Document b5DD8naDnVKDKErVoeLb3X6M1

ti 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLUMBIA 3 FLETCHER MCDANIEL, ET AL ) 4 PLAINTIFFS, ) 5 - V- ) CIVIL ACTION 6) 7 ARMSTRONG WORLD INDUSTRIES, ) 8 ET AL., 9 DEFENDANTS. 10 83-3520 ,, FILE D JUL 8 198S CLERK, U. S. DISTRICT COURT DISTRICT OF COLUMBIA 11 JUNE 5, 1984 12 WASHINGTON, D. C. 13 THE ABOVE-ENTITLED MATTER CAME ON FOR MOTIONS 14 BEFORE THE HONORABLE THOMAS A. FLANNERY, UNITED STATES 15 DISTRICT JUDGE, COURTROOM NO. 5, COMMENCING AT 16 APPROXIMATELY 2 P.M. 17 APPEARANCES: 18 ON BEHALF OF THE PLAINTIFFS: 19 ASHCRAFT & GEREL 20 BY: JAMES F. GREEN, ESQ., AND 21 PETER T. ENSLEIN, ESQ. 22 ON BEHALF OF THE DEFENDANTS: 23 ' 24 O'MALLEY, MILES, FARRINGTON & MCCARTHY DONAHUE, EHRMANTRAUT & MONTEDONICO 25 SCHNADER, HARRISON, SEGAL & LEWIS 'l ) <7 1 APPEARANCES (CONTINUED.) 2 IN BEHALF OF DEFENDANTS: 3 BRAULT, GRAHAM, SCOTT & BRAULT 4 RICHARDS, O'NEIL & ALLEGAERT 5 KECK, MAHIN & CATE 6 JORDAN, COYNE, SAVITS & LOPATA 7 8 9 10 11 12 13 14 SHIRLEY THERESA POPEJOY 15 OFFICIAL COURT REPORTER 16 6812 U. S.COURTHOUSE 17 WASHINGTON, D. C., 20001 18 19 20 21 22 23 24 25 2 3 1 CONTENTS 2 3 COUNSEL APPEARING BEFORE THE COURT: 4 PAGE 5 6 7 8 9 MR. DORKEY 10 MR. DONOHUE 11 MR. ENSLEIN 12 MR. GUZIAK 13 4, 5, AND 45 4, AND 19 24 14, AND 46 14 15 16 17 18 19 20 21 22 23 24 25 l 4 PROCEEDINGS THE DEPUTY CLERK: CIVIL ACTION 83-3520. FLETCHER 4 MCDANIEL, ET AL. VERSUS ARMSTRONG WORLD INDUSTRIES, ET AL.. 5 THE COURT: ALL RIGHT. GENTLEMEN, WE HAVE BEFORE 6 THE COURT THIS AFTERNOON, SEVERAL MOTIONS TO DISMISS FILED 7 BY DEFENDANTS TURNER AND NEWALL, LIMITED, AND NICOLET, INC., 8 AND THE MOTION OF DEFENDANT ATLAS-TURNER TO DISMISS OR IN 9 THE ALTERNATIVE FOR SUMMARY JUDGMENT. ALL RIGHT. HOW MUCH 10 TIME DO YOU WANT TO ARGUE THIS CASE? 11 MR. DORKEY: YOUR HONOR, MY NAME IS CHARLES 12 DORKEY, I REPRESENT TURNER AND NEWALL. ADMITTED TO THIS 13 BAR BUT I PRACTICE IN NEW YORK. AS MUCH TIME AS YOUR HONOR 14 THINKS. THE BEGINNING STATEMENT WOULD TAKE FIVE MINUTES OR 15 SO. BUT WE WOULD LIKE AS MUCH TIME TO ANSWER YOUR HONOR'S 16 QUESTIONS. 17 THE COURT: ALL RIGHT. WHY DON'T YOU GO AHEAD AND 18 BEGIN THEN. DO OTHER ATTORNEYS-- 19 MR.GUZIAK: GUZIAK REPRESENTING NICOLET. I'LL NEED 20 APPROXIMATELY 15 MINUTES. 21 MR. DONOHUE: PATRICK DONOHUE, ON BEHALF OF 22 DEFENDANTS ATLAS-TURNER AND BELL ASBESTOS, I WOULD NEED 23 APPROXIMATELY FIVE. 24 THE COURT: ALL RIGHT. WHY DON'T YOU PROCEED. 25 MR. DORKEY: DO YOU WANT ME TO GO FIRST? 5 1 THE COURT: YOU CAN GO FIRST. 2 MR. DORKEY: YOUR HONOR, MY NAME IS CHARLES DORKEY, 3 I REPRESENT TURNER AND NEWALL. 4 WE ARE HERE BEFORE THE COURT ON A MOTION TO 5 DISMISS FOR LACK OF PERSONAL JURISDICTION. PLAINTIFF HAS 6 ARGUED SEVERAL DIFFERENT THEORIES. SOME FACTS ARE IN 7 DISPUTE. SOME FACTS ARE NOT IN DISPUTE, AND MOST OF THE 8 ARGUMENT IS ABOUT THE LEGAL SIGNIFICANCE OF FACTS THAT ARE 9 ESSENTIALLY NOT IN DISPUTE. SOME THINGS ARE CLEAR. 10 ONE IS TURNER AND NEWALL HAS HAD NO CONTACT WITH 11 THE DISTRICT OF COLUMBIA, EITHER DIRECTLY OR INDIRECTLY, 12 FOR A PERIOD OF AT LEAST 12 YEARS. 13 THE COURT: TURNER AND NEWALL HAS FILED A SUIT IN 14 THIS JURISDICTION? 15 MR. DORKEY: YES, IT HAS AGAINST AN INSURANCE 16 COMPANY. 17 THE COURT: I THINK I MAY HAVE THAT? 18 MR. DORKEY: YES, YOUR HONOR. YOU MAY HAVE THAT. 19 ASIDE FROM THAT BRIEF, IN THE BUSINESS CONTEXT, IT HAS NO 20 CONTACT. ITS AGENTS AREN'T HERE, ITS REPRESENTATIVES AREN'T 21 HERE. 22 THE COURT: ISN'T IT INCONSISTENT TO SAY THAT IT 23 VOULD BE INCONVENIENT TO DEFEND A CASE HERE WHEN YOU BRING 24 A CASE HERE FOR A CLIENT? 25 MR. DORKEY: WE ARE REALLY NOT ARGUING CONVENIENCE. 6 1 WE ARE ARGUING WHETHER THE PLAINTIFFS MET THE STATUTORY 2 TEST OF THE D C LONG ARMS STATUTE. AND WHETHER THEY MET THE 3 CONSTITUTIONAL STANDARDS. THAT IS NEITHER CONVENIENT OR 4 INCONVENIENT. I THINK THAT GIVEN THE FACT WE BROUGHT A 5 SUIT HERE AND CAN DEFEND THAT SUIT, AND GIVEN THE 6 STATEMENTS AND PHIL GRAHAM'S AFFIDAVIT, I DON'T THINK THERE 7 IS ANYTHING MUCH WE CAN SAY ON THAT. 8 THE COURT: YOU HAVEN'T HAD ANY CONTACT WITH THIS 9 JURISDICTION? 10 MR. DORKEY: OTHER THAN THAT LAWSUIT, WHICH, AS 11 YOUR HONOR MAY KNOW, IS BROUGHT BY VIRTUE OF AN INSURANCE 12 COMPANY REFUSING TO DEFEND TURNER & NEWALL IN CASES WITH 13 ALLEGATIONS. THEY ARE RESPONSIBLE FOR KEASBEY & MATTISON. 14 THEIR CLAIM, AS I UNDERSTAND IT, IS THAT MR. MCDANIEL, 15 DURING THE TIME PERIOD PRIOR TO 1971, WORKED FOR A VIRGINIA 16 COMPANY, KRAFFT MURPHEY, EITHER USED OR WAS EXPOSED TO -- 17 IT IS NOT QUITE CLEAR -- THE PRODUCT KNOWN AS SPRAYED 18 LIMPET ASBESTOS. 19 SPRAYED LIMPET ASBESTOS WAS MANUFACTURED DURING 20 SOME OF THIS TIME PERIOD, NOT ALL OF IT, WAS MANUFACTURED 21 BY ROBERTS WHICH IS A TURNER & NEWALL COMPANY. IT WAS THEN 22 SOLD TO KEASBEY & MATTISON. AND BETWEEN'62 AND'67 TO A & S, 23 "AND AFTER'67 TO ATLAS TURNER WHO HAD A DIFFERENT NAME. IT 24 WAS THEN SOLD TO ANOTHER COMPANY WHICH WAS KRAFFT MURPHEY 25 WHICH WAS LOCATED IN VIRGINIA. 7 1 YOUR HONOR, IT IS ALLEGED BY PLAINTIFF THAT WHILE 2 HE WAS IN THE DISTRICT OF COLUMBIA, HE WAS EXPOSED TO 3 LIMPET BY VIRTUE OF HIS EMPLOYMENT BY KRAFFT MURPHEY. 4 IT IS OUR POSITION, YOUR HONOR, PLAINTIFF SEEKS TO 5 HAVE THOSE FACTS FIT WITHIN EITHER SUBSECTION A(l) OR 6 SUBSECTION A(4) OF THE D C LONG ARM STATUTE. A(l) IS THE 7 TRANSACTING OF BUSINESS STATUTE, AND A(4) IS THE TORT 8 WITHOUT INJURY WITHIN PLUS SUBSTANTIAL CONTACTS. 