Document Ne3DZVjX4yXDEp9gx5p9eO31w

FILE NAME: Ford (FD) DATE: 2012 June 11 DOC#: FD218 DOCUMENT DESCRIPTION: Legal - Declaration of Rudy Limpert 1 STEPHEN M. TIGERMAN (State Bar No. 112127) tigerman@htlawoffices.com 2 MIA MATOS (State Bar No. 191027) 3 mattis@htlawoffices.com LISA BROKAW (State Bar No, 247422) 4 brokaw@htlawoffices.com HAROWITZ & TIGERMAN, LLP 5 450 Sansome St., 3TdFloor San Francisco, CA 94111 6 Tel: (415) 788-1588; Fax: (415) 788-1598 7 Attorneys for Plaintiffs 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION 11 12 GERALDINE BIERNER LEPORE, ) 13 Individually and as Successor-in-Interest to ) GENE LEPORE, Decedent; KRISTIN ) 14 MARIE REINHOLZ; MICHAEL JAMES ) LEPORE; and DOES ONE through TEN, ) 15 inclusive, ) 16 Plaintiffs, )) 17 Case No.: CGC-09-275411 DECLARATION OF RUDY LIMPERT, PH.D. 18 AC AND S, INC., et al., ) ) 19 Defendants. ) 20 ) ) 21 ______________________________ ) 22 23 24 25 I, RUDY LIMPERT, Ph.D., DECLARE AS FOLLOWS; 26 1. I am a mechanical engineer. I obtained my Ph.D. in Mechanical Engineering 27 from the University of Michigan in 1972; Master of Science degree in Mechanical Engineering 28 from Brigham Young University in 1968; Bachelor of Engineering Science, Mechanical dec.Rudy.Limpert DECLARATION OF RUDY LIMPERT, PH.D. Engineering, from Brigham Young University in 1967. I aiso hold a B.S. degree in Mechanical Engineering in Design and Manufacturing, which I obtained in Germany in 1958. 2. I have worked as a Design Engineer, a Production Engineer, a Brake Engineer, and as a Safety Standards Engineer for the federal government. From 1973 through 1981,1 was a professor at the Department of Mechanical and Industrial Engineering at the University of Utah. A true and correct copy of my curriculum vitae is attached hereto as Exhibit A. 3. In connection with this matter, I have reviewed a number of materials, including but not limited to the following: l: i; u u if 16 17 18 19 20 21 22 23 24 25 26 27 28 dec.Rudy.Limpert October 2,1975 interoffice memo, Ford Marketing Corporation, Jullien to Weed, attached hereto as Exhibit B. Ford Technical Service Bulletin No. 99, October 24, 1975, attached hereto as Exhibit C. January 12, 1976 correspondence from S. F. Svoboda at Ford Marketing to R. G. Rosslip at Liberty Mutual, attached hereto as Exhibit D. May 10, 1977 memo to file by D. P. Cratti, Ford, attached hereto as Exhibit E. February 23, 1979 interoffice memo from Hague to Anderson and others, attached hereto as Exhibit F July 14, 1980 EPA/CPSC Workshop on Substitutes for Asbestos by Jacko et ah, attached hereto as Exhibit G. September 20, 1983 memo from H. B. Lick, Industrial Hygiene Associate (Ford) to Keoleian, Roslinski et al, attached hereto as Exhibit H. March 15, 1985 letter from Ford to the U. S. Environmental Protection Agency, attached hereto as Exhibit I. July 23,1987 letter from Jerome Amber, Principal Staff Engineer at Ford, to K. D. Drachand, Chief Mobile Source, Division California Air Resources Board, attached hereto as Exhibit J. DECLARATION OF RUDY LIMPERT, PHD.  A document from Ford's archives, Bates stamped FAFD0012807-809, entitled "Ford Brakes for 1989," attached hereto as Exhibit K. October 8,1992 letter from General Motors Corporation to John W. Maloney of the Environmental Protection Agency, attached hereto as Exhibit L. November 20,1992 memo from R. J. Kinzler (Ford) to K. R. Landis et al, re Action Plan for Removal of Asbestos from Service Parts, attached hereto as Exhibit M. An undated report by John Kourik, formerly an engineer for Wagner Electric, attached hereto as Exhibit N. II Deposition testimony of Roger Newsock, dated September 11, 2008, who 12 was an engineer for General Motors during the years 1961 to 1990, 13 attached hereto as Exhibit O. 14 4. Based on my review of said materials and on my education, background, training, 15 and experience, it is my opinion that virtually all American cars built prior to 1980 came with 16 rear drum brakes. Non-asbestos lined brake shoes wer-e not generally commercially available at 17 such time. Such vehicles, including Ford's, specified and required that asbestos lined brake 18 shoes (asbestos component parts) be used.5 19 5. It is also my opinion that, until at least approximately 1990, Ford vehicles which 20 were built and sold with rear drum brakes, were designed to contain asbestos lined brake shoes in 21 the first instance, and were required by Ford thereafter to use asbestos-containing replacement 22 materials. 