Document G6EMVw4xvXV0RkK34qKk4maXv

<\ c f\ SHANLEY & FISHER, P.C. 131 Madison Avenue Morristown, New Jersey 07960 (201) 285-1000 Attorneys for Defendant Borden, Inc. LOTTIE MEMICE, Individually and LOTTIE MEMICE, as Executrix of the ESTATE OF JOSEPH MEMICE, Deceased, Plaintiffs, v. PPG INDUSTRIES, INC., et al. Defendants. SUPERIOR COURT OF NEW JERSEY LAW DIVISION; PASSAIC COUNTS DOCKET NO. L-20509-86 Civil Action NOTICE OF MOTION FOR SUMMARY JUDGMENT cz TO; S. Robert Princiotto, Esq. Marcus & Levy Valley National Bank Bldg. 80 Broadway (Route 4) Elmwood Park, NJ 07407 Attorney for Plaintiff o? SIRS: PLEASE TAKE NOTICE that on a date to be set by the Court, the undersigned attorneys for defendant Borden, Inc. shall apply to the Court for an Order granting summary judgment dismissing plaintiff's Complaint as to defendant Borden, Inc. PLEASE TAKE FURTHER NOTICE that in support of the within application reliance shall be place upon the annexed brief and certification of Robert M. Leonard with exhibits attached thereto. PLEASE TAKE FURTHER NOTICE that defendant Borden, Inc. requests oral argument. SHANLEY & FISHER, P.C. Attorneys for Defendant Borden, Inc. DATED: July/ 7 1987 By Raymond M. Tierney, A Member of the Firm CERTIFICATION CO I, Robert M. Leonard certify as follows: 1. I am an attorney-at-law of the State of New Jerse' and am associated with the law firm of Shanley & Fisher, P.C attorneys for defendant Borden, Inc. in the within matter I am fully familiar with the facts set forth herein. I submi this certification in support of Borden's motion for surnmarjudgment dismissing plaintiff's Complaint against defendanBorden, Inc. 2. Attached hereto as Exhibit A are of Borden's answers to interrogatories. true copie: 3. Attached hereto as Exhibit B are true copie: of Exhibits marked P-20A and P-21A at the deposition of Joh: Ertel. 4. Attached, hereto as Exhibit C are true copie: of certain excerpts John Ertel's first and second deposition. 5. Attached hereto as Exhibit D is a copy of memorandum prepared by J.T. Leonard, a former Pantasot purchasing agent. I hereby certify the the foregoing statements mad' by me are true. I am aware that if any statement made by in is wilfully false, I may be subject to punishment. Exhibit A I 4. State whether or not this defendant recognizes tha reft could cause or result in cancer and its related maladies in \uman beings and if so, state the date when this defendant first .earned that VCM could cause oC result in cancer and the source c :he information. i URL 2164: C*J I 5. State whether or not you have ever entered i ,3 a ^contract or agreement for the sale of VCM with the Pantaso .Company. If so, state: | Borden did not enter into any contract or agreement i . to sell VCM to Pantasote in Passaic, New Jersey prior j to plaintiff's retirement in September, 1983. | a. Whether said Contract was fully performed each party. by b. Whether said Contract was terminated earlier /than the termination date. If so, indicate the termination date and the reason for such earlier termination. ii c. Whether any of the terms of the Contract wars modified orally, in writing or by conduct of the parties. d. If any Contract was not fully performed, state in detail all alleged nonperformances. cI e. Attach hereto a dear copy of said Contract or Agreement together with any modifications or alterations thereof. ] f. State the names and address of each individual known by you to be familiar with said contracts or agreements c;$oth vendor and vendee. i f URL 21644 11 :i 6. Stats whether you ever delivered VCM to the Pantasote Company for its Passaic# New Jersey facility and if so. i'state, the dates of delivery, the quantity of each delivery, - i:delivery date and person or persons who have relevant knowleug* concerning said sales from vendor and vendee. 