9 UNDER THE TRANSACTING BUSINESS STANDARD, YOUR 10 HONOR, WE BELIEVE THAT THAT STATUTE IS NOT DESIGNED TO 11 COVER THIS TYPE OF CASE. IT IS DESIGNED FOR LAWSUITS, 12 ESSENTIALLY CONTRACT LAWSUITS, TRADEMARK INFRINGEMENT 13 LAWSUITS, SUITS TO RECOVER COMMISSIONS, SUITS -- AND IF 14 YOU LOOK AT THE CASES UNDER THAT SECTION, I THINK THEY 15 ALMOST INVARIABLY INVOLVE CONTRACTUAL TYPE OF LAWSUITS. 16 THIS IS A TORT CASE. THIS IS A CLASSIC ALLEGATION 17 OF AN ACT WITHOUT INJURY WITHIN. 18 THE PRODUCT IS MADE IN ENGLAND, SHIPPED INTO 19 FLORIDA, SHIPPED THEN TO VIRGINIA WHEN A PERSON IN VIRGINIA 20 BY HIS OWN UNILATERAL ACT BRINGS IT INTO THE DISTRICT OF 21 : COLUMBIA. 22 WE THINK THE UNILATERAL ACTIVITY OF KRAFFT MURPHEY 23 ?S WHAT ALSO MAKES THIS CONSTITUTIONALLY IMPERMISSIBLE TO 24 IMPOSE JURISDICTION IN THIS CASE. 25 UNDER A-4, OUR ARGUMENT THERE IS THAT -- I THINK 8 1 AT BEST PLAINTIFFS HAVE AN A(4) CASE WHICH IS ACT WITHOUT 2 INJURY WITHIN. BUT THAT STATUTE ALSO REQUIRES PERSISTENT 3 AND REGULAR COURSE OF CONDUCT IN THE DISTRICT OF COLUMBIA. 4 WE BELIEVE THAT THE STATUTE IS WRITTEN IN THE 5 PRESENT TENSE, AND REQUIRES PRESENT-DAY AFFILIATING 6 CONTACTS. YOUR HONOR, IN THE SECURITY BANK VERSUS TALBERT 7 CASE, ANALYZED THE REGULARLY AND PERSISTENT LANGUAGE OF 8 THAT SUBSECTION. I THINK YOUR HONOR'S REASONING WOULD 9 APPLY EQUALLY TO THE PRSENT TENSE CONTEXT OF THAT STATUTE. 10 THE COURT: WELL, HOW ABOUT THAT CASE -- I CAN'T 11 PRONOUNCE THE GERMAN WORD, I'LL CALL IT THE KAISER CASE? 12 MR.DORKEY: THE KAISER-STUHL CASE. THAT ADMITTEDLY 13 IS A DIFFICULT CASE FOR US. THAT PERTAINS TO A(l), THE 14 TRANSACTING OF BUSINESS PROVISION. I CAN SAY I BELIEVE THE 15 CASE IS WRONGLY DECIDED, BUT THAT IS NOT GOING TO HELP US 16 VERY MUCH. 17 THE COURT: THAT ISN'T GOING TO HELP YOU AT ALL. 18 MR. DORKEY: BUT I ALSO BELIEVE THAT CASE CAN BE 19 DISTINGUISHED. IT CAN BE DISTINQUISHED ON TWO DIFFERENT 20 GROUNDS. THAT CASE INVOLVED TRADEMARK INFRINGEMENT. IT IS 21 NOT A TORT CASE. IT WAS THE CONDUCT OF THE BUSINESS. THE 22 TRADEMARKING AND MARKETING LINE IN THE DISTRICT OF COLUMBIA 23 WENT HAND-IN-HAND. IT WAS NOT A CASE INVOLVING THE SENDING 24 OF ABOTTLE THAT EXPLODED IN THE DISTRICT OF COLUMBIA. THE 25 LAWSUIT WAS NOT THAT TYPE OF LAWSUIT, AND ALL THE D. C. T 9 1 CASES -- ALL BUT ONE EXCEPTION RELIED UPON -- ALL 2 INVOLVED CONTRACT REACTIONS COMMERCIAL TYPE OF LITIGATION. 3 SECOND, THE CASE ALSO DEALT WITH PRESENT-DAY 4 TRANSACTING OF BUSINESS. ONCE AGAIN, WE ARE NOT DEALING 5 WITH THE LONG ARM STATUTE; WE ARE DEALING WITH A SITUATION 6 WHERE THE LEGISLATURE HAS DECIDED TO EXTEND THE 7 CONSTITUTION EXTREMELY FAR, AND THE THEORY OF DUE PROCESS 8 VERY FAR. AND, IN ORDER TO DO THAT WITH FOREIGN DEFENDANTS, 9 IT SEEMS TO ME YOU NEED SOME PRESENT-DAY AFFILIATION, WITH 10 THE DISTRICT OF COLUMBIA. 11 IN THE KAISER-STUHL CASE, THERE WAS PRESENT-DAY 12 ONGOING MARKETING OF THE PRODUCTS. SO, I THINK THE CASE IS 13 DISTINGUISHABLE. THIS IS ALSO IN OUR BRIEFS, BUT IT IS 14 DISTINGUISHABLE ON AT LEAST TWO GROUNDS. ONE THEORY IS 15 PRESENT-DAY ACTIVITY, AND THAT COMPORTS WITH THE STATUTORY 16 LANGUAGE OF REQUIRING THE TRANSACTING OF BUSINESS, WHICH, 17 AGAIN, IS A PRESENT TENSE TYPE OF LANGUAGE NOT THE FORMER 18 TRANSACTION OF BUSINESS. THAT IS NOT THE WAY THE STATUTE 19 IS WRITTEN. 20 AND, TWO, THE TRANSACTING OF BUSINESS IMPLIES A 21 COMMERCIAL SETTING FOR THE LAWSUIT AND THE CAUSE OF ACTION. 22 AND I THINK ALSO TO RECOGNIZE -- WITHOUT THOSE LIMITATIONS 23 ON TRANSACTING BUSINESS, THEN A(4) BECOMES IRRELEVANT. IF 24 EVERY TORT WITHOUT INJURY WITHIN CASE BE PUT IN A{1) THEN 25 THERE IS NO NEED OF A VERY IMPORTANT PROTECTION, THE 10 1 REGULAR CONSISTENT CONDUCT. I AM NOT QUOTING THE LANGUAGE 2 EXACTLY BUT REGULAR AND CONSISTENT IS IN THAT STATUTE, AND 3 REGULAR. IT WOULD BE MEANINGLESS IF EVERY TORT WITHOUT 4 INJURY WITHIN COULD BE MADE A TRANSACTING BUSINESS CASE. 5 THE COURT: WELL, ARE THERE ANY CASES THAT SUPPORT 6 YOUR POSITION, EXCEPT I THINK YOU CITE LOCKMAN VERSUS BANK 7 OF LOUISIANA. 8 MR. DORKEY: THE PRESENT-DAY? 9 THE COURT: THE PRESENT-DAY. 10 MR. DORKEY: THERE ARE OTHER CASES. I CAN'T THINK 11 OF THE CITE. IT IS NOT IN THE BRIEF. THERE IS A CASE, FROM 12 MEMORY, FROM THE DISTRICT OF PUERTO RICO WHERE IT IS JUDGE 13 WENFIELD SITTING BY DESIGNATION. I CAN FIND CASES FOR YOUR 14 HONOR. I WOULD NEED A LITTLE BIT OF TIME TO DO THAT. I 15 DON'T HAVE THEM OFFHAND, BUT I THINK THERE IS OTHER 16 AUTHORITY FOR THE PROPOSITION THAT YOU ARE TALKING ABOUT 17 JURISDICTION BEING MEASURED AT THE PRESENT TIME. 18 THE COURT: I WOULD LIKE TO HAVE THOSE CASES. ARE 19 THERE ANY CIRCUIT COURT CASES? 20 MR. DORKEY: OFFHAND, I CAN'T RECALL. IF YOU GIVE 21 ME A FEW DAYS. 22 THE COURT: WHY DON'T YOU SUBMIT ANY FURTHER CASES, 23 YOU HAVE ON THAT POINT WITHIN THE NEXT 3 DAYS. 24 MR. DORKEY: 3 DAYS? ALL RIGHT. WELL, TURNING 25 BACK TO THE ARGUMENT, THERE IS AGAIN TWO SUBSECTIONS, A(l) T 11 1 AND A(4). UNDER A(l) I THINK WE JUST TALKED ABOUT. UNDER 2 A(4) , I THINK THE ARGUMENT IS EVEN STRONGER. UNDER A(4) , 3 WE HAVE ACT WITHOUT INJURY, PLUS SUBSTANTIAL PRESENT DAY 4 CONTACTS. HERE, THERE IS NO -- AS YOUR HONOR WROTE IN 5 SECURITY BANK, WHERE YOU INTERPRET THE LANGUAGE, "REGULARLY 6 AND CONSISTENT", HERE, THERE HAS BEEN NOTHING EXCEPT 7 AGAINST MUTUAL. THERE IS NO REGULAR ACT, ALTHOUGH 8 LITIGATION DOES TEND TO BE CONSISTENT. OTHER THAN THAT 9 THERE HAS BEEN NO CONTACT WITH THE DISTRICT FOR AT LEAST 10 10 YEARS. AND THERE IS NO SHOWING BY PLAINTIFF. THE LAST 11 ALLEGED CONTACT WITH THIS DISTRICT THE PLAINTIFF CAN COME 12 UP WITH IS 1971. SO, WE ARE TALKING ABOUT A 22, 23 HIATUS. 