Document VG38r5bGnnQQDdVZ40Jw28GYN

FILE NAME: Early Asbestos Damage Suits (EADS) DATE: 1957 DOC#: EADS005 DOCUMENT DESCRIPTION: Documents from Case of Frederick Le Grande ,j Fr e d e r i c k le g r a n d e UNITI'.;) STATES DISTRICT COURT FOR THU DISTRICT OF NEW JERSEY '! Plaintiff CIVIL NO. "Vi COMPLAINT AND DEMAND FOR JURY JOHNS MANVILLE PRODUCTS `j CORPORATION, a corporation TRIAL ! of the State of Delaware Defendant I ! Plaintiff residing at 151 Montgomery Aventi^ ! ! in the Town of Irvington, County of Essex and State of New i l i iJersey says: j ! I: ! FIRST COUNT istt* ' i i 1. Plaintiff, Frederick Le Grande is a * f resident: and citizen of New Jersey. \ 2, Defendant, Johns Manviile Products Corporation is a corporation and citizen of Delaware. 1 i! l 3 i j the sur of $3,000.00 fi ' * - . 4 / ! r.1)^ U.S. Code, 1332 jl l 5 been employed for some time and until September 1, 1956 as a construction worker. ' Si' 5$ particularly but not limited to the asbestos and ether fibres, SK K* dust and particles in that continued contact with the said MS materials and products and handling of them would and did e x f'evyti pose plaintiff and other persons similarly situated to the likelihood of contracting serious and crippling diseases, rVu ! MS- ; i&IS including but not limited to pulmonary aabestosis, fibrosis aid v silicosis. 8. Defendant knew or should have known tt, * of the dangerous and toxic qualities of its products and of j W* Vl W the likelihood of said serious diseases resulting from pro \A V# * longed exposure to and handling of the said products. 9. Defendant was negligent in falling to conduct or properly to conduct research concerning the con tents, make-up and toxic effect of its products, and was fur ther negligent in te manufacture, make-up, packaging and labeling of such dangerous and toxic products and was further negligent in failing to provide any or adequate warnings or instructions as to the use and handling of same. By reason | of the defendant's negligence as aforesaid, plaintiff and i t ethers have been exposed to and have contracted the aforesaid serious and crippling diseases. 10. By reason of the foregoing plaintiff has contracted a serious and crippling disease or diseases *V affecting his lungs, heart and other members of his body and by reason of the same has incurred considerable medical and ,, -,TI -ruyuv -'< rJnr o o n r T ^ cou;'. <.yr r , f ** r - * . 4-;> *- ji have .ad will continue to have heavy and continued expenses j j for drugs, medicines, doctors, iI j other remedial and alleviating ! further hospital treatment and treatment and plaintiff has j 1 been rendered nervous and mentally incapacitated as well as I i !j physically incapacitated by said disease heretofore alleged. SECOND COUNT 11. Plaintiff repeats the allegations of Paragraphs 1 through 8 above. 12. Defendant in manufacturing and selling said products warranted that same were reasonably fit and safe for the uses to which they were to be put. 13. Plaintiff as one of the class of per sons whom the defendant intended to, and knew or should have known, would use said products was entitled to the benefits of the aforesaid warranty. 14. The said products were not in fact reasonably fit and safe for the uses to which they were to be put in the respects set forth in paragraphs 7 apd 8 above and further in that they contained no, nor adequate warnings or instructions as to their use and handling. 13. Plaintiff repeats the allegations of Paragraph 10 above. WHEREFORE, Plaintiff demands judgment against the dc 1o.ilimit for and i.n the sum of $300,000.00 and costs of , J ^- al ^i LLAi L ^ L ^ ,-iauii6i**.*L&i,taLLti Y '* -^ Lr --* **'ihi M "******a+* M tU i i lf t iWifr IftdfcfriJ t i* m f n r* -" iTftrlfrii .? 4 & J \S u m m o n s in a ova. action s\ u.C. **rm Nv, l Hr. N-4t) 4*ItnX*mVH;mirfkkaO ^ i U n ito ti S t a t e s B is t r ir ( n a r t FOR THE DISTRICT OF NEW JERSEY .D iv isio n C ivil a c t i o n File N o -- 2klz52 FREDERICK LE GRANDS Plaintilf v. SUMMONS JOHNS MAEVILLE PRODUCTS CORPORATION, a corporation of the State of Delaware Defendant To the above named Defendant : You are hereby summoned and required to serve upon W illiam L . Brach, Eaq plaintiff's/utlorney , wiio.se address 60 Park Place, Newark, New Jeroey an answer to Hie complaint which is herewith served upon you, within 20 days after service " '' ............------------------- .............. e a---- 'f ....... ri -fil tn An <m imlcrment bv default UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IElW JERSEY FREDERICK LE GRANDE, ) #VS** Plaintiff, ) JOHNS MANVILLE PRODUCTS ^ CORPORATION, a corpora- ) tion .cf the State of Delaware, ) Defendant, ) Civil No, 741-57 ANSWER The defendant Johns Manville Products Corporation, a corporation of the State of Delaware, duly licensed to transact business in the State of New Jersey, having an office therein in the Borough of Manville, County of Somerset, answering the com plaint filed herein says that: FIRST DEFENSE TO FIRST COUNT 1, It has no knowledge sufficient to form a belief as to the allegations of paragraphs 1, 2, 3 4 5 and 6. 2, It denies paragraphs 7 and 6, 3 It denies paragraphs 9 and 10, SECOND DEFENSE TO FIRST COUNT z ' \ % 4* It alleges that any danger to which the plaintiff was?; ' " \ exposed in the use of the products manufactured by the defendant jj was as open, obvious and apparent to him as to the defendant, and | heassumed any and all riskincident tothe use thereof, > f THIRDDEFENSE TO FIRSTCOUNT I r>~ Tt allen.es that the plaintiff was guilty of contri- i li pjflWn**-- 6* Answering paragraph 11, it repeats paragraphs 1 and 2 Lt roof, 7 Answering paragraph 12, it admits that in. the sale of its products it made such implied warranties as 'it was obliged ny law to make, but it alleges that no warranties, ex press or implied, were made to the plaintiff. 8. It denies paragraphs 13, 14 and 15* SECOND DEFENSE TO SECOND COUNT 9 It alleges that the said count fails to state facts unon widch a claim for relief can be based. STRYKER, TAMS & HORNER Aytorneys for Defendant 744 Broad Street Newark 2, New Jersey / I [ i UNITED STATES DISTRICT COURT 1 FOR THE DISTRICT OF NEW JERSEY FREDERICA LE GRANDE ' Plaintiff, -v s - JOHNS [!;:.I'/ILLS Pi::.-mCT3 ! CORPORA "'JON, a oorporatlon j; of the State of Delaware CIVIL NO, 7ll-57 1 [J1TERROR AT ORIES I .Defendant, !I TO: 3TRYEGR, TAMS <k HORNER, ESQS., I1 Attorneys for Defendant i SIRS: ij PLEASE TARE NOTICE that the plaintiff demanda of the l '( ,j | dofondant, anawers to the following; Interrogatories, under j oath, within the time prescribed by law: 1. List products containing asbestos and diatomite I 1 by name and by description which defendant sold to H. V/, t ! portar o: Co, or it3 controlled subsidiaries, limiting wnich / : ones were sold during of the following years, 1952 1953 I ! I 1951t, 1955 and 1955 and state the name, address and re- j gistred agent of entity making the sale, i '* - ' ! / 2. For 'each of the foregoing products, aq.d for the 1 i type and form sold to H. W, Porter and Co,, state, by weight ; i i or ouch other definible standard as may be used, the content} !, j! of asbestos par unit, and for for each state the range of j !j I !' sise of the--asbestos particles contained and too form in which `I 4. Plato whether there is any financial or stock relucionship as common or interlocking ownership between II. V/4 Poster k Co, and Johns-Manvi 1le Products Corporation and stale; ) (a) Whether ii. V/* Porter 6: Co. Is a subsidiary control .l.jd by defendant. (o) 77. ich cocnany owns stock in tbo other j (c) Percentage of stock thus held of total stock issued i-.d whether the same represents a controlling interest. (o) Class of stock held and voting rights of that cl a s s . to ; quence l: 6 IS versed j| I! jj ij ii II JP jj Joiji J jj (e) Karnes of individuals who are employed or serve eicher as directors, officers, or common employees of both K. ',V. barter K Co. and .Tohns-Manville Products Corporation. !:>. lor ouch of the products recited in Interrogatory l not contained '.n t l s list, state whether the same was supplied to J. Porter Co. during the years set forth in jj Iriterro atory 1 by any other supplier than Johns-ihunville j Ij and : f so , s t a t e the nume arid address of the 3uppLier, the Ji j type of waserial supplied, how that material compared with i ! similar' product; ouoplied by Johns-Manville, the name or i/ ! aosignat ion of the material supplied by each supplier for j earn '.an1, dates when such materials were suooliod and esti- jj mated nuanLity of material supplied by such sunplier. Ij ; 0. Poe each of th e folio wine materials: i (h) Fibrocel (i) 450 Cement (k) 552 Coment i I j (1) One-Goto cement state : | (a) 'che materials and substances of which each were ! made and the nercentage of each 3uch material and substance. i (b) Percentage by weight of absestos in any form, describing form of and size range of asbestos particles. (c) Percentage by weight of diatomite and others, in | any form, describing form of and size range of diatomite i particles. (d) Percentage by weight of silica in any form, and t J form of, and size of silica particles. (e) Period by years duping whioil each product has been manufactured by Defendant. (f) period by years durine wnicn each nroduct has been sold by Defendant to a. W. Porter & Co. (g) V/hether the content and make-up of each has re(1952 to date) j maipe-d unchanged '``uring the last five yeara/and if there j has'been any such change, snecify and describe the same for lj! y'each product. 7. .71to reference to the Defendant corporation, state : ! (a) the not worth of defendant corporation at the : end oi Liio last fiscal year. ji (b) Tue annual aopropriations for research into im- -r^^ 9 i<arA4r^fih^i?ii[iit>~,<*IttotiUAuU zhiiik ''fii'-h .vu '. research was continued and name3 of persons orif-a ed h'i ouch research. (o) Description by years of nature and extent of 3uch as in (c) research/ami what such research accomplished or yielded.' 8. fist any and all publications, reports, memoranda art>c'ic:., <!> other writings known to Defendant, describing (.1 iscum, 1n:, o'c unnlynlni-; the effect of, risk of, or conse quences >f exposure to asbestos particles or to silico dust of hi- i/no contained in Defendant* a orouuots, and for each such vr I.r,1np , etc., state: (a) Date of publication and publication in which I con c a l j d (b- Yhether a copy of the same is known by Defendant to be available and if so where. (c) khe name, status and responsibilities of the author or authors at the time of the writing. (n) The title of the said article. (o ) bate when Defendant, ttirough its staff, became aware r" the existence of each such publication. . 9. fieclto the names and addresses of any person or persons known to Defendant, or its research staff to have mafle investi -iti ons or studies of any of the products set forth Interrogatory li in fo n . as 1,0 }M|I i procue ta H '1 oate was written, answer (a), (b), (c), (d) iS!i 'j set .'