Document GmLBzD2Kez4J7Lr045KvVmXdn

FILE NAME: Rockwell (RCK) DATE: 2012 DOC#: RCK013 DOCUMENT DESCRIPTION: Legal - Plaintiffs Opposition to Defendant Arvinmeritor, Inc.'s Motion for Summary Adjudication of Issues & Additional Docs ftR M in v n efm o e. / R o o ^ t u - vmoM f u.uAnr*Hi&iTs ^ T U x A ^ A W v , Acc* % L&PofcS *- Ac-*& B + ^ / s .G ilSonI STEPHEN M. TIGERMAN (State Bar No, 112127) tigerman@htlawoffices.com MIA MATTIS (State Bar No. 191027) mattis@htlawoffices.com LISA BROKAW (State Bar No. 247422) hrokaw@htlawoffices.com - ' SARAH GILSON (State Bar No. 260263) gilson@htlawoffices.com HAROWITZ & TIGERMAN, LLP 450 Sansome St., 3ld Floor San Francisco, CA 94111 Tel: (415) 788-1588; Fax: (415) 788-1598 Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA : COUNTY OF SAN FRANCISCO - UNLIMITED JURIS DICTION i: 1: GERALDINE BIERNER LEPORE, 14 Individually and as Successor-in-Interest to . GENE LEPORE, Decedent; KRISTIN ! 15 MARIE REINHOLZ; MICHAEL JAMES < 16 iLnEclPuOsiRveE,; and DOES ONE through TEN,' << 17 Plaintiffs, 18 vs. 19 AC AND S, INC., et al, 20 Defendants. 21 22 Case No.: CGC-09-275411 PLAINTIFFS' OPPOSITION TO DEFENDANT ARVINMERITOR, INC.'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES; PLAINTIFFS' SEPARATE STATEMENT- PLAINTIFFS' RESPONSE TO ' DEFENDANT'S SEPARATE STATEMENT; DECLARATION OF SARAH GILSON, ESQ. Date: July 17,2012 Time: 9:30 a.m. Dept.: 503 Judge: Hon. Ten L. Jackson 23 Complaint filed: November 19, 2009 Trial Date: September 24, 2012 24 25 26 27 28 jpp.Msa.Ai-vinineritor.caplion PLAINTIFFS' OPPOSITION TO DEFENDANT ARVINMERITOR, TNC. 'S MOTION FOR SUMMARY ADJUDICATION TABLE OF CONTENTS Page I. INTRODUCTION.......................................................................................................... .. A- Collateral Estoppel Applies To This Motion........................................................1 B> ATriable Issue Necessarily Exists As to Arvinmeritor's Liability For Punitive Damages................................................................................................. ................ 2 II. STATEMENT OF FACTS.............................................................................................. A- Rockwell Knew Of The Hazards Of Asbestos Since The 1960s And Did Not Warn The Public Until The 1980s........................................................................ 3 B. The California Court Of Appeals Upheld An Award Of 4.5 Million Dollars In Punitive Damages Against ArvinMeritor Based On This Same Evidence..... 7 III. LEGAL ARGUMENT................... 8 A, This M atter Is A Collateral Estoppel........................... 8 B. A Triable Issue Of Faet Exists As To A rvinM eritor's Liability For Punitive Damages............................................................................................. 10 IV. CONCLUSION.................................................... 13 ] 1 TABLE OF AUTHORITIES 2 Page 3 Cases 4 Bankhead v. ArvinMeritor. Inc, 5 (2012) 205 Cal.App.4"16 8 ................................................................1,2, 3, 5 ,1, 8, 9, 10, 11 6 Boeken v, Phillip Morris, Inc. (2005) 127 Cal.App.4th 1640............................................................................................ 8, 9 ' 7 First NBS Corporation v. Donlon Gabrielsun 8 (2009) 179 Cal. App. 3d 1189.............................................................................................. 9 9 Grimshow v. Ford Motor Company (1981) 119 Cal.App.3d 757.......................................................................................... 10,11 10 Hilliard v. A.H. Robins Co. 11 (1983) 148 CaLApp. 3d 374......................................................................................... 10,11 12 Philip Morris USA v, Williams (2007) 549 U.S. 346............................................................................................................... 9 13 State Farm Mutual Automobile Insurance Company v, Campbell 14 (2003) 538 U.S. 408............................................................................................................... 9 15 1-6 Codes and Statutes 17 18 .C.P, 3294(a)........................................................................................................................... 11 19 C.P. 3294(e)()......................................................................................................................11 20 C.P. 3294(c)(3)......................................................................................................................11 21 22 23 24 25 26 27 28 II. STATEMENT OF FACTS A- Rockwell Knew Of The Hazards Of Asbestos Since The 1960s And Did Not Warn The Public Until The 1980s ' ~ While Rockwell plays coy in terms of when it first acquired knowledge, Rockwell admits it i learned of the hazards of asbestos sometime in the 1960s, (See Rockwell's Responses to GO 129 L Standard Friction Intemogatories at 24:22-27, attached to the Declaration of Sarah Gilson ("Gilson (. Deck") as Exhibit A.) By the 1960s, ArvinMeritor "knew that workers exposed to asbestos dust were at risk of developing disease," ( S Bankhead v, ArvinMeritor, 205 Cal.App.4th 68, attached I i to the Gilson Deck as Exhibit B.) c In 1973, Rockwell sent letters to Abex and other manufacturing companies with a-copy of 1C a grievance filed by its local union concerning the amount of dust on and around the brake linings 11 being sent to Rockwell factories by suppliers. (See January 1973 grievance and letters, attached to 12 the Gilson Deck as Exhibit C.) The grievance complained of the "serious health hazard" posed 13 by the asbestos dust to Rockwell's employees, (Id,-) 14 Concurrent^', at the 1973 Asbestos Study Committee meeting of the Friction Materials 15 standards Institute, of which Abex, Bendix, Carlisle, and other major asbestos friction materials 16 nanufactuxers were members and attended, the manufacturers expressed their concern with not the 17 hrect cost of labeling their asbestos products as such, but the "indirect cost of the customer 18 eaction to the w'aming label." (See FMSI Meeting Minutes, p. 2, attached to the Gilson Deck at 19 Exhibit D.) The overriding concern in the friction industry at the time was that customers would 20 urchase linings from companies who did not warn, thereby giving an unfair economic advantage 21 o those manufacturers who remained silent, (Id.) This evidences the financial motivation that 22 action companies, such as An'inMeritor, were feeling to withhold information about asbestos 23 azards from the consuming public and sets forth the context in which ArvinMeritor's decision not 24 3warn customers about asbestos must be considered. (Id,) 25 In July 1974 Rockwell implemented an inspection protocol for incoming brake lining 26 laterials because of the "possible health hazard cause by excessive asbestos dust". (See Rockw'ell I 27 vtemal Letter "Lining Dust in Blocks as Received- Health Hazard", attached to the Gilson Deck 28 3Exhibit E.) ____________ -3- PLAINTIFFS' OPP TO DEF A R Y t m i E R ^ R 'S MSA 1 In March 1976, an industrial hygiene survey of Rockwell9s brake plant in Ashtabula, Ohio 2 was taken to test airborne asbestos levels specifically and to determine the extent of the "potential Do health hazard." (See Clayton Industrial Hygiene Survey, attached to the Gilson Decl. as Exhibit 4 F.) The survey recommended the use of exhaust ventilators on the equipment reworking brake 5 materials and commended the use of ventilators by Rockwell's staff. (Id.) The survey also 6 discussed the correlation between exposure to asbestos and mesothelioma. (Id.) 7 Immediately thereafter, in May of 1976. Rockwell's Supervisor for Safety and Health 8 Elona Hoffman, RN addressed the "serious problems" of employee protective gear, respirator use, 9 fiber drift and disposal of asbestos dust reported in the March survey. (See Rockwell Internal 10 Letter "Re: Clayton Report", attached to the Gilson Decl. as Exhibit G.) 11 In 1978, eight years before it even mentioned the risk of cancer to product users, Ms. 12 Hoffman on behalf of Rockwell received notice from counsel for a former Rockwell employee 13 who had been diagnosed with "pleural mesothelioma, a form of cancer which is unique to asbestos 14 exposure" that litigation was being undertaken on behalf of the employee as against the 15 manufacturers of asbestos brake linings used by Rockwell. (See Letter to Elona Hoffman, attached 16 to the Gilson Decl. as Exhibit H.) In response, Ms. Hoffman sent counsel a list of suppliers of the 17 asbestos brake linings in Rockwell products, (See Letter from Elona Hoffman, attached to the 18 Gilson Decl. as Exhibit I.) 19 In April 1979, after a further Ashtablua facility inspection, a Rockwell internal 20 memorandum recommended that brake assemblies and linings formerly transported and sold loose 21 in tubs should be totally enclosed and labeled "because the possibility of generating asbestos fibers 22 during shipment is very real." (See Rockwell Internal Letter "Asbestos", attached to the Gilson 23 Decl, as Exhibit J.) This precaution and the risk of exposure to asbestos from merely 24 transporting or handling brake products were never passed on to end users, however. 25 In June 1979, Ms. Hoffman wrote to all supervisors at Rockwell about asbestos handling 26 procedures, including mandatory' vacuuming of workspace floors and empty lining boxes and the 27 prohibition of compressed air or sweeping for cleaning up asbestos dust. (See Notice of Procedure 28 _________________ -4- _______ i__________ PLAINTIFFS' OPP TO DEF ARVINMERITOR'S MSA 1 and Rockwell Internal Letter "Review: Asbestos Handling Procedure" attached to the Gilson Decl. 2 as Exhibit K.) 3 In 1982 Johns-Manville sent Rockwell a letter urging Rockwell* like General Motors, to 4 publicize its "policy towards asbestos" as "emotionalism has tended to skew rational direction" on 5 the asbestos issue. (See Rockwell Internal Letter "Johns-Manville-Response to Asbestos" and 6 attachments, attached to the Gilson Decl. as Exhibit L.) Mr. Ronald Wissink, who received the 7 letter at Rockwell, forwarded it on within the company, stating that he had not understood that 8 Rockwell had a corporate position on asbestos although as a plant they stipulated the use of non 9 asbestos products in construction materials and in furnaces. (Id.) Rockwell discussed-the Johns- 10 Manville letter internally in September 1982, and stated that they had not yet developed a formal 11 policy regarding the use of asbestos in their facilities or in their products. (See Rockwell Internal 12 Letter "Response to Johns-Manville- Rockwell Asbestos Policy", attachedto the Gilson Decl. as 13 Exhibit M.) 14 hi the early 1980s, Rockwell claims it began using a meaningless and weak statement 15 which said "Caution: Contains asbestos fibers, avoid creating dust. Breathing asbestos dust may 16 cause serious bodily harm." (See Deposition of Bruce Ketcham, PMQ ArvmMeritor, Inc., taken 17 September 30, 2012 in Bankhead v. Allied Packing. & Supply at 163:11-164:8, attached to the 18 Gilson Decl. as Exhibit N.) It did not use the word "warning". (Id.) It did not mention the word 19 "cancer". (Id.) It did-not describe any of the appropriate methods or materials to be used to avoid 20 creating or breathing asbestos dust. (Id.) 21 In September 1986, nearly two decades after Rockwell first became aware of the hazards of 22 asbestos, Rockwell began labeling the brake assemblies it sold with asbestos linings to read: 23 "DANGER / CONTAINS ASBESTOS FIBERS/ AVOID CREATING DUST/ CANCER AND 24 LUNG DISEASE HAZARD" (See Rockwell Internal Letter `New' Asbestos Standard-Labeling", 25 attached to the Gilson Decl. as Exhibit O.) The label still did not recommend the use of 26 ventilators, vacuums, or explain that dust could be found in the empty boxes in which the products 27 were shipped, all three issues of which Roclrwell was u?ell aware by 1986. (Id.) The label still did 28 not advise how to "avoid creating dust". (Id.) ____________________________ -5- _______ ______________________________ ~ ~ PLAINTIFFS' OPP TO DEF ARVINMERITOR'S MSA 1 Rockwell continued selling asbestos-containing products until the year 2000. (See 2 Deposition of Bruce ICetcham, PMQ ArvinMeritor, Inc., taken September 30,2012 in Bankhead v 3 Allied Packing & Supply at 16:14-17:2, attached to the Gilson Decl. as Exhibit N.) 4 The decedent Gene Lepore was exposed to asbestos from Rockwell brakes after Rockwell 5 admits it knew of the hazards of asbestos and before Rockwell began warning about asbestos 6 hazards or the content of its asbestos brake parts. From 1974 until the mid-1980s, he worked at 7 Port Hueneme in the Employee Development Dept., where he would coordinate training for the 8 civilians, including mechanics in the Construction Equipment Department (CED). (See Plaintiffs' 9 Video Direct of Gene Lepore, Vol. l,pp. 24:16-25:9; 25:23-27:4; 28:11-23, attached to the Gilson 10 Decl. as Exhibit P.) Mr. Lepore spent significant time at CED, at least every other day, often 11 daily. The mechanics were frequently performing repair and maintenance work in Iris presence. 12 The mechanics did not stop work because he was there. ( Id. at 36:9-17; 43:21-45:4.; see also 13 Deposition of Donald Bangs, Vol. V, taken February 21, 2012, pp.928:10-14, attached to the 14 Gilson Decl. at Exhibit Q.) 15 Co-worker Tony Villegas recalled that working with Rockwell axles from the 1960s to 16 1980s in CED. He also recalled Mr. Lepore being present for this work. (See Deposition of 17 Antonio Villegas, Vol. V, taken March 8, 2012, pp.838:11-13; 838:24-839:5; 839:21-25; 840:19 18 23; 841:9-842:16, attached to the Gilson Decl. at Exhibit Rl) He arced Rockwell brand brakes 19 while decedent was around "a lot" (Id..at 981:18-982:10.) 20 Co-worker Donald Bangs identified Rockwell brake linings as a brand of brakes used on 21 forklifts in the CED in buildings 813 and 1191 by all mechanics, including himself, during the 22 1960s, 70s, and 1980s. (See Deposition of Donald Bangs, Vol. I, taken January 10,2012, 23 pp.60:12-17; 60:24-61:20; 61:24-62:15, attached to the Gilson Decl. at Exhibit S .) He recalled 24 Mr, Lepore being around for this work. (Id.). Another co-worker, Mr. Bailey, a general supply 25 specialist at Port Hueneme from June 1974 until August 2003, recalled purchasing Rockwell parts 26 for the CED. (See Deposition of Robert Bailey, Vol. I, taken April 28, 2010, pp. 16:6-19:23; 27 attached to the Gilson Decl. as Exhibit T: see also Deposition of Robert Bailey, Vol. IV, taken 28 June 29, 2011, pp. 763:16-23; 764:2-9; attached to the Gilson Decl. as Exhibit U.) -6PLAINTIFFS, OPP TO DEF ARW JMERITOR'S MSA 1 Mr. Lepore died in 2010 as a result of mesothelioma, which Rockwell knew was "a form of 2 cancer which is unique to asbestos exposure" since 1978. (See Gilson Decl. at 1 23; see also Letter 3 to Elona Hoffman, attached to the Gilson Decl. as Exhibit H) 4 B The California Court Of Appeals Upheld An Award Of 4.5 Million Dollars Tn 5 Punitive Damages Against ArvinMcritor Based On This Same Evidence 6 This issue has been fully litigated. In Bankhead v. ArvinMerilor, 205 Cal. App,4th 68, 7 ArvinMeritor appealed a punitive damages award of 4.5 million dollars to the family of former 8 mechanic Gordon Bankhead, who died of mesothelioma from exposure to asbestos products, 9 including Rockwell brakes, on the grounds that such an award was excessive. (See Bankhead v. 10 AnmiMeritor, attached to the Gilson Decl. as Exhibit B.) The award by the jury was based on the 11 evidence presented above, which were all trial exhibits to the Bankhead case. (See Gilson Decl. at 12 f 24; see also Exhibits C, E through O thereto) The Court of Appeals summarized the facts 13 relating to ArvinMeritor's liability as follows: 14 15 "By the 1960's, ArvinMeritor knew that workers exposed to asbestos dust were at risk of developing asbestos-related diseases. Indeed, in 1973 and again in 1975, it 16 wrote letters to Abex and other manufacturers complaining about the presence of asbestos dust in the brake linings it was receiving from them. Nonetheless, 17 ArvinMeritor did not place any warnings on its products until the early 1980's, and continued to market asbestos-containing brakes until its inventory of them 18 was exhausted sometime in the early 1990's. Not until the fall of 1987 did 19 ArvinMeritor include an express reference to cancer in the warnings on its products." 20 (See Bankhead it AnhnMeritor,2Q5 Cal.App.4th 68, attached to the Gilson Decl. as 21 Exhibit B.) 22 At trial ArvinMeritor was held jointly and severally liable-for 1.47 million dollars in 23 iconomic damages, severally liable for $375,000 of noneconomic damages, and responsible for 24 I 14.5 million dollars in punitive damages. (Id) The trial court denied both ArvinMeritor's 25 notions for a-new trial and for judgment notwithstanding the verdict. (Id.) ArvinMeritor 26 ippealed, arguing that the award of punitive damages was excessive both based on its financial 27 tanding and as a violation of due process. (Id) 28 - 7 - ______________ PLAINTIFFS' OPP TO DEF ARVINMERITOR'S M~SA Tie Court of Appeals upheld the award after cxamiiung the rcprehensibffity of ArvinMeritor, (14) Citing Boekenv. Phillip Morris Inc. (2005) 127 Cal.App.4d, 1640,1690, the Court stated "intentionally marketing a defee,ive product knowing dta, it might cause injuiy aid death is 'highly reprehensible."' (Id) I, furdier held that ArvinMeritor's conduct "evinced an ,,difference to or reckless disregard of the health and safety of [plaint,ff, and those similarly utuated." (Id) I, detennined that "limiting the award in this case would undermine the purpose of 'mitn e damages by giving undue credit to ArvinMeritor's belated efforts to warn users of its roducts about the haaards of asbestos, which the jury implicitly found were ineffective and ladequate." (Id) 1. 