13 THE COURT: '71? 14 MR. DORKEY: EXCUSE ME. 13 YEARS. I'M DOING MY 15 ARITHMETIC WRONG. ON THE CONSTITUTIONAL ISSUE, YOUR HONOR, 16 I'D LIKE TO SUBMIT A CASE TO YOUR HONOR THAT WAS DECIDED 17 ABOUT SIX WEEKS AGO BY THE SUPREME COURT ON A SLIGHTLY 18 DIFFERENT FACTUAL CONTEXT. I GAVE MR. ENSLEIN A COPY 19 BEFORE THE HEARING. IF I COULD JUST HAND IT UP, AND I'LL 20 MAKE AVAILABLE COPIES TO THE OTHER LAWYERS HERE. 21 THE NAME OF THE CASE IS -- I SAY IT IN ENGLISH. 22 THE NATIONAL HELICOPTER OF COLUMBIA VERSUS HOWELL CASE. 23 XND WHAT THIS CASE DOES IS DISCUSS A GENERAL DOING OF 24 BUSINESS, NOT ARISING OUT OF THE DOING BUSINESS, BUT THE 25 GENERAL DOING OF BUSINESS FOLLOWING THE CASE OF PERKINS 12 1 VERSUS VANGUIT. IN THIS CASE, THE COURT DOES DISCUSS WHAT 2 IT MEANS WHEN IT TALKS ABOUT THE UNILATERAL ACTIVITY OF 3 ANOTHER PARTY. THIS IS WHERE WE THINK THE FACT OF THE 4 STREAM OF COMMENCE IN THIS CASE ENDED IN VIRGINIA WHEN 5 KRAFFT MURPHEY RECEIVED THE PRODUCT IN QUESTION AND IT WAS 6 ITS UNILATERAL ACT TAKEN IN THE DISTRICT THAT BROUGHT IT 7 HERE NOT THE ACT OF TURNER & NEWALL. I THINK THE REASONING 8 IN THIS CASE IS PERSUASIVE IN THIS CASE AND IT IS NOT ON 9 THE EXACT POINT. THIS IS ON PAGE 1873. IN DISCUSSING 10 ANOTHER CONTEXT, IT SAYS "SUCH UNILATERAL ACTIVITY OF 11 ANOTHER PARTY OR THIRD PERSON IS NOT AN APPROPRIATE 12 CONSIDERATION WHEN DETERMINING WHETHER A DEFENDANT HAS 13 SUFFICIENT CONTACTS WITH A FOREIGN STATE TO USE ANY 14 ASSERTING JURISDICTION". I THINK ON THAT POINT IT IS 15 RELEVANT. 16 THE COURT: BUT YOU STILL HAVE TO CONFRONT THAT 17 KAISER CASE WHICH IS A HURDLE FOR YOU TO OVERCOME. 18 MR. DORKEY: I THINK IT IS A VERY DIFFICULT CASE. 19 I HAVE MY OPINION ON THE CORRECTNESS OF IT BUT AGAIN THAT 20 IS NOT GOING TO HELP US VERY MUCH. I BUT I THINK IT CAN BE 21 DISTINGUISHED BOTH ON THE PRESENT DAY BASIS AND THE TYPE OF 22 LAWSUIT IT IS TALKING ABOUT, THE TRANSACTING OF BUSINESS AS 23 OPPOSED TO A TORT WITHOUT INJURY WITHIN. 24 THE COURT: SEVERAL OTHER JUDGES OF THIS COURT 25 HAVE HAD OCCASION TO RULE ON THIS MATTER BUT THEY HAVEN'T 13 1 WRITTEN ANYTHING ON IT. 2 MR. DORKEY: NO, THEY HAVEN'T, YOUR HONOR. AS 3 YOUR HONOR IS AWARE, IN MASSACHUSETTS, THE MAGISTRATE 4 RECOMMENDED THAT OUR MOTION BE DENIED. HE HAD PREVIOUSLY 5 RECOMMENDED IT BE AFFIRMED AND IT WAS GRANTED. OUR TRACK 6 RECORD AROUND THE COUNTRY IS 50/50. WE WIN SOME AND LOSE 7 SOME. FOR INSTANCE, IN MINNESOTA, WE WON IN STATE COURT 8 AND LOST IN FEDERAL COURT. EACH JURISDICTION IS BASICALLY 9 DETERMINED ON ITS OWN SET OF FACTS AND CIRCUMSTANCES, 10 ALTHOUGH I THINK THERE ARE GENERAL PRINCIPLES THAT APPLY. 11 ESPECIALLY THE UNDERLYING ISSUES LIKE OUR LIABILITY FOR THE 12 ACTIONS AND OMISSIONS OF KEASBEY AND MATTISON. 13 THE COURT: BUT YOU LOST THE CASE IN MASSACHUSETTS. 14 MR. DORKEY: YES, THE MASSACHUSETTS CASE. I THINK 15 MR. ENSLEIN SENT YOU A COPY OF THE MAGISTRATE'S 16 RECOMMENDATION. YESTERDAY, WE FILED OUR MEMORANDUM SEEKING 17 TO HAVE THE JUDGE REJECT THE DECISION OF THE MAGISTRATE. 18 WE REQUESTED AN ORAL ARGUMENT THERE. IF YOUR HONOR WOULD 19 LIKE TO GET INTO THE QUESTION OF WHETHER TURNER AND NEWALL 20 IS LIABLE FOR JURISDICTION IN THE DISTRICT OF COLUMBIA ON 21 ACCOUNT OF THE ACTIONS AND OMISSIONS OF ITS FORMER 22 SUBSIDIARY, KEASBEY & MATTISON, I WOULD BE GLAD TO DO THAT. 23 1 WOULD BE GLAD TO SUBMIT ANYTHING ADDITIONAL. I DON'T 24 THINK THAT IS ALL THAT RELEVANT TO THIS CASE BUT I THINK 25 PROBABLY MR. ENSLEIN WOULD DISAGREE WITH ME AND THINK THAT 14 1 IS HIGHLY RELEVANT. 2 THE COURT: I'LL HEAR FROM THE OTHER LAWYERS. WHO 3 WANTS TO GO NEXT? > 4 MR. GUZIAK: GOOD AFTERNOON YOUR HONOR. MY NAME 5 IS RONALD GUZIAK, AND I AM HERE ON BEHALF OF THE DEFENDANT 6 NICOLET, WHO ALSO HAS A PENDING MOTION TO DISMISS FOR LACK 7 OF PERSONAL JURISDICTION. 8 AS YOUR HONOR IS WELL AWARE, NICOLET HAS BEEN 9 BEFORE OTHER JUDGES IN THIS COURT ON A SIMILAR MOTION, AND 10 THIS MOTION HAS BEEN GRANTED IN OTHER CASES WHICH HAVE BEEN 11 CITED TO YOUR HONOR. WE WOULD SUBMIT INITIALLY, YOUR HONOR, 12 THAT THE FACTS IN THIS CASE, AND RECORD HEREIN MAKES AN 13 EVEN STRONGER CASE FOR NICOLET TO BE DISMISSED IN THIS 14 PARTICULAR CASE AS IN THE OTHER CASES. THE MOST PERTINENT, 15 AND MOST IMPORTANT FACTOR IS THE PRODUCT ITSELF. THE 16 PRODUCT THAT PLAINTIFF MCDANIEL HAS INDICATED HE HAS BEEN 17 EXPOSED TO AND INJURED BY IS A SPRAYED ASBESTOS PRODUCT 18 CALLED LIMPET. WE HAVE SUBMITTED AFFIDAVITS BY THE 19 PRESIDENT OF NICOLET AS WELL AS THE FORMER 20 SECRETARY-TREASURER THAT NICOLET HAS NEVER BEEN INVOLVED IN 21 THE MANUFACTURE, SALE, OR DISTRIBUTION OF THIS PARTICULAR 22 PRODUCT. NOW, NICOLET IS BEFORE YOUR HONOR UNDER THE 23 THEORY THAT WE ARE RESPONSIBLE AS A SUCCESSOR CORPORATION 24 FOR THOSE ACTS DONE BY A COMPANY CALLED KEASBEY AND 25 MATTISON. IN EFFECT, PLAINTIFF IS GOING TO SAY OR HAS SAID i 15 1 IN HIS BRIEFS THAT JURISDICTION OVER NICOLET IS REALLY 2 BECAUSE OF THE FACT THAT KEASBEY AND MATTISON HAS 3 DISTRIBUTED THIS SPRAYED LIMPET ASBESTOS PRODUCT HERE IN 4 THE DISTRICT OF COLUMBIA THROUGH LOCAL DISTRIBUTORS. 