>JL1 . ~-i . h ,-v i mci oev'.oos durirr: which same continued. I j (b) turnon and addresses of person or persons and de- j par truent making the sano, i (c) Place where same were made. (d) F >r each sucn person set forth in (b) the present whereabouts (address) of such person and present employer, if known. (e) Whether any records, journals, experiment hooks were kept o" the studies, etc. and present location of each such record,' journal, etc. and information contained In such record, journal, etc. 11. State whether Defendant, its subsidiaries, or its j other staff or employees have been or are aware of any in- j stance of asbeatosls contracted by asbestos workers who had i j sustained exposure to any of the products listed in interro|l j ."atories 1 or comarab'lc products containing asbestos, and, I 1 if so, state: j (a) Name and address of each such person or oar sons (b) Whether Defendant was advised or received any rei port* relating- causally the sustained exposure to products containing asbestos to the contracting of asbesbosis. / * (c) If the answer to (b) is affirmative, state the j name and address of the i | date of report, whether f ! published or where Is a oerson or persons making the report, the same was in writing, if so where copy of such report at this time. (i are exposed to asbestos particles and if so, state: (a) i'.ach such safety or orotactive device or measure utili Zo< by Do id nuan t, its subsidiaries, employees, or arrifc'i. 0 0 Period of time when each such device or measure w-as ut i;1jzed (atatiru"" year when commenced and year when terminated, If it was terminated). (c) Place and circumstances under which device or measure was utilized (d) facts and circumstances which caused Defendant to employ or utilize such device or measure. (e) Date- or year when Defendant first became aware of rfne taels or circumstances which caused it to resort to device o.* measure as in (d) above. (n 'llr,p reference to defendant's own employees, state h1 U Jh`. jj nearly as .is possible when Defendant first Learned v.hit any of its own employees had contracted the disease 1 omraonly culled asbestosis. ID. './i th reference bo the products named in (1) state w i c h ore 1acts are known to Defendant, or Defendant has rea- / son to believe contains particles or dust which may cause fibre:.:1s, if Inhaled in cu/Ti.cicnt quantity and for each Ssr*uiulc,h11^ 3n0 i4t*.1fai1 l o : U( a)) ''aaccttss or infoimntion on which Defendant's knowledge ! 14. Did. Defendant or its subsidiaries provide in structions or warnings to any of its employees to minimize the likelihood of contracting disease from sustained ex posure to asbestos particles and if 30, date: (a) When the said instructions were first given, where and under what circumstances, by whom and to whom. lb) Whether there were any such instructions, pre cautions, warnings or the like issued by Defendant, its sub- siduarios or in its behalf in writing and if so, when, where, by whom, to whom and where a copy of such writing is presenti I ly available. 1 15. Did Defendant at any time issue any instructions, | j warnings or nrecaution with respect to the use or handling I | or risk oi use or handling of any of its nroducts containing asbestos particles to anyone other than its employees and if 11 j so, state: ! (a) Was sue:.: warning, caution or instruction submitted to H. W. Porter 0: Co., its agents, or employees, and if so, when, where, in what form and to whom. | -ft) Whether any such writing was contained in any Ip a c k a g e or as part of any label and if so, when, and for what ! ! material. 1 (c) "..ether any .instruction or warning sheets we re ever nub 1.1shod or composed and if so, when, where, by whom l! |i and how were the same utili zed, and what was the substance t inquiry, a annoy making some, scope of inquiry, names and addroscos of person or persons participating in the same, and consequences of the inquiry. 17. State whether any private agenc?/, organisation or j groan k n o w n to Defendant conducted any investigation or Inquiry a;; to to: nroductl on, manufacture, use, application or effect as sot forth'in err. nrevious interrogatory and if so, state cho name 'nd location of such agency, date of inquiry, nature and scope of' same, any and all writings or data accumulated ij therefrom, where the sane is presently obtainable and the |l contents of the same. I 1 13. ,71 lu .reference to masks utilized to limit or :! jj minimise sr no sure to asbestos dust, state whether the same Ij ij hare ewer soon utilized or made available by Defendant or its | subsidiaries in any part of its operation and if so, state; :i '' (a) hho.n first used or made available, where, when, by i| ; whom and under what circumstances. li (o) latent of use by Defendant or its subsidiaries during each, year from 1940 through 1956, f j! number of such masks, where used, by how li joinder what circumstances (as to exposure stating approximate many employees and to asbestos particles)* 1 (c) Describe in detail type or tynes of mask used and. [ j r.-lnto whether same was designed by Defendant specifically for u I f! use bv "is exnosod to asbestos dusts and features of mask 1 mn'cin'-' t mask specifically applicable for that purpose ii I t tained if any of its products and if so state; |j (a) v.nat stops taken were research or exper.imental ji in character describing; the dates, nature of the problem j lo which research directed, location and persons involved in such research or experimentation. (b) '.`hat stops actually resulted in changes in the jj final t.-oluet or its packaging, content or form, moans of I monuiac t'-iro. !i (c) I t h e r e were steps outlined in (b) above, j compare itt changes effected by Defendant, dates when ef fee Lea, censors for such changes and the results observed or ascertainable from such changes. 20. ttabe the names and address of all oerson3 having know led :ie of facts relevant to this cause. 21. lor each nersou named in 20 above, state the i; matters to which such person has knowledge. | 22. buate the narne3 and addresses of all expert I witnesses who may testify on behalf of Defendant and state; ! *(a) ratters on or fields in which they will be qualified.as expert. ' / (b) fil publications or writings on these matters which the said expert has participated in oreparing. (c) hatters on which said expert will testify. (d) Ciualificafcions of such expert. 2b. With r e jsect to the second defense of the First AlbuJtoiJL-^AjA*UfcV^A*3UA*iaiti6*W^> *J*'* ^ # 2b. Ltate the precautionary measures which Defendant i )| ! asserts oialnliff should have utilized in the use of De- i! fend ant's uroduets and state: ( (a) Instances known to Defendant that establish these me ns ores as standard in plaintiff's trade, .riving location, uo.te and. particulars of each such .instance. (o) rino facts on which Defendant bases its allegation | t h `t oj a hut 'f f' did not exercise or uti.ld.ze such precautionary i noasuros. (c) taken by Defendant to publicize or recommend any such soasaron to persons in the name status or class as plaintiff, i.e. asbestos workers. j 26. Dor the products sold to d. W. Porter ,1 Co. recited in Interrogatory 1, state the names and addresses of re- ! gistored spent or principals of all entities Involved in the J mining, manufacture, packaging, distribution, sale or re search on oroducts sold to H. Yv. Porter & Co. 27. ./i tPo reference to plaintiff's employment from 1945 to date, state: fa) The name and address of each employer known to D e fendant (b) J / / (e) i' o r k e d I j (o) i j () dame, andres and location of each job 's.o dates (initial and permanent) w'-en o n .h u t jo b '"ho nature of the work undertaken '. u; nature of plaintiff's job plaintiff / .> U ^ ,i T 1 * --.4 w.  # FREDERICK LE GRANDE, Plaintiff, JOHNS MANVILLE PRODUCTS CORPORATION, a corpora tion of the State of Delaware, Defendant* UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HEW JERSEY ) ) Civil No* 741-57 ) ANSWERS TO INTERROGATORIES } The defendant, Johns Manville Products Corporation answering the interrogatories propounded by the plaintiff, states on information and belief the following: 1* This defendant has no controlled subsidiaries nor did it sell any products-to H* W* Porter k Co* This de ponent has been informed that the following products manu factured by this defendant have been sold to H. V/. Porter Sc Co* by Johns-Manville Sales Corporation during the years 1952 to 1956, inclusive: Superex Moulded pipe covering and blocks and cement calcined diatomaceous silicate combined with asbestos fiber, Thermobestos Moulded pipe covering and blocks hydrous calcium silicate combined with as bestos fiber* Magnesia Pipe covering Moulded pipe covering and blocks and hydrated basic carbonate of magnesia with asbestos fiber* Asbesto-Sponge Felted Pipe insulation, sheets and blocks laminated asbestos fiber felts. cement bonded Millboard Fire Felt I). C. Flexstone Firetard Bonded asbestos fibers* Insulating Cements 301, 302 Asbestos fiber with various bonding materials. 2 & 3. The foregoing products have the percentage of asbestos fibers and diatomite as follows: Asbestos Diatomite Magnesia Pipe covering r * jj Superex 5- 10 5- 10 60-70 ^ Thermobestos 10- 15 40-50 Asbestos Sponge Felt $5- 95 Asbestocel I). C. Flexstone Fire Felt $5- 95 60- 70 90-100 . Millboard 25- 95 Firetard 60- 70 Insulating Cements 301 302 0 1 \*n O H l O *--l 10-15 20-30 / A. fo. $. Ctrl cken by order of Hon. Reynior J. Wortendyke Jr. elated January 17, 1953. 6. Stricken by order of Hon Reynier J. Wortendyke Jr. dated January 1?, 195# i 6* Stricken by order of Hon. Reynier J. Wortendyke, Jr. dated January 17, 195# 9. Stricken by order of Hon. Reynier J. Worte Jr. dated January 17, 195## 10. (As modified by order of Hon. Reynier J. Wortendyke Jr. dated January 17, 195#) See answer to No# 7 (d). 11. (As modified by order of Hon. Reynier J. Wortendyke Jr. dated January 17, 195#) It was not. 12. (As modified by order of Hon. Reynier J. Wortendyke Jr. dated January 17, 195#) (a) This defendant supplies respirators to such of its employees as are engaged in manufacturing operations in which asbestos particles are used# The-respirators are not limited to a particular brand, but any brand may be used which has the approval of the U. S. Bureau of Mines for use for pneumoconiosis producing dusts# (b) Respirators have been used intermittently for approximately 25 years# (c) See (a). The respirators have been used at yur .Lous, plants of this defendant. (d) The use of respirators was adopted as a result of various Industrial Hygiene Foundation surveys. (e) Approximately 25 years ago. (f) This deponent has no knowledge of any case a: asbcctosis ever being contracted by an applicator. Asbestosis ; (' .. O . . J . .> e OJL *J I are of the requisite size and are inhaled in sufficient quanti!;- are: Magnesia Pipe covering, Superex Block Insulation, , Superex M Block Insulation and Superex Combination Pipe Insulation, We have no knowledge of any case of disease ever being developed by an applicator of the products listed above, . We know from experience in our plants that workmen engaged in the formation of these products have developed such a disease. See answer to No, 12 (f), 14. Stricken by order of Hon# Reynier J, Wor Jr, dated January 17, 195#. 15# Since this defendant never received notice of any claim of asbestosis resulting to any persons other than our employees who were engaged in the manufacture of the prod- ucts, we had no reason to issue any warnings, instructions or preventions to any other persons* 16, 17 and 1#. Stricken by order of Hon. Reynier J* Wortendyke, Jr. dated January 17, 195#* I * 19. See answer to No. 15, Since this defendant never had any reason to believe its products were toxic or ! noxious, it has not taken any action to reduce or minimize such supposed hazards in its products. 20 and 21. This deponent does not know what facts may be regarded as relevant to this cause; however, the only persone now known to this deponent who have any knovdedge con- 22. (As modified by order of Hon. Reynier J. Wortendyke, Jr. dated January 17, 195#) The name and address of persons, expert or otherwise, who may have knowledge of any facts in the case, in addition to those listed in the answer to the foregoing interrogatory No. 20 and No. 21, will be submitted to the plaintifffs attorney before trial. 