6. Borden did not deliver VCM to the Pantasote Company for its Passaic, New Jersey facility until October, 1983, after the date of plaintiff's retirement from Pantasote. C state 7. Foe each year from 1960 up to and including 1983 a. Your annual capacity in millions of pounds foe VCM. If by some other measurement other than millions of pounds indicate same. b. Actual production in millions of pounds. If b some other measurement other than millions of pounds, please indicate same. 8. State all manufacturers of VCM for the years 1960 up to and including 1983. URL 2184 cn 9. State ail facts in support of your contention tha you did not supply, manufacture not distribute VCM which caused Plaintiff's injury. Borden has reviewed its records which indicate that it never sold VCM to Pantasote in Passaic, New Jersey until October, 1983 after plaintiff's retirement from Pantasote. The Pantasote purchasing records confirm that Borden was not a supplier of VCM to its facility in Passaic, New Jersey until that time. These records also indicate the suppliers with whom Pantasote had its contracts for the supply of VCM. URL 21846 Exhibit B > r > <* 5 2! 5I I c % A# t. <-* qt 4. *a'>. 2 M LZ*. t g ? O a P *> i- s ?i a 1fci { ? 5 a j S' rJ * A .' t V P ? ?* r>5 1? Sf SK ** r ?* f'f JK- r <w1--*.. J,*Tl `*j i%? /* pw *>< m i 0* 3 ** H ts 'i * * y. & ss *3 S>* 0H? - .V - - - - < . 5* X. P uk Ki'Sf P rin rVI rVi IT r ** 5 5" *j 4* $ 4 *1 * ? V r 0me aand i? 5 s5 4 M. r ** # Jj ? "1 & N - . I i 4i. * '5 O o i; IS* I* p\ -- r7c--0 f-O CD A *sj W. "M* c i 6 \ 2 7 f c 2* r Ti P. 8i P 1/ r 1 % I ,, 1 JS DATE ORD. OUAN. r* V DUt RECB APR PRICE I\s3 14WS ^ Vrr cr . ^s*'Vfcj. |KiT ^hhsC fc 'i.SRfc.wr, 'i >TC SScWi 1 NT ICaCS&l S io in.k 4*1 V*b V*> It It 5T?f"t*u. . cU. fcfi>. iHTntw. ** ' 5 MM *n. /2&IV |NT VW7 k.H h l NV .`io A | Ctr.-x .\<j^ L-Cic*^ S .*iO kA. | Si . !Ncr Mo uaaaAt^ l iwrfcoi-an 5-VU 2 ^n_ 4 FK <^ L an t*. .tbCK. U 113 i 1 Ii 1 1 1 1 1. 1 1t 1 ii 1 1 1 1 1 11 11 1 \_______ | tUONI-BH TM 1i d *r3~ vo 03 fe CO v' V. i tun \- nt t \ k - l./ URL 21849 1`1't . :w u DATS Vil** -- , ! i- INV. OROCR NO. OATC ORO. OUAN. l 3 * f+<r V 1 1 ; > 'I 01 iV-. -> 1 < V*. `MRte.t" 1 1 Dill RICO APR PRICK 1 II- U *1 * V1 X Wi. JtL *'L 'Mu, M II lS . *Vi; *? 1 i`Vo', !*> CV!_; M-a lH4 ADDITIONAL INFORMATION: ivo\ eec; vMD CHTm fy POuC CKv-^e; vsri^ l>H"UiL O i*e<* tv* in* i. lco l \ 4"*8 / 4. , \ *t* 'tl. vyi^u * * i> i VA's lc` 1 tV*rfv \ <*. m M ClIVCi Iii> <'/ te. i .. t l<l W'.ov* 1 1 Ik*.. 3,4d-<xm l * IV. II K . M4| * . pRVSM<. (<ki>4T tWAf^. l-. #w - *** * CARD NO MAOMI-Pia 1*74' Ml  ! :Do" s:;`| "*- V mc*d|apf ' Fv i- IL **t ttlfli dk iffel*** t s* _______ El. 1 h 1 l' u-itt rK- j." r-ii s i*H\C v ' 1*> vv. *-< ' 5^ee-.fc* 1 r-* * 1 ; i- 1 ' ** 34* '-* . t i ir. % . * > % K I-- imc j 4.r on * l 1 Vo*'- * *- _ H.Sb^ \ *"n 'P '*. IrttVfcv* 4T* pv K Ik isaa 1PV- `t *1^ .4*^* l `pK. V5 ?'*-<.* foe:c vt; *< i-n \ \ AS *,3E,bJv wnn sm r-!-. 152o *o -s. 72Ui . Il ?= ^ -5 "fLjBM'iT-'l e* i<& L ; ic. iTfirAi I *>*<. * `"IS. i ^Ti *** t- "pit* tl^o l .*S*l*o; "ta . *e? V *.wft.Tsz ~ .. . : I'VT J'-j 7 -*Hv "\71 t 1 ty -At. i t-^fc V v*> rL Fu .. .. 1 Is* v w''-: -.V-- '< * V^yV^V. l Ivr c** v- i 1 Vc3 c.v ^ a .wvjy% l \o|W3 <>'2j"(c T'hj i .sjx- l | K j C' <?>* i ' i k i s-navrr V i-*dc. 4 Ms* S tr ?%= '4 3a M . r:' >Vi_ |>TL -22tto lrK II h ` .. ! 4, u.---.01.1 *T ^:\ 1 wH7v'ts. J N ; i* 4- .K.^T *: Ira t It- V OkS |k> T'c"iVv<' L. 1* | *7 *V , ( >!>!- N">-- -*- '<. i lV\ M.'Vi-l to v i H% l* >=* t i-t, * 7- v.i - ie-,,W \ =L *-.-, vrjv-TCvdiV. - l.^Vts * i H- Vm n*F`c K ., iau.Qg t * .. | j, .. .. "S'i-'ViV \ " ' j .icui --. c-' j~r^ y. p1 pv Ft - 1, . ., > r`M*'rv>\ h |Wl l* ' \ Mr. t..Tv '.x .' l \ 'T k F*- ka `2.2le-- 1170 4'S 3 "T-Pri P :. T'OIV-'T 4*3^^ V v-. \* w i^L. w *. ,. *- : ., .. KASNI-Ot* ?*! Ho a 1 c. /C Exhibit C C 1___________________ ______________________________________________ . el - direct____________________________________ URL 21852 1 C. In ocher words, would you be able Co cell n 2 slight, significant, vary significant, Insignificant, 3 noderate? 