Document Oz7oybvDN2eKVwkqynnLpE66Q

o c<-kiu 'jbesrvs* Arrvju>ey?> A>Uo/! 6 7>ftf T/Ltbou^o EY !*W - \* C(*jwWle_ WA>4- jMr C8-f AiV le^eA ' Ar^* ue_ ~Ct*-cA^ * U_ aJA. ~ '! I I uJU / ASBESTOS TEXTILE INSTITUTE AD HOC COMMITTEE MEETING JUNE 3, 1976 | ^JL'UJ. A^x. o*a. i 5" 'l A V-C- S-^-f IVjU. (O-'W-Sr* 0l& 7*> 4-IC ` P^W u) ASBESTOS TlgrriT.lS INSTITUTE AD HOC COMMITTEE MEETING June 3, 1976 Stouffer's National Center Inn, Arlington, Virginia Chairman: Vice Chairman: D. H. Markusson, Esq., Johns-Manville Corporation E. C. Bratt, Southern Asbestos Company IN ATTENDANCE: Aratex Corporation -- M. J. Scanlan Asarco Inc. -- H. J. Huth, E30. Garlock Inc. -- A. Kuzmuk Nippon Asbestos Co. Ltd. -- S. China Raybestos-IJanhattan, Inc. -- C. D. Colson; P. G. Dolan, V7. A. Guenther, Esq.; C. A. Kennedy; M. Q. Scov/croft Southern Asbestos Company -- E* C. Bratt T3A Industrial Products Ltd. -- H. J. Corson 17. B. Alcorn, Jr., Esq., ATI Trial Counsel, -- Cadv/alader, Wickershan & Taft D. H. Mafkusson, Esq. -- Johns-Manville Corporation D. M. Pagan, ATI Executive Secretary MINUTES 1, TYLEn LITIGATION: No remarkable change in the Tyler Litigation is anticipated during the next 3-5 months and very little has happened vith the case. ATI*s posture remains unchanged. . Basically the situation can be summed up by saying that the court is remaining open for additional plaintiffs to join the lawsuit. Plaintiffs are still coming in and are being given a reasonable time for discovery. The court v/ill not address the jurisdictional issues, including ATI's motion to dismiss, until all discovery is completed. As far as our request for a voluntary dismissal is concerned, plaintiffs* counsel will not decide until discovery is completed. 2. SHOUP LITIGATION* A complaint was filed in March in Detroit, Michigan, by T'Tilliam Carl Shoup against Johns-Manville Products Corporation, et al., including The Asbestos Textile Institute, a Pennsylvania corporation. { more u) Page 2 - Minutes of ATI Ad Hoc Committee Meeting - 6/3/76 a) Of special interest is that this is the first time ATI has been made a party in a litigation involving an insulation worker, as opposed to factory workers as is the case in the Tyler-Litigation. The Shoup action represents the first attempt to draw ATI, as a trade association, rather than a product manu facturer into user-type litigation. Mr. Alcorn was quite correct . in filing a notion to dismiss -- and before the notion was heard he was able to successfully negotiate a voluntary dismissal. The volunatary dismissal is "without prejudice," which means that at any tine until the Statute of Limitations runs out, ATI can be rejoined as a party defendant. However, the likelihood of that happening is remote. The plaintiff has a number of good, solid, viable defendants who did supply insulation products and there is no question Mr. Shoup was o:cposod to those products. There is very little involvement that would warrant the rejoinder cf ATI or of any of the trade associations. b) Of interest are the allegations as to trade associations in a "user" case. The plaintiff acknowledges thats The organizations are trade associations: Each is engaged in research and development arid in tl\e collection, promulgation and dissemination of informa tion to its members, to users of its products and tc the public-at-large and ultimate consumers; The defendants are involved in the trade associations that, collectively, had knowledge for many years as to the hazards of the inhalation cf asbestos dust and there wa3 a suppression or misrepresentation of that knowledge. The above is alternatively pleaded that either the trade associa tions engaged in a suppression of the knowledge of the hazard or they misrepresented the nature of the hazard. The other allega tion is that they did suppress or misrepresent the knowledge but they did so in the fom of a civil conspiracy with the other defendants. The civil conspiracy aspect is not too alarming because it is a difficult thing to prove. However, a charge of suppression or misrepresentation of knowledge is one of which trade associations must be cognizant and on guard. The reason ing behind this statement is that since the companies are the source of the information for the trade associations, the asso ciations become operational arms cf the companies. This might be construed that the members of the associations are liable in that they were negligent in not doing enough investigation and in not pursuing the leads indicated by medical literature. more *'it lM Pago 3 - Minutes of ATI Afi Koc Committee Mooting -- 