23 6. The February 23,1979 memo from Hague to Anderson regarding the non 24 asbestos development status for brakes to be used in Ford vehicles discusses that, among other 25 things, there were no suitable alternatives for asbestos lined brake shoes for use in drum braking 26 systems. This document, attached hereto as Exhibit F, reviews the status of development of 27 tl,e cut f f date o f 1980,1 do not mean lo imply that all vehicles after that date had drum brake systems 28 that did not contain asbestos linings. In fact, well into the mid-1980s, the vast majority o f American cars built with drum brake systems, including Ford's, continued to specify and require asbestos-containing pads dec.Rudy.Limpert ' DECLARATION OF RUDY LIMPERT, PH.D. 1 non-asbestos friction materials for use in drum brake systems and concludes that there is "no 2 known direct substitute for any critical application, hence new formulations must be developed 3 or suitable blends of fibers must be found." This document also contains a chart prepared by A. 4 E. Anderson, an engineer at Ford, which shows the availability and suitability of non-asbestos 5 brakes for use in passenger cars, light trucks, heavy trucks, tractors. That survey of major 6 friction material suppliers found that the only suitable non-asbestos linings were for use in clutch 7 facings on tractors. No non-asbestos materials were suitable and/or available for drum brakes, 8 disc brakes, and clutch facings for passenger cars, light trucks, and heavy trucks. 9 7. The EPA/CPSC Workshop on Substitutes for Asbestos, dated July 14,1980, 10 attached hereto as Exhibit G, shows that nori-asbestos substitutes were not generally available 11 for drum brake linings as of that date. That paper contains a discussion of the progress which 12 was then being made in finding non-asbestos substitutes and discusses the problems the industry 13 said it was facing in attempting to use alternate fibers for drum brake shoes. The report 14 concludes that "direct substitution for alternate fiber in existing formulations has been 15 unsuccessful." The report also predicts that the 1982/1983 time frame would be the very first 16 approximate date when first generation asbestos-free materials might even become commercially 17 available. The same report goes on to discuss challenges in the aftermarket posed by the use of 18 asbestos shoes in drum brake systems and discusses the possible safety issues in tryingfto 19 substitute asbestos-free materials directly in vehicles which were designed for asbestos brakes. 20 8. In March of 1985, Ford Motor Company wrote to the U. S. Environmental 21 Protection Agency to comment on potential rulemaking regarding asbestos brakes. In that letter, 22 Ford addressed the issue of whether it remained necessary to continue to use and sell asbestos- 23 containing parts, and in particular linings for drum brakes, for vehicles currently in production or 24 no longer in production which originally were designed to employ asbestos-containing parts. 25 (See Exhibit I, attached hereto.) Ford said it was important that vehicles already on the road 26 continue to have asbestos parts available for the-remainder of those products' useful life and 27 urged that the regulatory measures contemplated by the EPA not interfere with that need. Ford 28 wrote that because car and truck brakes are "sophisticated systems," the shoes of car and truck dec.Rudy.Limpert DECLARATION OF RUDY LIMPERT, PH.D. braking systems that use asbestos materials have very different properties from the shoes of those that do not contain asbestos. Ford admitted that one "cannot simply use a non-asbestos substitute brake shoe in conjunction with a brake drum that was designed for asbestos-containing friction material." Ford based this on a host of "performance, noise, durability and other problems may occur if a friction material is introduced into a system which was not designed to employ it." 9. Again, in July of 1987, Ford issued comment with respect to potential rulemaking--this time in connection with proposed rulemaking by the California Air Resources Board concerning asbestos use in automotive friction materials. Attached hereto as Exhibit J is a copy of the July 23, 1987 