4 A. We thought it was significant purchases. 5 0. Well, with relation to, of course, what 6 Pantasote's purchases were* 7 A You wish to Know did we buy most of our VCK 8 from PPG? 9 C* That's correct* 10 A* If you will ash me that, I will say yes. 11 0. I'm asking you that. 1 2 A. But don't beat around the buah* 13 Q. I'm not trying to put words m your mouth. 1 4 I want your answers. 1 5 Let me just, for clarification of the recor 16 reask the question* For the period 1975 until 1981, 17 did The Pantasote Company make most of its purchases 18 of VCM from PPG Industries, Inc.? 19 A. Yes* 2 0 Q Are you able to quantify that in any r 21 approximate percentage, 50 percent, BO percent, 90 2 2 percent, 95 percent, in that same time period? 23 A* More than 50 percent* 2 4 Q* And that would be for the time period 1975 2 5 through and including 1981? f- r____________ . 1 JOHN E RT L, residing at 4 Harrison 2 Av nu r Montclair, New Jersey, being first duly sworn 3 by the Notary according to law testified as follows* 4 5 DIRECT DCAMI NATION BY MR. PRINCIOTTOi 6 7 THE WITNESS i I would like to make an 8 opening statement* 9 MR. SAN SON t Do you have a problem with 10 that? 1 1 MR. PRINCIOTTOi Off the record. 12 (Discussion held off the Record.) 1 3 MR. PRINCIOTTOi Mr. Ertel has indicate 1 4 off the record that he did find records referred to i 15 an inter-office memo marked P-2 for identification at 16 the last deposition and has the originals of those c70: 17 records and has made copies for Counsel. ro 05 18 04 19 BY MR. PRINCIOTTOi 2 0 0* Mr. Ertel, did you want to make a statement 21 You indicated off the record that you wanted to make 2 2 statement concerning your prior answer with regard tc 23 whether or not the records were reviewed. What is th 2 4 statement you would like to make? 25 A My prior answer to the question was that I ---------------- C Srt 4 1 - <41 rct C URL 2 1054 1 did not review the records* and since I had not* I 2 tode the time to revie* the records and found the 3 document from which exhibit P-2 was prepared in 4 usmry form* and Z have with me today copies of that 5 record* as well as the originals which Z have in hand 6 that Z do not plan to make part of the record* merely 7 the copies taken there from* e MR. PRINClOTTOt All right. 9 Z would ask that the originals be 10 marked for identification* then we'll likewise mark 11 copies that you have produced. We are up to P-19. 1 2 I don't know how many pieces there arc 1 3 but we can start with P-2 0. 1 4 A . P-2 0 i s wh ich? 15 Q. The Reporter will mark them. 16 A. Here are the originals and here are three 17 copies that 1 have made from the originals. IS (Exhibits P--2 0 through P-23 marked 19 for identification). 2 0 MR. PRINClOTTOt For the record* P-20 21 is a purchasing card that appears to commence 1981 ar 2 2 goes to 1984. P-2 1 is a purchasing card that appears 23 to cosMnce in 197 8 and goes up to 1981. P-2 3 is twe 2 4 pages* it is a photocopy of the front and back of P-; 25 P-2 2 is two pages also -- : rt i ----- C----------------------------------- C 1 purchase order was issued, an ent ry was trade on P-2 0 2 or P-21, Correct? 3 A. Yea. 4 0, And that was made by whom? 5 A. J . T. Leonar d, 6 q. Who, at the time that he was making these 7 entries, was the purchasing manager of the conpany? 8 A. That is correct. URL 21855 9 Q. And it was Mr. Leonard who prepared ?-2 , 1 0 that you had relied on at the last time of your 1 1 deposition. Correct? 1 2 A. Yes, 1 3 Q. How, based on your review of these records 14 that were produced today, that is P-2 0 and P-2 1, can 15 you tell me the first time that Borden is identified 16 as a supplier of VCM to Pantasote? 17 A. November 15, 1981. 18 Sorry, I am mistaken. I am mistaken. 19 0. You made my heart stop. 20 A. Z translated the wrong vendor code. 2 1 May 10, 19 83. Oh, no, no, no. October 5, 22 1983, and an undated entry apparently relating to th < 2 3 October 5 purchase order. 