1 U. LEGAL ARGUMENT 1 This Is A Matter of Collateral Estoppel i: ArvinMentor is estopped from further litigating this matter. The Bankhead iuty held that b n-mMentor was liable for Mr. Bankhead's .,,juries, and additionally liable for punitive damages u re trial court denied ArvinMeritor's motions for a new Inal and for a decision notwithstanding if e verdict. The Court of Appeals reviewed the punitive damage award as an "important part of 17 =procedural due process to which a defendant subject ,o punitive damages is entitled under both IS ' state and federal constitutions." Bankhead, 205 Cal. App. 4th at 77. It determined that' TheJU137was justified by the evidence in concluding that an award of that 19 magnitude was necessary and appropriate in order to punish ArvinMeritor for its 20 - ontabution to causing the diseasethat took [Plaintiffs] life, and to deter ArvinMeritor and other manufacturers from failing to take every available 21 precaution ,0 mrtigate workers' exposure ,0 life-thiearening t o f o c X L . " at 84, 22 23 The issue of whether ArvinMeritor has been guilty of oppression, fraud or malice in failing 24 vam consumers of the hazards of its asbestos products was "necessarily decided" in the course 25 he Bankhead decision, supra. The mere fact that the Court of Appeals upheld the trial court's 26 ?ment awarding punitive damages means that this issue was necessarily decided by the jury. 27 Any attempt to re-litigate this issue is a violation of the doctrine of collateral estoppel. The 28 trine of collateral estoppel applies (1) if the issue decided in the previous action is identical __________ -8- PLAINTIFFS7"OPP TO DEF A R V iN kffiM T O M S M ^ with the one presented in (his case; (2) if there was a final judgment on the merits; and (3) if ArvinMeritor was a party to that action. First NBS Corporation v. Donlon Gabrielson (2009) 179 Cal. App. 3d 1189, 1194. ' Both the Bankhead case and this case involve the same pivotal issue: ArvinMeritor s 5 knowledge of the hazards of asbestos in the 1960s, 1970s and 1980s, its failure to warn customers 6 about the asbestos content of its products through the 1980s and its continued sales of asbestos 7 products through 2000. The underlying facts and findings are identical, and this is critical to the I 8 collateral estoppel analysis: "Collateral estoppel depends on whether the issue in both actions is 9 the same, not whether the issue arises in the same context." Id at 1196. 10 There is no way that the jury could have awarded punitive damages had it not found that 11 ArvinMeritor was guilty of fraud, malice or oppression. There is no way that the trial court could 12 have, denied ArvinMeritor5s motions for directed verdict and for a new trial if it did not agree. I 13 Indeed, the Bankhead trial court and appellate court both examined the very same evidence now 14 before this Court, and determined that ArvinMeritor was not only deserving of punitive damages, 15 but that the reprehensibility of its behavior merited a significant damages award: 16 "In the present case, Bankhead contracted a painful cancer, and ultimately died, 17 due to ArvinMeritor1s (and the other defendants') failure to ensure that people like Bankhead who used or worked with asbestos-containing products were not 18 exposed to lethal asbestos dust. ArvinMeritor's conduct continued over many years, and evinced an indifference to or reckless disregard of the health and safety 19 of Bankhead and those similarly situated. 20 Bankhead, supra at 85-86. 21 In Bankhead, ArvinMeritor argued that its conduct was not sufficiently reprehensible to 22 >' a finding of punitive damages. The Appellate Court rejectedfhis and found that all of the 23 . .actors enunciated in the State Farm Mutual Automobile Insurance Company v. Campbell (2003) 24 538 U.S. 408 militated in favor of a punitive damage finding. Citing Boeken v. Phillip Morris Inc, 25 2005) 127 Cal.App.4th 1640, 1690, the Court stated "intentionally marketing a defective product 26 mowing that it might cause injury and death is 'highly reprehensible."1Bankhead, supra at 85. 27 fhe Court further dAed Philip Morris USA v. Williams (2007) 549 U.S. 346, 355 for the 28 imposition th a t"evidence of actual harm to non-parties can help show that the conduct that -9PLAINTIFFS' OFF TO DEF ARVINMERITOR'S MSA 1 harmed the plaintiffs also posed a substantial risk of harm to the general public, and so was 2 particularly reprehensible." Id, at 86. 3 In response to ArvinMeritor's argument that it did not even know of the existence of 4 Bankhead or any particular plaintiff, the Court stated that: 5 [Wjhile there is no evidence that ArvinMeritor intended to injure Bankhead or 6 anyone else in particular, its prolonged failure to take adequate measures to protect people who worked with its product against a known hazard to their health justifies 7 the jury's conclusion that its conduct towards workers exposed to the hazards in its products was malicious, fraudulent or oppressive. 8 Id. at 863. 9 From this it is clear that malice need not be directed at a particular plaintiff and as such, 10 ArvinMeritor cannot distinguish the facts in Bankhead from those here. It is enough that the 11 Defendant's conduct was directed to consumers as a whole. Numerous California cases have 12 interpreted the term "malice" to include, not only a malicious intention to injure the specific 13 person harmed, but conduct evincing "a conscious disregard of the probability that the actor's 14 conduct will result in injury to others." Grimshmv v. Ford Motor Company, 119 Cal.App.3d 757, 15 808-810 (1981). The conscious disregard concept of malice does not limit an inquiry into the 16 effect of the conduct on the plaintiff, the inquiry is directed at and is concerned with defendant's 17 conduct affecting the safety of others. Hilliard v. A. H. Robins Co., 148 Cal. App. 3d 374,401 18 (Ct. App. 1983) Both Gordon Bankhead and Decedent Gene Lepore were members of this 19 consumer class of workers whose safety was affected by ArvinMeritor's conduct, 20 The issue in the Bankhead-action is identical to the issue here. ArvinMeritor cannot deny 21 the fact that it was a party' to the Bankhead case and that the matter was fully and finally adjudged. 22 The collateral estoppel principal is based upon sound public policy of limiting litigation by 23 preventing a party who has had one fair trial on an issue from again drawing it into controversy. 24 ArvinMeritor has had a fair trial, one that withstood an appeal, and thus it should be precluded 25 from re-litigating the issue of its liability for punitive damages on the identical evidence. 26 B. A Triable Issue Of Fact Exists As To ArvinMeritor's Liability' For Punitive 27 Damages 28 - 10PLAINTLFFS' OPP TO DEF ARVINMERITOR'S MSA 1 Should this Court choose not to rule on the basis of collateral estoppel, a triable issue still 2 ecessarily exists as to ArvinMeritor's liability for punitive damages. Where a trial court, a jury 3 nd the Court of Appeals has found that Plaintiffs' evidence, all of which were trial exhibits in the 4 ankhead case, supports an award of punitive damages, this Court cannot find that a triable issue 5 f fact does not exist as to the identical issue, 6 Pursuant to Civil Code 3294(a), a plaintiff may recover punitive damages "where it is 7 roven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or 8 nalice." Fraud is defined as "an intentional misrepresentation, deceit or concealment of a material 9 act known to the defendant... causing injury'." iSee Cal. Civ. Code 3294(c)(3).) Malice is 10 conduct which is intended by the defendant to cause injur}' to the Plaintiffs or despicable conduct 11 vhich is carried on b}' the defendant with a willful and conscious disregard of the rights or safety 12 >fothers." (See Cal. Civ. Code 3294(c)(l).) The adjective "despicable" describes conduct that is 13 :so vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down upon 14 aid despised by ordinary decern people." Whether or not Defendant's conduct is sufficiently 15 `despicable" and-"willful" to constitute malice is a factual question. 16 Marketing-a- product which is known to cause harm, for the purpose of maximizing profit, 17 las been found to constitute just the kind of conscious disregard which justifies a finding of 18 runitive damages (See Bankhead, supra ; See Hilliard, supra at 398, "defendant acted with 19 conscious disregard of the rights or safety of others^h was aware of the probable dangerous 20 consequences of its conduct, and the defendant willfully and deliberately failed to avoid these 21 consequences"; see also Grimshcrw, supra.) 22 The decision not to warn consumers about the hazards of its products must be considered 23 .n the context of the 1973 Asbestos Study Committee meeting in which the friction industry 24 expressed concern that customers would purchase more linings from companies who did not warn, 25 hereby giving an unfair economic advantage to those manufacturers who remained silent. (See 26 FMST Meeting Minutes, p. 2, attached to the Gilson Decl. at Exhibit D.) ArvinMeritor's financial 27 motivation to withhold information about asbestos hazards from the consuming public is evident. 28 ____________________ -11-______________________ PLAINTIFFS' OPP TO DEF ARVJUNMERITOR'S MSA 1 Here, ArvinMeritor knew that asbestos was hazardous to human health from the 1960s 2 inward. It knew that the inhalation of asbestos dust posed a serious risk to human health, and it 3 ictively regulated its plants and facilities to prevent the exposure of employees, It required the use 4 if ventilators and protective clothing and it mandated the use of vacuums and prohibited the use of 5 compressed air by its own staff. It repeatedly scolded its asbestos parts suppliers for the amount of 6 isbestos dust in the boxes of linings it received and it was acutely aware of OSIiA regulations, 7 egislative efforts and the emergence of asbestos-related litigation throughout the 1970s. 8 Nevertheless, with all this information, ArvinMeritor took what it knew to be a dangerous 9 product, made it part of an assembly, and sold this assembly without a word of warning knowing 10 full well that end users and mechanics such as Mr, Bankhead and Mr. Lepore would be exposed to 11 the dust. ArvinMeritor didn't tell its customers that they were buying an asbestos part. It didn't 12 tell customers to avoid dust from its linings, and it didn't tell customers that absent using vacuums, 13 a respirator and protective clothing, they were at risk for developing cancer. For decades 14 ArvinMeritor failed to take any measures to protect the public from a known hazard. 15 Only in 198b did ArvinMeritor ever purport to warn its customers of the danger of 16 developing cancer from its products, and even then it did not tell its customers to use the strict 17 dust-suppression methods that ArvinMeritor itself had required for its employees for over a 18 decade, such as vacuums and respirators. It didn't pass on the concerns about dusty boxes it had 19 expressed internally for almost 15 years. It sold its defective and hazardous asbestos-containing 20 brake products until the year 2000. ArvinMeritor sold the public what it knew to be hazardous 21 products for-over 40 years. 22 23 24 25 / / / 26 I I I 27 111 28 -12- _____ PLAINTIFFS' OPP TO DEF ARVINMERITOR'S MSA 1 CONCLUSION 2 ArvinMeritor's prolonged failure to take adequate measures to protect people who worked 3 its products against a known hazard to their health and safety justifies the award of punitive 4 iges. This has been agreed upon by a jury, a trial court and the California Court of Appeals. 5 Court should likewise deny ArvinMeritor's Motion for Summary Adjudication. 6 DATED: July 3, 2012 7 8 9 10 11 12 1 1 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13PLAJNTIFFS' OPP TO DEF ARVINlsTERITOR'S MSA 1 TEPHEN M. TIGERMAN (State Bar N o, 112127) igerman@htlawofFices.com 2 IA MATTIS (State Bar No. 191027) 3 nattis@MawoiFices.com ARAH E, GILSON (Bar No. 260263) 4 dlson@MIawoffices.com AROWITZ & TIGERMAN, LLP 5 150 Sansome Street, 3rd Floor 6 an Francisco, California 94111 telephone (415)788-1588 7 Attorney for Plaintiffs 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 11 ! i GERALDINE BIERNER LEPORE, Individually Case No.: CGC-09-275411 ir and as Successor-in-interest to GENE LEPORE, i 13 Decedent; KRISTIN MARIE REINHOLZ; DECLARATION OF SARAH E. GILSON LN SUPPORT OF PLAINTIFFS' OPPOSITION MICHAEL JAMES LEPORE; and DOES ONE TO DEFENDANT ARVINMERITOR, INC.'S 14 through TEN, inclusive, MOTION FOR SUMMARY ADJUDICATION 15 Plaintiffs, 16 vs. 17 AC AND S, INC., et ah, OF ISSUES Date: July 17, 2012 Time: 9:30 a.m,. DepL: 503 Judge: Hon. Ter-i L. Jackson 18 Defendants. Trial Date: September 24,2012 19 20 21 22 23 I, SARAH E. GILSON, declare: I . I am an attorney at law', duly licensed to practice before all Courts in (he State of California. I am counsel of record for Plaintiffs herein. I make this Declaration of my own personal knowledge, and if called upon as a witness, I could and would testify competently thereto. DEC OF SG ISO PLAINTIFFS' OPP TO DBF ARVINMERITOR'S MSA 1 2. Attached hereto as Exhibit A is a true and correct copy of the relevant portions o f 2 ockwell's Responses to GO 129 Standard Friction Interrogatories. 3 3. Attached hereto as Exhibit B is a true and correct copy of Bankhead v. 4 nnnMeritor, 205 Cal.App.4tb 68. 5 4. Attached hereto as Exhibit C is a true and correct copy o f the January 1973 6 rievance and letters. 7 5. Attached hereto as Exhibit D is a true and correct copy of the FMSI Meeting 8 finutes. 9 6. Attached hereto-as Exhibit E is a true and correct copy of the Rockwel! Internal 10 ,etter "Lining Dust in Blocks as Received- Health Hazard." n 7. Attached hereto as Exhibit E is a true and correct copy of the Clayton Industrial 12 lygiene Survey. 13 8. Attached hereto as Exhibit G is a true and correct copy of the Rockwell Internal 14 setter "Re: Clayton Report." 15 9. Attached hereto as Exhibit H is a true and correct copy of the Letter to Elona 16 ioffman. 17 10. Attached hereto as Exhibit 1 is a true and coned copy of the Letter from Elona 18 19 11. Attached hereto as Exhibit J is a true and correct copy of the Rockwell Internal 20 er "Asbestos." 21 12. Attached hereto as Exhibit K is a true and correct copy of the Notice of Procedure 22 Rockwell Internal"Letter "Review: Asbestos Handling Procedure." 23 13. Attached hereto as Exhibit L is a true and correct copy of the Rockwell Internal 34 Letter ",loims-Manville-Rcsponsc to Asbestos." 14. Attached hereto as Exhibit M is a true and correct copy of the Rockwell Internal Letter "Response to Johns-Manville- Rock well Asbestos Policy." ______________ -2-___________________________ DEC OF SG ISO PLAINTIFFS' OPP TO DEF ARNANMERITOR'S MSA 1 15. Attached hereto as Exhibit N is a true and correct copy of excerpts from the 2 Deposition of Bruce Ketcham, PMQ ArvinMeritor, Inc., taken September 30.2012 in Bankhead v. 3 illied Packing & Supply (the Bankhead case). 4 16. Attached hereto as Exhibit O is a true and correct copy of the Rockwell Internal 5 Letter "New Asbestos Standard-Labeling." 6 17. Attached hereto as Exhibit P is a true and correct copy of excerpts from the 7 Plaintiffs' Video Direct of Gene Lepore, Vol. I. 8 18. Attached hereto as Exhibit Q is a true and correct copy of excerpts from the 9 Deposition of Donald Bangs, Vol. V. 10 19. Attached hereto as Exhibit R is a true and correct copy of excerpts from the 11 Deposition of Antonio Villegas, Vol. V, taken March 8, 2012. 12 20. Attached hereto as Exhibit S is a true and correct copy of excerpts from the 13 Deposition of Donald Bangs, Vol. I, taken January 10,2012. 14 21. Attached hereto as Exhibit T is a true and correct copy of excerpts from the 15 Deposition of Robert Bailej', Vol. I, taken April 28, 2010. 16 22. Attached hereto as Exhibit U is a true and correct copy of exceipts from the 17 Deposition of Robert Bailey, Vol. TV, taken June 29,2011. 18 23. Mr. Lepore died in 2010 as a result of mesothelioma 19 24. The evidence presented above as Exhibits C, and E through O were all trial 20 exhibits to the Bankhead case. 21 1declare under penalty of perjury under the laws of the State of California that the 22 foregoing is true and correct, and that this Declaration was executed on July 3,2012, at San 23 Francisco, California. 24 25 26 27 28 ______________ __________ -3- ______________________ DEC OF SG ISO PLAINTIFFS' OPP TO DEF ARVINMERITOR'S MSA } 2 . 3 ` 4 5 6 l' 8 9 ! ! 10 11 12 13 - 14 ' 15 i 16 17 18 1'9 20 21 22 EXHIBIT "A" 23 25 i 26 27 28 I USA L. OBERG (Stale Bar No. ]20139) 2 MICHELLE C. JACKSON (State Bar No. 170898) McKen n a l o n g & a l d r jd g e llp 3 101 California Street 4 1gt Floor 4 San Francisco.. CA 94111 Telephone: (415)267-4000 5 Facsimile: (415)267-4198 6 Attorneys for Defendant ARVINMERITOR, INC. 7 Oct 1B 2011 12:53PM 8 9 IO SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SAN FRANCISCO 12 13 IN RE: Case No. 828684 14 COMPLEX ASBESTOS LITIGATION 15 16 DEFENDANT ARVINMERITOR, INC.'S AMENDED RESPONSES TO STANDARD INTERROGATORIES TO FRICTION DEFENDANTS PURSUANT TO GENERAL ORDER NO. 129 17 18 PROPOUNDING PARTY: 19 RESPONDING PARTY: 20 SET NUMBER: 21 PLAINTIFFS DEFENDANT, ARVINMERITOR. INC. ONE 22 COMES NOW defendant ArvinMeritor, -Inc. ("ArvinMeritor"). successor-in-interest to 23 the former automotive segment of Rockwell International Corporation ('`Rockwell"), and gives 24 its amended responses to Standard Interrogatories to Friction Defendants Pursuant to G.O. 29: 25 26 27 28 ______________________ ________________ - l_ j_ ARVfNMERlTOR, INC.' S AM ENDED RESPONSES TO STANDARD INTERROGATORIES TO FRICTION DEFENDANTS PURSUANT u TG EnT r AL ORDER NO. 129 B. The year it was printed; C. The period of time in which il was used: D. The purpose of such document; E. Whether the documents or copies of said documents presently exist, F. If said documents or copies still exist, where they arc located, and G. The IDENTITY of the custodian of such documents. R E S P O N S E TO I N T E R R O G A T O R Y m . 