23. To establish this defense this defendant will rely upon the nature of the products, the work performed, the knowledge and experience of the plaintiff and such facts as may be developed upon further discovery procedures and upon the trial of the case. 24. See No. 23. 25. See No. 23. 26. Stricken by order of Hon. Reynier J. VJortendyke, Jr. dated January 17, 195$* 2?. (a - e) This deponent has been told that the plaintiff worked for H. W. Porter & Co., but none of the other details of his employment is known. (f) See answer to No. 1. (g) See answer to No. 1. Whether H. W. Porter purchased products other than those which this defendant manufactured this deponent does not know, but since the business of this defendant is UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY FREDERICK LE GRANDE, ) Plaintiff, ) -vs- ) JOHNS MANVILLE PRODUCTS CORPORATION, a corpora- } tion of the State of Delaware, ) Civil No, 741-57 ANSWERS TO SUPPLEMENTAL INTERROGATORIES i, - \. r j; ! Defendant* ) The defendant, Johns Manville Products Corporatior answering the supplemental interrogatories propounded by the plaintiff, states on information and belief the following: i' 1* There have been no substantial changes* i' 2 * No * t 3* See No* 12 (a)* / ' STATE OF NEW YORK COUNTY OF J13W YORK ss.: t I, Herbert Morton Ball of full age, being duly sworn according to law upon my oath, depose and say: 1* I am Secretary of Johns Manville Products Corporation and am duly authorized to execute this affidavit on its behalf. 2. I have read the foregoing answers to interroga- tories and the interrogatories, and the answers are true to the best of my information and belief. Subscribed and sworn to ROBERT H. SEBERLE NOTARY PUBLIC, STATE OF NEW YORK . No. 60-35781EO Qualified in Westchester County / J Certificcics filed in the following offices: . County Clerk - New York Commission xpires March 30, 1959 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY FREDERICK LS GRANDE, ) Plaintiff, ) -vs- ) JOHNS MANV1LLE PRODUCTS CORPORATION, a corpora- ) tion of the State of Delaware, ) Civil No. 741-57 INTERROGATORIES Defendant* ) TO: ,, FREDERICK LE GRANDE, Plaintiff and WILLIAM L* BRACH, ESQ*, his attorney 60 Park Place Newark 2, New Jersey PLEASE TAKE NOTICE that the defendant requires that within the time required by the Federal Rules of Civil Procedure you answer under cath the following interrogatories: 1, State specifically the names of all the stances in the materials manufactured by this defendant which plaintiff claims are of a dangerous or toxic character as al leged in the complaint and specify in what products each such material is claimed to be found* * 2. State in what manner each of the materials listed in' t h e .answer to interrogatory No* 1 is claimed to be dangerous ^ or toxic* 3* Specify what warnings or instructions it is claimed this defendant should have issued with respect to the use of its products* I. T-r -i r; that this defendant was negligent * ' h, f N . , '* If li 5. List the names and addresses of the pers than the plaintiff who it is claimed contracted the serious and crippling diseases referred to in the complaint, and specify the disease contracted by each* 6. State whether it is claimed the plaintiff, h im self, purchased from this defendant any products manufactured by it v;hich it is claimed caused the disabilities referred to in the complaint* 7. If the answer to the foregoing 6th interrogatory is in the affirmative, specify the name of the product, the - date of the purchase and the person and his position in the employ of this defendant from whom it is claimed the purchase was made, 6. State the medical name of the disease or dis eases which it is claimed the plaintiff contracted by reason of his use of the products manufactured by this defendant* 9* State the date when the diagnosis of such dis ease or diseases was first made and the name and address of the physician or physicians who made such diagnosis. 10* Give the names and addresses of all physicians Vvho liuve-.rendered treatment to the plaintiff for the disabilities referred to in the complaint, and state the dates between which t* treatment was rendered by each physician. li, State the names and addresses of all physicians who have examined the plaintiff or been consulted by him in con nection v/ith the said disabilities and state the date or dat.es j +* *i r \n r (a) The date such injury, disease or disability was suffered. (b) The nature thereof. (c) The names and addresses of the institutions and physicians who rendered treat ment therefor. (d) The names and addresses of all persons to whom and organizations to which any claim was made by reason of such injury. (e) A detailed statement of the na ture of the claim. 13. Itemize the sums the plaintiff has paid or has * become obliged to pay in an effort to cure himself of the dis ability es referred to in the complaint, stating the name and address of each person to whom an obligation was incurred and the nature thereof. 14. State which of the obligations listed in the answer to the foregoing 13th interrogatory have been paid. 15. When the plaintiff became disabled as alleged in the complaint, state: (a) The name and address of his employer. (b) The specific kind of work he did in his employment. (c) His rate of pay. ' (d) His net take-home pay for each of the eight pay periods preceding the date of his disability. (e) The dates between which he claims he was necessarily away from work by reason of said disability. (f) The wages or earnings, if any, clai to have been actually lost by reason of his disability. 17. If the plaintiff received Unemployment Compensa tion for any period subsequent to September 1, 1956, state the period, giving dates, for which they were paid. i. If the plaintiff received any WorkmenTs Compensa tion benefits for the disabilities referred to in the complaint, state: (a) The period, giving dates, during which he received compensation for temporary disability. (b) The nature and the extent of the perma nent disability benefits which he has received or is receiving, specifying the percentage loss of each mem ber of the plaintiff's body for which benefits were paid, the total amount of such benefits actually re ceived by the plaintiff and the amount to become due. (c) Whether the aforesaid benefits awarded were made as a result of a settlement on workmen's compensation form No. 3 an informal hearing, upon a settlement or under a judgment. (d) The date of the execution compensation form No. 3 the date and the the informal hearing, or if a dispositiop was made by an agreement or settlement or ment;, set forth a copy thereof. of workmen's location of of the case by a judg 19. State the name and address of each person new known to the plaintiff who has knowledge of any facts pertain ing to the claim for relief asserted in the complaint* 20. State the name and address of any expert and the field in which he is specially qualified now known to the plaintiff who is familiar with any of the allegations contained in the complaint. 21. Specify the nature of the tests it is alleged this defendant should have made concerning the proper masks and tt-c-tv!lVvtnrfl to be used bv oersons working with its products 11-* t t]S< V l * rX* t .* h 23* State whether or not it is claimed the masks or respirators furnished the plaintiff by H. W* Porter & Co* were defective or improper* 24. If the answer to the foregoing 23d interrogatory is in the affirmative, state the name and address of the manu facturer of the masks or respirators and specify in what re spect each such mask or respirator is claimed to be defective or improper* 25. If the plaintiff makes any claim for any damages other than those specified in the answers to the foregoing in i 1 terrogatories, state in detail the amount and the nature of such claims* t! STRYKER, TAMS & HORNER u. I hn y, Moni&an^ Jr < ttorneys for Defendant # ft'1 Vi*J t -* f UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY FREDERICK LE GRAND, ) Plaintiff, ) Civil No. 741-57 -vs- ) ANSWERS TO INTERROGATORIES JOHNS MANV1LLE PRODUCTS ) CORPORATION, a corporation ofc" the State of Delaware, rp r r * i; L.-a i Defendant. OCT 3 G1958 flivi IWCn.-'.:_ KE..LER, JR.,C!ork The plaintiff, Frederick Le Grand, answering the interrogatories propounded by the defendant, states on information and belief the following: and silieaie Ni 1. Asbestos particles, silica/particles. Sec defendant's answers to interrogatories number 2 and 3 which are incorporated herein. Also Fibrocel C Pipe Insulation and Fibrocel VS Pipe Insulation, 352 Cement, 450 Cement, Super 66 Cement. 2. Materials containing particles of certain size ranges cause pfiSwimoconiosis after continued exposure to these particles in sufficient concentration 3. Defendant should have made the dangers nf f-vnnsiire known to its consumers, users, distributors, sufficient warning and information on the proper method of handling its products and the types and use of protective proper ventilation devices, i n c l u d i n g / , masks and respirators which should be utilized with its products and defendant should have taken steps to create an awareness among users of die latent dangers inherent sufficient knowledge on how to 4. For failing in its products as well as a the user protect/ in the use thereof. adequate to provide^warning and in formation on and in the packaging of its products containing and silicaie dangerous asbestos and silica/particles. 5. Impossible to answer as the incidence of asbestosis and silicosis run into many thousands and plaintiff does not have personal knowledge of all such cases. However, plaintiff knows of many instances of asbestosis in the Local to which plaintiff belonged. Plaintiff is reluctant to submit names and addresses because it is believed that this may effect the employ- ability of the men having this disease and their li\elihood. 6. Purchases were made by defendant's employer. 7. See 6. 8. jatebeslios-i-ijc. Pheumoeoniosis including a:.:>cs Los js and silicosis, ---- ni v established 10. Dr. Rozsla, Nov, 1954, Feb., 1956, 837 South 11th Street, Newark, New Jersey. Dr. Samuel Einhorn, Dr. Harvey Einhorn, Nov., 1954 to date. 11. Dr. Emanuel Kiosk February, 1956 to August, 1956, Dr. Harold Goldberg, January, 1955 to February. 1956. Dr. Kiosk's address is 46 Lyons Avenue, Newark, New Jersey. Dr. Goldberg's address is 814 South 10th Street, Newark 8, New Jersey. 12. (a) Plaintiff collapsed November 9, ' 1954, thereafter resuming work until February 5, 1956, where after a second collapse he was hospitalized for a lung condition. (b) Plaintiff suffered heart failure diagnosed as being caused by an asbestosis condition which crippled his lungs, called cor pulmonale. Plaintiff's lung condition ultimately manifested itself tlnogh his entire physical condition. (c) As set forth previously. Beth .Israel Hospital, 201 Lyons Avenue, Newark, New Jersey. (d) H. W. Porter & Co., Travelers Insurance Co.. (e) See workmen's compensation file in defendant attorney's possession. V 'I. - 0 14. All expenses paid by workmen's compensation carrier. 15. (a) H. W. Porter & Co., 825 Frelinghuysen Avenue, Newark, New Jersey. (b) Asbestos worker and mechanic. (c) $3.75 an hour. (d) $$70.00 (e) Bov. 20, 1954 to January 2, 1955, Feb. 18, 1956 to June 17, 1956, Sept. 16, 1956 to Feb. 21, 195 7. (f) $3.75 an hour for each date in (e) that he didn't work. 16. Plaintiff, while objecting to th relevancy of this question says he was employed by Armstrong Cork Co. 8/8/57 - 9/27/57 earnings $1,062.80. Matthew-Balich Ccbrp. for month of October, 1957, 10/7/57 to 6/2/58, to June, 1^58 $3,270.20. i?i8$bc 17. Houy.x2Gi'xi254xthrEUgkxJanuaryx2^:xiS.iik ^September 16, 3956 through February 21, 1957. 