5 IN REBUTTAL TO THAT, YOUR HONOR, WE HAVE ADMITTED 6 A SLIGHT CONNECTION AND THAT IS THAT KEASBEY AND MATTISON 7 WAS LIQUIDATED IN 1962. THERE WERE FIVE DIVISIONS OF 8 KEASBEY AND MATTISON, AND ONE OF THOSE DIVISIONS, THE 9 INDUSTRIAL PRODUCTS DIVISION WHICH COMPRISED ONLY 20 PER 10 CENT OF ITS ASSETS AND ONLY FIVE PER CENT OF ITS PROFITS AS 11 I RECALL WAS PURCHASED BY NICOLET. 12 THE AFFIDAVITS WE SUBMITTED, HOWEVER, YOUR HONOR, 13 SHOW THAT THE INDUSTRIAL PRODUCTS DIVISION DID NOT INCLUDE 14 THIS PARTICULAR PRODUCT INVOLVED IN THIS CASE, THAT IS, THE 15 SPRAYED LIMPET ASBESTOS. 16 THE ASSETS THEN THAT WERE PURCHASED BY NICOLET DID 17 NOT INCLUDE THIS SPRAYED LIMPET ASBESTOS PRODUCT, AND 18 NICOLET DID NOT HAVE ANYTHING TO DO WITH THE SPRAYED LIMPET 19 PRODUCT BEFORE ITS PURCHASE OR AFTER ITS PURCHASE. IT HAS 20 NEVER DISTRIBUTED, MANUFACTURED OR PRODUCED THE SPRAYED 21 .LIMPET ASBESTOS PRODUCT, WHICH IS THE ONLY CONNECTION 22 BETWEEN THE PLAINTIFF, KEASBEY AND MATTISON, AND IN THIS 23 CASE, NICOLET. 24 PLAINTIFF HAS DONE US A FAVOR, AND I CITE HIS 25 OPPOSITION TO THE BRIEFS IN OPPOSITION TO TURNER & NEWALL'S 16 1 MOTION, SPECIFICALLY PAGES 8 AND 9, WHERE HE INDICATES THAT 2 KEASBEY AND MATTISON REALLY DID NOT MANUFACTURE THIS PRODUCT INVOLVED, BUT ONLY DISTRIBUTED IT. THAT IT WASN'T 4 MANUFACTURED AND AS STATED BY COUNSEL FOR TURNER & NEWALL, 5 BY J. W. ROBERTS COMPANY IN ENGLAND, KEASBEY AND MATTISON 6 UP UNTIL 1962 WHEN IT WAS LIQUIDATED WAS DISTRIBUTING THIS 7 PARTICULAR PRODUCT. 8 IT APPEARS, HOWEVER, THAT AT THE TIME IT WAS 9 DECIDED TO LIQUIDATE KEASBEY AND MATTISON, THIS PARTICULAR 10 EXCLUSIVE LICENSING AGREEMENT WAS SOLD OR GIVEN TO ANOTHER 11 COMPANY, THAT BEING A. C. & S.. BASED UPON THAT 12 INFORMATION CONTAINED IN PLAINTIFFS' BRIEF, AND ALSO AS SET 13 FORTH IN AFFIDAVITS AND SUPPORTING DOCUMENTS WHICH WERE 14 SUPPLIED, IT WOULD APPEAR THAT THE SPRAYED LIMPET ASBESTOS 15 PRODUCT INVOLVED WAS MERELY A PRODUCT DISTRIBUTED BY 16 KEASBEY AND MATTISON AND THAT IN FACT BEFORE IT WAS 17 LIQUIDATED THIS PARTICULAR LICENSING AND DISTRIBUTING 18 AGREEMENT WAS GIVEN TO ANOTHER COMPANY. 19 THEREFORE, YOUR HONOR, AT THE TIME WHEN NICOLET 20 FINALLY GOT INVOLVED IN THIS PARTICULAR SALE, FOUR OF THE 21 OPERATING DIVISIONS OF K&M HAD BEEN SOLD OR WERE ABOUT TO 22 BE SOLD, AND THE ONLY REMAINING ONE WAS THIS INDUSTRIAL 23 PRODUCTS DIVISION. 24 AS I STATED EARLIER, THIS DISTRIBUTING LICENSING 25 AGREEMENT WAS NO LONGER AN ASSET OF K&M'S AS FAR AS WE 1 17 1 COULD TELL, AND MORE IMPORTANT, IT WAS NO LONGER AN ASSET 2 OR INCLUDED WITHIN THOSE ASSETS OF THAT ONE DIVISION THAT NICOLET UNFORTUNATELY HAPPENED TO PURCHASE. 4 BASED UPON THE FACT THAT NICOLET HAS HAD NOTHING 5 TO DO WITH THIS PRODUCT, WE FEEL THAT WE REALLY NEED NOT GO 6 ANY FURTHER THAN THAT WITH OUR MOTION. 7 COUNSEL HAS URGED THE COURT THAT BECAUSE WE ARE A 8 "SUCCESSOR CORPORATION" WE SHOULD BE RESPONSIBLE FOR THE 9 TORTS OF KEASBEY AND MATTISON. 10 IN THE RECENT MOTION THAT I FILED, MY PREVIOUS 11 MOTION, THE PAPERS I FILED YESTERDAY, YOUR HONOR, WE SHOWED 12 THE COURT VARIOUS OTHER DECISIONS ACROSS THE COUNTRY TO 13 INCLUDE VARIOUS OTHER DISTRICT COURTS WHO HAVE ADDRESSED 14 THIS ISSUE BEFORE, THE SUCCESSOR CORPORATION ISSUE, AND 15 FOUND IN FAVOR OF NICOLET. 16 MORE IMPORTANT IN THIS CASE, YOUR HONOR, WE HAVE 17 THE IMPORTANT FACTOR THAT THE PRODUCT INVOLVED WAS NOT A 18 PRODUCT OF THE INDUSTRIAL PRODUCTS DIVISION, BUT SOMETHING 19 THAT APPARENTLY HAD BEEN GIVEN AWAY TO ANOTHER COMPANY 20 PRIOR TO OUR INVOLVEMENT. 21 THE CASE THAT COUNSEL CITES, THEREFORE, THE GERMAN 22 WINE CASE -- HOW I REFER TO IT -- HAS NO APPLICABILITY 23 REALLY TO NICOLET. PLAINTIFF IS TRYING TO GO TWO STEPS 24 BEYOND WHAT THAT CASE HAS STATED. FIRST OF ALL, THAT CASE 25 DOES NOT DEAL WITH AN ALLEGED SUCCESSOR CORPORATION, AND, 18 1 SECONDLY, IT CERTAINLY DOES NOT DEAL WITH A CORPORATION 2 THAT HAD NO INVOLVEMENT WITH THE PRODUCT IN QUESTION. / ANOTHER FACTOR, YOUR HONOR, IS, UNLIKE THAT 4 PARTICULAR CASE WHERE THE AUSTRALIAN WINE PRODUCER WAS 5 STILL DOING BUSINESS IN THE DISTRICT OF COLUMBIA AND 6 PUTTING THE PRODUCT ON THE SHELF, NICOLET DOES NOT HAVE ANY 7 SUBSTANTIAL BUSINESS IN THE DISTRICT OF COLUMBIA. AS SET 8 FORTH IN THE MUSSELMAN AFFIDAVIT, WE HAVEN'T HAD ANY 9 BUSINESS IN THE DISTRICT OF COLUMBIA FOR 3 YEARS NOR SALES 10 IN THE DISTRICT OF COLUMBIA FOR 3 YEARS. 11 AND MORE IMPORTANT, YOUR HONOR, THIS PRODUCT IS 12 NOT SOMETHING WE DISTRIBUTED OR HAD ANYTHING TO DO WITH. 13 I ALSO SET FORTH IN THE PAPERS THAT NICOLET HAD NO 14 CONTACT OR CONNECTION, CORPORATE OR OTHERWISE, WITH TURNER 15 & NEWALL AND HAD NO CONTACT OR CONNECTION WITH THIS 16 NATIONAL ASBESTOS COMPANY WHICH ALLEGEDLY WAS PART OF THE 17 LOCAL DISTRIBUTING PLAN FOR THIS PRODUCT IN THE AREA. 18 COUNSEL ALSO SET FORTH A BRIEF FROM SOUTH CAROLINA, 19 I BELIEVE, THE BAUMGARTNER CASE WAS MENTIONED IN THAT BRIEF. 