32:. Bee general objections. ArvinMeritor also objects to this discovery request on the grounds that it is overbroad and unduly burdensome, vague and ambiguous, not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Subject to the foregoing genera) objections, and without waiving same, ArvinMeritor responds: the answer to this discovery request may be ascertained from copies ol the relevant brochures, pamphlets, catalogues, and advertisements, which will be made available (or inspection and copying at the oil'ces of Arvinivleritor's National-Coordinating Counsel. INTERROGATORY NO. 33: When do YOU contend that THIS DEFENDANT first became aware that there is an association between asbestos exposure and disease in human beings? R E SP O N SE TO IN TE R R O G A TO R Y NO. 33: See general objections, ArvinMeritor also objects to this discovety request to the extent it seeks disclosure of information protected by applicable privileges and immunities, and on the grounds that it is overbroad and unduly burdensome, vague and ambiguous, not relevant and run rcasonably calculated to lead to the discovery of admissible evidence, and calls fot a legal conclusion. Subject to the foregoing general objections, and without waiving same, ArvinMeritor responds: it is not known how ArvinMeritor first became aware oi the association between asbestos and certain diseases, other than by genera! reputation within the manufacturing sector of industry, U.S. government bodies, and general, periodic review of medical and scientific literature. ArvinMeritor was aware since at least some time in the 1960s of an association between exposure of certain types oi workers to high levels of asbestos fiber, over long periods of time, and the disease of asbestosis. ArvinMeritor has been aware that a causal time-dose relationship has been statistically shown, for certain susceptible individuals, between the inhalation of asbestos and bronchogenic cancer (c-hielly among cigarette smokers) and, in the case of amphibole asbestos, mesothelioma. ArvinMeritor first became aware of these associations in the 1960s from general medical, scientific, and public press reports discussing these associations. ~24 - __________ arvinmerTtor, inc.'s amended responses to stancaro interrogatories to friction defendants pursuantto general ORDERNO 129 1 AmnMeritor has been aware that certain authors have suggested that associations may 2 exist between exposure to asbestos and certain other types oi cancer, but they understand that the existence of these associations is the subject of dispute within the medical profession, 3 ArvmMcriLor was not aware, however, until the late 1970s that some authors have 4 associated the low levels of asbestos dust exposure involved in typical brake installation and 5 repair work with asbeslosis and cancer, and ArvinMeritor has continued to doubt such associations throughout the relevant period, ArvinMeritor believes that the relevant scientific 6 evidence shows that occupational exposure to asbestos-containing brake linings does not cause asbestos-related disease of any kind. Asbestos-containing brake linings manufactured in the 7 U.S. are known to have contained chrysotile fiber, not amphihole fiber. The weight of the 8 scientific evidence establishes that milled or processed chrysotile fiber is not capable of causing mesothelioma, and can cause other asbestos-related diseases only at very high exposure levels. 9 Industrial hygiene studies have shown that garage mechanics who work with brakes, or around others who work with brakes, arc generally exposed to vciy low levels of airborne asbestos 10 fibers. In addition, when these exposure levels are viewed on an eight-hour time-weightedaverage basis, the exposure levels arc well below Lhe levels regarded as safe by the federal II government and tlte scientific community. 12 In addition, the processes of grinding and braking break down most asbestos fibers into particles that are too short to qualify- as fibers and that (especially because they are chrysotile) 13 readily clear the lung. Finally, the process of braking produces heat at temperatures that convert 14 chrysotile into fbrstcritc, a substance that has not been shown to cause Lung disease. After diligent investigation. ArvinMeritor does not know the names o f the individuals 15 who first gained such knowledge on ArvinMeritor's part. ArvinMeritor is aware of an extensive body of published scientific and medical studies that inform and support its understanding, 16 Copies of such studies will be made available to plaintiffs at a time and place to be agreed upon 17 between the parties, ArvinMeritor further responds: contentions can only be formulated when discovery is 18 completed. At the present time, ArvinMeritor has not conducted discovery or made a review of discovery' conducted by other parties. ArvinMeritor reserves the right to supplement this 19 response upon completion of this review and of further discovery. 20 INTERROGATORY NO, 34: 21 How do YOU contend that THIS DEFENDANT first .became aware that there is an 22 association between asbestos exposure and disease in human beings? 23 RESPONSE TO MTERROGA TOR Y NO. 34: 24 See general objections, ArvinMeritor also objects to this discovery request to the extent 25 it seeks disclosure of information protected by applicable privileges and immunities, and on the grounds that it is overbroad and unduly burdensome, vague and ambiguous, not relevant and not 26 reasonably calculated to lead to the discovery of admissible evidence, and calls for a legal 27 conclusion. Subject to the foregoing general objections, and without waiving same, ArvinMeritor refers plaintiffs lo its response to interrogatory No. 33 and responds: contentions 28 can only be formulated when discovery-' is completed. At the present time, A rvinM eritor bus not - 25 - __ ___________ ARVINM ERITOR, INC.'S AMENDED RESPONSES TO STANDARD INTERROGATORIES TO FRICTION DEFENDANT? PURSUANT TO GENERAL ORDER NO. U 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 EXHIBIT "B" 23 24 25 26 27 28 Bankhead v, ArvinMeritor, Inc., 205 Cai.App.4th 68 (2D12) W CaTRprA d 849T2" C Daily Op. Se7v7429L 212 Daily jbmTD7.R. 501 f 205 CalApp.4th 68 Court of Appeal, F irst District, Division 4, California. Gordon BANKHEAD et al., Plaintiffs and Respondents, v. ARVINMERITOR, INC., Defendant and Appellant. *72 In this asbestos personal injury case, a jury found ArvinMeritor, Inc. (ArvinMeritor) liable to Gordon and Emily Bankhead1 for compensatory and punitive damages. On appeal, ArvinMeritor does not challenge the jury's verdicts as to liability or the amount of compensatory damages. It contends only that the trial court erred in declining to reduce the amount of punitive damages awarded by the jury. Nos. A131587, A1329S5. | April 19, 2012. | As Modified April 25, 2012. Synopsis Background: Automotive maintenance worker brought personal injury action against defendants including brake shoe manufacturer. The Superior Court, Alameda County, No. RG10502243, Robert B. Freedmau, J , entered judgment on special jury verdict for worker, awarding economic, noneconomic, and punitive damages, and denied motions for judgment notwithstanding the verdict and for new trial. Brake shoe manufacturer appealed. Holdings: The Court of Appeal, Ruvolo, P.J., held that: [1 j net worth is not the only measure of wealth.that may be used to determine excessiveness of punitive damages; [2] $4.5 miLhon punitive damages award was not excessive in comparison to manufacturer's wealth; and [3] $4.5 million punitive damages award was not excessive in violation of federal due process clause. Affirmed. Attorneys and Law' Firms .ArvinMeritor disputes the punitive damages award on two grounds: first, that the amount is excessive under California law in light of ArvinMeritor's financial condition, and in particular, the evidence that ArvinMeritor has a negative net worth; and second, that the ratio of punitive to compensatory damages is so high as to violate the due process clause of the United States Constitution, under the guidelines adopted by the United States Supreme Court. As to the first contention, we hold that there is no legal requirement that punitive damages must be measured against a defendant's net worth. Here, therewas expert testimony that ArvinMeritor's net worth was- not a reliable indicator of its ability to pay punitive damages, and that other indicators in its financial data merited the amount of-the award As to ArvinMeritor's second contention, we conclude that the 2.4--to--one ratio of punitive damages tc compensatory damages awarded by the jury did not violate the federal due process clause of the Fourteenth Amendment, or the guidelines for making such awards as articulated by the United States Supreme Court. Consequently, we affirm. -*851 McKenna, Long A. Aldridge, Los Angeles, David K. Schultz, Frank K. Berfield, Lisa L. Oberg, for Appellant, ArvinMeritor, Inc. **852 Latham & Watkins, Los Angeles, John J. Lyons, Milton A. Miller, David E. Jang, for Appellant, Pneumo Abex LLC. Kazan, McClain, Lyons, Greenwood & Harley, Oakland, James L. Oberman, Gloria C. Amell, Michael T. Stewart, for Respondents *73 FACTS AND PROCEDURAL BACKGROUND As is required on review after a jury trial, in reciting the facts, we "resolv [e]... all conflicts in the evidence and all Legitimate and reasonable inferences that may arise therefrom in favor of the jury's findings and the verdict. [Citations.]" (1Veeks v. Baker & McKenzie (1998) 63 CaL.App.4tb 1128, 1137-- 1138, 74 Cal.Rptr.2d 510 {Weeks ).) We give only a general summary of the facts relating to liability and compensatory damages, because the details are not germane to the issues presented by this appeal. Opinion RUVOLO, P J. ArvinMeritor is the successor in interest to another company, Rockwell, 2 which manufactured brake shoes for installation on commercial trucks during the time frame involved 2012 Thomson Reuters. Ho cisin to origins! U.i Dvenirneril Works Bankhead v. ArvinMeritor, Inc., 205 Cal.App.4th 68 (2012) _____ ___ ________________________ __ 139 CairRpTr`.3 d ^ T T r c i i '.`i5afly Op. Ssiv742^720i2 Daily Journal D.A.R. 5011 in this case. The brake shoes were fitted with asbestoscontaining linings that were manufactured by a number of other companies, including Pneumo Abex LLC (Abex), the . 3 respondent in a companion appeal to this one. **853 By the 1960's, ArvinMeritor knew that workers exposed to asbestos dust were at risk of developing asbestosrelated diseases. Indeed, in 1973 and again in 1975, it wrote letters to Abex and other manufacturers complaining about the presence of asbestos dust in the brake linings it was -receiving from them. Nonetheless, ArvinMcritor did not place any warnings on its products until the early 1980`s, and continued to market asbestos-containing brakes until its inventory of them was exhausted sometime in the early 1990`s. Not until the fell o f 1987 did ArvinMeritor include an express reference to cancer in the warnings on its products. Bankhead was exposed to asbestos dust from brake linings during the 30 years he worked at automotive maintenance facilities, primarily as a "parts *74 man," -starting in 1965 and continuing through his retirement in 1999. As a result of this exposure, Bankhead contracted mesothelioma, a form of lung cancer, in 2009. Before his mesothelioma was diagnosed in January' 2010. Bankhead experienced difficulty breathing, and underwent painful medical treatment to drain fluid from one of his lungs, After the diagnosis, Bankhead was told he only had 12 months to live, ^ and as his disease progressed, fee quality of his life decreased significantly. At trial, Bankhead's medical experts testified that his condition would become increasingly painful until his inevitable death. After Bankhead's mesothelioma was diagnosed, he sued numerous defendants, including ArvinMeritor and Abex. By the time fee case went to trial, Bankhead had settled with all but four of the defendants. The jwy found against all of the defendants as to liability, allocating fault 30 percent to each brake lining manufacturer (Abex and one other), 15 percent to each brake shoe manufacturer (ArvinMeritor and one other), and 10 percent to other defendants. The jury also found all defendants liable for punitive damages. The jury calculated respondents' economic damages at $1.47 million, including Bankhead's medical expenses, lost earnings, and lost retirement benefits, and fee value of the household sendees he had been providing before he became ill. It also awarded a total of S2.5 million in noneconomic damages for Bankhead's pain, suffering, and emotional distress, and bis wife's loss of consortium. Based on its 15 percent share o f fault, ArvinMeritor was held jointly and severally liable for the $1,47 million in economic damages, and severally liable for $375,000 of the noneconomic damages, for a total of $1,845 million. **854 A separate trial was held to determine the amount of punitive damages to be assessed against each defendant. By the time of that trial, ail defendants except ArvinMeritor and Abex had settled. At the punitive damages trial, respondents presented an expert witness, Robert Johnson, to testify' about ArvinMeritor's financial condition, in evaluating ArvinMeritor's economic status, Johnson reviewed publicly available documents filed with the Securities and Exchange Commission, including ArvinMeritor's 2008,2009, and 2010 annual 10-K. reports; its adjusted 2009 10 1Creports; a 2010 proxy' statement sent to shareholders; and data regarding its market capitalization. These are "generally accepted financial documents used and relied upon by economists or experts in finance to evaluate a company " *75 Johnson testified that between 2006 and 2010, ArvinMeritor attained over $3 billion in sales revenue each year, and an average annual cash-flow profit of $111 million. 6 ArvinMeritor's lowest performing year during that period was 2009, but even in that year, it had $95 million in cash available to it. In 2010, ArvinMeritor's annual sales revenues reached $3.59 billion; its annuaL report indicated it had earned $211 million in cash-flow profit; and it reported to its shareholders that it had earned a $12 million net profit--a conservative figure, as Johnson explained, because companies seek to reduce their reported net income, using legally available deductions such as depreciation, in order to minimize their tax liability, At the-end of 2010, ArvinMeritor had on hand some $343 million in cash and cash equivalents, and its outstanding stock had a total market value-ofalmost $2 billion. ArvinMeritor's chief executive officer, who aLso served as its board chair and corporate president, earned over $7.6 million in 2010, and stood to receive between $19.9 million and $26.9 million upon leaving fee company. Johnson explained that a company's willingness and ability to pay sums of this magnitude to its chief executive is an indicator of financial strength. Given all of these facts, Johnson opined that ArvinMeritor is financially sound. Johnson acknowledged that ArvinMeritor reported that as of 2010, it had a negative net worth of S l .023 billion. He opined, however, that this number, taken on its own, did not "reflect the full context of ArvinMeritor's financial condition and ability' to pay." Johnson explained that net worth is only one of "a number of different tools that we use to assess V'-r.iri-i'A'Msdi i 2012 -i`i:" scn wsAeir No Bankhead v. ArvinMeritor, Inc., 205 Cal.App.4th 68 (2012) t39CaTRptr.3d 849,12 Cal. DailyOp."^Ser^4297T20i2'Daiiy Journal D.A.R. 5011 a company's financial health, wealth and condition," and opined that "net worth is probably one of the least reliable financial metrics or statistics you can use," because there are "a number of financial or accounting transactions" in which a company can engage to lower its net worth, while remaining profitable. Johnson testified that net worth "is not a measure of a company's financial condition totally or their ability to pay," because "even within the guidelines of the generally accepted accounting principles... net worth is something that can be pretty easily manipulated." As an example, Johnson noted **855 that a company can reduce its net worth simply by repurchasing shares of its stock, DISCUSSION A. Amount of Punitive Damages Relative to Financial Condition ArvinMentoris first argument on appeal is that the punitive damages award is excessive under California law, primarily because of ArvinMeritor's negative net worth, ArvinMeritor argues that because of its financial condition, the award should be stricken altogether, or reduced to $300,000 at most. Johnson explained that becanse net worth can be unreliable, banks look instead to a company's cash fiuw and profits, which are the most reliable indicators of its ability to repay debt, in determining whether to lend money to it. For this reason, companies with a negative net worth are still able to *76 borrow money. Indeed, ArvinMeritor itself borrowed a total of $245 million in 2010, and still had $539 million available on its line of credit as of September 30 of that year. Johnson also acknowledged that over the past couple ofyears, ArvinMeritor had been "weathering ... the financial travails of the economy"; its sales had not gone up, and it had lost some money. He believed, however, that ArvinMeritor was "still a financially sound company" that was "able to meet all of its obligations," was "not anywhere near on tbe verge of bankruptcy," and had "generally turned the comer." In all but one year (2009) during the period Johnson considered (2006-2010), the company's losses resulted primarily from significant capital expenditures, as well as expenses for research and development, ArvinMeritor's trial counsel cross-examined Johnson, but ArvinMeritor did not offer any expert witness or other evidence to cast doubt on Johnson's methodology or his conclusions. In its opening brief on appeal, ArvinMeritor cites various financial data taken from ArvinMeritor's 2010 annual report. However, though the report was entered into evidence, Johnson was not asked about those particular figures at trial, and they were not called to the attention of the jury. The jury relumed a verdict awarding respondents $4.5 million in punitive damages against ArvinMeritor. ArvinMeritor filed motions for judgment notwithstanding the verdict and for new trial. The trial court denied both motions, and this timely appeal ensued. 