11 18. Both parties have full record of this and plaintiff will stipulate workmen's compensation record to the extent same is relevant and material. 19. Knowledge of facts pertaining to plaintiff's exposure: All the persons who worked with plaintiff through his many years of employment with H. W. Porter & Co. are familiar with the actual work which plaintiff did, the materials he handled, the extent of his exposure to asbestos dust, etc. Supervisory employees pf H. W. Porter K& & Co., such as Mr. Morris and Mr. Stevens, also are aware of these facts. Paul Springle, business agent of plaintiff's local, c/o Internation Association of Heat and Frost Insulators and Asbestos Workers, Locaf. 32 A F of L, 19th Avenue, Newark, New Jersey. Knowledge ofJacts pertaining to plaintiff's condition are known to plaintiff's immediate fally, his wife and daughter, doctors mentioned previously, all the friends, acquaintances and fellow employees who have worked with and nearXIKK the plaintiff. By reason of the vageness of the question, it is impossible for plaintiff to list the names and Winchell, Industrial Engineer, 297 Euclid Avenue, Hackensack New Jersey, 21. Defendant should have conducted tests on its materials jix to develop means of curtailing release of toxic dusts and further on means of protection against such dust by persons compelled to handle defendants products on a regular basis, and further means of warning users of dangerous concentrations of such dust. 22. Plaintiff makes no such claim. 23. Yes. 24. This information is available only through H. W. Porter & Co. and respective counsel stipulate at deposition of H, W. Porter & Co. officials that this information would be supplied to both of them through the cooperation of H. W. Porter & Co. 25. Plaintiff asserts prospective loss of income based on earnings as set forth in interrogatory number 15 over his projected life expectancy, plaintiff * anticipates continuing medical expenses, and plaintiff will cliam further damages for pain and suffering, past, present and anticipated in the future as well as limitation of his activities and decrease in his normal life expectancy arisirig rjU V`>i - >. xi.Ol - 20. Continued ' it Dr. Roy H. Allen, 120 Persone Lite Avenue, Verona, New Jersey, microsopist and mineralogist, and Mr. A. Uallach, Industrial Ilygieneervices, Bergen Street, Newark, New Jersey. ! W!* Mi-tX -j n. M 0 jrf.^xwj't 4* iiM '&*< '. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY FREDERICK LE GRANDS V3 JOHNS MALT ILLS PROD. COR?. CIVIL NO. J M c i Z .ORDERED that the stenographic notes or transcript (if made) of the pre-trial conference held today shall constitute the pre-trial order. October 17, i9.;o  . /-' f f D r' UK ITED STATES DISTRICT CO'JKT DISTRICT OF NEW JERSEY FREDERICK LE GRANDE, vc. Plaintiff, JOHNS MAKVILLE PROD. CORP., Defendant. Civil No. 741-57 Newark, New Jersey October 10, 1953 Before; HONORABLE REYNIER J. WQKTENDYKE, JR., U. S. D. J. Appearances: WILLIAM L. BRACH, Esq., Attorney for plaintiff MESSRS. STRYKER, TAMS & HORNER, Attorneys for defendant By JOHN J. MONIGAH, JR., Esq. ! ! '. } f `-``i - J. . !'' - if. " ' r. . ' ?* **-*v * v*'\`1i}*.'`**'< - **;. v *". *\ \ 'V'.'S' : ' v(;Sfi- ` A* . .'l-.i-V-V, ! THE CGU&T: Diversity action for damages for physical * disability alleged to have resulted through the negligence of 1 the defendant during the course of plaintiffrs exposure to 1 products of the defendant containing asbestos and sillica dust over a period extending from 1936 through September 1, 1956 The exposure complained of is alleged to have {Occurred principally during the course of plaintiff's esnploynent by H. W. Porter & Company, installation engineers end contractors, in capacities including apprentice, mechanic, and foreman, and involving the use of material for insulation and other construction purposes containing the allegedly noxious substances. It is conceded that the plaintiff made claim against his 3 employer for Workmens Compensation based upon a charge that he was suffering from the occupational disease of Asbestosis, which arose out of and in the course of his aforesaid employment. Plaintiff ceased his employment with Porter on July 31, 1956, but hat; subsequently been employed in various capacities by other employers not involving the direct handling of the materials of / which hi. here complains. He predicates his right to recover upon a charge of negligence on tho? pert of the defendant in failing to provide the materials, t which it manufactured and which the plaintiff used in his employ V o**s * * * * * l" ' r COB <*p "-0*i,.,'*p'** * '*,* * ,', tH^r*1, VO*I, w - fK' !"j<' r.*v'~M * ** ** , Y^iy*"** v' /J# ,' V . I ^ c. ?, ' ,,... w `>- *3 f AgA***** uch hazards, or with such information as the user would *i 1 '/need to adequately protect himself against such hazards. The hazards to which plaintiff refers in this charge are as follows: Hr, BRACK: The risk of contracting asbestosis or sillico- is by reason of continued exposure to asbestos or sillies dust of a toxic nature end in sufficient concentration to cause these diseases, THE COURT: The defendent concedes that its product bore none of the warnings, instructions, or recommendations referred to by the plaintiff, but denies that its products were hazardous or harmful either by reason of their charecteristics, toxic or otherwise, when used for the purposes for which they were intended, end denies also any obligation to label its products in the respects claimed by the plaintiff. Supplementing his above-stated contentions, plaintiff adds -- HR, BRACK: That the defendant, by reason of its access to special knowledge and information as the manufacturer of its products, by reason of which it took precautions in behalf of its own employees, who by reason of their Jobs were exposed to the asbeetosis and sillies dusts in its products, had a duty to relay this information to those group of workmen who would incur a ,4 T .. - ~ ~c #* Mi* r* /jncrfc n'vnffiinfil in itfi .;;_ u *` w k *\ * V ' " ^y^ * * iAPt*JS$Srilfjr*'*..*, ***: ''.nMU-V. ^Vg?~*J. jiffi .i t " -1! xpo F-^yiswc-x'*?`1-"'1 ! * # $ a 0 - ;-'-'--/'iSiat^wSH S'-'^*'WT;h> ^ ;;Vjfcy'yfr.;wi" P* a5? v-.it- r.> ^ ,&dsrsr.oTh hT^^-C'*''**'/<'''^ ~r/-rorrr'***f`' ...*r'i ^n` r Sr'- " ' ' ,-ff- H-.4--^ i't&K: the defendant takes the position that the obligations and prac tices owed and exercised by the defendant toward its employees in the production of the materials here complained of are irrele vant to and not controlling upon its duty to the plaintiff, a user of the finished products of the defendant. In his second count the plaintiff charges that the defendant breached an implied warranty of fitness and safety of which the plaintiff was a beneficiary. The theory underlying this count is that there was an implied warranty between the defendant and the purchaser of the material, and that that warranty was for the benefit of third parsons, including the plaintiff, l.e., that the plaintiff was in the class of intended beneficiaries of such an implied warranty. Counsel will, within a week from this date, determine whether he will continue to rely upon the second count, and will within that time advise his adversary. Defendant has already addressed a motion to the complaint with particular reference to the second count, which may become moot should the plaintiff abandon the count. Discovery is complete except that the defendant objects to certain supplemental interrogatories recently served by the 7, t M' C. f* u0t tai**5'1 fli'JV ' .epecT"" 0*' "Vl". ' . ^**3*^'oS5' >' . ," - r- ^ *rr *<*' * -rrr^ r- J c in a deposition or depositions will be furnished, and *AV. t; ^ ^ such will be done within three weeks from date. ^C * i :ii*/&**: i* ' Physical examinations have been held, but leave is granted tc r . the defendant for additional examination by Dr. York (respiratory) - * - ` ' - -., . Counsel undertake to confer and endeavor to agree upon t h e ' , ' ; + j; f admission in evidence of certain exhibits, including.specimens of or samples of defendant's product, slides, etc. * The hospital records will be admitted. ; j , A Plaintiff claiming permanent disability, will tender evidence i of his expectancy of life, end it is stipulated by. counsel that that will be computed on the basis of the table in the New Jersey Rules of Civil Procedure. * Case not to be moved for trial before November 20. hiulraated trial time is four days. Trial briefs will be required so that the Court has both of them in hand a week before trial. Plaintiff's hospital expense was paid by his employer's Workmens Compensation insurance carrier, and the defendant, there fore, will furnish the plaintiff's attorney with the particulars thereof. ( FILED UNITED STATES DISTRICT COURT MAR 18 1959 DISTRICT OF NEW JERSEY a t :^9V c ^ M MICHAEL KELLER, JR. iCLERfi FREDERICK LE GRAND, Plaintiff C iv il vs ORDER OF DISMISSAL JOHNS MANVILLE PRODUCTS CORP., Defendant It appearing that it has been reported to the Court that the above action--has been settled; It is, on this day ? March 19,59 ORDERED, that this action is hereby dismissed, without costs, and without prejudice to the right to reopen the action if the settlement Is not consummated. Copies to: William L. Brach, Esq. Stryker, Tama & Horner, Esqs. 9 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY RODERICK L GRAND, ) Plaint 1.1'f, ) -vs - ) AR'vS MANVILLE PRODUCTS ) vLPORATION, a corporation the State of Delaware, ) Defendant. Civil No. 74 1.-57 * STIPULATION AND ORDER It is hereby stipulated by and between the ~ries hereto that the above captioned matter be rr.issed with prejudice and without costs. r/ William L, Brach *" ATTORNEY FOR PLAUTI?*' STRYKER, TAMS & HORNER It is so ordered v FREDERICK LE GRANDE, ~vs- Plaintiff, JOHNS MANVILLE PRODUCTS CORPORATION, a corporation of the State of Delaware, Defendant. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ) ) Civil No. 741-57 ) ORDER ) ) ) The defendant having filed objections to interroga tories which were served by the plaintiff in the above matter, and the Court having considered the arguments of counsel, .and having on January 2, 195# filed a letter opinion stating its disposition of the objections and the reasons therefor, which is incorporated herein and made a part hereof, it is on this day of January, 195#j ORDERED that interrogatories No. 5, 6, 7 (a) (b) (c) (e), S, 9, 14, 16, 17, 1G, 22 (c) and 26 be and they hereby art stricken;.and IT IS FURTHER ORDERED that the defendant be and it hereby is ordered to answer interrogatories No. 7 (d ), 13, 19 and 25 (a); and IT IS FURTHER ORDERED that the defendant be and it \ hereby is ordered to answer interrogatories No. 1, 11 and 12, as modified, to delete therefrom any references to the sub sidiaries of the defendant except that such information will !.. il .. , . W by ii.'ason of the agreement of counsel respecting the forra and content thereof. ! On ruoti on of ! STitYKlhl, TAMS & HOxlNEH, '! Attorneys for defendant ; i ! Consent to the form of the foregoing order is hereby given. n ^--- ~--- cV.Li Wri 1 Lain L. F.rach All.oi.ney for plaintiff. UNITED STATES DISTRICT COURT DISTRICT OF REV,' JERSEY FREDERICK 1 GRANDE, ) Plaintiff, ) -vs- ) JOHNS MANVIUE PRODUCTS ) CORPORATION, a corpora tion of the State of ) Delaware, ) Defendant, ) TO: tfiLLIAK L.