Document QkXVE702np8OdRdgrRwkpRbY5
IN THE CIRCUIT COURT THIRD JUDICIAL DISTRICT MADISON COUNTY, ILLINOIS
IN RE ALL ASBESTOS LITIGATION FILED BY THE SIMMONS FIRM. LLC Including:
DIANNA LYNN KIBLER, and
AH Plaintiffs in Living Cues on the November 18,2002 Simmons Firm Trial Docket
Plaintiffs,
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PNEUMO ABEX CORPORATION, et al
Dcfendanu.
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PLAINTIFFS* MOTION FOR LEAVE TO SEEK PUNITIVE DAMAGES AGAINST DEFENDANT ABEXCORPORATION
Plaintiffs hereby move for leave to seek punitive damages against Pneumo Abcx
Corporation rAbex"), said leave 10 apply to future cases pursuant to Section IV ofthe Madison
County Standing Order, and in support thereofstate:
1. Defendant Pneumo Abex Corporation ("Ahex") ts the successor to Abcx
Corporation, which was incorporated as the American Brake Shoe and Foundry Company in
1902. Abex is also the successor to the American Brakcblok Corp.
2. Abex has admitted in answers to interrogatories that "knowledge ofasbestos
hazards...was basic to the Abex Occupational Health Program since 1941." See Exhibit A Amro.
3. In 1936, American Brake Shoe helped fond a study by Dr LcRoy Gardnerof Saranac
Lake concerning health hazards ofasbestos. See 1936 Memorandum Agreement. Exhibit 8
hereto. The results obtained were to be the property oftbe sponsors. See Exhibit C. Set also Exhibit D (2fim letter (tom Blurae ofAbex to Sumner Simpson offUybestos*Manhittan).
4. Abex and the others thereafter obtained the right to review and edit the Gardner study (which was actually completed by Or. Vorwald). See Exhibit E (7/22/47 memorandum stating that the sponsors of the study would rev iew same to determine if results "will be helpful to us in our problems'*); Exhibit F (3/3/49 letter from V. Brown forwarding draft copy ofGardener study to sponsors).
3. Abex and die others used this 'editorial discretion' to delete unwarned references to cancer being related to exposure to asbestos. See Exhibit 0 (11/12/48 letter from V. Brown to W.T Kelly. Abex Executive Vice-President, advising that all references to "cancer" and "tumors" is Dr. Garter's report would be deleted); Exhibit H (11/16/48 kuer from Kelly acknowledging receipt).
6. The final version ofthe Gardner study contained no references to cancer and was regarded by the sponsors as "generally favorable." See Ex. F\ Exhibit F*l (3/8/49 letter from Kelly of Abex).
7. Dr. Charles Blackwell, ir., who was hired by Abex in 1961 and became medical director in 1976, has testified that he, and therefore Abex, were aware of the health hazards of asbestos, including mesothelioma. since he came to Abex. See excerpt'sfrom Nov, !9S4 Blackwett deposition. Exhibit J hereto* pp. 12*13. Specifically:
(a) Blackwell knew from medical school that asbestos was hazardous hazards and that it was associated with mesothelioma, rare tumor. See Ex. J, pp. 24-28.
(b) Blackwell attended a Selikoffseminar between 1965 and 1968 at which asbcstos'fclatcd diseases among shipyard workers was discussed. Id. at pp.
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30-31. (c) At tbe time ofibis conference, Blackwell understood the association between
asbestos exposure and mesothelioma. id. atp. 1)8.
(d) No later than May 10,1973, Blackwell specifically cautioned D.K. Rennie, Vice President of Abex and Gii Feierabend that "one cannot ignore the statistics which be (Setikofl] and his associates have compiled dealiog with asbestos." See Exhibit K hereto. Blackwell also staled that mesotbeboma was a rare tumor ofthe lung, which was44 much more prevalent*1 for "those exposed to asbestos." Id.
ft. Abex wre a member ofthe FMSI from 1949 u> the presem. Answer ro Interrogatory
Afe 94
(a) FMSI had an Asbestos Study Committee, beginning in 1971 (later renamed the Health and Environmental Aflairs Committee. See Exhibit U August 1962 deposition ofOrislane, Secretary ofFMSI beginning 1970, pp. 5,11 ! 6.
(b) As secretary, Drislane collected medical ankles on asbestos and brake linings and distributed copies to the members. He also distributed letters and minutes relating to asbestos hazards and friction materials. Ex. U pp. 21* 33.
<c) In1972, (be FMSI circulated the results ofa study on fiber emissions in friction products by the Illinois Institute ofTechnology Research, which concluded that "considerable4* amounts ofasbestos fibers were released from work on friction materials.44 The author of the report, Dr. Colin Harwood, advised banning asbestos friction materials in Illinois. See Exhibits M. V.
(d) FMSI and its members opposed references to "cancer*4 and "danger" in OSHA required warnings on friction materials m June 1972.
(e) Other information from the Asbestos Study Committee evidence awareness ofhazards associated with friction materials. This included distributing an ankle by J.C. Gilson, which concluded that there was no dose*response relation for mesothelioma and that these were consequently no TLVs for mesothelioma. See Exhibit O. See also Exhibits P&Q.
9. According to Blackwell, Abcx never conducted any studies to determine whether or
not end use of iu products presented any health hazard. See Ex. J.p. 104. See also Answer to
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interrogatory No. 54 10. Abex participated m efforts by the FMSI to lobby against a proposed ban on friction
materials io Illinois during January 1972. See Exhibit R II Abex did not issue warnings until the mid* 1970's (ifeven then). See Anstver to
interrogatory No. 63. See oiso Ex. P (February 1973 FMSJ minutes* discussing labeling); Exhibit S (September 1976 letter from Drislane; idea ofwarning inserts has laid dormant too long).
13. Abex joined tbc Asbestos information Association is 1973, the purpose of which was disseminate misinformation about asbestos hazards and thereby protect the business interests ofasbestos companies such as Abex.
14. Abex knew ofthe hazards ofasbestos by the late 1930's or early I94CT h knew that asbestos could cause cancer by the late 1940's. H had inhumation specifically regarding mesotbelkxna and that fact that even low dose exposures were harmful no later than the I96ffs.
13. Abex continued to manufacture and sell asbestos products without adequate warning. By the late 1940% it was an active participant in efforts to falsify medical information concerning the hazards for the purpose of misleading the public and protecting its business interests. Abex continued, through its membership in FMSI and the AIA to oppose health and safety measures, disseminate misinformation and protect its business interests.
16. This misconduct satisfies the standard for leave to seek punitive damages, under 735ILCS 5/2*604. Plaintiffs arc only required io make out a prims facie case, and are not required to prove that they can recover punitive damages.
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WHlsREFORB, Pltimifft prey for leave to seek punitive damages against Pneumo Abex Corporation.
THE SIMMONS FIRM, LLC. Attorneys for Plaiwiff-Respondem 301 Evans Avenue, PO Box 350 Wood River, IL 62095 618-259-2222
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