6/3/76 -i As a practical natter, however, the likelihood of that happening in the Cheup case is somewhat remote* It is difficult for the plaintiff tc prove and there is little pragmatic reason for him to attempt tc do so* He already has plenty of defendants; v/hy worry about the trade associations. c) It is becoming increasingly clear hoi/ people are thinking in "user-type" cases -- and that is a collective organization of defendants suppressing or misrepresenting information and the duly-elected representatives in the trade associations being negligent in their duties of pursuing the information and of investigating it -- and that leads to such questions ass After a certain committee is formed and active, what did it do with the information it gathered? IJhy did it take or not take a par ticular course of action? It seems evident there v/ill to mere attempts to join trado associations v/ith "user-type* litigations. 3* A PRODUCT Eia>CSU?J3 LITIGATIONS A case that vent to trial in Louisville, Kentucky, is of interest in that it is the type of litigation that could more directly involve, if not a trado association such as ATI, at least its member companies. It is quite unlike the usual insulation case because it involves the use of a finished product that someone other than 'the original manufacturer (in this case, Jchns-ibnville) had further fabricat ed or processed. The plaintiff had worked in a factory for some years, was e:rposed to the product, contracted mesothelioma and, subsequently, died. a) The case was tried by a jury. Counsel for the defendants proceeded v/ith a state-of-the-art defense to indicate what knowledge was held by the companies at what point in time. The defendant lost the case but the verdict was very "small" -- $10,000 for a 51-year-old nan for lost wages during time of illness and for pain and suffering and medical expenses; and $80,000 to the widow for what should have been the remainder of the plaintiff*s lifetime, tier!emon*s Compensation totaled about $22,000. The outcome reflects a minimal liability on the part of the primary manufacturer. b) In analyzing the case, two points become clear. It is esrkremely difficult to sell jurors on a state-of-the-art defense since they are net familiar with the situation nor v/ith the literature. The problem is translating to the year 1975 that v/erking v/ith asbestos was a hazard in factories in the United Kingdom in the 1920* s. All the literature tends to be effec tively lumped together by the plaintiffs and there is little more vT "" o Page 4 -- Minutes of ATI Ad Hoc Committee Meeting -- 6/3/76 segregation of points in tine when the data became meaningful in the insulation trade -- when there began to be an awareness of bronchogenic cancer or mesothelioma, c) A surprising fact was the sophisticated reasoning of the jury. They seemed to ask was it really reasonable to expect companies in the past to be concerned with the health lias.?rd -- nobody v..s! d) incercsting reaction on the pn.:': o\ ' jinors v/ns (.n:. . l-ljc.cgh Li .-rs were aware of work.aar/s ars-.pensr.vf*: a. they dir. ?':2\ Ftroacly shat the employe:* sh.r.v.r :.'o held 'i. They r.or. feel the -^nployer should botv * 1 / absolved., but there was ro vray to hc_d him liable because the structure of the complaint. Thoy felt there was soneihi-v inherently unfair about an employee spending his entire worJciu:; life in a factory, I , becoming ill and dying as a result of conditions at the factory &*pU~ts ---- and then a third party who did nothing but supply raw --J f* materials was charged with the whole burden, especially whan the case boiled down to whether or not the manufacturer knew of a hazard and labeled his products accordingly. The jury was fairly well convinced that proper labeling would have had little ~{ consequence. m e) Factually the case shaped up rather wall. Unfortunately, the jury had difficulty working with the instructions given it by the court. The instructions did not deal with labeling but with whether cr not there was knowledge and if so there was an accompanying duty -- and there was failure to satisfy the duty. f) The decision is being appealed on the grounds that the manufacturer defendant was successful in getting the court to submit an interrogatory to the jury which askeds Do you find from the evidence that the defendant gave adequate warning to the defendant*s employer? The jury*s answer was `'yes." To clarify, there is a series of cases under Kentucky lav/, primarily in the mining industry involving dynamite, that sayss Warning to the employer is warning to the employee. This is not the rule in all jurisdictions but there is a growing body of law leaning this way. If this is so in the Kentucky courts, it will sot up, based cn the evidence that there was an intervening cause by another party, to wit, the employer. This would absolve the manufacturer from liability. g) The results of the case have a bright side. The asbestos ( industry has a story to toll. It is a story that, when told. more . ..... O - > ................ : Hage 5 -- Minutes of ATI Ad Hoc Committee Meeting - S/3/76 -f - doesn't cone out sounding half had. It is doubtful that anyone/ absent a runaway jury, will bo able to she;/ willful or wanton misconduct on the part of the asbestos industry. When the information was put together and presented to the jury, no one on the jury said the asbestos industry had gone out of its way to hurt people. On the contrary, they felt there had bo n a rweporoiblc- of-ert by the industry. Unfortunately.- zrvzTi of \:hav. v;*-'. GwCvIok" v/as based on wrong informs The ashestj** r.~r prepare r responsible, honest defense, ere 'hr j- an^Cd aoi. Line. to l-ctr-asdous financial reT>-.rrursir.'no. 1 4, A rL?l>3 MiT Ce' 3.3 Aliir* of interest the .! i m ^ Cw < l3-` in Vr.Tt'.y involving n?.ybestcs-I-3anhattci:. -1 * / i*k -- - -- aer employees at Pascalo. A notion is pondiap to here -h'. same certified a3 a class action and briefs have r-.;en filed in opposition. It is expected the class actiowill be denied and the case will proceed as a multiple plaintiff litigation. Informal meetings with the court indicate the defendant Canadian companies will bo hold in the case. Discovery is continuing and depositions cf some of the plaintiffs have been taken. The injuries thus far appear to be minimal and the case seems to be diminishing in proportion. ( * 3. COMPAIW DOCTons: In the news recently have been reports of several cases in California involving company doctors. They involve Johns-Manville plant contract physicians, i.e., private practitioners in the local community who have contracts with the company to provide limited time for pro-employment physicals, annual check-ups and minor medical problems. The situation arose from a case about two years ago where an employee sued the company doctor oh a straight malpractice complaint for failure on the part of the doctor tc disclose to the patient the nature of his pulmonary illness. The jury imposed about $385,000 on the doctor and the case ins closed. Subsequently, six ether employees have filed similar case3 against the doctor who, in turn, has impleaded Jfchns-Kanville on the grounds it v/as not his responsibility to disclose the information to the employee. a) There is another group of cases in California involving large punitive damage claims, where the employees have brought actions directly against Johns-Manville and the doctor -- J-M on the theory of gross, v/illful and wanton negligence? the doctor on the theory of malpractice. The effort is to try to got the cases cut of the purview cf workmen*s compensation; the general rule being that t-zorknon's compensation is a complete ( bar on negligence but is not a complete bar if it is a v/illful 4 action on the part of the employer. rnpiTG* # m i ^. It Tago 5 Minutes of ATI Ad Sac Committee Mooting -- 5/3/76 b) There has been a great deal of union involvement in the cases and more of these types of occupational disease lav/suits are anticipated -- at least 20 or 30 in California alone. It would behoove employers to review with house counsel and the doctor e:actly \/hat are the ground rules in getting medical data from the doctor1 s office either to the employee or '*o hie famrly physician TThat makes the situation awkward is tl.o peculiarities nr a doctor-patient relationship. Cne way cr: anveher., the ;?rorle"r.s all filter through to tim doctor. OSSA and teveriu' representatives are well aware cS: .he. and realise 'S tb.2 rituatr-cn continues it will betorc- in'*:eaeraigly difJ.-.cuLt to f-iv? g'x.-d physicians willing ev hbr r-iwlii o- crorotioii.*! ?c.,diaii.e,, It is indeed a 3<=s::ic'ia r>robi*Already industry ir finding physicians reluctant tc boacme ccr.ipa.x* doctors and if a company is successful in *soaring one, V.o doctor wants full insurance coverage from -..r.e first dcllra:. To rake it even more difficult, first dollar coverage is not avail able in the marketplace; it cannot be bought. 