- BRACH, ESQ. Attorney for Plaintiff 60 Park Place Newark 2, Mew Jersey Civil No. 741-57 NOTICE OF MOTION FOR SUMMARY JUDGMENT OCTj o 1958 , (f,.. -- 1-----."ij L.il' PLEASE TAKE NOTICE that on Monday, October 27, 195#, at ten o1clock in the forenoon or as soon thereafter as counsel can be heard, at the Federal Building, Newark, New Jersey, we shall apply to the Honorable Reynier J# `Wortendyke, Jr,, Judge of the United States District Court, or to such other Judge as shall then and there sit to hear mo tions in matters pending in the United State District Court, District of New Jersey, for a summary judgment in favor of the defendant dismissing the action of the plaintiff on the ground that the first count of plaintiffs complaint is bar red by the New Jersey Statute of Limitations, and on the grounds that the second count of plaintiffs complaint fails to state a claim upon which relief can be granted. r 4 I ` EXHIBIT I i' I: : NEW JERSEY DEPARTMENT OF LABOR AND INDUSTRY I DIVISION OF WORKMEN'S COMPENSATION NEWARK, ESSEX COUNTY DISTRICT ; FREDERICK M. LE GRANDE, Petitioner, jilj -vs- h H. W. PORTER CO.,* ; Respondent. : x ------------------------------- x Friday, April 26, 1957. i 'BEFORE: HONORABLE MAURICE A. KALTZ, DEPUTY DIRECTOR. i APPEARANCES: 1 ii ;i - i WILLIAM L. BRACH, ESQ., j For the Petitioner. i ) ! LESTER C. MARTIN, ESQ., i By: SKEFFINGTON, HASKINS & SKEFFINGTON, ESOS., j By: JAMES J. SKEFFINGTON, ESQ., * \ For the Respondent { * l F R E D E R I C K M. L E G R A N D E , the petitioner, appearing in his own behalf, being first duly sworn, testified as follows: * * * Page 4 DIRECT EiZAMINATION BY MR. BRACK: Q You are the petitioner in this matter, Mr. LeGrende? A I am, Sir. Q Where do you live? A 151 Montgomery "Avenue, Irvington. Q What is your age? A At the present time, 51. Q When were you 51? A 25th of February. ** * Page 9 THE DEPUTY DIRECTOR: Your petition says that he stopped work between November of 1954 and February of 1956. Mil. BilACH: No, he stopped work between November of 1954 and January 3, 1955. He had two attacks. THE DEPUTY DIRECTOR: Wait a minute. You say here he stopped work 11/54 to 2/56. That can't be right if your records are right. MR. BilACH: There were two stopping dates, if your Honor please; 11/54 and 2/56, and there were two re st ar tin g dates. ! Did something happen to you in November 1954? u i li THE WITNESS: Yes, I blacked out at home. : !' ' THE DEPUTY DIRECTOR: All right, you blacked out at ; home. Do youremember when it was? 1 j THE WITNESS: Yes, I do. ; 1, THE DEPUTY DIRECTOR: When was that? 1 li THE WITNESS: 11/8/54 at night, j THE DEPUTY DIRECTOR: At night? j! THE WITNESS: Yes. i ! THE DEPU1Y DIRECTOR: Were you doing anything in | particular at the time? I THE WITNESS: No, I was sitting on a couch with my wife, and I stood up, and when I stood xip I jpst blacked :! out. I was out for just maybe a minute or twp. I couldn't ! tell offhand. i! ;> BY MR. BRACK: Ji Q Did you go to see a doctor? A W'ell, the wife--I got up--then I got up on the couch, U I and then we contacted the doctor. I visited I|ir. Einhorn. !! I.visited Dr. Einhorn, I believe, on the 10th. I visited ;i Dr. Einhorn on 11/10/54. And then-- !; Q Did you have any specific complaints at that time? i ; A You mean how I was feeling? i Q Yes. A I felt--to my experience, I felt good '' at that time up to the time I blacked out. I had no sickness or anything else previous to that that I know of: . ( , ,t- f ^ I i j *5! **** TT -3- product: at all, you cough; due to dust that it raises you are hound to cough. Q When you saw the doctor, what complaints did you have at that time? This was shortly after you blacked out when you first saw the doctor? A You mean when I went to the doctor? Q Yes. A Well, I went over and told him just what happened to me: I just passed out and that's all, I went to work the next day. Then the following day I went to the doctor. And I believe he sent me for X-rays-yes, I went and had an X-ray taken on 11/11/54, by S. Rozsa. THE DEPUTY DIRECTOR: Dr. Stephen Rozsa? THE WITNESS: Yes. THE DEPUTY DIRECTOR: Did you stay home, then, until February? Were you hospitalized? THE WITNESS: I was under Dr. Einhorn's care, yes, until I went back to work. BY MjI. BEACH: 0 Did you stay home under the directions of the doctor? A Yes, I certainly did. THE DEPUTY DIRECTOR: You stayed home till February 1956?" THE WITNESS: No, I stayed home until 1/3/55. THE DEPUTY DIRECTOR: Until January 1955? Page 41 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY FREDERICK LE GRANDE, ) Plaintiff, ) vs ) JOHNS MANVILLE PRODUCTS ) CORPORATION, a corporation of the. State of Delaware, ) Defendant. ) Civil No. 741-57 AFFIDAVIT STATE OF NEW JERSEY COUNTY OF ESSEX : SS. : ALEXANDER JASMAN, of full age, being duly sworn according to law, upon his oath deposes and says: 1. I am the Court Reporter who stenographically recorded the testimony introduced before the Honorable Maurice A. Kaltz on Friday, April 26, 1957 in the matter of Frederick M. Le Grande vs. H. W. pOrter Co. heard in the Division of Workmen's Compensation in Newark, New Jersey, and under whose direction it was transcribed. 2. The schedule annexed hereto is a true and accu rate copy of the portions of the testimony therein set forth. Sworn to and subscribed ) before me, this ? day ) -"^.TOGoy pu^un .not;c p9777.5^03 `orVVIT/T T OT/KOV* -l S7J,' i o o o Gv ? i t i v i ,o *o :rjrriin l!t < *rL,SJrC-rWj_ `roioviv nuapuodsar aun ~o ' }X2 `m J X I X T i S T CTiyr :-`I :3 sHiasvii *noie.".ixT5r,is f'cT `bTITr-i '0 V X X l *;rauoT?.x?.ocT "OjT < *JKfv'-- ^ihi/jp,'-rvTdT r-ir ; T / m i ; i nr,;n fc.* ^ * V / 2.I T T *voiX V ia lacr e voivnY! :n r/rxoi 1 ! 'i H ;;rcM7 it t 3 :( t Il6T `0T TI `f o p V J nuaounena'" ` * 30 V X VOI - SA - *nauo-rnT-no^ | . ! Ti 'll , ! ! I ! `aoxvo si vi iDiracnv j X - -- -- -- -- -- -- ZZ V Moirvsia Ainaoo russa `tvyitm V O IT / S X T IO O S , MTTVOM IO t'O I S I A ia AVIS navi CLVf >ionn va xrvntxrr/a:va_*^g>~w t f -x h D E R I C K Z. L E G ii A N D E, tne petitioner, having been previously swora, resumed cue stand and Cet vLfiled carthen as follows: Dinner E.CALIWATIC:>I (Continued) EY i f ,. EibACR: Q 'nr. LeCrande, I believe you testified previously chat you had been provided prescriptions and had obtained drugs since November 10, 1954: is that correct? A That is right. vi a* Vr Vc Vi page 45 Q what are you pointing to? A Codeia pnosphate. Q November 1 >, 1954, this was prescr:\Lec ; a lAat was the first: one I Oot. 1 said 1 Uc'C taken forty ho ttics of t' at up to 12/31/54. That wr.s at $2 a tot lie. He pit me on another cough medicine. page 5C SR. SYLlIEL EINHOkH, a witness appearing on behalf of the petitioner, being first duly sworn, testi" fled as follows: DIIIECT AhiiliivnCh EY III. ERACH.: A Yes, Sir. He was examined with a history of a black out after cou^n two days before. He had had a severe non-productive coujh for one year, but trouy'qt up no bleed. There was no chest pain and no l o s s of weight. Ik; compiainc-d of palpitation and shortness of breath on or.u ri I ns. inert., was no swelling of tnc 1e s , no noc turnal dyspnea, no cardiac pain, and no orthopnea, ho smob'', d cither none to two cirarectes a cay. ('n examination, uis weight vans 200, blood pressure I4w/fj. ills physical was comparatively negative except ::or tin; enesu. Tne percussion note Weis somewhat im paired over tne riynt rr.idportion of Live iunp. T. ere were S'towers of rales and a yu'c at many rnonehi over the entire lunp, field, chiefly at the bases. The .'.eart was not enlarged; it was beating at a regular sinus rhythm. There uere no murmurs. There was no evidence of peripheral lailin'o. k-ray wac obtained. pay;e 142 XLU II XLX'L'h IG > a witness appearing on bciialf of (hie potitinne bcinp; first duly sworn, testified as otrows: Hill ACT riC/JrluATIOh IY lit . BRACH: naye 14.1 Hid you have an opportunity to exarlnc m; peri., loner in tils matter, Frederick LcGrancc'.  y f _ , ...... <c " l" 5 : : " '1" T ' ! A In my office. f Q Did he state any complaints to you at that V time? ) t \\ i THE VJITiSfESS: t. *, * /V Chief complaints were shortness of f J breath, cough and weight loss. i: BY Ml. BRACK: |. h 1 Q Did you ,ive the man a physical examination - i at that time? \It ! i. A I took a complete history and did a complete physi i t cal examination and did some labora tor)' studies on him. i 1 i k Uould you describe the results of your exa.r.i- 1 nacin, DoctorV ij A b l! 1j You mean che diagnosis? Q ho, your physical findings. i A Can I read from this? (Indicating) It ii THE DEPUTY DIRECTOR: Cure. i; Ii i THE vJITIBESo: The significant abnormalities v?ere t r confined to the chest. 1 He had seme dullness and diminished breach sounds at both bases with occasional rales. Upon iu fluoroscopy, considerable cloudiness of both lower lung y i; n field!.' Tne heart was net enlarged. There were no 1 t significant cnamber alterations. The electrocardiogram i | it merely snowed the e meets of.digitalis therapy. Ly 1 j. diagnosis was: Pneumoconiosis resulting fret, and 1' tl 1I hauunddl''hn.. of asbestos raterial, and probably pulmonary t UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY FREDERICK LE GRANDE Plaintiff VS JOHNS MANVILLE PRODUCTS CORPORATION, a corporation of the State of Delaware, Defendant. STATE OF NEW JERSEY : SS COUNTY OF ESSEX ) ) Civil No. 741-57 ) AFFIDAVIT ) ) ) RICHARD J. SAL1ERN0, of lull age, being duly sworn according to lav/, upon his oath deposes and says: 1. I an the Court Reporter who stenographic]ly recorded the testimony introduced before the honorable Maurice A. Kaltz on Friday, May 10, 1957 in the matter of Frederick M. Le Grande vs. H. Vi. Porter Co. heard in the Division of Workmen's Compensation in Newark, New Jersey, and under whose direction it was transcribed. 2. The schedule annexed hereto is a true and accu rate'" copy of the portions of the testimony therein set forth. Sworn to and subscribed ) of October r /O ,/'/ ) ichaftT J~ SaYierno ) UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY FREDERICK LE GRAND, ) Plaintiff, ) -vs- ) JOHNS MANVILLE PRODUCTS ) CORPORATION, a corporation of the State of Delaware, ) Defendant. ) Civil No. 741-57 ORDER This matter being opened to the Court by John J. Monigan, Jr., Esq, appearing for Stryker, Tains & Horner, Esqs., attorneys for defendant, Johns Manville Products Corporation, and William L. Brach, Esq. appearing for the plaintiff, Frederick Le Grand, and counsel stipulating in open Court that the second count of plaintiff's complaint shall be dismissed without costs and the Court having heard the argument of counsel and having reviewed the proof submitted on the motion of the defendant to dismiss the first count of plaintiff's com plaint., and for good cause appearing, it is, on this J ^ t - day of November, 1958, ORDERED and adjudged that the second count of IT IS FURTHER ORDERED and adjudged that defendant's motion for a summary judgment on the first count: of plaintiff's complaint be, and hereby is denied., without costs* . ;jv **f A.4"V UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY FREDERICK LE GRANDE : Plaintiff -vs- JOHNS MANVILLE PRODUCTS CORPORATION, a corporation of the State of Delaware : *~1(Jf- C 7 CIVIL NO. / V 1 ^ ' : COMPLAINT AND DEMAND FOR JURY TRIAL : Defendant : t I j : I Plaintiff residing at 151 Montgomery Avenue in the Town of Irvington, County of Essex and State of New Jersey says: FIRST COUNT j 1. Plaintiff, Frederick Le Grande is a resident and citizen of New Jersey. 2. Defendant, Johns Manville Products Corporation is a corporation and citizen of Delaware. 