20 IT WAS A SOUTH CAROLINA CASE WHICH WAS A COMMON PLEAS 21 DECISION, IN WHICH NICOLET WAS FOUND TO BE A SUCCESSOR 22 CORPORATION. BUT TO DISTINGUISH THAT CASE, YOUR HONOR, 23 JHERE -- THE PRODUCT INVOLVED HERE, THE SPRAYED LIMPET 24 ASBESTOS, WAS NOT THE PRODUCT INVOLVED IN THAT CASE SO FAR 25 AS I KNOW. AND IN FACT, THE ORDER OF THE COURT THERE r 19 1 CLEARLY STATED THAT NICOLET HAD CONTINUED TO PRODUCE OTHER 2 PRODUCTS WHICH APPARENTLY THAT PLAINTIFF HAD BEEN EXPOSED TO, WHICH IS NOT THE CASE HERE. 4 THERE HAS ALSO BEEN, AS YOU WELL CAN TELL BY 5 LOOKING AT YOUR FILE NUMEROUS AFFIDAVITS, OTHER DOCUMENTS, 6 AND OTHER DISCOVERY WHICH HAVE BEEN DONE SINCE 1977 ALL OF 7 WHICH HAVE SIGNIFICANTLY CLEARED THE PICTURE A LOT MORE 8 THAN IT WAS APPARENTLY IN 1977. 9 IN SUMMARY, YOUR HONOR, WE WOULD CONTEND THAT 10 THERE IS NO BASIS AT ALL FOR JURISDICTION OVER NICOLET 11 UNDER THE LONG ARM STATUTE NOT ONLY BECAUSE OF THE PRODUCT, 12 BUT ALSO BECAUSE OF THE LACKMAN CASE, THE LACK OF ANY 13 PRESENT CONTEXT, BUT ALSO BECAUSE THERE IS NOTHING IN THE 14 LONG ARM STATUTE THAT STATES ANYTHING ABOUT JURISDICTION 15 OVER A SUCCESSOR CORPORATION CAN BE MADE -- PERSONAL 16 JURISDICTION OVER A SUCCESSOR CORPORATION CAN BE MADE BY 17 ALLEGING JURISDICTION OVER A PREVIOUS CORPORATION WHICH NO 18 LONGER EXISTS. 19 THE COURT: ALL RIGHT. 20 MR. GUZIAK: I WOULD THINK THAT YOU CERTAINLY WOULD 21 HAVE TO HAVE PRESENT JURISDICTION -- JURISDICTIONAL TIES 22 OVER NICOLET FOR THAT STATUTE TO APPLY. 23 ^ THE COURT: ALL RIGHT. THANK YOU. 24 MR. DONOHUE: GOOD AFTERNOON, YOUR HONOR. PATRICK 25 DONOHUE, ON BEHALF OF THE DEFENDANTS ATLAS-TURNER AND BELL 20 1 ASBESTOS MINES. WE HAVE FILED MOTIONS TO DISMISS ON BEHALF 2 OF BOTH OF OUR CLIENTS, PRIMARILY ON THE SAME LEGAL BASES THAT WERE PREVIOUSLY ADVANCED BY COUNSEL FOR TURNER & 4 NEWALL. 5 RATHER THAN NEEDLESSLY DUPLICATE THE COURT'S TIME 6 AT THIS POINT, WE WOULD INCORPORATE THE LEGAL ARGUMENTS 7 PREVIOUSLY ADVANCED ON BEHALF OF OUR TWO CLIENTS. 8 THE COURT: WHAT IS THE RELATIONSHIP OF YOUR TWO 9 CLIENTS TO TURNER & NEWALL? 10 MR. DONOHUE: WITH RESPECT TO SHIPMENTS INVOLVED 11 IN THIS CASE, YOUR HONOR, NONE. YEARS AGO, I BELIEVE IN 12 THE FORTIES, PERHAPS FIFTIES, THERE MAY HAVE BEEN SOME 13 CONTRACTUAL RELATIONSHIP. 14 AS FAR AS THE ALLEGATIONS IN THIS CASE ARE 15 CONCERNED THOUGH, THERE IS NO RELATIONSHIP. 16 THE COURT: ALL RIGHT. 17 MR. DONOHUE: YOUR HONOR, IN OPPOSITION TO THE 18 MOTION TO DISMISS WHICH HAS BEEN FILED ON BEHALF OF ATLAS, 19 THERE ARE TWO PRINCIPAL FACTUAL CONTENTIONS RAISED BY THE 20 PLAINTIFFS. 21 THE FIRST IS CONTAINED IN AN AFFIDAVIT WHICH HAS 22 BEEN PROVIDED BY RICHARD W. BOYLE, SECRETARY-TREASURER OF 23 tfRAFFT MURPHEY COMPANY, WITH WHOM ATLAS HAD A CONTRACTUAL 24 RELATIONSHIP IN THE LATE SIXTIES, EARLY 1970'S. KRAFFT WAS 25 THE LOCAL SUPPLIER OF ASBESTOS PRODUCTS. THERE IS A l 21 1 DISTRIBUTORSHIP AGREEMENT BETWEEN KRAFFT AND ATLAS. IN 2 PARAGRAPH 19 OF THAT AFFIDAVIT, ON PAGE FOUR, THERE IS AN f INDICATION BY MR. BOYLE THAT ATLAS SHIPPED SPRAYED LIMPET 4 ASBESTOS, ORDERED BY KRAFFT MURPHEY, DIRECTLY TO THE 5 DISTRICT OF COLUMBIA JOBSITES BY TRUCK FROM CANADA. THAT 6 IS THE MOST DIRECT POINT OF FACT SUGGESTED IN OPPOSITION TO 7 THE MOTION FILED BY ATLAS. 8 IN THE AFFIDAVIT WHICH HAS BEEN FILED ON BEHALF OF 9 ATLAS-TURNER, IT IS CLEARLY INDICATED THAT THERE WERE NO 10 DIRECT SALES OF ATLAS PRODUCTS IN THE DISTRICT OF COLUMBIA. 11 THERE WERE NO CONTRACTS EXECUTED IN THE DISTRICT. KRAFFT 12 MURPHY AT THIS TIME WAS BASED IN ALEXANDRIA, NOT IN THE 13 DISTRICT, AND THAT ALL SALES FROM ATLAS-TURNER WERE MADE 14 F.O.B. FROM QUEBEC, CANADA. THERE IS ABSOLUTELY NO DIRECT 15 REFUTATION OF THOSE POINTS IN THE AFFIDAVIT WHICH HAS BEEN 16 SUBMITTED ON BEHALF OF MR. BOYLE. 17 I WOULD SUBMIT TO THE COURT THAT WHAT APPEARS TO 18 BE AN INCONSISTENCY IS NOT NECESSARILY SO. THE WORD, 19 "SHIPMENT," IS A VERY BROAD TERM. IT DOES NOT NECESSARILY 20 TAKE INTO ACCOUNT THE TECHNICAL DETAILS OF LEGAL OWNERSHIP. 21 IT DOES NOT TAKE INTO ACCOUNT WHO IS RESPONSIBLE FOR THE 22 GOODS, WHO DESIGNATES THE POINT OF DELIVERY, ANYTHING OF 23 .THAT NATURE. 24 AND IN THE ABSENCE OF ANY REFUTATION OF THE FACT 25 THAT ALL SALES WERE MADE F.O.B. CANADA, I WOULD SUBMIT THAT 22 1 THE SUGGESTION IN PARAGRAPH 19 TO THE EFFECT THAT ATLAS WAS 2 SOMEHOW RESPONSIBLE FOR THE SHIPMENT OF ASBESTOS-CONTAINING `i PRODUCTS TO D C JOBSITES IS SIMPLY INADEQUATE TO REFUTE 4 WHAT REMAINS UNREFUTED IN THE AFFIDAVIT IN SUPPORT OF THE 5 MOTION. 6 THE SECOND PRIMARY BASIS FOR THE PLAINTIFF'S 7 OPPOSITION CONSISTS OF INTERROGATORY ANSWERS WHICH WERE 8 FILED.BY ATLAS IN THE UNITED STATES DISTRICT COURT IN SOUTH 9 CAROLINA. 10 SPECIFICALLY, THE ANSWER TO INTERROGATORY 197 IN 11 THE CASE -- I BELIEVE IT IS ATTACHED TO THE EXHIBITS AS 12 EXHIBIT "A". 13 THAT ANSWER LISTS A NUMBER OF SALES OF ATLAS 14 PRODUCTS, ONLY ONE OF WHICH INVOLVES A SALE TO A PURCHASER 15 IN THE DISTRICT OF COLUMBIA. THE PURCHASER WAS THE 16 NATIONAL INSTITUTES OF HEALTH. 17 UNDER THE D C LONG ARM STATUTE, THERE IS A 18 GOVERNMENT CONTACTS EXCEPTION, WHICH EXCEPTS FOR PURPOSES 19 OF PERSONAL JURISDICTION, CONTACTS AND TRANSACTIONS WITH 20 THE FEDERAL GOVERNMENT. THE EXCEPTION IS PREMISED ON FIRST 21 AMENDMENT PRINCIPLES. IT IS BASED ON A POLICY TO PROMOTE 22 THE ORDERLY FUNCTION OF THE GOVERNMENT, AND TO ENCOURAGE 23 EFFICIENCY IN GOVERNMENT TRANSACTIONS. 24 THE COURT: THAT HAS TO DO WITH LOBBYING ACTIVITY 25 OR THINGS OF THAT NATURE, DOESN'T IT? 23 1 MR. DONOHUE: PARDON ME, YOUR HONOR? 