories,
29
workshops, and possibly mines and mills could lead to the potential hazard of contracting a disease known as asbestosis.
However, the state of medical and industrial hygiene knowledge was also to the effect that there was a safe level (threshold limit value) of asbestos to which a person could be exposed without risk of injury. This defendant was aware of the threshold limit value for asbestos as published by the American Conference of Governmental Industrial Hygienists (ACGIH) in the 1940's and 1950's through publications by the Industrial Hygiene Foundation, ACGIH and from the above referenced "Logie" and "OCF" documents.
In addition, it appears that an employee of this defendant subscribed to and received the Journal of Industrial Hygiene and Toxicology which contained in January, 1946 an article published by the Navy entitled, "A Health Survey of Pipe Covering Operations in Constructing Naval Vessels," by Fleischer, Viles, Gade and Drinker. This article stated that persons who worked as insulators in shipyards were not exposed and did not work in conditions similar to those experienced in factories, workshops, mines and mills, and were not exposed to levels of asbestos above the recognized safe limits. Therefore, the article concluded that such persons were not engaged in a hazardous occupation.
From the foregoing papers, reports and articles, this defendant had no reason to believe that exposure to its asbestoscontaining products would result in a foreseeable risk of harm to users.
This defendant reserves the right to supplement this response as discovery and the case warrant. This defendant has reason to believe that plaintiffs' counsel is in possession of a substantial library of asbestos-related literature containing articles that defendant may wish to rely upon.
To the extent that this interrogatory seeks the production of documents, such documents, as outlined in this response, have not been found as part of this defendant's records
30
and, to the extent that this defendant is in possession of copies of documents, it possesses copies only of documents collected in preparation for litigation. This defendant objects to producing the same. The documents are available from their proper source.
Q. 51.
Did defendant ever suggest or recommend that
persons using or exposed to the dust from defendant's asbestos-
containing products might or should use any device to reduce
exposure to, or inhalation of, asbestos dust or fibers? If so,
please state for each and every such suggestion or
recommendation:
(a) date, time and place when each such
suggestion or recommendation was made;
(b) identify each person present when such
suggestion or recommendation was made to or received by
plaintiff;
(c) identify each person receiving same
or similar suggestion or recommendation;
(d) exact wording and content of such
suggestion or recommendation;
(e) whether such suggestions or
recommendation was written or oral, and
(1) if written, please identify in
detail each such writing;
(2) if oral, identify all person
involved and details as to the manner in which each such
suggestion or recommendation was presented; (f) type, make and model of each device
referred to'in each such suggestion or recommendation. (Source;
GAF'S Int. 58 in Reed. 83 L 68).
A. 51.
This defendant ceased the manufacture, sale
and distribution of asbestos-containing products in 1958 and does
not have any records from which it can obtain information
sufficient to answer this interrogatory.
31
Q. 52.
Identify all documents of which you have
knowledge, including but not limited to medical articles, medical
journals, case reports, textbooks, abstracts, or synopses, which
you believe relate to your "state-of-the-art" defense (Source:
GAF's Int. 89 in Reed. 83 L 68).
A. 52. The documents which this defendant intends to rely upon at trial are not known at the present time. This defendant reserves the right to designate documents to be used at trial at a later date. As a partial listing, however, the following materials may be relied upon: "A Study of Asbestosis in the Asbestos Textile Industry," Dreessen, W.C. (1938); an article published in the Transactions of the Eleventh Annual Meeting, Industrial Hygiene Foundation, November 7, 1946 by J. J. Bloomfield; "A Health Survey of Pipe Covering Operations in Constructing Naval Vessels," Fleischer, Drinker, et al., (1946); "Asbestos Exposure During Naval Vessel Overhaul," Marr, William T. (1964); "Prevalence of Chronic Respiratory Disease," Ferris, B. G., Jr. (1971); "Asbestosis and Bronchogenic Carcinoma," Isselbacher, K. J. (1953); Annals of the New York Academy of Sciences Volumes 132 and 330; and the Threshold Limit Values promulgated by the American Conference of Governmental Industrial Hygienists for the years 1946 through 1958.
Q. 53.
List the name and present address of all
persons who have been a director in defendant from the date of
its incorporation to the present and list the dates during which
the person was a director.
A. 53. This defendant objects to this interrogatory on the basis that it seeks information which is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence.
32
Q. 54.
List the name and current address of each
person who has held any of the following offices in defendant
from the date of its incorporation to the present and also list
the office held and the inclusive date during which the office
was held: President; Vice-President; Secretary; and Treasurer.
A. 54. This defendant objects to this interrogatory on the basis that it seeks information which is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence.
Q. 55.
Pursuant to the Supreme Court Rule 213(e),
identify and give the location of those persons, not previously
disclosed, having knowledge of facts relevant to how or why the
occurrence described in the Complaint took place.
A. 55. This defendant ceased the manufacture, sale and distribution of asbestos-containing products in 1958. This defendant has not found information in its records sufficient to enable it to answer this interrogatory.
Q. 56.
Pursuant to the Supreme Court Rule 213(e),
identify and give the location of those persons, not previously
disclosed, having knowledge of facts relevant to the nature and .
extent of Leo McDaniel's injury.
A. 56. This defendant ceased the manufacture, sale and distribution of asbestos-containing products in 1958. This defendant has not found information in its records sufficient to enable it to answer this interrogatory.
33
AFFIDAVIT
STATE OF OHIO COUNTY OF LUCAS
) SS:
A. H. SMITH, being duly sworn according to law, deposes and says that he is an Assistant Secretary of OwensIllinois, Inc., a defendant herein; that as such he is authorized to make an Affidavit on its behalf; and that the facts set forth in the foregoing DEFENDANT, OWENS-ILLINOIS, INC.'S ANSWERS TO INTERROGATORIES, are true and correct to the best of his knowledge, information and belief.
SWORN TO and subscribed before me
A. H. SMITH
My Commission Expires
BEVERLY A. McNEAR notary PuMc -- SUM of OMo My ConwiUUnn Explroo . 1990
PROOF OF SERVICE
THE UNDERSIGNED certifies that a copy of thfe foregoing instrument was served upon the attorneys of record of all parties to the above cause by enclosing same in an envelope with postage prepaid, and by depositing said envelope in a United States Post Office mail box in Edwardsville, Illinois on
, 19_________________________________ addressed to such attorneys at address as disclosed by the pleadings of record herein.
Copies Mailed To:
James Walker . P.0. Box 3455
Bloomington, IL
61702-3455
Roland Litterst ; Covey & Litterst
515 Peoria Savings Plaza Peoria, IL 61602
Rochelle Hittinger Vice President - General Counsel Nicolet, Inc. Wissahickon Ave. Ambler, PA 19002
: Bret S. Babcock Davis & Morgan
l 1125 First Nat'l Bank Bldg. Peoria, IL 61602
i!
: James Hafele 717 First Nat'l Bank Bldg. Peoria, IL 61602
BY:________________________________________ HEYL, ROYSTER, VOELKER & ALLEN
HEYl_ ROYSTER. VOELKER & ALLEN COMPOMATtOM *EYS AT LAW
- >T lOUIS STSCCT EOWAflOSVtLLC. 'LLINCS 620iS
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