3. The amount in controversy exceeds the sum of $3,000.00 exclusive of interest and costs A" particularly but not limited to the asbestos and other fibre dust and particles in that continued contact with the said materials and products and handling of them would and did ex t- i',;! ' pose plaintiff and other persons similarly situated to the likelihood of contracting serious and crippling diseases, including but not limited to pulmonary asbestosis, fibrosis and silicosis. & ft r'>. 8. Defendant knew or should have known of the dangerous and toxic qualities of its products and of I the likelihood of said serious diseases resulting from pro & longed exposure to and handling of the said products. v 9. Defendant was negligent in failing to conduct or properly to conduct research concerning the con tents, make-up and toxic effect of its products, and was fur ther negligent in fae manufacture, make-up, packaging and labeling of such dangerous and toxic products and was further negligent in failing to provide any or adequate warnings or instructions as to the use and handling of same. By reason r '^fondant's negligence as aforesaid, plaintiff and have and will continue to have heavy and continued expenses t* * - for drugs, medicines, doctors, further hospital treatment and other remedial and alleviating treatment and plaintiff has been rendered nervous and mentally incapacitated as well as physically incapacitated by said disease heretofore alleged. SECOND COUNT 11. Plaintiff repeats the allegations of Paragraphs 1 through 8 above. 12. Defendant in manufacturing and selling said i ! safe i products warranted that same were reasonably fit for the uses to which they were to be put. 13. Plaintiff as one of the class and of per- | sons whom the defendant intended to, and knew or should have I!known, would use said products was entitled to the j of the aforesaid warranty. i 14. The said products were not 1 reasonably fit and safe for the uses to which they benefits in fact were to be put in the respects set forth in paragraphs 7 and 8 above and further in that they contained no, nor adequate warnings or J "I * ____ U N IT E D FOR TH E STA TES D IS T R IC T D I S T R I C T OF- NEW CO U RT JER SEY FREDERICK LE GRANDE, ) vs-- Plaintiff, ) ) JOHNS MANVILLE PRODUCTS CORPORATION, a corpora ) tion of the State of Delaware, ) Defendant. ) Civil No. 741-57 ANSWER The defendant Johns Manville Products Corporation, a corporation of the State of Delaware, duly licensed to transa business in the State of New Jersey, having an office therein i the Borough of Manville, County of Somerset, answering the com plaint filed herein says that: FIRST DEFENSE TO FIRST COUNT 1* It has no knowledge sufficient to form a belief as to the allegations of paragraphs 1, 2, 3, 4, 5 and 6. 2. It denies paragraphs 7 and S. 3. It denies paragraphs 9 and 10. SECOND DEFENSE TO FIRST COUNT 4. It alleges that any danger to which the plaintiff exposed in the use of the products manufactured by the d~:fendan was as open, obvious and apparent to him as to the defendant, he assumed any and all risk incident to the use thereof# THIRD DEFENSE TO FIRST COUNT 5# It alleges that the plaintiff was guilty of contr butory negligence in that he failed to exercise that degree of care and caution which a reasonably prudent person would have tj. FIRST DEFENSE TO SECOND COUNT 6. Answering paragraph 11, it repeats pare,..aphs 1 and 2 hereof, 7 Answering paragraph 12, in admits that in. the sale of its products it made such implied warranties as it wa obliged by law to make, but it alleges that no warranties, ex press or implied, were made to the plaintiff. 8. It denies paragraphs 13, 14 and 15# SECOND DEFENSE TO SECOND COUNT 9. It alleges that the said count fails to state facts upon- which a claim for relief can be based. STRYKER, TAMS Sc HORNER JJ By. Jcihn O f JM'. Wonl i-L cc, aCX nU ,J // JU r1 0 Attorneys for Defendant 744 Broad Street Newark 2, New Jersey William L. Brach, Esq., 60 Park Place, Newark 2, New Jersey Stryker, Tams & Horner, Esqs., Attention: John J. Monigan, 744 Broad Street, Newark 2, New Jersey Jr., Esq., Gentlemen: > In determining the propriety of interrogatories under Federal Rule 33, the limitations embodied in Rule 26(b) must serve as a criterion. The critical language expressing the scope of inquiry by deposition or interroga tory permits examination "regarding any matter, not privi leged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, * * Defendant has filed objections to interrogatories propounded to it by the plaintiff and a hearing w^s held uoon these objections on December.23, 1957, at the conclu sion of which the Court undertook to examine the interroga tories objected to and to decide the issue of the propriety Messrs. Brach and Monigan January 2, 1958 - page 2 Re: C-741-57 may not inquire further back 6. By analogy to the principle in Xluchenac v. Oswald & Hess C o ., D.C. Pa. 1957, 20 F.R.D. 87, the making of the scientific and statistical research which this interroga tory calls for is a burden which, in my opinion, plaintiff may not properly impose upon defendant. The objection to this interrogatory is sustained. 5. The objection to this interrogatory must be tained because it calls upon the defendant, without any showing of its knowledge or ability to obtain information respecting the same, to disclose transactions between Porter and suppliers other than the defendant. sus 7. Subdivisions (a), (b) and (c) of this interrogatory call for information which, in my opinion, is not relevant to the issues in this case, hence the objections thereto are sustained. The objection to subdivision (d) is over ruled. The objection to subdivision (e) is sustained be cause the interrogatory is not sufficiently specific but is too general. 8. I sustain the objections to this interrogatory and its subdivisions for reasons similar to those expressed in connection with interrogatory No. 5. 9. I consider this interrogatory to be in the same category as No. 8, and therefore objectionable. 10. With the understanding that this interrogatory shall be deemed to relate to "experimentation, study or Messrs. Brach and Monigan January 2, 1958 - page 3 Re: C-741-57 12. Subject to the elimination of reference to de fendant's "subsidiaries" in this interrogatory, the objec tions thereto are overruled. 13. I overrule the objection to this interrogatory. 14. The objection to this interrogatory is sustained because I consider that instructions or warnings given by defendant or its subsidiaries to any of its employees re specting hazards of their employment is irrelevant to the issue of whether defendant violated its duty to the plaintiff, who I understand was not its employee. 16. The objection to this interrogatory is sustained because a responsive answer thereto would be irrelevant to the issues in this case, and because it is too broad. 17. Th objection to this interrogatory is sustained for the same reasons stated respecting No. 16. 18. The objection to this interrogatory is sustained because the relationship between the parties to this action renders responsive answer thereto irrelevant. 19. The objection to this interrogatory is overruled. 22. Subdivision (c). The objection to this subdivi sion is sustained for the obvious reason that it is depend ent upon the contingency that the defendant may desire to call the expert and because the defendant cannot be required to guarantee what will be the expert's opinion. 9S Subdivision (a). The objection to this interroga- FREDERICK LE GRANDE, --vs- Plaintiff, JOHNS MANVILLE PRODUCTS CORPORATION, a corpora tion of the State of Delaware, . Defendant* UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NSW JERSEY ) ) ^ Civil No. 741-57 CEDER ) ) ) The defendant having filed objections to interroga tories which were served by the plaintiff in the above matter, and the Court having considered the arguments of counsel, and having on January 2, 1958, filed a letter opinion stating its disposition of the objections and the reasons therefor, which is incorporated herein and made a part hereof, it is on this day of January, 1958, ORDERED that interrogatories No. 5, 6, 7 (0 lb) (c) (e), 8 ,9, 14, 16, 17, 18, 22 (c) and 26 be and they hereby are stricken;.and IT IS FURTHER ORDERED that the defendant be and it hereby is ordered to answer interrogatories No* 7 (d), 13, 19 and 25 (a); and IT IS FURTHER ORDERED that the defendant be and it \ hereby is ordered to answer interrogatories No. 1, 11 and 12, as modified, to delete therefrom any references to the sub sidiaries of the defendant except that such information will be furnished in the answer to interrogatory No. 1 in accord ance with the agreement of counsel; and TT IS FURTHER ORDERED that the defendant be and it FREDERICK LE GRANDE, -vs- Plaintiff, JOHNS MANYTLLE PRODUCTS CORPORATION,.a corporation of the State of Delaware, Defendant. UNITED STATES DISTRICT COUR'j FOR THE DISTRICT OF NEW JERS1 ) ) Civil No. 741-57 ) STIPULATION AMENDING PLEADINC ) ) ) IT IS HEREBY STIPULATED AMD AGREED by and betw. William L. Brach, Attorney for the Plaintiff, and Stryker, Ta- & Horner, Attorneys for the Defendant, that the complaint in the above-entitled action, be amended to allege, in addition t the other allegations therein, as follows: "That the defendant was negligent in fail ing to make any or adequate tests as to the proper type of mask or respirator to be used by those work ing with its products and further to advise its users or their employees of the nature and type of masks and respirators to provide them with adequate pro tection" against respiratory diseases"; AND IT IS FURTHER STIPULATED AND AGREE, that t answer of the defendant be amended to allege, in addition to t the other defenses'therein alleged, the following: "It alleges that any claim for personal injuries resulting from the alleged negligence of the defendant is barred by the applicable provi sions of the New Jersey Statute of Limitations (N.J.S. 2A:14-2). Dated: April 14, 195# - 1 ... William 1 7 Braen Attorney for Plaintiff STRYKER, TAMS & HORNER UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HEW JERSEY FREDERICK LE GRANDE, ) -vs- Plaintiff, ) ) JOHNS MANVILLE PRODUCTS CORPORATION, a corpora- ) tion of the State of Delaware, ) Civil No. 741-57 ANSWERS TO INTERROGATORIES Defendant# ) The defendant, Johns Manville Products Corporation answering the interrogatories propounded by the plaintiff, states on information and belief the following: 1. This defendant has no controlled subsidiar nor did it sell any products to H. W* Porter & Co* This de ponent has been informed that the following products manu factured by this defendant have been sold to H. W. Porter & Col by Johns-Manville Sales Corporation during the years 1952 to 1956, inclusive: Superex Moulded pipe covering and blocks and cement calcined diatomaceous silicate combined with asbestos fiber. Thermobestos Moulded pipe covering and blocks hydrous calcium silicate combined with as bestos fiber* Magnesia Pipe covering Moulded pipe covering and blocks and hydrated basic carbonate of magnesia with asbestos fiber# Asbesto-Sponge Felted Pipe insulation, sheets and blocks laminated asbestos fiber felts* cement bonded Asbestocel Pipe insulation sheets and blocks and flexible Millboard Fire Felt D. C. Flexstone FiretardBonded asbestos fibers* Insulating Cements 301, 302 Asbestos fiber v.'ith various bonding materials* 2 & 3 The foregoing products have the percentage of asbestos fibers and diatomite as follows: Asbestos Diatomite Magnesia Pipe covering 5- 10 Superex 10 60-70 Therraobestos 10- 1$ 40-50 Asbestos Sponge Felt 85- 95 Asbestocel 85- 95 o I 2 D. C. Flexstone Fire Felt 90-100 Millboard 85- 95 Firetard 60- 70 Insulating Cements 301 302 10- 15 AO- 50 10-15 20-30 4 No* 5. Stricken by order of Hon. Reynier J. Wortendyke Jr. dated January 17, 1953* 6. Stricken by order of Hon. Reynier J. Wortendyke Jr. dated January 17, 1958* 7. (a), (b), (c), (e) stricken by order of Hon. Reynier J. Wortendyke, Jr. dated January 17, 1958* (d) No such research was conducted by this defendant. & Stricken by order of Hon. Reynier J. Wortendyke, Jr. dated January 17 195&* 9* Stricken by order of Hon. Reynier J.. Wortendyke, Jr. dated January 17 195&* 10. (As modified by order of Hon. Reynier J. Wortendyk* Jr. dated January 17, 195$) See answer to No,. 