letter written by Jerome Amber, Principal Staff Engineer at Ford, to the California Air Resources Board. That letter again urged the rulemakers to exercise caution in restricting the use of asbestos-containing materials for brakes. Ford described that, as of that date, Ford's light and heavy truck brakes are "well on the way" towards being asbestos free. Ford also describes that a "parallel effort" in passenger cars was taking place and that the following three years would show "dramatic progress toward completely asbestos free passenger cars. Ford describes that its internal initiatives set forth goals to eliminate asbestos-containing materials from all systems by the early 3990s. Ford concluded that models on the road, as well as those still being manufactured with asbestos-containing brakes, "require for replacement those asbestos parts which they were designed to use." (emphasis added). Again, Ford based this on the fact that asbestos lined shoes have different performance characteristics from those that do not contain asbestos. "For that reason, one cannot simply use a non-asbestos substitute brake lining in conjunction with a drum that was designed for asbestos-containing friction materials." 10. Attached hereto as Exhibit K is a 1989 chart from Ford's internal documents regarding Ford brakes by vehicle line shows that, as of 1989, out of thirty-one (31) models of cars and light trucks, the rear brakes of only twelve (12) were being sold with non-asbestos lined shoes. This means that almost two-thirds (2/3) of the 1989 vehicles made by Ford still had asbestos lined shoes at the time of design and sale. Of those that were being sold with non asbestos linings, nine required brake systems redesign and development for use with non dec.Rudy .Limpert DECLARATION OF RUDY LIMPERT, PH.D. asbestos friction materials. Only three (or less than 1/10) were vehicles where an acceptable replacement for asbestos lined shoes were found and adapted to the existing braking systems. 11. The October 8,1992 letter from General Motors Corporation to John W. Maloney of the Environmental Protection Agency, attached hereto as Exhibit L, demonstrates that the situation described above was not unique to Ford, but rather reflected the status of asbestos replacement for the American car market in general. This letter reflects that, as of 1992, it continued to be General Motors' position that cars and light trucks sold with asbestos-containing GEM lined shoes should be serviced with asbestos lined shoes. According to GM, the conversion to non-asbestos brake linings required a "redesign of other brake components in an effort to optimize overall braking system performance." Like Ford, GM stated that using "non 1] asbestos brake linings as replacement parts in vehicles that were originally designed with i : asbestos-containing linings will result in brake system performance compromises that range from 1; modest customer dissatisfaction...to significant stopping distance penalties." ]A 12. My opinion in this case does not attempt to address instances of experimental use I f of non-asbestos brakes on cars and vehicles that were not generally commercially available. 16 13. Therefore, it is my opinion that at least up until 1980 all American-made vehicles 17 with drum brakes contained asbestos lined brake shoes; that the systems which contained such 18 brakes were designed with the performance characteristics and wear characteristics of asbestos 19 shoes m mind; and that there were no generally commercially available non-asbestos brake shoes 20 which were suitable for use on Ford vehicles with drum brake systems. 21 14. It is further my opinion that even when non-asbestos lined brake shoes started to 22 become commercially available for general use in drum brake systems in approximately the mid- 23 1980s, their incorporation into Ford's product line was slow at best. Even by the late 1980s, the 24 vast majority of Ford's vehicles which used drum brakes still contained asbestos pads. Vehicles 25 sold with asbestos drum brakes were designed with asbestos-containing pads in mind. Ford has 26 admitted that systems designed with asbestos drum brakes in mind continued to require asbestos- 27 containing replacements lest there be significant potential compromise in performance, wear, and 28 dec.RudyJLimpert DECLARATION OF RUDY LIMPERT, PH.D.