3. PnaimL REPORT: As of April 30, 1976, the cash balance on hand in the Litigation Defense Fund totaled $3,757.91. From that total, the following bills will be maid by the end cf June 1975 s Tyler -- Hathaway; 10/15/75 thru 4/30/75 = $1,599.00 Tyler -- Cacb/alader; First Quarter 1976 - 570.23 Shoup -- Kerr, Hatties and Hug sell 1,549.09 Shcuo -- Cadwalader, Nickersham Taft *= 927,59 $4,745.95 * Based on the above known disbursements, the expected cash balance at June 30, 1975, will bo $4,011.95, deemed by the Committee to bo sufficient through the end of this Fiscal Year. The Financial Deport as of April 30, 1976, is attached to these Minutes as Attachment I. 7. FUTURE MEETINGS: It was agreed that although a law profile is being maintained in the Tyler Litigation, it would be helpful to all Committee members to continue to meet at least twice a year. Doing so would enable all members to keep abreast of othor litigations that are concerned with asbestos. It was decided that when there are sufficient data of interest to ATI member companies, the Chairman of the Ad Hoc Committee will call a meeting. 8. AIA/lIA LEGAL ADVISORY COMMITTEE! The Board of Directors of the Asbestos Information Association/iJorth America has approved the mere.............. 3* . o ) Page 7 Minutes of ATI Ad Hoc Committee floating " S/3/7 S establishment of n Legal Advisory Committee that will er.plcy counsel to address the broad spectrum of the various typos of current asbestos litigation. This will placu AZA/$3A in position to furnish valuable data to its member companies and thoir manage ments and to serv^ as an r informaticn" liais.ion wiuh locrl counsel ir. an effort to provide seme 'legal assistance, the Legal Advisory Committee will offer Eccne degree of collaboration in the pulling together of medical information and of analyses of perti nent legal precedents in the field of product liability a} The Ceric.itteo v;i i.l be chaired by G. G. Gabriulson, fr.Chaiman cf '710010*;, In--\- Tomittee '-ierr'bers wi ll irciuao. D. I;., 'leroness. Zuer.mti/^ Director of AIA/hA? It -k liariarssoa. Psq. of rohas-fnn'/ille Corporation; 17. A. Joerther. sq. .. Secretary of XJaybestos-?'.inhatcan, Ino-; Kurt Pontz, 15* ", cf Carrainfo-.d Cor poration; C, Wilson, Esq., of Jim Walter ^oc;oration; and a representative of tho snail member canneries.. b) Part cf the scope cf the Committee * s initial discussions will be the area of cooperation, primarily agreement amongst insurance carriers as to who will handle a given segment of a product liability lawsuit. i c) Via a comment from the floor, the hope was expressed that \ the Committee could help toward forming a positive approach that would assist in avoiding the hind of devisive battling that, is going on in the machine tool industry -- where machine tool manufacturers are being pitted against their customers. Perhaps tho problem could be resolved by making world-er*1 s compensation the principal avenue of recourse and having seller and user cooperate in limiting common law liability of all kinds outside worioaen*s condensation. d) There is activity afoot as to suggesting some alternative remedies for third party lawsuits -- a legislative solution. If that geminates, it is something to which the AIA/llA Committee could address itself. It is a rotter that cannot be resolved in the courts but must bo settled in Congress. ->. ADJCTI5HTII3KT: There being no further items to be discussed by the ATI Ad Hoc Committee, the`meeting was adjoumod at 3:15 p.m. Respectfully submitted, /u Doris 10. Pagan, Executive Secretary ' <___________ f 1_: ,SkBESTOS TEXTILE INSTITUTE LITIGATION DEFENSE FUND ........' v ESTABLISHED: APRIL 1, 1974 PERIOD: JANUARY I, 1976, THRU APRIL 30, 1976 -- FISCAL YEAR 1975-76 BALANCE ON HAND - January 1, 1976 ........... $ 9,364.96 RECEIPTS: 2/13/76 - Bank Service Charge/Waived ... 6 .96 3/25/76 - Bank Service Charge/Waived ... .46 3/31/76 -- Interest on Savings ...... 116.02 TOTAL RECEIPTS............................................................................ DISBURSEMENTS: 1/30/76 - Bank Service Charge............................$ .96 2/23/76 -- Cadwalader, "Wickersham & Taft -- 4th Quarter 1975 ............................ 646.56 2/ 2/76 -- Bank Service Charge ........................... .46 4/ 6/76 - C. P. Stober/Sundry Services re DMF Affidavit in Shoup Case . . 15.18 4/30/76 - Office Expenses - 12/75-4/76 . . 61.33 TOTAL DISBURSEMENTS ;. . ............................................................. BALANCE ON HAND - APRIL 30, 1976 ........................... . + 117.44 $ 9,482.40 $ 724.49 $ 8,757.91* Checking Account:: ? 300.47 Savings Account: +8,457.44 $8,757.91* Signed 1 ATI Treasurer Prepared as of 4/3*0/76 by D. M. Fagan, Assistant Treasurer. Subject to Audit. 0^,^ ^ y