2 THE COURT: THAT HAS TO DO WITH LOBBYING ACTIVITY. 7 MR. DONOHUE: THERE IS THE ROSE CASE, ROSE VERSUS 4 SILVER, WHICH I DO NOT BELIEVE RELATED TO A LOTTERY 5 SITUATION. 6 THE COURT: LOBBYING? 7 MR. DONOHUE: OH, LOBBYING? I'M SORRY. 8 THE COURT: YES. IT DOESN'T HAVE TO DO WITH SALES 9 OF GOODS. 10 MR. DONOHUE: IT RELATES TO TRANSACTIONS. 11 THE COURT: WHAT IS THAT CASE ABOUT? 12 MR. DONOHUE: ROSE VERSUS SILVER, 394. A 2D, 1968. 13 I DO NOT HAVE THE CASE HERE. I WOULD REQUEST THE COURT'S 14 PERMISSION TO SUPPLY A SUPPLEMENTAL MEMORANDUM. 15 THE COURT: ALL RIGHT. YOU CAN DO IT IN 3 DAYS. 16 MR. DONOHUE: THE ONLY CONTACT, THEN, IN THE 17 NATURE OF A SALE WHICH INVOLVES A DIRECT CONTACT WITH THE 18 DISTRICT IS A TRANSACTION IN THE EARLY SEVENTIES WITH N I H. 19 IF THAT IS THE SOLE CONTACT WHICH THE PLAINTIFFS PURPORT TO 20 RELY ON IN ASSERTING PERSONAL JURISDICTION OVER 21 ATLAS-TURNER IN THIS CASE, IT IS OUR POSITION THAT IT DOES 22 NOT SATISFY THE MINIMUM CONTACTS REQUIREMENTS. 23 THE MOTION THAT IS FILED ON BEHALF OF BELL 24 ASBESTOS RECEIVED MUCH LESS OPPOSITION THAN ATLAS'S MOTION. 25 THERE'S A VERY SIMPLE REASON. BELL HAS NO CONTACTS OF ANY 24 1 KIND WITH ANY CONTRACTORS, SUPPLIERS, RETAILERS OF 2 ASBESTOS-CONTAINING PRODUCTS IN THE DISTRICT, OR ANYWHERE EL&E IN THE UNITED STATES FOR THAT MATTER. 4 NEITHER OF THE DEFENDANTS HAS ANY ASSETS, REAL 5 ESTATE HOLDINGS, BANK ACCOUNTS, NEITHER HAVE FILED SUIT IN 6 THE DISTRICT, NOR ARE INCORPORATED IN THE DISTRICT OF THE 7 THERE IS SIMPLY NO INDICIA THAT ARE SATISFIED IN ORDER TO 8 MEET THE MINIMUM CONTACTS REQUIREMENTS OR THE STATUTORY 9 REQUIREMENTS OF THE DISTRICT OF COLUMBIA LONG ARM STATUTE. 10 THE COURT: ALL RIGHT. 11 MR. ENSLEIN: YOUR HONOR, I AM PETER ENSLEIN FOR 12 THE PLAINTIFFS. YOUR HONOR, AS I HAVE LISTENED TO MY 13 BROTHERS TODAY, IT OCCURS TO ME THERE IS A GAME OF HOT 14 POTATO BEING PLAYED HERE AND THAT HOT POTATO IS CALLED 15 SPRAYED LIMPET ASBESTOS. 16 THESE DEFENDANTS HAVE DONE THEIR VERY BEST TO 17 DISTANCE THEMSELVES FROM THIS PRODUCT FOR A VERY GOOD 18 REASON. MY CLIENT FLETCHER MCDANIEL, WORKED FOR MANY YEARS 19 IN THE DISTRICT OF COLUMBIA AS A PLASTER'S HELPER. 20 THE COURT: WHO DID HE WORK FOR? 21 MR. ENSLEIN: HE WORKED IN 1959, YOUR HONOR, FOR A 22 COMPANY CALLED THE NATIONAL ASBESTOS COMPANY, AND THEN HE 23 WORKED FOR MANY YEARS FOR A COMPANY CALLED THE KRAFFT 24 MURPHEY COMPANY. HE WORKED FOR THAT COMPANY IN 1953 25 THROUGH 1963. IN 1965, AND FOR THE PERIOD OF 1967 THROUGH 25 1 1971. THROUGHOUT THAT PERIOD OF TIME, YOUR HONOR, HE WAS 2 CONSTANTLY EXPOSED TO SPRAYED LIMPET ASBESTOS MANUFACTURED BY THESE DEFENDANTS. 4 NOW, HOW DID SPRAYED LIMPET ASBESTOS GET TO 5 FLETCHER MCDANIEL? TURNER & NEWALL'S COUNSEL SUGGESTS IT 6 IS SIMPLY THE UNILATERAL ACT OF KRAFFT MURPHY. IN FACT, IT 7 RESULTS FROM THE SYSTEMATIC DISTRIBUTION OF THIS PRODUCT BY 8 TURNER & NEWALL FOR MANY MANY YEARS. 9 THE HISTORY OF TURNER & NEWALL IS COMPLEX, EVER 10 CHANGING AND THEY HAVE, INDEED, HAD GREAT SUCCESS IN 11 AVOIDING JURISDICTION IN MANY COURTS. THEY HAVE DONE THAT 12 SIMPLY BY PLAYING IN MANY WAYS THE SAME KIND OF HOT POTATO 13 GAME THEY PLAYED HERE. " IT WASN'T US. " IT WASN'T US. " 14 THE COURT: SEVERAL JUDGES ON THIS COURT HAVE HAD 15 CASES THAT DEAL WITH ASBESTOS. 16 MR. ENSLEIN: YES, IN REGARD TO THE CATRETT CASE, 17 JUDGE RICHEY DECIDED THAT CASE AND HE DID NOT HAVE THE 18 BENEFIT OF THE COMPLETE RECORD WHICH WE HAVE HERE TODAY. 19 THAT CASE WAS DECIDED ON A VERY INCOMPLETE RECORD. AND I 20 THINK MY BROTHER, MR. DORKEY, I THINK WILL AGREE IT DID NOT 21 INCLUDE MANY OF THE MATERIALS WE HAVE HERE TODAY. 22 THE COURT: WHAT DO WE HAVE THAT JUDGE RICHEY 23 DIDN'T HAVE? 24 MR. ENSLEIN: JUDGE RICHEY WAS NOT SUPPLIED WITH 25 THE VERY DETAILED COURSE OF CONDUCT OF THE DISTRIBUTION 26 1 SYSTEM TRADED BY CREATED BY TURNER & NEWALL. OR THE 2 LICENSING AGREEMENTS THAT TURNER AND INFLUENCE CREATED NOR WAS HE COMPLETELY PROVIDED WITH INFORMATION CONCERNING THE 4 EXTENT OF TURNER AND NEWALL'S CONTROL OVER THIS 5 DISTRIBUTION SYSTEM. NOR WAS HE PROVIDED WITH THE RECENT 6 DECISION OF MAGISTRATE DEJACOMO WHO HAD OCCASION TO REVIEW 7 THIS RECORD AND FOUND INDEED IN A FACTUAL SETTING ALMOST 8 IDENTICAL TO THE CASE HERE THAT TURNER AND NEWALL WAS 9 SUBJECT TO JURISDICTION UNDER THAT STATUTE. 10 THE COURT: WAS THE MASSACHUSETTS CASE SOMEWHAT 11 DIFFERENT FACTUALLY? 12 MR. ENSLEIN: FACTUALLY, THE MAGISTRATE IN TERMS OF 13 HIS ORDER CONCERNING THE TURNER AND NEWALL LIABILITY FOR 14 DISTRIBUTING SPRAYED LIMPET ASBESTOS WAS VERY SIMILAR. THE 15 DIFFERENCE IN PART WAS THE ACKNOWLEDGEMENT OF SOME SALES BY 16 TURNER & NEWALL OF OTHER PRODUCTS IN THEIR RECENT PAST TO 17 MASSACHUSETTS CUSTOMERS, WHICH THEY, TODAY, IN THEIR BRIEF 18 WHICH IS BEFORE YOUR HONOR, DENY OF ANY SIGNIFICANCE FOR 19 JURISDICTIONAL PURPOSE. 20 THE COURT: SO, THERE WAS SOME FAIRLY RECENT 21 ACTIVITY ON THE PART OF TURNER & NEWALL? 22 MR. ENSLEIN: YES, THERE WAS. 23 THE COURT: WE DON'T HAVE THAT HERE? 24 MR. ENSLEIN: WE HAVE THE RECENT ACTIVITY OF THIS 25 DEFENDANT FILIN A LAWSUIT BEFORE YOUR HONOR WHICH I THINK 27 1 CONSTITUTES TRANSACTING BUSINESS IN THIS JURISDICTION, YOUR 2 HONOR. V THIS PRODUCT CAME TO THE DISTRICT OF COLUMBIA IN 4 THE FOLLOWING FASHION. IN 1930, TURNER & NEWALL DEVELOPED 5 A PRODUCT CALLED SPRAYED LIMPET ASBESTOS. 