24 Q. Well, when you say undated, you mean undat i 25 with respect to month and day Co rr ect? C----------------- ------------ :rt' -C URL 21856 1 A* Yea# but lt*a marked October. 2 Q And also - - in what year? 3 A. 1983. 4 Q. And in fact, thoee are the only two 5 references contained in these purchase records to 6 Borden* Isn't that right? 7 A. That is correct* 8 Q. So that the sunnary prepared by Mr. Leonarc 9 narked P-2 for identification, which lists Borden 10 Chemical as a vendor - -- let ms withdraw that questlor 11 Focusing your attention on P-2# is it your 1 2 understanding that P-2 was prepared by Mr* Leonard 1 3 based on P-2 0 and P-2 1? 14 MR. F R X NCI OTTOI P-2? 15 MR. LEONARDi P-2. 16 MR. PRINCIOTTO* I object to the form 17 of your question. Because he didn't - - this witness 18 didn't prepare it. 19 MR. LEONARDi X asked for hi a 2 0 understanding of how it was prepared and why it was 21 prepared* 2 2 MR. PRINCIOTTO i My objection stands. 23 MR. LEOHARDi Well, your objection is 2 4 not ed. 25 Q That memo# P-2, ia addressed to you from Hi  rt < - cr pi L 1 Leonard* Correct? 2 A. That is correct* 3 Q* And was that made at your request? 4 A. Yes. 5 q. And that memo refers to certain records* 6 does it n ot? 7 A. It does. 8 Q. And what records* what is your unders tandin 9 of what records Mr* Leonard is referring to 1 n P-2? 1 0 A* The two cards that we now have in evidence 11 as P-2 0 and P-2 1. 1 2 Q, So is it fair -- 13 A. Confirmed to me by Mr* Leonard* 14 0* Okay* So Mr* Leonard told you that P-2 was 15 based on P-2 0 and P-2 1* Correct? 16 A. Based on these cards* cr 70 17 Q* And based on these cards, it appears that 18 Borden first supplied Pantasote in 19 83. Correct? CcnD -si 19 A. Yes. 2 0 Q* And at the time of the last deposition, vhe 2 1 you mentioned Borden as a supplier, what had refreshe 2 2 your recollection that Borden supplied Pantasote 23 the Leonard memo P-2* Correct? 2 4 MR. PRINClOTTOt 1 object to the form 2 5 of the question. Ert 1 c rot r r 1 Is that so? 2 A That is correct* 3 0. who would have been responsible for keepinc 4 any records that there might have been at that time? 5 A Z would like to go off the record a minute* 6 (Discussion held off the Record* ) 7 A* My answer to your question back on the 8 record is no one* 9 Q. Let me rephrase that question* 1 0 Would who would have been responsible for 1 1 making any record at the time that was made? 1 2 A. Frank Ger&cl* 13 Q. And would that be for the entire period, ' * 1 4 through - 1 5 A* Through his retirement in late '77. 16 Q* And then he was replaced? 17 A* And replaced by J*T* Leonard* 18 Q. For some of that period, you were not ther < 19 is that correct, '75 into *76? 2 C A* That is correct. 2 1 Q* All r igh t. 2 2 You identified at the first session of thl 23 deposition a number of suppliers as suppliers of VCM 2 4 for that period 19 75 through 1981, and I believe you 2 5 referenced the document P--2 when you did that URL 21858 I* t* t - c rom ________________________________________________ 44 URL 21859 MR. LEONARD! Okay. ; MR. PR Z NCI OTTOi Could I have that question read back, please? 4 (Pending question read bach by the 5 Repo rte r ) 6 A. Yes. 7 In case no one heard my answer# the answer G wa s ye a. 9 Q. So then as far as you are concerned today, 10 Borden first became a supplier of Pantasote in 19 8 3, 1 1 supplier of VCM in 19 83. 12 A. Yes* Is that correct? 1 3 0# New* you were asked by Mr. Princiotto about 1 4 an exhibit* a barge agreement. Do you remember that 15 q ues tion? 1C A. Ye s* Ido. 17 0. And you indicated that you wouldn't answer 18 that question# because it had nothing to do with the 19 Passaic facility. Correct? 20 A. Ye s. 2 1 Q. Did 1 understand your testimony to be that 2 2 because say VCM that was shipped to Weat Virginia 2 3 would be used in West Virginia* it would have no 2 4 connection at all with the Faaaaic facility. 25 r igh t? Is that