1, Standard o f Revietv [1J [2] "In California, a trial court reviews a motion challenging the excessiveness of an award of punitive damages ... as a `thirteenth juror'; `The trial court is m a far better position than an appellate court to determine whether a damage award was influenced by "passion or prejudice." [Citation,] In reviewing that issue, moreover, the trial court is vested with the power, denied to us, to *77 weigh the evidence and resolve issues of credibility. [Citation.]' [Citation.]" (Boeken v. Philip Morris, Inc. (2005) L27 Cal.App.4th 1640,1689, 26 Cal.Rptr.3d 63S (Boeken ),) In contrast, we, as an "appellate court],] cannot rewetgh the credibility of witnesses or resolve conflicts in the evidence. [Citation.] [We] must view the conflicting evidence regarding punitive damages in the Light most favorable to the judgment pursuant to the familiar substantial evidence rule. [Citation.]" (Rufo v. Simpson (2001) 86 Cal.App.4tb 573, 622, 103 Cal.Rptr.2d 492 {Rufo).) [3] [4] Impartial review of a punitive damage award by an appellate court is an **856 important part of the procedural dnrprocess to which a defendant subject to punitive damages is entitled under both the state aod fcderaL constitutions. (Pacific Mutual Life Insurance Co. v Haslip (1991) 499 U.S, 1, 15-16, 111 S.Ct. 1032, 113 LEd.2d 1; Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220,1256-1258,1 Cal.Rptr.2d 301 (Las Palmas ).) Appellate review for passion and prejudice provides defendants with an additional safeguard to ensure that the award does not exceed an amount necessary to accomplish the societal goals of punishment and deterrence (Las Palmas, supra, atp. 1257,1 Cal.Rptr.2d 301.) Accordingly, we review an award of punitive damages to determine whether the award is excessive as a matter of law, or raises a presumption that it Ls the product of passion or prejudice. U.S GoVemr.toT. A w "? Bankhead v. ArvinMerltor, Inc., 205 Cai.App.4th 68 (2012)__________n = r n 4 c ! T D 5 ir y l5 ^ ^ :4 2 9 7 ,2012 Daily Journal DA R. 5011 issues for the jury and for the trial court on a new trial f5] In so doing, we evaluate the award under three criteria: the nature of the defendant's wrongdoing; the actual hann to the plaintiff; and the defendant's wealth.7 {Neal v. Farmers Ins. Exchange (1978) 21 Cal3d 910, 928, 148 CaLRptr. 389, 582 P.2d 980 (N e a l); see Adams v. Murakami (1991) 54 Cal.3d 105,109-110, 284 CaLRptr. 318, 813 P.2d 1348 [Adams ).) "An appellate coun will not reverse the juiys determination unless the awar4 as a matter of law is excessive or appears so grossly disproportionate to the relevant factors that it raises a presumption it was the result of passion or prejudice. (Citations.]" (Rufo, tupra, 86 Cal.App.4th at p. 623,103 Cal.Rpti.2d 492.) 2. Punitive Damages and Defendant's Wealth motion. All presumptions favor the correctness of the verdict and judgment. (Citation.]" {Id. at pp. 387-388,202 CaLRptr. 204.) " 'Juries... have a wide discretion in determining what is proper. (Citation.)' (Citation.)" (Id at p. 390,202 CaLRptr. 204.) [12] [13] Nonetheless, "[b]ecanse the important question is whether the punitive damages will have the deterrent effect without being excessive, an award that is reasonable in light of th e... reprehensibility of the defendant's conduct and injury to the victims, may nevertheless `be so disproportionate to the defendant's ability to pay that the award is excessive' for that reason alone. [Citation.) `[T)he purpose of punitive damages is not served by financially destroying a defendant. The purpose is to deter, not to destroy.' [Citation.)" (Rufo. supra, 86 Cal.App.4th at p. 620,103 CaLRptr,2d 492.) (6) [7] [81 Under California taw, "[w]ealth is an important consideration in determining the excessiveness of a punitive damage award. Because the purposes of punitive 3. Net Worth as a Measure o f Wealth damages are to punish the wrongdoer and to make an [141 In the present case, ArvinMeritor's principal ground example of him, the wealthier the wrongdoer, the larger the for contending the award is excessive under California law award of punitive damages. (Citation.]" {Downey Savings l5 its contention that punitive *79 damage awards am & Loan Assn. v. Ohio Casualty Ins. *78 Co. (1987) 189 limited to 10 percent of the defendant's net worth, which m Cal.App.3d 1072, 1099-3100, 234 CaLRptr. 835, citing ArvinMeritor's case was negative. Contraty to ArviniMenter s Bertero v. National General Corp. (1974) 13 Cal.3d 43, contention, however, net worth is not the only measure of 56, U8 CaLRptr 184, 529 P.2d 608.) "[Ojbviously, the a defendant's wealth for punitive damages purposes that is function of deterrence ... will not be served if the wealth recognized by foe California courts. " Indeed, it is likely of the defendant allows him to absorb the award with little that blind adherence to any one standard [of determining or no discomfort. [Citations.]" {Neal, supra. 21 Cal.3d at p. wealth] could sometimes result in awards which neither deter 928, 148 CaLRptr. 389. 582 P2c 980.) Moreover, " [b]oth nor punish or which deter or punish too much." (Lara v California and the federal authorities agree Rat profits earned Cadagi 1993) 13 CaLApp 4th 1061, 1064-1065 & fa.3 ,16 from tortious activity that supports an award of punitive damages are.appropriately considered in foe amount awarded. (Citations.]" (Boeken. supra. 127 Cal.App.4th at p. 1697,26 Calkptr.3d 638.) CaLRptr.2d 811 (Lara).) "Although net worth is the most common measure of the defendant's financial condition, it is not the only measure for determining whether punitive damages are excessive In assessing whether a punitive damages (9) [10] [11] - -....... - - award is excessive relative to the def.e..n..d..a.n..t.'.s...w...e..a..l.t.h..,.. the key question ... is ... whether foe amount of damages **857 `exceeds foe level necessary to properly punish and deter.' [Citations.]" (Adams, supra, 54 Cal.3d at p. 110, 284 CaLRptr. 318, 813 j>.2d 1348.) Calculation of-punitive ^ relatlotrto ftat condition. [Citations.]" (Rufo, supra. 86 Cal App.4& at p. 624, 103 Cal.Rptr.2d 492.) For example, in Rufo. foe court upheld a punitive damages award that "technically exceed [edf wealthy individual defendants net worth because foe evidence showed that the defendant would not be financially "destroyed by foe award." (id. at p. damages "involves... `a ihfid process of adding or subtracting 625, 103 CaLRptr 2d 492.) depending on the nature of foe acts and foe effect on the parties and the worth of foe defendants.' " (Devlin v. Kearny Mesa AMC/Jeep/Renauh, Inc. (1984) 155 Cal.App.3d 381, 390 202 CaLRptr. 20^ (Devlin ).) These factors are not evaluated under a rigid formula. 'Whether punitive damages should be awarded and the amount of such an award are Moreover, as one California court has pointed out, " '[n]et worth' is subject to easy manipulation and .. should not e the only permissible standard." (Lara, supra, 13 Cal.App.4th at p 1065 fn. 3, 16 CaLRptr.2d 811.) Thus, for example, in Miehehon v Hamada (1994) 29 Cal.App.4th 1566, 36 Bankhead v, ArvinMeritor, Inc., 205 Cal.App.4th 68 (2012)_________________ W C ai.R p O d M ^ .T i'C aT B aliy Op.'Serv. 4297, 20i2 Daily Journal D.A.R. 5011 Cal.Rptr.2d 343, the evidence of the defendant's financial condition included net worth statements for two successive years. The first statement, which was prepared for submission to a bank, as part of a loan application, showed a far higher net worth figure than the second, which was prepared for use in the litigation. The trial judge called the lower figure " `patently crooked,' " and the Court of Appeal, although holding the punitive award excessive, agreed that the higher figure was the appropriate one to use for **858 the purpose of determining that question. (Id. at pp. 1595-1596, 36 Similarly, in Devlin, supra, 155 Cal.App.3d 381, 202 Cal.Rptr. 204, the court affirmed a punitive damages verdict against a corporation that represented 17,5 percent of its annualized net worth, or almost four months net profit. (See id at pp. 391-392, 202 Cal.Rptr. 204.) In rejecting the defendant's argument that the award was excessive, the Devlin court relied in part on an unexplained accounting adjustment in the company's financial records that operated to reduce its net worth. (See id. at pp. 385,391,202 Cal.Rptr. 204.) The court also took note of a resolution authorizing CaLRptr.2d 343.) the corporation to borrow money, opining that a resolution In Zaxis Wireless Communications, Inc, v. Motor Sound Corp. (2001) 89 Cal.App.4th 577, 107 Cal.Rptr.2d 308 (Zaxis ), the court affirmed an award of punitive damages in tire amount of $300,000, even though the defendant had a negative net worth of $6.3 million, because Che evidence showed that the defendant had the ability to pay the award. (Id. at pp. 580-581, 107 Cal.Rptr.2d 308.) The court noted that "the [California] Supreme Court has expressly declined to adopt net worth as the standard for determining a defendant's ability to pay in any given situation. [Citation.] (Id. at p. 582, 107 Cal.Rptr.2d 308, citing Adams, supra, 54 Cal.3d at p. 116, fo. 7, 284 Cal.Rptr. 318,813 P.2d 1348.) It agreed that "[u]et worth is too easily subject to manipulation to be the sole standard for measuring a defendants ability to pay...." (Id. at pp. 582-583, 107 Cal.Rptr.2d 308, citing Lara, supra, 13 CalApp.4th at pp. 1064-1065 & fo. 3, 16 to borrow "serves as an indicator of the continuing health and viability' of a business." (Id. at p. 391, 202 Cal.Rptr. 204.) The De\>hn court "compiled a list of cases in an attempttofiiscover a formula for determining whether a given percentage of net worth is excessive ultimately concluded there is no formula, and that each ease must be decided on its own facts, considering ... various indicators of wealth... " (Rufo. supra. 86 Cal.App.4th at p. 625, 103 Cal Rptr.2d 492, citing Devlin, supra, 155 Cal.App.3d at pp. 388-389, 391 392, 202 CaLRptr. 204.) Thus, the court held that in arriving at the amount of punitive damages, the trial court properly took into account the defendant's "net worth plus a variety of other figures relating to [the defendant's] wealth," and noted that "[ojtber courts have considered various asset and income figures relevant to the issue of punitive damages." (Devlm, supra, at p. 391,202 CaLRptr. 204.) Cal.Rptr.2d 811.) Noting the "ease with which net worth is subject to adjustment for amortization and depreciation, the court pointed out that in the case before it, "the net worth calculation included accumulated depreciation ... and a *80 note to the sole shareholder," which "represent[edl a Loss for accounting purposes," but "did not impact" the defendant's ability to pay in the same way that salary and wage expenses would. (Zaxis, supra, 89 Cal.App.4th atp. 583, 107 **859 ArvinMeriror's challenge to the punitive damages award relies primarily on a plethora of older California cases to the effect that punitive damages amounting to more than 10 percent of the defendant's net worth are excessive. The mast recent case AndnMentor cites for this proposition is Sierra Club Foundation v. Graham (1999) 72 CaLApp.4th 1135i 1162-1163, 85 CalRptr.2d 726. In that case, tbe-court affirmed a punitive damages award amounting to between Cal.Rptr.2d 308.) two and three percent of defendant's net worth. As part of The Zaxis court also noted that the defendant's financial statement showed it had "cash on hand and a checking account balance of over $ 19 million," as well as a credit line -*81 the rationale for affirming the award, the court noted that it was " far less than the 10 percent cap generally recognized by our courts. [Citation.] of $50 million, of which $5.3 million remained available to the defendant. The extension of the line of credit "indicated] the lender made a determination [the defendant] had the ability to pay amounts well in excess of the ... punitive damage award." (Z a m supra, 89 Cat.App.4th atp. 583,107 Cal.Rptr.2d 308.) Accordingly, the award was not "excessive as a matter of law' or so disproportionate to the ability to pay as to indicate passion or prejudice on the part of thejury'. (Ibid) ArvinMeritor also relies for this point on Weeks, supra, 63 Cal.App.4th at pages 1166-1167, 74 Cal.Rptr.2d 510. In that case, the court affirmed an award that the trial judge had reduced to five percent of the defendants net worth. In so doing, the court noted that "[i]l has been recognized that punitive damages awards generally are not permitted to exceed 10 percent of the defendant's net worth. [Citation.]" (Fa. omitted.) 5 T O W s n a ^ * " ' * B nkheadv ArvlnWIeritor, Inc. 205 C a l A p p . ^ ^ l Journal O.A.R. 5011 1595 15 ' 1 to 28 percent o f the defendant's net 1 - - ^ S r i S i">- S S " 4 Cal.App.3d 498, 514-516, 262 W 6*9, in the defendant's conduct m bis neighbors' property was not suffi ^ reprehensible Y P ^ to support such a large award, (id at pp. 1/ Cal.Rptr. 321.) : t r : , r o (1977) 67 Cal.App.3d In little V. sm vesa n t Life J- wo. I . ; m pt a- " I;S: I" " 01 ,te w . * d u "nes pkinffl percent of the defendant's net worth. ^ r demanded in ^her rcomplaint, rwhreb .wass s $250,0 ^ , c ^ t m r (1987) 190 Cal.App3d 844, 237 c j C 'm - T e h . M " t o h """e" C" t o ;s . w o of $2.66 million in punitive damages, wh B.3 times the compensator damag6^ new trial on both compensatory expxessly declining to compare the punm " ^ ^ Wlnlc ^ ]D Merle. V' Cal.App.3d o, 18, 13 fee award of punitive including that t e a" oU" of the defendants ne w 416, the court reversed ^ fl number of grounds, ^ wgs altnos, one-third ^ shownby the uncontradicted > ^ Qn ^ahility for punitive defendant's net worth, the cot ro ^ fendant-s net "awards totalling more than 10 perceatof a d worthhave becn-disfavored by-our courts.... (M at pp S69,237 Cal.Rph 282-) that an award ol $ . was-stiU excessive, the trial court had reduced to $750,000, was su inasmuch as it amounted to 35percent of e e cn ^ ^ ArvinMeritor argues these cases percent of ,w the ie f to f - r l; n..iw , .w bj our summanes z z z z ^p d-am^ag1"es' *" / r,, exceedltlg j0 cited cases actually impermissible. million net worth. The court ^ * 997, damages o - " " - i ,mdisi>uted expert testimony that the L l the compensatory any rationale for the choree of the S^O.OOO t.gm ^ no reference to any set limitation on punitive dam g percentage of net worth. . J 1a * * 161 C*L^ P1 " : o r ? r*I Rntr B'M the court noted that "punitive damage 20b Cal.Rp - defendant's net worth have awards exceeding lOpercemo at ^ r sr rrsr--r r : ; -- atpp. 1227-1229,208 Cal.Rptr. 3,1 -)The court mo testimony that An nM ^ ^ net worth would mdi . .untrustworthy staudar , ecaU B6t worth alone is an manipulated, . soleiy on a net ,, ,, ,, .x p rta tl b,the court, t e r * 1 " >Oevlm ' " . " " . " P C>1App4ft ,, p, 562, 86 CalApp.r * P- >, ' r r t a r f * 1 ^ . 13 Ca.A pp-*h < 103 Cat.Rpti.~d - d R ti2 A 811; Devlin, supra. pp. 1064-106O & fh. 202 Cal.Rptr. 204.) Thus, we ,55 Cal.App -idat Prt > worth constitutes a reject the argument that 10 perce 2012 Thomson net.jL27rs. Ro cir.i'P to . tcoBr'inosn- vvcu XSJ u<si.i\y"*^ . ceiling above which juries may not go in selling the amou of punitive damages. - hpfore us on review is not whether the award 1151,TMeT ,, S exceeds some specifi VP --^ s^ toaboscdits discretion and appropriate w . r , contribution to causing that took Bankhead's life, roanUfacturers from exposure to \ife-l6rea1cnlc6 t0XC !,u' ,e " ' worth.Rath6r> ' Wfte L o n n t of punitive damages awarded determining rf ^ prejudice. Our task by the jury was not t - , [cloasidering ail the factors, B. D ,,eP r,,aeI,C o u s .r .* t. . P " '' M TM " , a fr,r ctrikinu or reducing the U71 as an additkma ^ ^ e r i t o r argues that the size of punitive damages aw constiwtional limits applicable wealth and the ^ ^ deter." [Citation.)" the award L a g e s awards. These limits were to state court pun ^ states supreme Court cases articulated m a line o ^ Au!omobik Ins. Co. v. w 1116sf ^ trial indg* de7 aad f0I aew trial, imply that both _Ued notwithstanding accepted b o so n 's assessment the jury and the trial j g ^ ^ $4.5 million as to **861 AarTMvinMsntor s ability fPacjmal fmdmg ivsffiuitlllvy punitive damages award. This unpi supported by the evidence. culminating m Slate Campbell (2003) 53$ _ 41_6_4!l8) j23 S.Ct. 1513, ' Cooper industries. S ,n 4 L .E 4 M (8 " " . ontn Arvto]vleritor earned a cash flow As already noted, m 2010, A ^ fit of S12 pmriolfliiot no.fThS2e1iO1 lOmcilolimonp,enansatiro^ncnts CEO was $^7.6^milliono.f Moreover, while the J245 miUion in 2010, Sl-t3 bilhon, it was ab b at ^ ^ p o se l and had $343 million m cash or the equi `"" s" cr z r - r <**v- m S C ,L . 686,112.10. M.8.P6.M as of the end of the year. * pp. 4 !6^ 18, 123 S.C Rof .gr0SSly excessive i ' 0 . While 568, 116 S.Ct. 1589.) T h J 0Qally probibited, for due or arbitrary' awardsJ >^ notfce not only of the a small percentag^about 1. P immediately available fun as significantly less than " h a t m ^ of 2010 It is d its CEO that ArvinMeritor process entitles a to ea mmishment, but also of the conduct that will ^ J s t a t e severity of the p ~ > ' ^ unpose." ' [Citation.)" (2005) 35 Cal.4th y. - "" T S i f t tod promised to pay ite C - (524.5 million) or J million). Moreover, Johnso . was financially sound was chose not to introduce evi ence^ be financially destroye y punitive damages. 9 punitive damages awa , to ArvinMeritox's ab'^ny fly were sotd ($26.9 mat the company , and An,)nMentor ^show that itwould ^ $45 mfflion in iead toeluctably to ^ paSsjon or ll91 -an guideposts' for co tbe defendant>s misconduct; degree of (2) the disparity be ^ or potential harm *85 ^ ^ punihw damages award; suffered by the pla epunitive damages awarded and (3) the ^ ^ S l r i z e d or im posed- by the jury and the ^ 4,,pra, 47 C a U * at comparable cases. [ - 749, qUotrog Slate pn. 7, n12Z, l1inoU1ii Cn-aml-*P-vptr-3d _ r- .K,,i,x. l C' 0c Our v t t U S at p. 418.123 5 .0 .1 =13-) Farm, supra. 538 C * me constitutic-"1' ^ s X l L h e r . the jury was justified by the evidence ,n 139 Cai.Rptr.3d 849,12 Cal Daily p. ' as "a three-factor weighing analysis looking to the nature and effects of the defendant's tortious conduct and the sta e d s0 was particularly reprehensible"]; ^ ^ ock m pm , 198 Cal.App.4th atpp. 555M561,131 determining reprehensibihty, court relied P.3d 63.) n o t In adjudicating a due process challenge to a pumtive theTe^ttonship between the award and the h ^ n done to the <*** S S S plaintiff, and the s w s s s P.3d 63.) r o. * N y . < * 'f" ! unfounded).) A Mpritnr argues that Bankhead was not financially X U "" . U e M i.d . * * . and others who were exposed to asbestos fibers on the job w e financially --" u ^ exposure wnnou- *Ro*b*y, -sHupPr-a, " then employment. (See g - r a lly * ^ Cal.Rptr.3d 773, 219 `relatively ?tow" -l&evel ^emypclooye*e' 2. Rcprahensibmty o f A n i m a t o r 's Condo* x Xv-* xxxx" `Of the three-guideposts that the high court outlined in State Z T , X r s. . w i s c u m ) . * ,,,,p,*TM ,i .. .. . or roprobeosHOV of .ho conduct On this question, the hrgh court instructed court to consider whether `[1] the harm caused was physic 1 l opposed to economic; [2] the tortious co n d u c t-n e e d pr.re to **863 or a reckless disregard of the an indifference to 8 conduct had health or safety of others, ! " e ldr&c TPneated financiali vuliner-anbViilnitityv, l(41J the conduct involved repeawag actions or was an isolated incident; an [-] 0 result of intentional malice, trickery, ^ 6C6lt>0r tobacco products as financially vulnerable]). > "X TM . 