6 THE COURT: LET ME ASK YOU THIS WHILE I AM 7 THINKING ABOUT IT. WAS IT BROUGHT TO JUDGE RICHEY'S 8 ATTENTION THAT TURNER & NEWALL HAD FILED A CASE IN THIS 9 COURT? 10 MR. ENSLEIN: YOUR HONOR, AT THE TIME TURNER & 11 NEWALL HAD FILED ITS ACTION, THE CASE HAD ALREADY BEEN 12 DECIDED BY JUDGE RICHEY. 13 THE COURT: HE DECIDED IT THEN SOMETIME AGO? 14 MR. ENSLEIN: SOMETIME AGO. I BELIEVE IT WAS 15 DECIDED IN APPROXIMATELY 1980. TURNER & NEWALL HAD FILED 16 ITS ACTION HERE IN 1982. 17 THE COURT: JUDGE RICHEY RULED ON HIS CASE, WHEN? 18 MR. ENSLEIN: IN 1980 I BELIEVE YOUR HONOR. I 19 DON'T HAVE THE EXACT DATE. 20 21 YOU. THE COURT: THE RULED IN 1980. ALL RIGHT. THANK 22 MR. ENSLEIN: THE PRODUCT SPRAYED LIMPET ASBESTOS 23 WAS DISTRIBUTED BY TURNER & NEWALL THROUGHOUT THE WORLD BY `4 24 WAY OF A SYSTEM OF EXCLUSIVE LICENSE AGREEMENTS. UNDER THE 25 TERMS OF THESE AGREEMENTS THE LICENSES WERE REQUIRED TO 28 1 TAKE ALL OF THEIR ASBESTOS USED IN A SPRAYED LIMPET 2 ASBESTOS PROCESS FROM TURNER S> NEWALL. 3 IN THE MID NINETEEN-FIFTIES, TURNER AND NEWALL 4 ENTERED INTO AN AGREEMENT WITH A COMPANY CALLED KEASBEY AND 5 MATTISON OF AMBLER, PENNSYLVANIA, WHICH WAS ALSO TURNER & 6 NEWALL'S WHOLLY-OWNED SUBSIDIARY. 7 UNDER THE TERMS OF TURNER & NEWALL'S LICENSING 8 AGREEMENT WITH KEASBEY AND MATTISON, KEASBEY AND MATTISON 9 WAS PERMITTED WITH THE AUTHORIZATION OF TURNER & NEWALL TO 10 ENTER INTO WHAT WERE KNOWN AS SUB-LICENSE AGREEMENTS WITH 11 LOCAL APPLICATION COMPANIES. KEASBEY AND MATTISON DID JUST 12 THAT AND ENTERED INTO AN AGREEMENT IN THE FIFTIES WITH A 13 COMPANY THAT MR. MCDANIEL WORKED FOR, THE NATIONAL ASBESTOS 14 COMPANY. 15 SHIPMENTS OF ASBESTOS WERE ORDERED THROUGH KEASBEY 16 AND MATTISON BY THE NATIONAL ASBESTOS COMPANY FROM TURNER & 17 NEWALL IN ENGLAND AND THOSE PRODUCTS WERE THEN SHIPPED AND 18 USED BY MR. MCDANIEL IN THE DISTRICT OF COLUMBIA. 19 BY 1962, TURNER & NEWALL WHICH EXERCISED PERVASIVE 20 CONTROL OVER KEASBEY AND MATTISON -- SUCH CONTROL, I 21 MIGHT ADD, YOUR HONOR, THAT THE MAGISTRATE IN MASSACHUSETTS 22 CONCLUDED THAT KEASBEY AND MATTISON WAS THE ALTER EGO OF 23 TURNER & NEWALL AND FOR JURISDICTIONAL PURPOSES, THE ACTS 24 OF KEASBEY AND MATTISON WERE THOSE OF TURNER & NEWALL ON 25 BOTH THE ALTER EGO AND AGENCY THEORY. 29 1 BY 1962, TURNER AND NEWALL -- BECAUSE THEY HAD 2 BEEN SUED HERE IN THE DISTRICT FOR ANTI-TRUST VIOLATION AND 3 A CRIMINAL PROCEEDING HAD BEGUN AGAINST THEM, AT LEAST, AN 4 INVESTIGATION BY THE GRAND JURY -- DECIDED TO GET RID OF 5 AND LIQUIDATE KEASBEY AND MATTISON. IN 1962, IT DID SO. 6 AND THE MOST SIGNIFICANT IN TERMS OF THE COURT'S 7 CONSIDERATION OF THESE MOTIONS ASSET THAT WAS SOLD WAS THAT 8 OF THE INDUSTRIAL PRODUCTS DIVISION WHICH WAS SOLD TO 9 DEFENDANT NICOLET. 10 I'LL RETURN TO THE QUESTION OF SUCCESSFUL 11 LIABILITY IN A MINUTE ONCE I FINISH MY REBUTTAL REGARDING 12 TURNER AND NEWALL'S AND ATLAS' MOTIONS. 13 IN 1962, BECAUSE KEASBEY AND. MATT ISON NO LONGER 14 EXISTED, TURNER AND NEWALL HAD TO FIND A WAY TO GET ITS 15 ASBESTOS INTO THIS COUNTRY, PARTICULARLY, ITS SPRAYED 16 LIMPET ASBESTOS. SO, IT ELECTD TO ENTER INTO A AGREEMENT 17 WITH A COMPANY CALLED A. C. AND S. , ALSO A DEFENDANT IN 18 THIS ACTION, WHICH GAVE A. C. & S. -- THEN KNOWN AS 19 ARMSTRONG CONTRACTING AND SUPPLY CORPORATION, ALSO OF 20 PENNSYLVANIA, LANCASTER, PENNSYLVANIA, -- AUTHORIZING THAT 21 :COMPANY TO SERVE AS THE EXCLUSIVE LICENSEE FOR SPRAYED 22 LIMPET ASBESTOS IN THE UNITED STATES FOR A PERIOD OF FIVE 23 EARS. 24 UNDER THE TERMS OF THAT CONTRACT A.C.& S. WAS 25 AUTHORIZED TO ENTER INTO SUB-LICENSE AGREEMENTS SUBJECT 30 1 TO THE APPROVAL OF TURNER & NEWALL -- WITH LOCAL 2 APPLICATION COMPANIES. 3 IN 1962 A C AND S ENTERED INTO AN AGREEMENT WITH 4 MR. MCDANIEL'S EMPLOYER, KRAFFT MURPHY, WHICH PROVIDED THAT 5 KRAFFT MURPHEY UNDER THE VERY TERMS OF THAT AGREEMENT COULD 6 DISTRIBUTE AND USE SPRAYED LIMPET ASBESTOS IN THE DISTRICT 7 OF COLUMBIA. 8 NOW TURNER AND NEWALL SAYS THEY DIDN'T KNOW 9 ANYTHING ABOUT IT. THE RECORD IN THIS CASE SUGGESTS 10 OTHERWISE. BECAUSE IF YOU LOOK AT THE BOYLE AFFIDAVIT 11 WHICH IS ATTACHED TO OUR OPPOSITION TO TURNER & NEWALL'S 12 MOTION TO DISMISS, YOU WILL FIND THAT THE SUB-LICENSE 13 AGREEMENT SIGNED BY KRAFFT MURPHEY WAS SENT TO ENGLAND BY 14 A. C. & S. TO TURNER & NEWALL FOR THEIR APPROVAL. 15 YOU WILL SEE CORRESPONDENCE IN THERE BY A 16 GENTLEMEN NAMED ANDY RICHARDSON INDICATING THAT THE 17 CONTRACT HAD BEEN SENT TO ENGLAND AND HE WAS RETURNING THE 18 SIGNED COPY FROM ENGLAND FOR KRAFFT MURPHY'S FILE. 19 YOU WILL ALSO FIND ATTACHED TO THAT AFFIDAVIT OF 20 MR. BOYLE, WHO WAS THE SECRETARY-TREASURY FOR MANY YEARS OF 21 THE KRAFFT MURPHY COMPANY, COPIES OF A CABLE SENT BY TURNER 22 & NEWALL TO THE KRAFFT MURPHY COMPANY INDICATING THAT THE 23 SHIPMENT OF CERTAIN ASBESTOS, SPRAYED LIMPET ASBESTOS, FROM 24 ENGLAND TO AN ALEXANDRIA, VIRGINIA, JOBSITE. 25 SO, TURNER & NEWALL HAD CONTROL OF A SYSTEM WHICH 31 1 WAS DESIGNED TO TAKE ITS PRODUCT MANUFACTURED IN ENGLAND, 2 BRING IT TO THE UNITED STATES, AND ASSURE THAT IT BE 3 DISTRIBUTED NOT SIMPLY IN A REGION WHICH INCLUDED THE 4 DISTRICT OF COLUMBIA, BUT IN THE DISTRICT OF COLUMBIA 5 ITSELF. 