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*
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1. Plaintiff, Frederick Le Grande is a
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resident: and citizen of New Jersey.
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2, Defendant, Johns Manviile Products
Corporation is a corporation and citizen of Delaware.
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j the sur of $3,000.00
fi ' *
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4
/ ! r.1)^ U.S. Code, 1332 jl
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been employed for some time and until September 1, 1956 as a
construction worker.
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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,
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including but not limited to pulmonary aabestosis, fibrosis aid v
silicosis.
8. Defendant knew or should have known
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* of the dangerous and toxic qualities of its products and of j
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the likelihood of said serious diseases resulting from pro
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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*
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J \S u m m o n s in a ova. action
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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
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4* It alleges that any danger to which the plaintiff was?;
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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
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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
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| 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
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I 1951t, 1955 and 1955 and state the name, address and re-
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gistred agent of entity making the sale,
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2.
For 'each of the foregoing products, aq.d for the
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type and form sold to H. W, Porter and Co,, state, by weight
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i or ouch other definible standard as may be used, the content}
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j! of asbestos par unit, and for for each state the range of
j
!j
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!' sise of the--asbestos particles contained and too form in which
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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
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ij ii II
JP
jj
Joiji J
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(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 :
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(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-
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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,
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(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.
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(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,
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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
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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;
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(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*'*
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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
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(o)
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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
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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
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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
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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)*
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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*
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that this defendant was negligent
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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
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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*
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STRYKER, TAMS & HORNER
u.
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hn y, Moni&an^ Jr <
ttorneys for Defendant
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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
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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. -
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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
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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.
!
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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.
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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
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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
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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
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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.
;
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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
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by ii.'ason of the agreement of counsel respecting the forra and content thereof.
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On ruoti on of
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STitYKlhl, TAMS & HOxlNEH,
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Attorneys for defendant
;
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Consent to the form of the foregoing order is hereby given.
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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.
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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
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THE WITNESS: Yes, I blacked out at home.
:
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THE DEPUTY DIRECTOR: All right, you blacked out at
;
home. Do youremember when it was?
1
j
THE WITNESS: Yes, I do.
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THE DEPUTY DIRECTOR: When was that? 1
li
THE WITNESS: 11/8/54 at night,
j
THE DEPUTY DIRECTOR: At night?
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THE WITNESS: Yes.
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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:
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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 )
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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
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