5 P - ` rpoPP ior Bankhead's asbestos exposure, and that it ac ed w, nor Oblieation to conduct a due process -H S rrx rrTM 'x : accident.' [Citation.]- C M * 47 Cal.R-ptr.3d 773,219P.3d 749.) * P' ^ at p. *-14, 4 v decide wh6ther the verdict m the nresent case, all of these factors weigh in favor of a high degree of reprehensibihty As the court pu maximum, a co ^ is unreasonable based ott facts"].) White there is no , . u .1 . ,,,,j ,, ., tK t AmuMeritor intended to injure Bankh it * Boeken. supra, 127 Cal.App.4th at page 1690 26 Ca^Rptr.3d638,^ntentionanyrnarketinga defeet,vepro u U a L p , . . . , ,, , 1<sp iniurY and death is `highly knowing that it might cause Bankh6ad reprehensible.' [Citation.]" hi the p e.ent cas e ltracted a painful cancer, and ultunately died, due to TManyao"ne" i X864 Xelse P^ **. "* Ele w*ho "w1orked wi"th * * * -- " 7 7 7 X 7 Be.,.6 6 7x x r x *""***<r* C M e r i t J (and the other d e f e n d a n t s ^ that people like *86 Bankhead who used or worked w asbestos-containing products were not asbestos dust. ArvinMeritor's conduct YWrs and evinced an indifference to or reckless disrcgtu fraudulent, or oppressive. I22l *87 ArvinMeritor attempts to minimi its degree f L e h e n s ib ^ y by emphasizing that the jury determtned k l a s only 15 percent at fault fix B ^ `s of the health and safety of Bankhead and ^ e simil y situated {Set Philip Morris USA v. Williams (200/) o49 U.S_ T M 5 irf S.ct. 1057, .60 U3A* rE..6e* to asbestos. Neither S l e t e wbich ArvinMeritor Sf h o !!' T at a'defendant's degree of reprehemhbility for X i l . - . . noopartles o n W p . A W that harmed the plaintiff also posed a substant.al risk o reason ute'-'S p\ 'J.S7 'Go aver`i^ s r^ Works Bankhead v, ArvinMeritor, irtc., 205 Cal.App,4th 68 (2012) W G ai.R ptr,3d 849, 12 Cal, Daily Op, Serv. 4297, 2012 Daily JournaF^ATR.'5011 of others was concurrently responsible for the plaintiff's injuries. Rather, for the purpose of the punitive damages analysis, the proper role of the jury's finding assigning ArvinMeritor a low percentage of liability is to reduce the amount of compensatory damages with which the amount of punitive damages is'compared, when considering the ratio between tire two. (See next section of discussion,post.) Thus, ArvinMeritor's low percentage of liability for compensatory damages may reduce its punitive damages exposure, but not in the way ArvinMeritor argues. ArvinMeritor also argues that its degree of repreheasibility is reduced because starting in the 1980`s, it warned persons who were exposed to its products that they should avoid breathing asbestos dust, and, as early as the mid-1970's, it tool: measures to reduce the amount of dust associated with its products. This may be so, but it does not mean, as ArvinMeritor asserts, that the punitive damages in this case cannot constitutionally exceed the amount of compensatory damages. Neither of Checases cited by ArvinMeritor for this proposition so holds. In Hoch v. Allied-Signal, Inc. (1991) 24 Cal.App.4th 48, 29 CaLRptr.2d 615, the trial court's order granting the defendant a nonsuit on the plaintiffs punitive damages claim was affirmed, because no reasonable jury could have found malicious conduct by clear and convincing evidence, {id at pp. 58-62, 29 Cal,Rptr.2d 615.) Similarly, in Shade Foods, Inc. v. innovative Products Sales & Marketing, Inc. (2000) 78 Cai.App;4th 847, 93 Cal,Rptr.2d 364, a first-party business insurance bad faith case, the court held that due to the complexity of the insurance coverage issues involved, the award of punitive damages was not supported by dear and convincing evidence of contemptible or despicable conduct. {id. at'pp. 890-893, 93 Cal.Rptr.2d 364.)TIere, ArvinMeritor does not dispute that the evidence was sufficient to support the jury's verdict finding it liable for punitive damages. Accordingly, Hoch *. Allied-Signal, Inc. and Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. are not germane to the issues presented. We find Weeks, supra, 63 Cal.App.4th 1128, 74 Cal.Rptr.2d 510, far more pertinent on this point. In that case, the defendant argued that the punitive damages award against it should have been reduced because of measures it took to avoid a recurrence of the sexual harassment on which the award was based. 7hecourtwas"notpersuaded that the award should have been reduced because of the evidence that [the defendant) has `learned its lesson,' and thus will be *88 deterred from like conduct m the future. Limiting an awaid because of a defendant's contrition certainly encourages contrition. It also, however, reduces the risk that serious consequences will result from failing to prevent the wrongful conduct in the first place, Limiting an award because of a defendant's contrition therefore undermines the purpose **865 of punitive damages." {Id. at p. 1167, 74 Cal.Rptr.2d 510.) Similarly here, limiting the award in this case would undermine the purpose of punitive damages by giving undue credit to ArvinMeritor's belated efforts to warn users of its products about the hazards of asbestos, which the jury implicitly found were ineffective and inadequate. Allowing the award to stand, on Che other hand, will serve the purposes of punishment and deterrence by encouraging ArvinMeritor and other manufacturers, in the future, to take every available step to eliminate life-threatening hazards from their products and manufacturing processes altogether, rather toan relying on workers and consumers to protect themselves from dangers they may not be in a positron to fully understand or entirely avoid. 3. Range o f Constitutionally Acceptable Ratios [23] The second part of the federal due process analysis focuses not on the absolute amount o f punitive damages, but rather on the appropriate ratio between the compensatory and punitive damages, given the specific facts of the case. That is, "punitive damages must bear a ' "reasonable relationship" ' to compensatory damages or to the actual or potential harm to the plaintiff. [Citations.]" {Bullock, supra, 198 Cal.App.4tb at p. 563, 131 Cal,Rptr,3d 382, quoting BMW, supra, 517 U.S, at pp. 575, 580, 116 S.Ct. 1589; see also State Farm, supra, 538 U.S. at pp. 424--426, 123 S.Ct. 1513.) California publrshed opinions on this issue have adopted a broad range of permissible ratios--from as low as one to one to as high as 16 to one--depending on the specific facts of each case. The low end of the- range is exemplified by Roby, supra, 47 Cal 4th 686, 101 Cal.Rptr.3d 773,-219 P.3d 749. Roby was an employment discrimination and harassment case involving primarily emotional harm to the plaintiff, with a minor physical component, and no evidence of repeated discriminatory acts by the defendant. Noting that the jury's award of substantial emotional distress damages already included a punitive element, a majority of our Supreme Court held that the maximum constitutionally permissible ratio of punitive to compensatory damages was one to one. {Id. at pp. 718-719, 101 Cal.Rptr.Sd 773. 219 P.3d 749.) The two justices in the minority would have applied a two-to-one ratio. u. 'Next T. 20i2 : h;i-!?on *lo aa in toong*na; U.S Girveruntn: Works Bankhead v. ArvlnMeritor, Inc., 205 CaI.App.4th 68 2012) TjlTCaU^Tr.Sd 849,12 Cal. Daily Op. Serv. 4297, 2012 Daily Journal D.A.R. 501 1 (Id. atpp. 722-724,101 Cal.Rptr.3d 773,219 P.3d 749 (cone. & dis. opinion o f Werdegar, J.).) A more recent case falling toward the low end of the range is *89 Amerigraphtcs, Inc. v. Mercury Casualty Co. (2010) 182 Cal.App.4th L538, 107 Cal.Rptr.3cl 307 (Amerigraphics' ). Amerigraphics was a first-party insurance had faith case in which the plaintiff was a small printing business whose premises and equipment were damaged by a water leak. The only factor weighing in favor of a high degree of reprehensibiiity was the plaintiffs financial vulnerability, particularly in that the insurance company's "egregious conduct put (Amerigraphics] out of business." (Ibid; see id. at pp. 1562-1563, 107 Cal.Rptr.3d 307.) On the other hand, there was no punitive element to the compensatory damages, and the defendant was a wealthy insurance company. Relying in part on the-defendant's concession that $500,000 in punitive damages would be appropriate, the court held that sum to be constitutionally permissible. This resulted in a 3.8-to-one ratio ofpunitive to compensatory damages. (See id. at p. 1566, 107 Ca1.Rptr.3d 307.) An example of a ratio a few steps up the scale is the six-tooneiatio permitted in **866 Gober, supra, 137 Cal.App.4lh 204,40 Cal.Rptr.3d 92, Gober was a sexual harassment case based on the treatment of several employees by a single manager, in which the trial court remitted each plaintiffs punitive damages to 15 times her compertsatories, and both parties appealed. On appeal, the court rejected the employer's contention that the punitive damages should not exceed three times the compensatory damages. Instead, it held that a six toone ratio between punitive and compensatoiy damages was the- appropriate constitutional maximum. The court applied this ratio even though the employer's conduct was only moderately reprehensible, inrthat the manager did not cause or threaten any physical injury to the plaintiffs, and the employer transferred the manager promptly after his misconduct was reported. (See id. atpp. 219-223, 40 Cal.RptrJd 92.) An even higher ratio was approved in Simon, supra, 35 Cal.4th 1159, 29 Cal.Rptr.3d 379, 113 P.3d 63, which arose out of an aborted commercial real estate transaction In Simon, the defendant's single act o f fraud caused the plaintiff only $5,000 in compensatory damages; did not involve any physical harm or threat to health and safety; and did not target a particularly vulnerable plaintiff. Nonetheless, because of the defendant's substantial wealth, and the lack of any punitive element in the relatively small compensator)' damages award, the Supreme Court held that a 10-to--one ratio could properly be applied. (Id. at pp. 1188-1189, 29 Cal.Rptr3d 379, 113 R.3d 63.) In so doing, the court interpreted Stale Farm, supra, 538 U.S. at page 425,123 S Ct. 1513, as "establish[ing) a type of presumption: ratios between the punitive damages award and the plaintiffs actual or potential compensatory damages significantly greater than 9 or 10 to 1 are suspect and, absent special justification .... cannot survive appellate scrutiny under the due process clause." (Simon, supra, 35 Cal.4th at p. I l82,29Cal.Rptr.3d 379, 113 P.3d63,fn. omitted.) The court emphasized, however, that the presumption of suspectness applies only to ratios that exceed the limit `to a significant degree,' " and even then, the *90 presumption may be rebutted by "extreme reprehensibiiity or unusually small, hard-to-detect or hard-to-measure compensatory damages." (Id. at p. 1182 & fn. 7,29 Cal.Rptr.3d 379,113 P.3d 63.) Finally, in a recent product liability case involving a manufacturer's intentional deceit of the public as to the safety of its product--to wit, the cigarettes that ultimately killed the plaintiff--the court in Bullock, supra, 198 Cal.App.4tii 543, 131 Cal.Rptr.3d 382. approved a punitive damages award of approximately 16 times compensatory damages. Relying in part on Simon, supra, 35 Cal.4th 1159, 29 Cal.Rptr.3d 379, 113 P.3d 63, the court held that the "extreme reprehensibiiity" of the defendant tobacco company's conduct, including its "vast `scale and profitability,' " when coupled with the relatively small size and nonpumtive nature of the compensatory damages award, rebutted the presumptively suspect nature of the 16-to-one ratio, and justified affirming the' jury's punitive damage award. (Bullock, supra. 198 Cal.App.4th atpp. 560-563, 565-566,569 & in. 16, 573, 13 1 Cal.Rpir.3d 382.) 4. Analysis [24J As already noted, ArvinMeritor's conduct was highly reprehensible. The jury's award of $2.5 million in noneconomic damages for Bankhead's pain and suffering and his-wife's loss of consortium is high enough that it appears to include a punitive component. The inclusion of a punitive element in emotional distress damages-Teduces the permissible ratio of punitive to compensatory damages. (See, **867 e.g., Roby, supra, 47 Cal.4th at pp. 718-- 720, 101 Cal.Rptr.3d 773, 219 P.3d 749 [award of S1.3 million as compensatory damages for emotional distress included punitive component; one-to-one ratio of punitive to compensatory damages was constitutional maximum]; Walker v. Fanners Ins. Exchange (2007) 153 Cal.App.4th 965, 974, 63 Cal.Rptr.3d 507 [in insurance bad faith case, award of $750,000 each to two plaintiffs for emotional Bankhead v. ArvtnMentor, Inc,, 205 Cai,App,4th 68 (2012) W c i ^ F . 3dW r T T c I l7 D a l7 0 ^ Serv," 4297,^20 i2Dail7 JmTD .A.R. 5011 distress included punitive element; trial court correctly reduced punitive damages to $ 1.5 million]; Gober, supra, 137 CaL.App.4th at pp. 219, 222-223, 40 Cal.Rptr.3d 92 [where bulk of harm to plaintiffs from manager's sexual harassment was emotional injury, compensatory damage awards ranging from 550,000 to $75,000 contained a punitive element; maximum ratio of punitive to compensatory damages was six to one],) Here, the jury's award resulted in an amount of punitive damages equal to approximately 2.4 times the SI.845 million share of compensatory damages for which ArvmMeritor was held liable. This single-digit ratio is well within the^ range for comparable cases, and is not extraordinarily high. Accordingly, we are not persuaded that the award exceeded the constitutionally permissible limits. *91 DISPOSITION The judgment is affirmed. Respondents are awarded their costs on appeal. We concur: RIVERA, J. and SEPULVEDA.. J. * Parallel Citations 205 Cal,App.4.th68,12 Cal. Daily Op. Serv. 4297,2012DaiIy Journal D A R . 5011 F ootnotes^ lhe pBMlency of this appeal. On November 28, 2011, his widow, Emily Bankhead, was subsritoted in on behalf of his estate. We refer to Gordon Bankhead individually as Bankhead, and use the term respondents to refer collectively to Bankhead, his estate, and his widow. 2 ArvmMeritor does no. dispute it, liability for the acts and omissions of Rockwell, its predecessor in interest Accordingly, we draw no distinction between the two companies, and refer to them collectively as ArvinMeritOr. 2 Respondents originally sued numerous companies alleged to have contributed to Bankhead's asbestos-related mesotheboma. All of the defendants except ArvinMeritor and Abex had settled by the time this case was briefed on appeal. AnunMentor and Abex each filed separate appeals from the original judgment. AtvinMeritor's appeal was assigned case number A131587, and Abex appeal was assigned case number A131378. After the trial court entered an amendedjudgment, ArvinMcntor and Abex each appealed from the amended judgment, and the resulting appeals were both assigned case number A132985 (the joint appeal). All three appeals were consolidated, and only one record was filed. However, we eventually vacated the consolidation, bifurcated the joint appeal, and consolidated each appellant's portion of the joint appeal with that appellant's respeet.ve separate appeal. Thrs opmion addresses only the contentions raised by ArvinMeritor in its separate appeal and its portion of the joint appeal. A separate opinion will address Abex's separate appeal and Abex's portion of the joint appeal, which has been redcsigoated-as case number A135224 (Order, Apr. 23,2012, Ruvolo, P.J.) , , .... , 4 As already tided, although Bankhead did live longer than 12 months after bis diagnosis, he died durmg the pendency of t o appeal. 5 In fact, ArvinMeritor's liability for economic damages was reduced to zero after trial, because these damages were offset in their entirety by the proceeds ffom.Bankhead's settlements with other defendants. ArvinMeritor does not contend to t this reduchon affects the issues presented by this appeal. 6 Johnson explained that cash flow profit is derived by subtracting from revenue those expense items that actually have to be pa.<I such as cost of goods sold and salaries, but not subtracting atiy-deducuons that do not actually require an e x p e n d s of cash, such as depreciation. , , ,. . 7 ArvinMeritor's argument under California law focuses on its financial condition, and we do hkaw.se. The nature of ArvmMen o s wrongdoing and the actual harm to Bankhead are discussed post in connection with our federal due process review of the punitive damages award. Suffice It to say that for the reasons expressed^, neither of these factors weighs in favor of a reduchon of the award under California law. . . . , , ___ The wealth of a defendant cannot justify a punitive damages award that is otherwise unconstitutiooa u n e r t e p .. a ue p .... analysis discussed post Nonetheless, the United States Supreme Court recognizes that deterrence is one of the primary purposes of punitive damages, and nothing in to applicable due process cases precludes d r i b TM courts from rel)rig in_part on a detodan s wealth in assessing the appropriate amount ofpunitive damages (Aieten. supra. 127 Cai.App 4th at p. 1697 6Ca-.Rptr o .) 9 At oral argument, ArvmMetilor's counsel warned that affirming the punitive damages award in t o case could lead to plant closures, layoffs, and other dire consequences, Nothing in the record supports these speculative contentions. ArvinMeritor also. argues to u t should not be faulted for its failure tocontrovert Johnson's testimony about its financial condition, citmgAdam. supra, 54 Cal.3 1 , 284 Cal Rplr 318. 813 P.2d 1348. In that case, the Supreme Court opined that "[i]t is inherently prejudicial lo require a defendant to introduce evidence of personal finances" (4 at p 120, 284 CaLRptr. 318. 813 P.M 1348), citing a treatise advising defense counsel J5-. NO CiSJT* I'VSr'njrjp vvorKS Bankhead v.ArvinMeritor,Inc.,205 Cal.App.4th 68 (2012) ____________ __ _______________________________ i'39 CahRptr,3ci 847i'2 Cal, Daily Op, Serv. 4297, 2012 Daily Journal D.A.R. 5011 in insurance bad faith cases to " "be careful about presenting "mitigating" evidence as to [die defendants] financial condition,' " lest thejury " `regard it as a tacit admission that some award of punitive damages is appropriate.' " {Id at p. 121,284 Cal.Rptr. 3)8.813 P 2d 1348) Adams did not hold, however, that a defendant feeing a punitive damages claim cannot or should not present evidence to controvert the plaintiff's factual showing regarding the defendant's financial eonditton, It held only that plaintiffs who seek pumbve damages have the burden of presenting evidence, as well as the burden of proof, regarding the defendant's finances. (See 1d. at PP. 119-123, 284 CaUlptr. 