7 (d). 11. (As modified by order of Hon. Reynier J. Wortendyk Jr. dated January 17, 195&) It was not. 12. (As modified by order of Hon. Reynier J. Wortendyk Jr. dated January 17, 195*0 (a) This defendant supplies respirators to such of its employees as are engaged in manufacturing operations in v;hich asbestos particles are used. The-respirators are not limited to a particular brand, but any brand may be used which has the approval of the U. S. Bureau of Mines for use for pneumoconiosis producing dusts. (b) Respirators have been used intermittently for approximately 2$ years. (c) See (a). The respirators have been used at various plants of this defendant. (a) The use of respirators was adopt result of various Industrial Hygiene Foundation surveys. (e) Approximately 25 years ago. (f) This deponent has no knov/ledge of any case asbestosis ever being contracted by an applicator. Asbestosi:- was first contracted by an employee of this defendant at one _ t of its plants in 1946. 13. This deponent has been informed that the prcduc ..... ... *'*** i wMfih may contain are of the requisite 3ize and are inhaled in sufficient quantit are: Magnesia Pipe covering, Superex Block Insulation, Superex M Block Insulation and Superex Combination Pipe Insulation* We have no knowledge of any case of disease ever being developed by an applicator of the products listed above* We know from experience in our plants that workmen engaged In the formation of these products have developed such a disease* See answer to No* 12 (f )* 14. Stricken by order of Hon, Reynier J, Wortendyke, Jr. dated January 17, 195# 15* Since this defendant never received notice of any claim of asbestosis resulting to any persons other than our employees who were engaged in the manufacture of the prod ucts, we had no reason to issue any warnings, instructions or preventions to any other persons. 16, 17 and IS. Stricken by order of Hon. Reynier J. Wortendyke, Jr* dated January 17, 195&* 19* See answer to No* 15* Since this defendant never had any reason to believe its products were toxic or noxious, it has not taken any action to reduce or minimize such supposed hazards in its products* 20 and 21* This deponent does not know what facts may be regarded as relevant to.this cause; however, the only persons now known to this deponent who have any knowledge con cerning the matters set forth in the complaint or in these an swers, in addition to himself, are: Kenneth W* Smith, K.D*, A. M* Schmidt, Frank Deeg, 22 East 40th Street, New York City; Wilbur H* Morris 22. (As modified by order of Hon, Reynier J. Wortendyke, Jr, dated January 17, 1953} The name and address of persons, expert or otherwise, who may have knowledge of any facts in the case, in addition to those listed in the answer to the foregoing interrogatory No. 20 and No, 21, will be submitted to the plaintiff's attorney before trial. \\ 2 3 , To establish this defense this defendant will rely upon the nature of the products, the v/ork performed, th< knowledge and experience of the plaintiff and such facts as 4 be developed upon further discovery procedures and upon the trial of the case. 24. See No. 23. 25. See No. 2 3. 26. Stricken by order of Hon. Reynier J. V/ortendy.- Jr, dated January 17, 1953. 2 7 . (a - e) This deponent has been told that the plaintiff worked for H. W. Porter & Co., but none of :ie oth. details of his employment is known. (f) See answer to No. 1, (g) See answer to No. 1. Whether H. W. Porter purchased products other than those which this defendant manufactured this deponent does not know, but since the business of this defendant is highly competitive, it is quite probable that H. W. Porter used products of other manufacturers as well. FREDERICK LE GRANDE, <*V3~ Plaintiff, JOHNS MANVILLE PRODUCTS CORPORATION, a corporation of the State of Delaware, Defendant* UNITED SIAToeISTRICT COUR FOR THE DISTRICT OF NEW JERS ) ) ^ Civil No. 741-57 ANSWERS TO SUPPLTCENTAL ) INTERROGATORIES ) ) The defendant, Johns Manville Products Corporal answering the supplemental interrogatories propounded by the plaintiff, states on information and belief the following: 1. There have been no substantial changes* 2. No* 3* See No* 12 (a)* X STATE OF NEW YORK COUNTY OF HSa YORK ' . ss*: f I, Herbert Korton Eall of full age, being duly sworn according to law upon my oath, depose and say: 1# X am Secretary of Johns Manville Products Corporation and am duly authorized to execute this affidavit on its behalf 2* I have read the foregoing answers to interroga tories and the interrogatories, and the answers are true to the best of my information and belief. Subscribed and sworn to before me this v/ ^ day of ` ' ,1950. ROBCRT H. FEBERLE NOTARY PUGUC. STATE OF NEW YORK No. CO-35721 CO Qualified in West-'icctcr County Certificates filed in the fo.lowing offices! County Cicrk - New York Commision Empires March 30, 1959 ! II UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY FREDERICK LE GRAND, ) Plaintiff, ) Civil No. 741-57 -vs- ) ANSWERS TO INTERROGATORIES JOHNS MANVILLE PRODUCTS ) CORPORATION, a corporation of the State of Delaware, ) : !1p , - - c'tj ;i*t.; Defendant, ) ACT 30185b The plaintiff, Frederick Le Grand, answering Ii the interrogatories propounded by the defendant, states on information and belief the following: a vie. s 11 ica.'.r 1. Asbestos particles, silica/particles. See defendant's answers to interrogatories number 2 and 3 I which are incorporated herein. Also Fibrocel C Pipe 1 Insulation and Fibrocel VS Pipe Insulation, 352 Cement, 450 Cement, Super 66 Cement. 2. Materials containing particles of certain size- ranges cause pfiSanmoconiosis after continued exposure to these particles in sufficient concentration 3. Defendant should have made the dangers of exposure known to its consumers, users, distributors, and workmen, whose activities call for repeated and continual sufficient warning and' information on the proper method of handling its products and the types and use of protective proper ventilation devices, i n c l u d i n g / masks and respirators which should be utilized with its products and defendant should have taken steps to create an awareness among users j t of the latent dangers inherent in its products as well as a the user sufficient knowledge on how to protect/ in the use thereof, adequate 4. For failing to provide/warning and in formation on and in the packaging of its products containing and silicaie I dangerous asbestos and silica/ particles. 5. Impossible to answer.as the incidence of asbestosis and silicosis run into many thousands and t plaintiff does not have personal knowledge of all such i i cases. However, plaintiff knows of many instances of J asbestosis in the Local to which plaintiff belonged. Plaintiff is reluctant to submit names and addresses because it is believed that this may effect the employ- ability of the men having this disease and their lrusLihood. 6. Purchases were made by defendant's employer. 7. See 6, 8. :Asbestosis:. Pneumoconiosis including asbestosis and silicosis, 9. Diagnosis was definitely established *** r/ikviinru 14S6. bv Doctor Samoa 1 t 10. Dr. Rozsa, Nov, 1954, Feb., 1956, 837 South 11th Street, Newark, New Jersey. Dr. Samuel Einhorn, Dr. Harvey Einhorn, Nov., 1954 to date. 11. Dr. Emanuel Kiosk February, 1956 to August, 1956, Dr. Harold Goldberg, January, 1955 to February! 1956. Dr. Kiosk's address is 46 Lyons Avenue, Newark, New Jersey. Dr. Goldberg's address is 814 South 10th Street, Newark 8, New Jersey. 12. (a) Plaintiff collapsed November 9, 1954, thereafter resuming work until February 5, 1956, where after a second collapse he was hospitalized for a lung condition. I (b) Plaintiff suffered heart failure : diagnosed as being caused by an asbestosis condition which crippled his lungs, called cor pulmonale. Plaintiff's lung condition ultimately manifested itself thogh his entice i physical condition. (c) As set forth previously. Beth Israel Hospital, 201 Lyons Avenue, Newark, New Jersey. (d) H. W. Porter & Co., Travelers Insurance Co.. (e) See workmen's compensation file in defendant attorney's possession. 13. Plaintiff's medical expenses have been j 14. All expenses paid by workmen's compensation carrier. 15. (a) H. W. Porter & Co., 825 Frelinghuysen Avenue, Newark, New Jersey. (b) Asbestos worker and mechanic. (c) $3.75 an hour. (d) $?70.00 (e) Bov. 20, 1954 to January 2, 1955, Feb. 18, 1955 to June 17, 1956, Sept. 15, 1956 to Feb. 21, 1957. (f) $3.75 an hour for each date in (e) that he didn't work. I 15. Plaintiff, while objecting to the i relevancy of this question says he was employed by Armstrong Cork Co. 3/3/57 - 9/27/57 earnings $1,052.30. Matthew-Balien Ccrp. for month of October, 1957, 10/7/57 to 6/2/58, to June, lf}53 $3,270.20. 17. BmrxxSQpclSii&rrhxGu&h::January September 16, 1956 through February 21, 1957. 13. Both parties have full record of and plaintiff will stipulate workmen's compensation record to the extent same is relevant and material. 19. Knowledge of facts pertaining to plaintiff's exposure: 1 All the persons who worked with plaintiff through his many years of employment with H. W. Porter & Co. are familiar with the actual work which plaintiff did, the materials he handled, the extent of his exposure to asbestos dust, etc. Supervisory employees of H. W. Porter t t | liS & Co., such as Mr. Morris and Mr. Stevens, also are I aware of these facts. Paul Springle, business agent of f ! plaintiff's local, c/o Internation Association of Heat and ji j Frost Insulators and Asbestos Workers, Local 32 A F of L, 19th Avenue, Newark, New Jersey. i | Knowledge offsets pertaining to plaintiff's I I condition are known to plaintiff's immediate faily, his i i! wife and daughter, doctors mentioned previously, I all the i! friends, acquaintances and fellow employees who have work . *I with and nearXIKK the plaintiff, i By reason of the vageness of the question, it is impossible for plaintiff to list the names and ** addresses of all persons falling into the above catagories. 20. Besides the three doctors previously il 20. Continued Dr. Roy M. Allen, 120 Personette Avenue, Verona, New Jersey, microsopist and mineralogist, and Mr. A. Wallach, Industrial Hygiene$ervices, Bergen Street, Newark, New Jersey. Klnchell, Industrial Engineer, 297 Euclid Avenue, Hackensack New Jersey,-Drt*^i5^:i^er-o^jminera'logi91. 21. Defendant should have conducted tests on its materials jtx to develop means of curtailing release of toxic dusts and further on means of protection against such dust by persons compelled to handle defendants products on a regular basis, and further means of warning users of dangerous concentrations of such dust. 22. Plaintiff makes no such claim. 23. Yes. 24. This information is available only ! through H. W. Porter & Co. and respective counsel stipulatec i I at deposition of H. W. Porter & Co. officials that this j II information would be supplied to both of them .through the \ Ii cooperation of H. W. Porter & Co. I 25. Plaintiff asserts prospective loss of i income based on earnings as set forth in interrogatory number 15 over his projected life expectancy, plaintiff anticipates continuing medical expenses, and plaintiff will cliam further damages for pain and suffering, past, present tIf and anticipated in the future as well as limitation of his 1 u i. activities and decrease in his normal life expectancy arising out of the disabilities from contracting asbestosis as well as the effects of this disease. STATE OF NEW JERSEY ) ) SS COUNTY OF ESSEX ) FREDERICK LE GRAND of full age, being duly sworn according to law upon his oath deposes and says: 1. I am the Plaintiff in this matter. 2. I have read the foregoing answers to interrogatories and the interrogatories, and the answers are true to the best of my information and belied. Sworn and Subscribed to / before me this w*-- day of Sep-beraaor-y- 1958 FREDERICK LE GRAND JANET E. McCRANE NOTARY PUBLIC OF NEW JERSEY My Commission Expires Oct 4 , 1?62 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY FREDERICK LE GRAND, ) Plaintiff, ) -vs- ) JOHNS MANVILLE PRODUCTS ) CORPORATION, a corporation of the State of Delaware, ) Defendant. ) Civil No. 741-57 ANSWERING AFFIDAVIT STATE OF NEW JERSEY ) ) SS COUNTY OF ESSEX ) Samuel Einhorn, of full age, being duly sworn according to law, upon his oath deposes and says: 1. I am a licensed medical practitioner of the State of New Jersey specializing in internal medicine. 2. On November 10th, 1954, I examined and treated the plaintiff, Frederick Le Grand, and have been th treating doctor of Frederick Le Grand since that date to and through the present time. 3. At that time I treated this patient for heart failure, after fluocipic examination and receipt of x-ray reports from Dr. Stephen Rozsa I arrived at the 4. On January 19th, 1955, I sent the patient to Dr. Harold Goldberg to evaluate the cardiac component of the illness. . 5. Dr. Goldberg, at that time, confirmed his own diagnosis to the effect that his condition appeared to be pultoftary in nature. It was recommendedthat the patient be kept on digitalis so the cardiac factor could be further evaluated. 6. At no time prior to the second attack in 1 February, 1956, did I conclude that the patient was II 1 suffering from asbestosis nor any other condition arising j j from an exposure in his employment nor was I advised by I Dr. Goldberg or any other person that such was the patient's j ; *i condition. The facts available as of that time were entirely ; insufficient to justify any such diagnosis and the exact nature of the patient's illness was not ascertained or diagnosed until his hospitalization in 1956, at which time there were further x-rays and laboratory tests, including specifically the examination of the patient's sputum for asbestos particles. Such particles were found in his sputum on February 25th, 1956, when a diagnosis of ashes' 'S^s was first established with a reasonable degree of accuracy. 7. The terms "pulmonary disease" or "pulmonary congestion"1 or "pulmonary fibrosis" do not of # * a cause not due to exposure to materials used in plainti.'; `s employment. "Pulmonary. disease" or congestion or fibrosis can be due to many causes not arising from the handl'i^ of materials used in plaintiff's employment. It was not until the specific dagnosis of asbestosis was made that any causal connection with plaintiff's employment was indicated, and I could not and did not advise plaintiff that his condition was due to such exposure until that time. Sworn and Subscribed day of November, 1958. < v -r ^ . Samuel Einhorn UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW.JERSEY FREDERICK LE GRAND, ) Plaintiff, ) Civil No. 741-57 -vs- ) ANSWERING AFFIDAVIT JOHNS MANVILLE PRODUCTS ) CORPORATION, a corporation of the State of Delaware, ) Defendant. ) STATE OF NEW JE R SE Y ) ) SS COUNTY OF ESSEX ) - - -- - ^ o a 9' it i Harold H. Goldberg, of full age, being duly sworn according to law, upon his oath deposes and says: 1. I am a licensed medical practitioner of the State of New Jersey specializing in cardiovascular diseases. 2. At the request of Dr. Samuel Einhorn, t I examined his patient, Frederick Le Grand, the plaintiff ^ ! herein, on January 26th, 1955, at which time he specifically requested my opinion as to whether Mr. Le Grand's illness had a cardiac component. digitilizing the patient and determing whether the pulmonary cloudiness disappeared. I did not at tlat time nor at any time before February, 1956, communicate to Dr. Einhorn any diagnosis or impression that Mr. Le Grand was suffering from asbestosis or any other condition arising from an exposure to materials used in his employment. 4. My attention has been called to t abstract from page 143 of the transcript of my testimony | j| before theDivision ofWorkmen'sCompensationattached to j ij 1 defendants notice of motion. I note a reference in the ij1 transcript to some writing from which I read. 1 To my best j' recollection this wasfrom aletter I wrote to William L. j '' I Brach, Esq., plaintiff's attorney, on April 2nd, 1957. The H : j letter was compiled from results of visits by Mr. Le Grand I > t | ' l! not only in 1955 but also in February, 1956, when I again !i:j j saw the patient. In the actual letter, I merely stated it : to be "my impression" in January, 1955, that the plaintiff iJj was suffering from pneumoconiosis resulting from handling ]i | asbestos material, and I did not at that time communicate i this impression to either the patient or Dr. Einhorn. The 1 actual diagnosis referred to in the testimony was not made ij J! until I had the benefit of all of the information available 1 to me, including the laboratory tests, x-rays and sputum tI tests made in 1956. .1 assigned to me, namely, to evaluate the cardiac component of the patient's illness. 6. I may have had some impression as early as 1955 that the patient was suffering from pneumoconiosis in April, 1957 and I so advised William L. Brach, Esq.,/but I did not provide Dr. Einhorn nor Frederick Le Grand with any such diagnosis as there was insufficient objective data to warrant a definitive diagnosis as of that date. Sworn and Subscribed -- to before me this day of November, 1958. l l cl Harold H. Goldbergs-- St I i It i II i \ <. BW 'v UniTED STATES DISTRICT COURT FOR THE DISTRICT CP EE" JERSEY "TX? FEEDERI C1C LE GRAND, Plaintiff, -vs- JOHNS MANVILLE PRODUCTS COR.PORATTCN, a corporation of the State of Delaware, ) Defendant. ) M A T E Or A 17 J M M Y :u e t y ui e s s e .: ) o C Oo Civil Ho. 741-57 AFFIDAVIT iCt *f lf* i^' *f' * ** -*3 * iJ NOV 10 ISS8 *`T I- /O IrccoricA l.e C-rand, ox jlc:11 ape. M i r r dolv scorn according to law, upon his oath ('eposes and says: 1. He has been in pcocl health all of his i n e and has had no unusual illnesses until he suffered an attack at home on November 10th, 1951. . lol!ov/inp that attack he was treated by Dr. Hinhorn until he was able to &o back to work on January _^/_l j X1!^)(> 3. At the time of this attack the only di ci which he. was aware was that he had heart trouble and he Dt-lieved that tails was the sole ana only cause ci M s Illness*. f numerous tests and x-rays; Chat he was advised by Iris doctor that he was suffering from an occupational disease, namely, asbestosis. 5. He filed for Workmen's Compensation in May 1955, and he did not file for Workmen's Compensation after the first illness because he was completely unaware of any relationship between his condition and any disease arising out of employment until the final diagnosis was made in February, 1955. Sworn and Subscriba! to bciore me this 22nd oay ci October, 1953. r reoer.^CK Le Grans v p 'j ' l Ur- Janet E. MeCrane JANET E. MrChANE NOTARY PUBLIC CL NEW JERSEY My Commission Expires Oct 4, 1962 fI i, I . '! UiNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY FREDERICK LE GRAND, ) Plaintiff, ) -vs- ) JOHNS MANVILLE PRODUCTS ) CORPORATION, a corporation of the State of Delaware, ) Defendant. ) Civil No. 741-57 STIPULATION AND ORDER It is hereby stipulated by and between the parties hereto that the above captioned matter be dismissed with prejudice and without coses. / > i I t L :l t -w ^ ` William L. Brach ATTORNEY FOR PLAINTIFF STRYKER, TAMS & HORNER By. / John J. KopXgac/, Jr. ATTORNEY FOR DEFENDANT It is so ordered* ) 7 ' ''l UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY FREDERICK LE GRAND, ) iLl -vs - Plaintiff, ) ) I JOHNS MANVILLE PRODUCTS ) CORPORATION, a cnrnnration Defendant. ) Civil No. 741.-57 ORDER This matter being opened to the Court by John J. Monigan, Jr., Esq, appearing for Stryker, Tams & Horner, Esqs., attorneys ior defendant, Johns Manvilie , Products Corporation, and William L. Brach, Esq. appearing j for the plaintiff, Frederick Le Grand, and counsel stipulating in open Court that the second count of j: plaintiff's complaint shall be dismissed vjithout costs ! and the Court having heard the argu/ment of counsel and i having reviewed the proof submitted on the motion of the J defendant to dismiss the first count of plaintiff's cTM"plaint, and for good cause appearing, it is, on this ; day of November, 1958, ORDERED and adjudged that the second count of plaintiff's complaint be, and hereby is dismissed without * IT IS FURTHER ORDERED and adjudged that defendant's motion for a summary judgment on the first count of plaintiff's complaint be, and hereby is denied, without costs iS\A ^ynieYy/j. Wortencl^ke, Jr. U.S.D. J. form We hereby consent to the oot-r-y of the foregoing ORDER this day of November, 1958. A/ / William L . Brach Attorney for Plaintiff STRYKER, TAMS & HORNER By. [ Jphn J. Moni^an, Jr. Attorneys for Defendant a`V; The terms of your agreement may be on the record. MR. MONIGAN: ' f** If your Honor pleasef counsel have conferred in this matter, and it has been determined to settle the matter now on the basis of the payment to the pla/ .iff of $35,000. The payment is made upon the usual submission of the closing papers, stipulation of dismissal of the present action with prejudice, and a general release from the plaintif to the defendant. It also involves the fact that there is a Workmens * Compensation matter which was pending between the plaintiff here and the H. W. Porter Company, as a result of which a judgment was entered in the Workmens' Compensation Division of New Jersey, Department of Labor, by the terms of which certain medical payments were made, temporary disability payments awarded and a permanent disability of seventy-five percent of total. The parties have agreed that out of this thirty-five thousand dolars, which will be paid in settlement of this matter, the H. W. Porter Company, as employer of the plaintif Travelers Insurance Company and Travelers Indemnity Company, no claim will be asserted by Travelers to the thirty-five thousand dollars. There will be no claim asserted by the plaintiff against H. W. Porter Company, or its Workmens' Compensation carrier until the exhaustion of the payments of the thirty-five thousand dollars are made. The obligation of Porter and Travelers Insurance Company, which Is imposed upon it by reason of the Statute of New Jersc will continue subject to such credits as it is entitled to ha\ by reason of the Statute in such case may provide. THE COURT: Does that embody your understanding, Hr. Brach? MR. BRACH: The only addition I think the record migl show is that all expenses incurred, whether paid or not, up t* the date of this settlement, will be paid by the Workmens' Compensation carrier, and on those items no lien will be asse: against the recovery of thirty-five thousand dollars. MR. MONIGAN: That is so. MR. BRACH And that the oxygen respirator ea pment !*v 1Y/ - T7 J Z p p r o O f t \t. < T y 'Y . <$tfVU4htAJf f C&Wf*. Ff o V-/7 - 0 >' f P . * o z o n a p t w / u w o - C^P. w /p&tr- fftKnaxtMLY ^ OnfflSl F / t m , forti a u o t uw irtin yd f W L . /J-a J. 7 M s^ y jffrov iWft6V<0 y ^ trk o /2 tezM iW .........