318, 813 P.2d 1348.) 10 As noted in Simon, supra, 35 CaUthat pages 1183-1184.29 Cal.Rptr.3d 379,113P.34 63, the factor ofcivil penalty for comparable misconduct is not particularly useful in a case involving only common law tort duties. In two tobacco-related persona! mjury cases, California courts have found the civil penalty comparability factor essentially irrelevant (-See, e.g., Bullock v. Phdip Morris USA, Inc. (2011) 198 Cai.App.4th 543, 570, 131 Cal.Rptr.3d 382 (Bullock ); Boaken, supra. 127 Cal.App.4th at p. 1700, 26 Cal,Hpti.3d 638.) We conclude, as did the trial judge, that the same is true of asbestos-related personal injury cases, and will confine our analysis to the reprchensibility and relationship to actual or potential harm factors I 1 ArvinMentor also argues that respondents' counsel conceded Bankhead was not financially vulnerable in closing ar^ment, when counsel argued this case "isn't a. financial transaction, so that's [financial vulnerability] not really important." To acknowledge that respondents' financial vulnerability need not be it key factor in the jury's deliberations was not a concession that il did not exist. .* Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by-the Chief Justice pursuant to article VI, section 6 of the California Constitution. End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works. ?n F&uts-rs Kio cf3!' S, Govenv.-jitrit I i I 10 U 12 . . " '"" " I ; - < r >-' / . . . v ^ . ` 9 G R IE V A N C E F O R M N O R T H A M E R IC A N R O C K W E L L - N a tio n a l A g reen w n t-U A W |Qfv*ne Na. j f ( ? 7 B Jo L Plant ' ' Kam a q( G rlw ant CIUltttClIKrfl ' L ft Q a i ' - ' M m of P tw t i Employe ` j ltloe.cH 5 n l o r f ty ckit . tm pt. snm H ourly' ' Raid - . C L t i l _______ Ziot* M i*l _______ .?fthrlty _ J| <0. Cb U c tk iilfic s tto n . OopU sm rt p*r*gnonlsi ot * ` IT noim pso v ta t ~*k. c iJ Au k Rin tI v in ia ted ^ _ ,, ,^ O y '/ i STEP1; S' tjTtBmMi d Dlwut<iiM>d RomftOy Roqu*!- " L Z U jU lU X ' / 9 / t - / n H m rly tu t* . / - 1 0 ~ tataVMUrtiOii O ccirm il / j _ 7 3 ** ,-j A t fch p r a a a a t tim e no ftrs s t i l l re c ia v ia g l in i n g l*6fll VaUdurs t h l t ta v n ot removad t h e a a b e s te s d u st from tho r i T s t and d o l t h a lo s thaM f o o t i n g a oriou h b e lth h a s trd to th a o p e ra to rs o f th e r iv e tS rs and th e C .H .C .b m w h lS P is a se rio u s problem and mast ' be stopped innaadls-tly. ' SOirginevaatumre of STEP 2t MoMeCTitrrt'tOlitKKrtkm Date Shmi /-//- n Signature Unlon otticM D*ia Submitted, a/ y / - 7 J A l l v en d o rs o f b ra k e b lo c k s a re b e in g n o tif iesdd^Oliiyy th e P u rc h a s in g D ept, t h a t m a te r ia l re c e iv e d from them m eets th e s p e c if ic a tio n s as s e t fo rth purchase agreem ent. At the sane tim e, a i r sam ple te s t s are being bench t o s e e i f 3. h e a lth , h a a a rd does* ixi &cttf e x is t* H s t a r a l l y t x f a i s p r e s e n t , th e Company w i l l ta k a n e c e s s a r y a c t i o n t o C o rre c t sam e. Grievance allow ed as q u a lifie d . to ensure in the a t th e GM hazard Signature Marapwni J Signatura of Unton O tttainl irM irw ytm erU U S T O * 2 D!Mtt>Htlori-|s vn*BCPtP, state reason <JUL*j>f>a*Uog- 1 r ,.Q ,,i r 3Q __ Signatura o f u m o h u m e ip i ' STEP >i M anagem ent1? D isposition Data . supramed SIODlUfSOf Management O ffK ttl I 0*1* j Rbtjypd Signature of Management piriciai Ca to S u bm itted sioattorv or union cm tciai ' P R E P A R E IN Q U A D R U P L IC A T E K o m m , C hairm an, -*Ofilon, 3 -P r**o m io i 5iu>arvl9crtt d-S upsfvlK jr {Use attachm ent* - Do N o t w m a on B ack o f F orm ) . Data RAc^twatf , __ REV, Z-l`?J RW! 002460 Bankhead_Pltfs' Exhibit no, 0467 pg1 cc`; M e s s r s L . Vander R oest * K. Davidson Jan u a ry \ t , 1573. ` " ' R aytestos-M anhattan, In c , . , 360 S o u th fie ld O ffic e P la z a . 17000 West: 3 K ile Road . - S o u th f i e l d , M ichigan 480.7.6 ' , A tte n tio n Mr. R. J . H a rk in ` G en tleraen : __ . This l e tte r is being d ire c te d to a l l o f our lin in g su p p lie rs alo n g -w ith a copy o f a grievance fro a our l o c a l la b o r r e p r e s e n t a t i o n , TIAK L o ca l 274. T h is g rie v a n c e i s s e l f - e x p la n a to r y and some o f you have been cautioned o f th is 'c o n d itio n previously and a d v ise d t h i s s i t u a t i o n can n o t be t o l e r a t e d . To th o s e o f you who have been su p p lj'in g l i n i n g .tro u b le f r e e we a p p r e c i a t e y o u r d i l i g e n c e , b u t t o th o s e who a r e n e g lig e n tj we must a d v ise th a t, m a te ria l found in th e co n d itio n d escrib ed , is- su b ject to re je c tio n and return a t your expense. Jt. is req u ested th a t prompt a tte n tio n be given th is m atter to in su re th a t only, accep tab le m a te ria l reaches our p la n t. Very tr u ly y o u rs, ROCKWELL-STANDARD DIVISION . a Rockwell ' - . V. E. P ilk in g to n Purchasing Agent VEP/pm E n clo su re RWI 002462 Bankhead_Pltfs' Exhibit no. 0467 pg2 c c ; M essrs. L. Vender Roast K. Davidson . Jan u ary 12, 1973 ^ . . . Molded M a teria ls .D iv isio n P .0 . Box 417 ( - Ridgway, P ennsylvania lio o o A t t e n t i o n Mr, Ed E achari& s . . . . gentlem an: . ' . - . , Sir. .1, vitS acopyof *S*TM" "" This le t t e r i s B eing d ir e c te d to a l l - o f our lin in g l o c a l l a b o r r e p r e s e n t a t i o n , U.W- L o c a l 274. T his g rie v a n c e i s s e lf - e x p la n a to r y and some o f you have been cautioned o f th is condition previously ^ a d v ise d t h i s s i t u a t io n .c a n n o t be t o l e r a t e d . To th o se o f you who have been' su p p ly in g lin in g tro u b le fre e ve ap p reciate your d ilig e n c e ,.b u t to those ho are n e g l i g e n t , we m ust a d v i s e 't h a t m a t e r i a l found i n th e -co n d itio n -d escrib ed , Is su b je c t to re je c tio n and re tu r n a t your expense'. . I t is requested th a t prompt a tte n tio n be given th is m atter to insure th a t only acceptable m ateria l reaches our p la n t. ' . Very tru ly you rs, ' ROCH-TEH.-STANBARD DIVISION North Arjeiican Rockwell . " . - ' ' V. El P ilk in g to n purchasing Agent VEP/po - E n clo su re RWI 002463 Bankhead_Pltfs' Exhibit no. 0467 pg3 I c c : M essrs. XK... VDeanvdidesroRnoe&E Ja n u a ry 1 2 , 1973 I ec: M essrs. L. Vander Roesc K* D avidson January 12, 1973 . Abex Corporation American Br'akeblok D iv isio n 1650 W. B ig B eav er a d . , S u i t e /o o Troy, Michigan 43084 ' A tten tion Mr*. C. E. Hubbard ' . G entlem en: * ' , This le t t e r i t b ein g d iS ' su p p liers along w ith a copy of a g n e Local labor r e p r e se n ta tio n , UAV Local 27*. grievance i s s e lf-e x p la n a to r y and some o f y*w been'cautioned of th is condition ptev / ' y those " sS g S ia e S S r t t o t br t e r i e 10 feen d In th e S S u K u 'd e L r ib e d , ie " W ent to r e j.e tr n n end return a t `your expense. I t i s req u ested th ee prompt a tte n tio n be s i r " th is S e t t o In s u r e t i n t o n ly e e e e p M b r e m a t e r ia l .. r e a c h e s Dur p la n t ,. . Very_truly yours , .. eo c k w ell- sta u d a rd D i v i s i o n Morth Aetic.an Rockwell " V. E. P ilk in g to n Purchasing Agent VEP/pm E n clo su re . RWI 002465 Bankhead_Pltfs' Exhibit no. 0467 pg5 L 2 8 9 10 U 12 13 14 15 16 I 17 i [ 18 19 I 20 21 EXHIBIT "D" 22 23 24 25 26 27 28 P-FMSI- OCO 02 M a a & PK> ( - ( fasi! ? fi * 1 1 g 'Ty 1 l !,. It ; :i ,r!PSi !gs5?83 ! s I = 3S S fa pimi 2 g| s .* ll ill **i8*? - oe Si -, wg ^8. rg tni j j V i 8 M O- 1 S S i " 1 ~ " ui ^r ' 3 a" iaIs . 5 r ^ 5 -s a -3 . * s "p i o - l :a : 3 ! s 5 i l S 's j s (. opnri. ahffld * es a&Loa u . U m tm : . ..'.-Sw om Lma s .- a a a s t M w i m m * * * n `" - i a AmsafBatssa4feas^0,3MstmLtusmsaatastsmrnJifCl leasisfafirisssisarssaatiU>satfc*ae8'epakiagg*'* d d a u y s u tg M tto . " S ea ,, ,,4 sM M i< t m j u M,, asd!u*ws itif*etssacvaoaermiemralPEra4s4apsiJ** '"* l a slSeaferis^Tfealagdailcaatlalaaafeoas -eosC^tsasaew ~e*s*4>***yE MisS'1feaestsSawn,vsOfms --afeoaU*^sMeSiiie^slly eerorad. s s -s . ss^ s* - = * " * if L S S '- ^ S 2 I t f S r S ^ X M j *> t o t * * J1 eSreuaos--fcsfeqa"fea"aii'b"-W****- **S t lS ^ S M . M t - * - 1 M USS 17 IH O tE OE l > * * * * " 4 M t t t l C sM le tM ,ly p S 8 , 18 * da W S lati sks%p r op r a r a -s---- - * ,, __ tJ.j.orl mrmnj &@ SfeS C S S S lS S S . -- T `(^ 3 * i 2 . bS S S i S S S . " r l ^ l t f s -i aa 9osa rm 16 U s m* s m A l j * The 1ar?t1r?s M M M l f r s E S E t l o te bava eb F e b r ua rjy . a * j r l ; " L ? b 8 d a ls y a d *4 l s * - * * * 18 * " T-- t m sis i m nun.ms t a s a s i ^ * eh t& e m tB X y t b a fey ^ e s 4 M g J j j S S i a B jtliU sS l l 7 ^ f s r ^ S ^ i u m a .- * ' ,, M . 1 7 * r * * " " u n -_______________ _ t r t E ____ 1M4MM g S * ^ e i U fe e^ s e m m . O M . isslcA Ss a a U s ? . r M S ? L H f M - 1= M M < u r o o g - g a S ^ .^^ ^ -- ^ AE fea M oi M 3J fe W t < ^&a OW4' of k S th C ^ s i s t M aa ' 1 I 1 If sa 1 a? | f te . MOW'lgl 13 * 1> "VW i a:s i|-*fi{edjiS g o V W < -rfl U nil! 'S? 3 lf:sa^ J" 9*W> - -a * ulS?lflI,, h 9 .1 fl r H (: J s t ( 1 2 3 4 5 6 7 8 9 10 ti 12 13 14 15 16 17 18 19 20 21 22 EXHIBIT "E" 23 24 25 26 27 internal Letter 6a MfCSS Ju ly 15* 1374 Messrs: J , Bnsaisii E, mBo^llar_d_ _ A, TSrigbtaour R ockw ell International No. FROM Address Phone Yf.J, Rotoi J r , - Ext*. 2B8 s^pB . Biocks bb R a ce iv ed : KeRlth R" a r d * ^ . x* E. ; Easiaaa X -- . 0 to o l e ~ aad -- -- - ~~ ^ , 'hr.D Veo" t o be used Xor dust reaos-el 3 , Mr, Ensnfta w ill re q u is itio n a sm all -bap l a rework area. ` 4 , W M w " <3"* " ' r = m s f ' S - . r ' " 'i s s . S t , , TM * - -- -r- fi-TBr, 5, Mr. Roams* r d l l impleweot it^ems n2 f#c >3> t o <- tiect cotftctioS . . & .X J? / &*' . Vi.tf, Robison J r , . dll cc; Rec, Ineps, (7) Vkioon "''s . Oierolt Y, Pilklngtoa Foremen t Insps, 30it I. Birf J,,-l *yVi+C /L) RD 00494 Bankhead_P!tfs` Exhibit no. 0495 EXHIBIT "F  IH OTS I RI AL HYGIENE SURVEY ROCKWELL XKTERWTXONAL CORPORATION . 'Brake P lant Ashtabula, O h i K erch 23, 1976 . ' : o . i RWl 007440 Bankhead_Pltfs` Exhibit no. 0455 pg2 MDTISTILIA.L 5UUVE' , txITSMATXOKX- COBRATtOH . Astitabula s Ohio k ik o d ^ ctio n . ' *.- ,, r e t a i n e d C l a y t o t , , r,ofp o* at..on lim i t e d icdus- RocJtwU 1^ C o n s u l t a n t s - `t u i.h d u U , E d v lr o a # ^ 1 survey at 1 brak6 ttt d eterm ine the K i a l . - h y g i B B * ** > s , t h _a i u r v i y * * 1 ,,countered Ohio- He P P f lir b o i^ 6 &shst.o results c #n t r 8 t i o M o bV t t o r v a r *2Ba to study as t . 1 be al tb' ^az ar d. V * q, g a e b s t * [ r e n t a l Consul- repted " " " ' ,, r M U l OPERATIONS DDEESSCCKRllTit'^O^ 'o"r ?LAbT ' ' U V* . , . . __ v*t^5i Vi c T > l s - n t Ash-taeuU. hi0 & o0 squar-e feet Th approxim ately 33! ? , ,, ,, f a c t u r e - of uait operaa o f- t h e r l a " t .!;1 ^ e s w e l d i n g , g r i n d i n g , j _S ' F o l l o w i n g tioM V ^ L assembling, O r a t i o n * for which, chining, tivetrng, 0 f - t h o s e oi>e r a , e asbestos axe b r i e f d e s x p t n , e ar te a d o r n e - v a l u a t i o n s o worker are conducted, .; . ' Gritidi^RjBEBi , Four separate in the t o u b l e - e t i d e d , `p e d c ta -tions .re-, l o t a ted 'U . ' r i n d i n g s t a j. i s p i n d l e , conSi s t i n g o ^ " g r i n d e r s ' (So- 4^9-G, ^ g r i n d e r . ^ , fiEe e x h a u s t e r t o $ the n o rth end ju st north r s r :^ . `` 3 ^ . of two d u s t c o l f the p la n t. " " t a w. , " ` RVVi 002441 Bankhead^Pitfs' Exhibit no. 0455 Clayton Environmental Consultants, Inc. j - - 2- E a c h o f Che s e n d e r s was- f i t t e d w i t h a . c o m p r e s s e d a i r i k e c'onneeeed to s m a ll d ia m e t e r Cubes which e r e l o c a t e d a t t h e e n t r a n c e , t o each hood. The p u r p o s e of t h e s e j e t s vias t o ' blow o u t d u s t t r a p p e d i n t h e c o u n t e r bored r i v e t h o les of the brake shoes as the s ^ 06* were round, thus making i t unnecessaxy -to clean th e dust from the shoe once i t was removed from the g r i n d e r -Ji* Ho t i ' ee ab l e . ' p u f f i n g " o f d u s t .Was o b s e r v e d o n / s e v e r a l o r th e g r i n d e r s as a te -s u l t o f th e s tr e a m of a i r from th e j e t s bLowing in a d i r e c t i o n co u n te r to the a i r s t r e a m induced by the exhaust h o o d s. ThecNo. 460-G g r a n d e r a l s o had been f i t t e d w ith a p a s te b o a rd e n c lo s u r e and a secondary exhaust duct (four-inch flex ib le hose).which was connected to the main g r i n d e r exhaust duct.- The pur pose 'of th is secondary e n c lo s u re and ex h au st duct p t e - , sum ably was to c a p t u r e d u s t blown out o f th e hood by t h e a i r j e t s . Hone o f Lhe o t h e r g r i n d e r s was f i t t e d w ith an e q u iv a le n t secondary exhaust system. At t h e t i m e of t h e s u r v e y , f o u r men p e r s h i f t w e r e e c . need' i n g r i n d i n g o p e r a t i o n s , one each a t t h e No- 449-G and No- 460-G g r i n d e r s , one a t t h e No. 112 g r i n d e r , a n - two a t t h e i:o. 04S g r i n d e r . R j v e t i zig Mac.h.ir>a.g S in e s e p a r a t e 'b r a k e shoe r i v e t i n g s t a t i o n s were ^ " ted i n t h e p l a n t , two o f w h ic h w e r e n e a r t h e i n d o o r T a n g b o r n dust c o l l e c t o r a t the n o rth end of the p la n t, and seven o f which were lo c a te d j u s t south of the bo. 048 and -o . 132 g r i n d e r s a t the so u th end of th e p l a n t . The r i v e t - n g o p e r a t i o n b a s i c a l l y c o n s i s t s of p la c i n g the .** pad over the s h o e a nd r i v e t i n g t h e p a d i n - p l a c e . The r i v e t e d a s s e m b l y t h e n i s t r a n s p o r t e d t o t h e g r i n d i n g m a c h i n e s f o r OD g r i n d i n g o f th e pad. None o f ' t h e r i v e t i n g _machxnes were su p p lied with Local -exhaust v e n t i l a t i o n . Courtterboting . - At p r e s e n t , the c o u n t e r b o r i n g o p e r a tio n i s b ein g phased c u t a t che P.ockwell p l a n t in A sh ta b u la and -only f iv e per c e n t o f t h e b r a k e p a d s u s e d m u s t be court c e r b o r e d . Ac t h e time of the sulvey, 'only one co u n terb o rin g machine w a s o p e r a t e d . No e x h a u s t v e n t i l a t i o n was p r o v i d e d - t-hc r o u n t e r b o r i r ? . m a c h i n e . ' , RWI 002442 Bankhead_Pitfs' Exhibit no. 0455 Clayton Environmental Consultants, Inc. - 3 Baghouse Maintenance . . Routine bagbouse maintenance operations at each of the three f i l t e r urikts c o n s is t of a mechanical shakeout at the end' o f each s h i f t , and a m e ch an ical shakeout with. manual a s s i s t and removal of dust from the hop p er b two m a in te n a n c e w orkers tw ic e a week d u rin g th e lunch hour. Manual a s s is ta n c e during the l a t t e r procedure is re q u ir e d because -the f i l t e r begs a p p a r e n tly plug up with dust near the hottoa, preventing the du stfro m f a l l i n g t h r o u g h t h e dump g a t e i n t o t h e s t e e l b i n b e l o w . The f o l l o w i n g i s a' b r i e f d e s c r i p t i o n o f t h e p r o c e d u r e as observed Luring the survey* The two m e c h a n ic s opened t h e door-5 o f t h e b a g h o u s e ea clo s u re and manually shook' th e hags n t a r the bottom w ith t h e ir hands of a s tic k while the pneumatic v ib ra - , t o i and e l e c t r i c shaker were o p e r a tin g . A fte r the bags . were u n p l u g g e d , th men opened t h e d o o r s w h i c h e u c l o s e e t h e t o t e bin. s u n d e r n e a t h , ' . l e v e l e d t h e s u r f a c e o.r t h e dust in the tote bins with th e ir hands or a s tic k , r e moved t h e two t o t e b i n s f r o m t h e e n c l o s u r e , p u l l e d up the p l a s t i c bag which was' in the t o t e b in , wrapped the o l a s t i c b a g c l o s e d , , and . t h e n t i e d i t . One o f t h e men "then c l o s e d t h e dump g a t e b u t d i d n o t r e p l a c e t h e t o t e b in s o r p l a s t i c bags under t h e dus-t c o l l e c t o r . I t was noted th at during the shakeout procedure the p ia s tre - bags were not tie d to the bottom of the l e f t folded bock over the tote bins; as s i d e r a b l e c u f f i n g of d ust o c c u rre d when the doors enclosing the tote bins a fte r Hopper b u t were a r e s u lt , con t h e men opened the shakeout was com pleted. S i m i l a r p r o c e d u re s are fo llo w ed a p p r o x im a te ly *-vice a w e e k t o u n p l u g ' t h e o u t d o o r d u s t c o l l e c t o r s . Ko t o t e b i n ' e n c l o s u r e was p r e s e n t on e i t h e r of t h e o u t d o o r u n i t s as i t - w a s on the in d o o r u n i t . However, p la s ti- c bags in the t o t e b i n s were t i e d t o th e b o t t o m of- ea ch h o p p e r d u r i n g sh a k e o u t. The t o t a l time in v o lv e d f o r the manual shake o u t p r o c e d u r e was about te n to f i f t e e n m in u t e s f o r b o th the indoor and outdoor baghouses. , - o Ht ft Dur in S 5Uakeou t of the. outdoor uni ts r one Vi b r a t o r p i n s b r ok a a l l o w i n g t h e b a g s t o s a g LI to E u n i t u a & s hu t down wi th t h e i n t e n t i o n r ep a i r s l a t e r i n t h e a f t e r n o o n . I f t h e No. 04"8 grin d er s had bee n opern ted with one f i l t e c un d own , t h o o c h e r un i L w o u l d h a v e b e e n t e q u i r e d Vi d e a l l o f til <! ex h a t i s t vo lume f o r b o t h s r i n d ' t h e t o t a 1 e x h n US t y O3UDC 0 t t h e g r i n d t t s wool be c u app r e c i a b i y r e d u c c d * THcs e g r i n d e r s wee q u e n t fy s h u t tl Wtl uu t i l t h e app r o p r i a t e r e p a i b e o n mad o . . This had RWI 002443 Bankbead__?llis' Exhibit no. 0455 pg5 Clayton Environmental Consultants; Inc, . , ' - 4 . POTENTIAL HEALTH HAZARD ASSOCIATED WITH EXPOSURE TO ASBESTOS Asbestos is a generic te rn r e f e r r i n g to v arious m ineral s i l i c a t e s . The types used most w idely In i n d u s t r i a l ap p licatio n s include c h ry so tile , or "white asbestos" ( a h y d r a t e d m a g n e s i u m s i l i c a t e ) , a m o s i t e , o r ''g r e y a s b e s t o s " (an ir o n magnesium s i l i c a t e ) , c r o c i d o l i t e , ox "blue asbestos" (a sodium iron s i l i c a t e ) , tre m o lite (a calcium magnesium s i l i c a t e ) , and a n t h o p h y H i t e ( a n o t h e r i r o n m a g n e s i u m s i l i c a t e ) . Of t h e s e , c h r y s o - t i l e a c c o u n t s f o r o v er 90 p e r c e n t o f th e t o t a l u sag e of asbestos in i b i s country, with amosite and cro ei- d o l i t e b ein g the only o th e r types used to any s i g n i f i - cant extent. - Asbestos ex ists n atu ra lly in bundles of extremely fine f i b e r s which can. be s u b d i v i d e d e a s i l y i n t o many s m a l l e r f i b e r s . The p o t e n t i a l h e a l t h h azard a s s o c i a t e d with exposure to asbestos is th a t of inhalation of airborne fib e rs resu ltin g in a type of pneumoconiosis referred to as "asbe s cos i s ." Small a s b e sto s f i b e r s can p a s s r e a d ilv -through the upper r e s p ir a to r y tr a c t and be de p o sited in the term inal b ro n ch io les of the lung. There, thev produce a lo c al i r r i t a t i o n which the bndy attem pts to overcome by i n i t i a t i n g a t i s s u e -response' r e s u l t i n g . ia the e n c ap s u la tio n of the f i b e r s and co n s e q u e n t-io rae t i o n o f " a s b e s t o s b o d i e s . " I f s u f f i c i e n t q u a n t i t i e s of f i b e r s are in h a led over an extended period o , t i n e , a generalized d iffuse p eribronchiolar fib ro s is can de velop, This, pulmonary f i b r o s i s can impair the tr a n s f e r of oxygen a c ro ss the a v e o ls r membranes and r e s u l t in r e s p ir a to ry in s u f f ic i e n c i e s , or even ca rd iac f a i l u r e . I t has been determ ined, thruugh t o x i c o lo g ic a l and e p i d e m i o l o g i c a l s t u d i e s , t h a t lo n g f i b e r s , 20 to 50 m icrons in length, are most activ e in the production of the. f i b r o s i s . l i b e r s s h o r t e r t h a n a b o u t two m ic r o n s in le n g th , are p r a c t i c a l l y viithout an i r r i t a t i n g e f f e c t . T h e r e i s some e v i d e n c e t h a t o t h e r m i n e r a l s h a v i n g f i brous c h a r a c te r is tic s , with tho exception of fibrous g la s s , can produce sim ila r re a c tio n s . Uany re c e n t s tu d ie s have in d ic a te d at' a s s o c ia tio n be- ' tween exposure to asb esto s in both in d u s t r ia l and urban a t m o s p h e r e s and an i n c r e a s e i n a r e l a t i v e l y r a r e ty-pe . o f lu n g c a n c e r known a s m e s o th e lio m a ; Although i t has not been p o ssib le to e s ta b lis h a connection w ith asbes tos in a ll cases of this disease, there is a strong c o r r e l a t i o n between exposure to c c o c id o litc and o cc u r rence of mesotheliomas. Other types of asbestos have bean i m p l i c a t e d to a much l e s s e r o x h e u t . However, t h i s "new h a z a r d " h as r e c e i v e d much p u b l i c a t t e n t i o n be c aus e . RWI 002444 Bankhead_Pltfs' Exhibit no 0455 pg6 Ciayton Environmental Consultants, inc. . . - 7- f i b e r s per c of a i r and, w ith the exception of the So, 662 - fiv e te r o p e ra to r, were w ell w ithin the sta n d a rd of two f i b e r s / c c t o be c ome a f f e c t i v e J u l y 1 , 1976 ,' I t sh o u ld be noted t h a t the e s tiraafced.'e i g h e - h o u r , t i n e weighted average exposures of th H o .'048 g r in d e r .o p e r a t o r .and t h e Ho. 116 r i v e t e r o p e r a t o r e x c e e d e d t h e p r o p o s e d 0SH s t a n d a r d o f 0 . 5 f i b e r s / c c . As i n d i c a t e d i n T a b l e I , t h e two m e c h a n i c s e n g a g e d i n manual shakeout of both the ind-oor and outdoor f i l t e r u n i t s w e r e e x p o s e d t o , p e a k l e v e l s o f 16 f i b e r s / c c and 11 f i b e r s / c c during eleven and nine-m inute exposure p e r io d s a t the indoor and outdoor f i l t e r u n i t s , re s p e c t i v e l y . T h e s e c o n c e n t r a t i o n s 'e x c e e d e d b o t h p r e s e n t ' a n d p r o p o s e d OSHA s t a n d a r d s f o r c e i l i n g e x p o s u r e s . ' . . COHCJLUSXOKS The f o l l o w i n g c o n c l u s i o n s a r e p r e s e n t e d o-n t h e b a s i s o f `o b s e r v a t i o n s and m easurem ents made during- t h i s sur- v ev,.' 1 -1. w ith the e x c e p t io n o f the No. 662 r i v e t e r operator, eight-hour, time-weighted expo sures of those g r in d e r /o p e ra to r s , r i v e t e r s , and counterbore machine o p era to rs whose ex- _ p o s u r e s w er e e v a l u a t e d , w e r e w i t h i n t h e QSHA l i m i t or two f i b e r s / c c o f a i r due t o become . e f f e c t i v e J u l y 1, 1976. The Ho. 662 r i v e t e r o p e r a t o r 1s e s t i m a t e d e i g h t - h o u r , t i m e - w e i g h t e d a v e rag e ex p o su re to a s b e s to s f i b e r s was e s s e n t i a l l y e q u a l to t h e two f i b e r s / c c 1l i f f i i t . This r e s u l t i n d i c a t e s t h a t due1 -to t h e n o r m a l v a r i a b i l i t y of- e x p o s u r e s f r o m d a y t o d a y , t h i s o p e r a t o r 's exposure .could' very w ell -exceed t h e a p p l i c a b l e l i m i t ( t wo - f i b e r s / c c o-n a t i m e - w e i g h t e d a v e r a g e b a s i s ) on any g i v e n sh ift. , . 2'. The - e s t i m a t e d , e i g h t - h o u r , t ime ewe i g h t e d a v e r a g e e x p o s u r e s o f t h e Mo. 048 ' g r i n d e r o p e r a t o r " ' - and the No. 116 r i v e t e r o p e r a t o r on t h e day of Che s u r v e y e x c e e d e d t h e p r o p o s e d 0SH.A e x p o s u r e L i m i t o f Q.`5. a s b o s c o s f i b e r s / c c a v e r a g e d o v e r a n e i g h t - h o u r w o r k d a y . Should t h i s p r o p o s e d s t a n d a r d be c ome e f f e c t i v e , , improved e n g i n e e r , in's co n tro l of duct at g rinding and/or r iv e tin g . s t a t i o n s may bec ome n e c e s s a r y 3 . The d a t a o h t a i n - e d d u r i n g t h e s u r v e y . `a t t h e Rockwell p la n t apply only to the c o n d itio n s ' . i RWI 002447 Bankhead_Pltfs' Exhibit no. 0455 pg7 Clayton Environmental Consultants,. Inc. - s '- in the p la n t on th e day of th e survey. Condi tions, such as s u b s t a n tia lly in creased produc tio n le v e ls , or hand lin g of brake shoes which . are s u b s ta n tia lly la r g e r or which c o n ta in a higher percentage of asbestos fiber, conceiv- - ably might re s u lt in exposure lev els higher .. than those documented during th is survey. The' ty p e and s i z e of b r a k e s h o e s - h a n d l e d by. each o p e r a t o r a r e l i s t e d i n T a b l e X. As i n d i c a t e d , diameters of brake shoes handled ranged r w a b o u t .- 12 t o 1 6 . 5 i n c h e s , and w i d t h s r a n g e d from about 2.25 inches to 7 inches.- .Diameters and w idths of shoes h an d led a t any tim e a t th e p lan t r a n g e from 9 i n c h e s by 2 i n c h e s t o 22 i n c h e s by 10 i n c h e s , r e s p e c t i v e l y . The s i z e s o f sh-oes handled i n the p la n t during the survey were about midway betw een t h e s e two e x tre m e s and ware r e p r e s e n t a t i v e o a n o rm al r u n a t t h e p l a n t , c o m p ri s in g a b o u t 65 t o 75 p e r c e n t of s h o e s p r o d u c e d . A. E x p o s u r e s o f m a i n t e n a n c e ,o p e r a t o r s - d u r i n g , m a n u a l shakeout and removal of d u st from the in d o o r and outdoor dust c o lle c to rs (beghouses) exceeded in both instances Federal standards fo r peak expo su r e s to a s b e s t o s f i b e r s . The r e l a t i v e l y high exposures were due in l a r g e p a r t to the n ec es s i t y of opening th e doors of the e n c l o s u r e and manually shaking the f i l t e r ' bags 'to remove ex cess buildup of dust plugging the bottoms of the bags. In the case of the- indoor f i l t e r u n it, f a i l u r e ' to t i e the p l a s t i c bag lin i n g of the to te bin to the e x i t p o rt of the f i l t e r u n it d u r i n g t h e dump in g o f t h e durst - u n d o u b t e d l y was a contributing factor in the dust exposure. . ' RE CDIME NDATXOHS 1. The source o f th e No. 662 r i v e t e r o p e r a t o r ' s r e l a t i v e l y h i g h e x p o s u r e s h o u l d 'be i n v e s t i g a t e d f u r t h e r . I t was o b s e rv e d t h a t , t h e o p e r a t o r ' was w earing a d i s p o s a b l e , s i n g l e use r e s p i r a t o r ; he should co n tin u e to wear a r e s p i r a t o r approved for p ro tec tio n against asb esto s- . containing dust u n til his exposure is reduced s u b s t a n t i a l l y by e n g in e e rin g c o n t r o l , a d m in is tr a tive c o n tro l ( c .g ., r o ta t io n of personnel between' . j o b s ) , o r by a c h a n g e i n work p r o c e d u r e . I t should be noted chat use of personal resp ira to ry p ro tectiv c'devices is acceptable under present a n d p r o p o s e d OSltA s t a n d a r d s o n l y a s a n i n t e r i m . RWI 00244S Bankhead_Pltfs' Exhibit no. 0455 pg8 Ctayton Environmental Consultants, Inc. 9 - measure u n t i l e n g in e e rin g or work p r a c t i c e controls have s u b s ta n tia lly reduced exposures to t h e e x t e n t possible, . ' 2. Shakeout and removal of d u st from the hopper * s h o u ld be p e r f o rm e d more, f r e q u e n t l y to h elp prervent plugging of the f i l t e r bags, Hanna) shaking of the hags b y hand should not be re-, q u t r e d d u r i n g e m p t y i n g "of t h e h o p p e r . I f more f r e q u e n t shalceou-t and d u s t rem oval does n o t e l i m i n a t e the need, f o r hand sh ak in g of th e i l ter ' bags, fu rth e r engineering evaluation should be conducted to d eterm in e th e reaso n fo r th e m alfunction. U n til the s itu a tio n can be co r r e c t e d , m a i n t e n a n c e men s h o u l d c o n t i n u e to wear r e s p i r a t o r s a p p r o v e d f o r p r o t e c t i o n a g a i n s t asbestos dust whenever manual shakeout is r e quired. 3, The p l a s t i c bags l i n i n g the to te bins should be tie d securely to the e x it port or the hopper to p re v e n t d i s p e r s a l ox the d u s t w hile i t i s being t r a n s f e r r e d in to the bag ( i . e . ( w hile t h e dump g a t e i s o p e n ) , A. Although exposures o g rin d e r o p era to rs were 'a l l w ithin curren t acceptable. Federal exposure 1 im its,im proved c o n tro l of dust at these machines may become n e c e s s a r y s h o u l d t h e p r o p o s e d a s b e s tos standard (Federal k e g i s te t 47652, October 9, 1975) become perm anent. I t i s t h e r e f o r e r e c ommended t h a t th e use of th e co m pressed a i r noz z le s in p la ce a t the fa c e of the griaA e-r hoods be e v a l u a t e d f u r t h e r t-o p r e v e n t t h e p u f f i n g of dust noted during the survey. Although a fu ll engineering e v a lu a tio n as beyond the scope of the survey, the fo llo w in g o b serv a tio n s were m a d e ; Two b r a k e s h o e s a t a t i m e a r e p l a c e d on each r o ta tin g g rin d in g f ix tu r e , with open space between each shoe. The space v a r ie s with the s i z e o f th e l i n i n g s b u t can be as g r e a t as one th ird of each re v o lu tio n of the f ix tu r e . Host o f the d u st was blown o u t of the hood through t h e --o-pon g a p b e t w e e n t h e b r a k e s h o e s . S h u t t i n g o ff the a irf lo w when a brake l i n i n g is t o t in -the compressed a i r p ath might h elp to p r e v e n t t h e d i s p e r s i o n o f d u s t f r o m t h e h o o d . Corns on the bottom of the fix tu re could operate a liiqit s w i t c h o r l i c i t t v a l v o t o s h u t o f f an ci t u . n o r f RWI 002449 Bankhead_Pltfs` Exhibit no. 0455 pg9 Clayton Environmental Consultants, Inc. . - 10 - *. a. .t b l e , t h e a d i i U f t . 0 f i U L a r e a s t e e r t e n tUe ^ a l S T6dUCe thC diS ?e X S l0 n of du.st from the hood. This report prepared oy ; Dennis D. 2aebst In d u strial Hygienist This rep o tt approved hy: B ^ b e r t D. S o u l e , vire-Fresideat - d ir e c to r , i n d u s t r ia l Hygreue Services '' RW1 002450 Bankhead_P!tfs' Exhibit no. 0455 pglO  . PJ 0 *A ` , < i s a (4 i i h* C0 v> z sKh 4-1 cj V I .* u -4 a 3? C a a V f* o u o IX o uE O ^ -rl Fh A rx e n ' k 6 2 1 E I-V 41 oO M VI S> r* . d - o 0fM\ * O ,- v A -- V sr *4- P o o t tn w nl O * 5 in 3 s ~ S ^ 3 " x *5 g 3 * - " < & " H <- - !/> 3 5- . sa ~ 3; < I*> ~ * go O > d ~ M . BJ Al Q . CO B - M) V <o ^ u g *t> -1 o ' pi 6 U vt s 0 U p tv u tfj n a* "S g , < : r* UZ . f o * m a o ' ' ,-j < & o M H <T St * . fd t4 til a M O 5= W * j 4 3 A & < U O w CS < P d tv 0 . c.U & U o *> O a a U --> 0-- & 4 3 v? S t V9 d (7> p <v US tn m-4 VS (V w o rV C\ i'l O r4 -fS u 0 N c fcfi -4 e V tb -v 4J O d 1 Cl 0\ u a* J3 VI u c. o d 3D o tt M u* C a A S 4J i i f*>- *P ? rO --i & Vi A tJ o : u H sc 0 n i-4 IV d . - . * Vi J t Va c P V ~i oao cs o < .< < < < n <n s (N ri rq i-4 o ' <-i D CO <0 CD <Ti <p ** r-. o o o V a V P xt> 1 M-t o o <3 y~r- n in C*1 . o O' n O l-v A M IT rJ ' <r i-f s? w d V 9 O O u n U C o , iV vJ p. d W k 4- k 0 <U >1 o <X 0- 3 ,u o a d o n N -*i r e U 1 v n Y. 0 y a Vi k u k s-4 o 4 o -=. J- d "O k U c a y y -7- W a v is. "O - 4 J -H C c .< t - f d 1-f H 0 V4 O o U ? n U N bO .N W N -4 -p*l o 6C t e t it - V ac D S d C *3 c tf 13 C ! C4 -H <H M H VI --4 v i --4 0> J C u> A AJ 3 A -li U t} U9 4J d u o k d^ n a V Cl1 d a e u P V* & . o c h k M U J .9 td A o 3 W Pi e o 00 os d M f 1 <: < < < < < n n ^ TS v m <*1 1 | 0 -S I j T~ iO X ? o V *CO S ? ^ cc o *3 r-^ V y p t H H O S k D C X 'i c o v <n H f-4 a 4> -3- {! k S fi tf < ti -N IS C *4- *4 P r l m v) r--i -< Q M k- e 'r it Os s i o rv k o v* & o k 0 4J a u ti o. a du k k Od k CD k u- o y o k 3 3v c wc D Ui 'O to N to C a Cl CT J 4J P Cj a n tl k Sal . a a a u a u o e k rt. va m i- : Os 1 vk H o 4f ' k '; Od o VJ <i "rf U 1 p* n tM < < C n cn M pj tn <n smtvx Bankhead__Pltfs' Exhibit no. 0455 pg11 'JtABI.E I - l ! CBAirtOtl liKVtftCtlUBirtAI. COHSuLl'ANTS , IMG. X N O O S TIU A I. I lI C ie ilE - SAIU M .1H G SUMMARY P l a n t R.0CKH2U, I t m i X U A T I O t U t CO?. .Islltainila, pliio Hat s r ia 1(s ) Dace U70 ' SoTapIti Kunler So flip 1 i n g T e r f oil S t a 11 Stop Scraple Weight 3/23 3/23 AA-13 ' AA-01 A0 0 CRINOER' Eost side firintlorj o p e ra to r' l r c o tiji n s eowa O p e r a to r * b r o a c h i n g 201U ; o n o r a t o r w o r k i i t R a t b o Lb c o s e atvd w e s t g r i n d e r s - 13*aUc s t i e s : 2 7 4 Q - 6 $ 3 - 5 5 l-> Diami 16"* Tfidth: 2 .2 5 " ' 09 ; 13 1 1 : 3 12:57 15:21 J/23 3/23 AA. , 0 B aa- 2 7 6 6 2 mVE-rat>, O perator b re a th in g none O p e r a t o r b r e a t l i i n j zoivu, s t o p p e d work a t a b o u t 14-;0O 09:22 U ;S 8 11 : 35 : 02 3/23 .3/23 aa- u Ai A- 0 9 - it r fi * * ^ 153 RIVETER .. O perator breathing' -zone O p erato r b rta th in R rone l)cal;e s h o e ; 2240-C-2377 Di at n: 1 6 . 5 ,J. W i d t h : 7 " .1 ihf\ frn ^ 08:52 13:06 1 1 : 15-29 A s b a to a S a m p le . V o l urna ( lite r a ) Conea t c a t i o o F ib o r r w x . E stim ate d < S HTD Cerne** 6 - h r T W \ . c<i F ib e r /ca E x p o s e rs 196 0 ,X 1 *% 0 0 .2 4 16' - 255 112 2. 3 0 , 6A . j, ` - . 1 5 4 ' C M 7 2^4 , 0 ,5 t - 1. ? y \ " 0 .3 0 RWI 002452 TABLE I-J) CLATTON . ENVinOMMKMTAt. OUMRU T/CAHIS, THtJ . i i - d J i i i x n i A L iiYOiiim-: X A i i n . n i s s u m m a r y . ? i nnfc BOCKWLL I HTERHAt l O^ f t L COUP,__________ __A s l i c n b t i l a , O h i o . Mo t o r 1 a L C i } . Asbestos ' ' Cnte 1976 ?/U 1 3/23 S amp i e ttumbcr AA- 16 . AA-07 n cflcr ip tion. SIUKEOUT OF OUTDOOR BUGHOUSES M aintena nc e o p e r a t o r No. tj d u r i n g s h a k e o u t nn<I e m n t r L n a of baaltou$ea (ou tdoof upic$) l l a i n t c n c n i t e o p e r a t o r Mo 2 ; d jrin a shakeout and ewpCyinn of boghouaes (outdoor -units) Sa-iap l i n g Tot* l e d Sta rt Stop - S a rnp 1 e .Weight Satnp I e Volume (Li tcre) Con c cr}t r a e i v a I ib-ers > 5 urn cc TWA Cone: ribersjtc Es t i ma t e d B-irrkA Ex p o s u r ef: 12: ?3 12: 32 14 1. 2 - 1 2 : 2 3 12: 32 1 3 li Banknead_Pltfs' Exhibit no. 0455 pg14 3/23 3/2 3 3/23 3/23 3/23 3/23 3/23 AA- % A AA- 1 2 A.A-20 A.A- 30 AA- 23 AA- 10 AA- 0 2 MISCELLANEOUS SAMPLES ~T3n i o r o v a f m ' s d&sft o p p o - e l c e Tangborn u p it 6ri f o r e m a n ' s d e s k o p p o s i t e . i a n g b o xrt u n i t " B r e a t h in g con* c i dapoxcment Ho. 36. f o r k - l i f t t r u c k operator 6recifch ing- one o t cla p ar et a o nt Ho. 36 f o r k - l i f t t r u e k o p e r a t o r Vorcitiaxt ` a d e s t c j 3 0 l-ocfc n o r t ! o f l i o , AGO g r i n d e r a h d 2 0 0 f e e t c a s t o N o , frAS g r i n d e r 10 ! 12 12 : 34 OS : 30 13; 21 15: IS Porctnait's dcak, 90 f e e t u e e t o f P a n p ^ o re Just c o l l e c t o r On C i n c i n n a t i Acr. rmn. fcie c a b i n e t 6f| f t* ph A r ' 3 ' M ` A * * r 15 : 21 31! 45 1 5 : ZO 11: 35 1 5 ; 27 15; 52 15 ! 58 . 19 1 0,030 3 la * ' 0.027 130 1,2 . . 174 0.15 7 6 <0.038 _ 4 0 .C1 45 ' I - A \f ' -i Internal Letter Dale . . Kay 28, 1976 TO , R. K artelie Address subject Clayton Report Rockwell Ritemational Nfl. . ' . ' ' from Address Phon .Elana Haffnaan* R*K* ' , t , ' In reference to the Cl ayton report on asbestos., we shoal d immedi a te ly check into some serio u s problems; . 1. Maintenance mert working with asbestos dust c o lle c to rs not wearing adequate re s p ira to rs . Proper ones must be used which can be obtained from the Dispensary. . . V - . 2. Shakedown, should be performed more frequently, , 1 3. I f maintenance men must reach in to shake bags, we must provide protective clo thing and showers. . . 4. When the doors are opened, asbestos dust f a l l s out and . blows around the area in clu ding through the open door in to -th e shop. . " " S-. Sarbage disposal containers should be labeled to in dicate th a t asbestos dust bags are in sid e , ' Elona M-. Hoffman, R,,N. /dj p-&kl )Pi-fl ev. 2-78 RWi 002439 Bankhead^PItfs1Exhibit no. 0455 pg1 10 11 12 13 14 15 16 17 18 19 20 21 22 EXHIBIT "H " 23 24 25 yM&jlu*. <[dtOy&Mt' 8L~T% U /aLtea* LJ7e> /\$ (7 0 &l4tfyut, ^fL60 ~$<!i)&e&t</, &0- $// ? fjf& J S M -M W - M arch 3. 197-8 Sintfud l^2i**v S f / / 'part*/ %<% %.. & * //S /S S ' fs/sj.m --aM S M s, Elona Hoffman ' ' Supervisor, Safety and Health . Rockwell International, , Highway Brake Division 3500 North Ridge, W est ` Ashtabula, Ohio 44004 - D ear M s, Hoffman; - As you re call, I re p re se n t your form er em ployee, R ussell L, Ciuti who is now hospitalized a t U niversity H ospital in Cleveland, Ohio, because of his condition of pleural mesothelioma, a form of cancer which is unique to asbestos exposure. ' I understand that Thomas W. White of my staff has recently spoken with you by telephone, and has explained that it is onr intention to pursue a third-party action on behalf of M r. Clutter against the m anufacturers of asbestos-containing brake lin e rs utilized by Rock well International, and to which products M r. C lutter was exposed during his period of employment from M arch 8, 1962 until April 25, 1964. In speaking with M r. White, I understand that you would direct my inquiry to a m em ber of the Highway B rake Division of Rockwell, who,-1 would~contaet me or M r. White to supply us with the identify of those national m anufacturers who supplied Rockwell with the asbestos brake linings during the above-stated period. Your cooperation and kindness in this m atter is certainly appreciated. Bankhead_Pltfs' Exhibit no. 0457 pg1 M s. E lona Hoffman M arch 3, 197ft' ' Page -2 ' and I look forward to hearing-from a representative of Rockwell a t' an e a rly date for further discussion" regarding the identity'of those m anufacturers who supplied Rockwell. RES/sb RWI 002409 Bankhead_Pltfs' Exhibit no. 0457 pg2 i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 EXHIBIT`T ' vr<\ ? Highway Brak Division 3500' North Ridge West Ashtabula, OH 44004(2101995-3100 Rockwell international A p ril 21, 1978 Sweeney, Mahon anti Vlad . ' ' . ' Attorneys.and Counselors S u it e -1205, .Bond Court ' ' ' ... 1300-East 9th Street ' ' - . ' . Gleveland, Ohio 44114 ' .' . .. . . . _' ' ' ' Attention; Mr, Robert E. Sweeney , . Dear Mr. Sweeney; . ' ' Per-your request,- f o il owing .are the addresses o f the concerns who supplied b ra ke -lin in g s fo r the Rockwell International ,,Brake Plant:. . . 1 ' ' Abex Corp. Suite 710, 3001 W, Big Beaver Rd., Troy', M1ch. ' Molded M aterial, Div, of C a r lis le Corp. Ridgeway, Pa. Raybestos Manhattan - S o u th fie ld , Michigan ' Bendix F rictio n - Troy, hew York . . . Therthold (K. K. Porter) - Huntington, Indiana --- Johns-Manville - 1Cen-Cary1 Ranch, Denver, Co. 802V7 World Bestos - .112 S. 26th S t.., New C a s tle , Ind. 47362 5 . -K. Wellman - Bedford* Ohio ' '' . , , Satke - Box 329, Winona A ve ., Warsaw, In d .-46580 . Maremount - 7.00 W, C aro lin e , Paulding, Ohio 45879 P. T. Brake Lin ing - 18. Shepard S t . , Lawrence, Mass. 01842 . Auto Frictio n . - 652 Andover S t .,. Lawrence, Mass.01842 6r1z2ley (now Maremont) .. . Very tru ly yours, . ' HIGHWAY BRAKE DIVISION Rockwell International .Xorp. Elona M.- .Hoffman, R. N. ` Supervisor,'.Safety and'Health /<U cc: . Thomas W-. White- Bankhead_P!tfs' exhibit no. 0458 pgl 1 2 3 4 5 6 7 a 9 10 H 12 13 14 15 16 17 J 8 19 20 21 22 EXHIBIT "J" 23 24 25 26 27 Internal Letter DalS . April H , 1571) TO; W *r*9] A d& *uf , Mr. Kike Budd . Ashtabula Brake Subject;. Rockwell International no; . FROM; i.TM*. ontt^aiM.'mviiVMin.eMm) . Mr. fl, u>ng .. . Tr.oy fi.0-1 , 8/529-1067 ASBESTOS ' cc - ^ a a ^ . - George Bqbie } Ashtabula Brake Elojia Hpff.man ) I V is ite d your f a c ility on A p ril 5, 1979 a t your re q u e s t to rev iew y p ir sh ip p in g p ro ced u res and to d eterm in e v h e o ie r a c o n f lic t .e x ists y ith our p re s e n t p ro ced u res and c u rre n t le g isla tio n . For those assemblies that-you ship on a pallet _with a plywpod top , handed and stretch-wrapped, it- i? y opinion that protection and labelling is not necessary. Movement gnd vibration during shipment will be minimal and the generation of fibers will not be a problem.. . ' However, you do ship some .loose assemblies and you do return damaged linings loose in tubs. It is JSf opinion that hhese should he-totally enclosed and labelled because the possibility of generating asbestos fibers during shipment.is very re<U, If pallets .are used, the spaces between -the boards should .be closed either with plywood or cardboard. The top of the containers will'likely be plywood and the whole should be . covered in .stretch wrap. At this tame I would not consider .rounding 'off the Sharp comers of th plywood tops or bottoms. ROCK 00469 Bankhead_Pltfs' Exhibit no 0505 pg1 1C 11 i: 13 14 IS 16 17 18 19 20 21 22 EXHIBIT "K" 23 24 25 26 21 28 \ -NOTICE- PROCEDURE FOR DUMPING LINING DUST FROM PANGBORN DUST COLLECTOR 1. P ro te ctiv e paper co ve ra lls, hood and re s p ira to r must be put on p rio r to s t a r t o f dumping operation. Co ve ralls and hoods are a vaila b le from C rib , r e s p ira to r from Dispensary. These items are not to be removed u ntil- the e n tire procedure is completed.' Do not remove respirato r u n til co ve ra lls and hood have been discarded in to dust c a rt. . . 2. Chain o f f a is le . There is to be no unprotected truck or pedestrian t r a f f i c w hile dumping procedure- i-s in process. 3. Check to be sure p la s tic bag i s securely tie d .to hopper. Open hopper - gate and attach' a ir lin e to v ib ra to r i f so equipped. S ta rt shaker, . shake fo r 5 minutes then turn o ff, ' 4. When hopper is_empty, check to see i f p la s t ic bags are f u ll. If - n o t , leave in p o sitio n , close hopper gate, and close doors of c a rt area. 5. I f any dust has s p ille d , p ick up immediately with dust c o lle c to r suction hose. ' 6. I f bag is f u l l , tie o ff before removing c a r t. Remove cart to back yard im nediately. Do not leave fo r la t e r removal. Close doors o f c a rt area whenever you leave the area. 7. I f f u ll c a rt is removed, replace with empty c a r t and tie new bags on to hopper, clo se hopper gate, and clo se door on c a r t area. . . 8. Remove a is le chains. ' .. ' 9. D iscard p rotective clothing and remove re sp ira to r as per in stru ctio n s item #1. ' 10. I f you have any questions regarding dumping procedure, ask before you a ct. Carl Holt Maintenance Foreman RWI 002466 Bankhead_Pltfsl Exhibit no. 0466 pgi Internal Letter Dale: TO: . ` June 14, 1979 ( U s /n s . QfftartUii/HUt, f n tt /n a l M & C S S ) A ll Supervision ; Rockwell International, No! * P R O M : Itd n m o , O /p t/tfiiU o fii lirlorn*/ A d m its* .. P h o n ) . Elona Hoffman, R.H.' sucject:. Review- A sb esto s H an d lin g P ro c e d u re . Work a r e a around L in in g g rin d in g and r i v e t i n g o p e r a t i o n s must be vacuumed clean by th e 'o p e r a to r a t th e end o f each s h i f t . ' The work a r e a .m ust n o t be blown c le a n u s in g com pressed a i r .or broom s. O p erato rs must vacuum empty lin in g boxes b efo re th e boxes a re thrown irrto th e yellow dumpsters-. ` . Each la y e r o f L ining coming from vendors must be checked fo r excess d u s t. A gain, sm all amounts o f d u st must be vacuumed from the boxes. Large co n cen tratio n s of d u st in the boxes- is cause fo r re tu rn to the vendor, w ith fo llo w -u p through p u rch asin g . . - We m ust work to c o n ta in an-y a s b e s to s d u s t as b e s t we can i n o rd e r t o re m a in u n d e r th e maximum f e d e r a l re q u ire m e n t o f 2 f i b e r s p e r c u b i c ' centim eter, ` E lo n a /hg ForjulU-R Rev.3-7 RWI 002456 Bankhead_Pltfs' Exhibit no. 0466 pg: I CL 0 UJ O *</) 1 ' V U- o ` .< -i Z> n > >> > z r> "5 ! V i aow s "a cr i tcl u< 3 . "cr < s 03 U (X 2 < }c oL S ! 3 G 5at; e > H C4 u b c T ii 1t ~r f n~ ! ` "Hr 1 i -rr 1 r i i _1_ =a 5Si 5> ?25>2 5a S> a r>j2j2 2 s fel> ) >1 > >> g te y I! 1 _L \ j JU _u P' 1 ! > I 1 rr te _1_ 'B i 5 " Usih~ ? D>s>a ro jet CJi i sa V? va SS auc<Ud3J cArUeJ re tu u r p re % reas X a t n ocCdcd rere re e 2 5C r6e u t- hU hUiLU *s UJ/u h- ute uu Mu " aat c e Uj Ul <- UJ e a re ICJ u <9 U] g <s_ 3C U ta re \ u re o 1 P- * ore > a < a s ac55 < X V V oVw tv re rew se re teS rej re 1- V ta <s ret e a reVI tn > t> U W- re 1>1- Ire K j !iw <3 reK5*r>UuiU-(3Vfac;._<iin VIu9a itnna<K*qf urle a re X r>o s irt jS U t re true * 0 o ea re u re V I >-- I O U 4M <= r rio re c; T V =! O V ic o u> re re re N m m re M* <Q c [ at i o PE a. tu e> 5# EE ( a R PS 1 7i s fu f- & t Ul J : otri, os Rttnvitic insrEcm Bankhead_Pitfs' Exhibit no. 0466 pg3 1 2 8 16 17 18 19 20 21 EXHIBIT 22 23 24 25 26 27 28 August 16, 1982 Mr. R, D. Randolph Troy - D-212 ' ' Ronald l . Wissirtk ' Oshkosh ' ' JOBNS-MANVtLLE - RESPONSE TO A5BE5T0S : '' - . j ! have enclosed a le tte r-req u e stin g our-status of position to asbestos. ] -use. As-a Corporation, I have not seen a po'sition stated. At p lan t, we, o f course,, do not control the p a rts, being special to use, ' He have taJsen a p osition to maintenance-type items, such as roof and furnace re p a ir. We stip u la te the use. of fib e rg la s s on roofs and demand asbestos out o f products used in furnace resto ration ,- . ' I t may be our Corporation is addressing th is as an-overall issu e. . L do n o t'fe e l .I csnr as a p lan t, unless-you fe e l d iffe re n tly , ms enclosure =?WI 004983 Bankhead_Pltfs' Exhibit no. 0471 pg2 Johns-Manville Corporation Ktni-Caty. Ran'ctl Foal OHica Box 5108 Denver, Colorado &0217 , J o h n A. McKinney . Chairman oi Ihe Board and Chief Executive CMIffiBr . Mr > .Ronald 1 , W-issink Rockwell International Inc. PO Box 2948 , ' . Oshkosh, Wt 54903 Dear M r. 'W is a in k :. > . ' . - . . . General Motors Is a large u ser of asbestos fib re and asbestos-containing products. In addition to m illions of sets of brake linings and clutch fa c in g s> asbestos la used in g ask ets, sound deadenera, ' adhesives-and e l e c t r i c a l co m p o n en ts'in GH v e h i c l e s . A lso , th e y u se m a n y c o n s t r u c t i o n products such as aabestos-cem ent pipe and afreets, ro lle d roofing and ' floor tile for their plants, . . G en eral Motors has a long- 8 tending commitment to. p ro te c t the h ealth and w ell-being of i t s employees, the general public and the environment. , He applau d t h a t commitment,:-and the' c o n s c i e n ti o u s manner w ith which l t _ is applied. ' - , G e n e r a l M o to rs' p o lic y toward a s b e s t o s wa3 p r e s e n t e d - i n a paper by T. 0 . fiat h u e s , Vice P r e s i d e n t M an ufactu ring S t a f f , to the A.1A Govern ment In d u s try Conference. I t is -a tta c h e d fo r yotrr review. . He b e l i e v e i t i s in 'the b e s t i n t e r e s t o f s o c i e t y t h a t i n d u s t r y take re s p o n s ib le p o s i tio n s s i m i l a r to th a t o f G en eral Motors on is s u e s ouch as t h i s , where emotionalism has tended to skew ra tio n a l d ir e c tio n . If y o u r company has taken a p o s itio n s i m i l a r to General Motors regard in g a s b e s t o s , o r plans t o , we would a p p r e c i a t e h e a r i n g from you, Very tru ly yours, . RWI 004984 Bankhead_Pltfs' Exhibit no. 0471 pg3 1 2 3 4 5 6 7 8 9 10 n 12 13 14 15 16 17 18 19 20 21 EXHIBIT "M " 22 23 24 25 26 27 September 10, 1982 Rockwell Internationa! Pn{rf>Cf cc : G. J. Flannery 0. Hel f r i ch W, long ' 5 f P i ; l98j Neither Rockwell automotlve- or P ittsb urgh Corporate1have developed formal p o lic y positions regarding the use o f asbestos products e ith e r in our f a c i lit i e s or in our products (brake lin in g )-. We would suggest no response to the J-H le tte r or a response in d ica tin g Rockwell does not have a formal p o lic y p o sitio n . . As background information on th is su b je ct, Government Relations is m onitoring regu lato ry e ffo rts to change the Federal GSHA Standards concerning asbestos front a maximum exposure level o f 2 ffber per c r to a ,5 fib e r le v e l. In Canada and in Germany the regulatory exposure le v e l maximum has recen tly been changed from 2 fib e r to 1 fib e r. ` Although a reduction to .5 f ib e r le ve l would not n e ce ssa rily in h ib it Rockw ell' s use of asbestos brake lin in g 1n our manufacturing process i t could very well .elim inate the production o f asbestos- lin in g s by the primary manufacturers. As a r e s u lt, our brake engineering along with pur lin in g suppliers are in ve stiga tin g alternate m aterials, In a d d itio n , recently introduced Federal le g is la t io n , H.R.5735, woutd attempt to fe d e ra lize the. compensation o f in d iv id u a ls who are disabled as a r e s u lt o f occupational exposure to asbestos. The le g is la tio n is very lib e r a l in it s in te rp retatio n o f cause o f lung disorders and certain forms o f lung cancer would be irre b u tta b ly presumed to have resulted from exposure to asbestos. The use o f asbestos products in our f a c i l i t i e s e ith e r in maintenance or manufacturing equipment i s , as Ron Wissink in d ic a te s, a plant decision in conjunction with .8111-Long or Dan H e lfric h . . fi. J1. Hays /h m A tt, kJC E IV it-D SEP 1 01982 RWI 004985 Bankhead Pltfs' Exhibit no. 0471 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 EXHIBIT "N" 23 24 25 26 27 28 1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 IN AND FOR'THE COUNTY OF ALAMEDA 3 ------ 'o O c ------- 4 GORDON BANKHEAD and EMILY 5 BANKHEAD, 6 Plaintiffs, 7 v s. No. RG1050224 3 8 ALLIED PACKING & SUPPLY, INC. 9 De-fendants. 10 / 11 12 13 VIDEOTAPED DEPOSITION OF BRUCE KETCHAM 14 (PMQ - ARVINMERITOR, INC.) 15 16 17 18 Taken before RENEE C. WILLIS 19 CSR No. 4597 20 September 30, 2010 21 22 23 24 25 Aiken Welch Court Reporters Bruce Ketcham 9/30/2010 16 1 A. Rockwell International. 2 Q. And were you first employed with Rockwell 3 in 1978? 4 A. That's correct. ' 5 Q. Since 1997 when it switched over from 6 Rockwell to Meritor, have you had any involvement 7 in product analysis with regard to existing product 8 -- asbestos product? 9 MR. CANONI: Objection to form. 10 THE WITNESS: Could you clarify the 11 question? 12 MR. SATTERLEY: S_ure. 13 BY MR. SATTERLEY: 14 Q. Well, let me ask you this question; Since 15 you began working for Meritor, was Meritor making 16 an asbestos-containing product? 17 A. Yes, they did still manufacture some at 18 than point in time. 19 Q. What type? 20 A. Asbestos-containing brakes for a few off 21 highway vehicles. 22 Q. What type of off-highway vehicles? 23 A. I'm not quite sure which ones they were 24 still used on at that point in time. 25 Q. When is the last time Meritor made an Aiken Welch Court Reporters Bruce Ketcham 9/30/2010 17 1 asbestos-containing product? 2 A. It was either '99 or 2000. 3 Q. And in your work as manager of product 4 analysis in '99 or 2000, did you actually evaluate 5 the brake products for trying to figure out how 6 much asbestos may be released? 7 A . No. 8 Q. Back when you worked at Rockwell -- we're 9 going to go back through your career a little b>it. 10 You started in '78, correct? 11 A. That's correct. 12 Q. And were you at the Florence, Kentucky 13 location? 14 A. That's correct. 15 Q. And did you start out as sales manager? 16 A. Sales order manager. 11 Q. And what type of job did you do as a sales 18 order manager? 19 A. I supervised the sales order staff at the 20 facility. 21 Q. And the Florence, Kentucky facility, was 22 that a manufacturing facility? 23 A. No, it was not. 24 Q. What did they do there? 25 A. It was an aftermarket distribution center. Aiken Welch Court Reporters Bruce Ketcham 9/30/2010 163 1 And in this set of interrogatories on page 2 22, there's some discussion there on warnings on 3 the product. Do you see that? 4 A. Yes, sir. 5 Q. And what is the first -- according to the 6 Answers to Interrogatories that you signed off on, 7 when is the first time Rockwell warned on the 8 product itself? 9 A. The early 1980s. 10 Q. And did they u s e the word "warning"? U A. No, they did not. 12 Q. What word did they use to alert someone 13 about this issue? 14 A. The full statement is, Caution: Contains 15 asbestos fibers, avoid creating dust. -Breathing 16 asbestos dust may cause serious bodily harm. 17 Q. Is there an explanation mark after the 18 word "caution"? 19 A. No, there is not. 20 Q. Does the statement that you just read, 21 does it mention cancer? 22 A. It does not mention the word "cancer," no, 23 Q. Does it say what type of bodily harm could 24 occur? 25 A. It says it could be serious. Aiken Welch Court Reporters Bruce Ketcham 9/30/2010 164 1 Q. Does it describe any precautionary 2 measures that should be taken? 3 A. Yes, 4 Q. What precautionary measures does it - 5 A. It states to avoid creating dust. 6 Q. Does it describe any tools or equipment 7 that should be utilized to assist in that fashion? 8 A. No, it does not. 9 Q. Do you have an understanding based upon 10 your involvement in this litigation and being a 11 corporate representative for many years what the 12 primary purpose was for this label? 13 MR. CANONI: Objection; vague, ambiguous, 14 lacks foundation, calls for speculation. 15 THE WITNESS: It would be there to provide 16 notice to the end' user. 17 BY MR. SA TTER LEY : re Q. Notice of what? 19 A. Of what the statement says. 20 Q. And have you seen any documents or 21 internal memorandums from the corporation on why 22 Rockwell in the early 1980s put this label with the 23 word "caution" on it, why they did that? 24 A. I don't recall seeing any documents 25 regarding that, no. There may be some in the Aiken Welch Court Reporters Bruce Ketcham 9/30/2010 1 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a infernal Letter Odie: . TO:7' 'futat September S, 198.6 wttfi* *td**M( Of strib u tlan Rockwell International SJBBQ.TXT Barbara Boroughf Troy Cfiwet 525-1688 HEW ASBESTOS STANDARD, - LABEL IKS Tbs new .asbestos standard requires warning la b e ls to "b.e affixe d to a ll . . . products containing asbestos , . . or -to th eir containers." Therefore, pjease ensure that a ll parts shipped with asbestos Tin lags and service packaging boxes bav.e a label sta tin g ; DANGER .CONTAINS ASBESTOS FIBERS AVOID'CREATING OUST , CANCER AND LUNG DISEASE HAZARD ' In 'a d d itio n to the above, lab e l sp e cifica tio n s are to .comply with OSHA's Hara.rd C.aiwiunjcatio n Standard b y i dentifyin g your plant and plant .address. * I t i-s tty understanding that parts are shipped, either on .racks', banded on s'tid s , stirinkwrapped on skids .or in -service packaging boxes. You should ensure .each rack, .skid .and-box Is' labeled. I f you are not d ire c tly responsible for la b e lin g , please coordinate th is requirement with the appropriate person at your p lant. Should you have any questions regarding th is request, please .contact me. Barbara J . Boroughf Regional Safety Manager flJB Jb D istribution; J . Cicero - New C a stle , ', Hoffmbn - Ashtabula- 5 .. J e f f r ie s - T/C, J , KiUkowske - Florence M, McConnell - T il bury G. Ringe - Oshkosh C. Robinson - Vprk J . Rush - Kenton T . Vance - Newark R. "Weifieri - Winchester ROCK 00478 Bankhead_Pltfs' Exhibit no. 0510 pg1