6 THE COURT: BUT, ALL OF THIS OCCURRED AT LEAST 12 7 YEARS AGO? 8 MR. ENSLEIN: THE LAST SHIPMENT OF LIMPET OCCURRED 9 IN 1972, YOUR HONOR. I DO TAKE ISSUE WITH MY BROTHER'S 10 CHARACTERIZATION OF THE LONG ARM STATUTE AS ONE REQUIRING 11 PRESENT-DAY CONTACTS IN ORDER FOR A PLAINTIFF TO EXERCISE 12 AND BE ENTITLED TO BRING A DEFENDANT INTO COURT IN THIS 13 JURISDICTION WHERE YOU HAVE SUCH A PERSISTENT COURSE OF 14 CONDUCT BY A DEFENDANT SUCH AS WE HAVE HERE. 15 YOUR HONOR'S DECISION IN SECURITY BANK BY WAY OF 16 MY READING DID NOT HOLD OTHERWISE. AS I READ THAT DECISION, 17 THERE WAS A COMPARED AND CONTRASTED IN THAT DECISION THE 18 SUBSECTION (A)(1) OF THE LONG ARM STATUTE, TRANSACTING ANY 19 BUSINESS LANGUAGE OF THE STATUTE, AND THE A(4) SECTION 20 WHICH TALKS ABOUT PERSISTENT CONDUCT. THERE, THE IMPORTANT 21 DISTINCTION AS I SEE IT IS NOT THAT THERE BE CONSISTENT 22 CONDUCT UP UNTIL TODAY BUT AT SOME POINT IN THE PAST THE 23 Defendant did engage in a persistent course of conduct as 24 OPPOSED TO AN ISOLATED ACT WHICH WOULD BE SOMETHING UNDER 25 CERTAIN CIRCUMSTANCES THAT THE SUBSECTION (A)(1) OF THE 32 1 LONG ARM STATUTE WOULD ENCOMPASS. 2 NOW, ALSO IN MY READING OF THE UNIFORM INTERSTATE 3 AND INTERNATIONAL PROCEDURE ACT UPON WHICH OUR LONG ARM 4 STATUTE IS BASED, MY RECOLLECTION IS THAT THAT STATUTE IN 5 TERMS OF THE TRANSACTING ANY BUSINESS PROVISION DOES NOT 6 SIMPLY, IS NOT SIMPLY LIMITED TO CONTRACT ACTIONS BUT 7 APPLIES TO ANY ACTION, TORT OR OTHERWISE. INDEED, MY 8 READING OF THE KAISER DECISION SUGGESTS THAT THE COURT 9 THERE CHARACTERIZED AT LEAST ONE OF THE PLAINTIFF'S CLAIMS 10 IN THAT ACTION TO BE TORT IN NATURE. 11 THE COURT: WHAT CASES DO YOU HAVE TO SUPPORT YOUR 12 POSITION? 13 MR. ENSLEIN: WELL, THE KAISER CASE -- 14 THE COURT: YES, BUT THAT DIDN'T HAVE THE 12-YEAR 15 LAPSE. THAT'S THE PROBLEM. THAT'S THE PROBLEM. DO YOU HAVE 16 ANY CASES WHERE YOU HAVE A LAPSE OF TIME LIKE THIS? 17 MR. ENSLEIN: I HAVE NOT FOUND ONE. 18 THE COURT: HAVEN'T FOUND ONE? 19 MR. ENSLEIN: BUT, YOUR HONOR IN THE TOXIC COURT 20 SETTING IT SEEMS TO ME THAT PARTICULARLY HERE WHERE WE HAVE 21 A DEFENDANT WHO HAS FILED AN ACTION IN THIS COURT, AND WHO 22 HAS ASKED THIS COURT TO EXERCISE THE LAWS OF THIS 23 JURISDICTION IN AN ACTION AGAINST AN INSURANCE COMPANY FOR 24 THE CLAIMS SIMILAR TO THOSE, REALLY IDENTICAL TO THOSE OF 25 MR. MCDANIEL: EXPOSURE TO PRODUCTS DISTRIBUTED BY KEASBEY 33 1 AND MATTISON. THIS COURT HAS RECOGNIZED, THE CIRCUIT COURT 2 OF APPEALS OF THE DISTRICT OF COLUMBIA HAS RECOGNIZED THAT 3 IN ENVIRONMENTAL RESEARCH INTERNATIONAL VERSUS GREEN 4 ENGINEERING THAT ACTIVITIES ENTITLING THE DEFENDANT TO THE 5 PROTECTIONS OF LOCAL LAW CONSTITUTES TRANSACTING BUSINESS 6 UNDER THE TERMS OF THE LONG ARM STATUTE. 7 I MIGHT CITE YOUR HONOR TO THE CASE OF ROSS VERSUS 8 ROSS. A CASE OUT OF THE SUPREME JUDICIAL COURT OF 9 MASSACHUSETTS. 358 NORTHEAST SECOND 437, A CASE DECIDED IN 10 1976. WHERE THE SUPREME JUDICIAL COURT HELD THAT THE 11 FILING OF A LAWSUIT IN MASSACHUSETTS CONSTITUTED 12 TRANSACTING BUSINESS WITHIN THE MEANING OF THAT LONG ARM 13 STATUTE. AND MASSACHUSETTS DECISIONS ARE OF PARTICULAR 14 PRECEDENTIAL IMPORT HERE, YOUR HONOR, BECAUSE THEY, LIKE 15 OUR LONG ARM STATUTE, ARE PREDICATED ON THE UNIFORM 16 INTERSTATE AND INTERNATIONAL PROCEDURE ACT. 17 OUR COURT OF APPEALS IN "FOUNDING CHURCH OF 18 SCIENTOLOGY" NOTED THAT SUCH DECISIONS ARE ENTITLED TO, AS 19 THE COURT PUT IT, SUBSTANTIAL WEIGHT IN A D C COURT'S 20 CONSIDERATION OF JURISDICTIONAL ISSUES. 21 THE COURT: WELL, IN OUR LONG ARM STATUTE, JUST 22 LOOKING AT IT, IT SAYS AFTER ENUMERATING THE FOUR 23 Subsections, that the court may exercise long arm 24 JURISDICTION. IT SAYS (B) " WHEN JURISDICTION OVER A 25 PERSON IS BASED SOLELY UPON THIS SECTION, ONLY A CLAIM FOR l 34 1 RELIEF ARISING FROM ACTION ENUMERATED IN THIS SECTION MAY 2 BE ASSERTED AGAINST IT." 3 SO, HOW WOULD FILING A SUIT IN THIS JURISDICTION 4 BRING A DEFENDANT WITHIN THE LONG ARM STATUTE? 5 MR. ENSLEIN: MY UNDERSTANDING OF SUBSECTION "B", 6 YOUR HONOR, IS THAT SECTION REQUIRES SOME RELATIONSHIP 7 BETWEEN THE CLAIM ASSERTED AGAINST THE DEFENDANT, AND THE 8 ACTIVITY. 9 AT LEAST, SUBSECTION "(A)(1)" DOES. HERE COUNSEL 10 TODAY CONCEDED THAT THERE IS A RELATIONSHIP BETWEEN THE 11 LITIGATION AT HAND AGAINST AMERICAN MUTUAL, AND THE CLAIMS 12 OF THIS PLAINTIFF. 13 THAT STATUTE IS TO BE CONSTRUED BROADLY NOT NARROWLY. 14 AND I THINK THAT INTERPRETATION OF THAT SUBSECTION (B) 15 WOULD PROVIDE FOR A RELATIONSHIP BETWEEN THIS PLAINTIFF'S 16 CLAIMS FOR INJURIES CAUSED BY KEASBEY AND MATTISON, 17 EXPOSURE, AND THIS DEFENDANT'S ACTION AGAINST AMERICAN 18 MUTUAL FOR CLAIMS ARISING OUT OF CLAIMS SUCH AS THOSE PUT 19 FORWARD BY THE PLAINTIFF HERE -- INDEED, IN MANY WAYS, 20 THE PLAINTIFF COULD BE CONSIDERED A THIRD-PARTY BENEFICIARY 21 'OF THAT LITIGATION, INASMUCH AS SHOULD TURNER AND NEWALL 22 SUCCEED THEY WOULD THEN HAVE A SOURCE OF INSURANCE TO COVER 23 THE CLAIMS THAT THIS PLAINTIFF IS SETTING FORTH AGAINST 24 THEM. 25 YOUR HONOR HAS MENTIONED THE KAISER DECISION, 35 1 WHICH I BELIEVE IS DIRECTLY ON POINT. AND IN TERMS OF 2 WHETHER THERE WAS PRESENT-DAY CONTACT IN THAT CASE, IF 3 THERE WAS CONTACT, IT WAS, AT THAT, SPORADIC. INDEED, IN 4 THAT DECISION, IN FOOTNOTE 14, THE COURT NOTED THAT BETWEEN 5 1974 AND 1978, OF ALL THE WINE SOLD, I THINK THERE WAS ONLY 6 SOLD 7 HUNDRED AND 47 DOLLARS WORTH, 28 CASES OUT OF THE 7 SOME TWO THOUSAND CASES THAT WERE DISTRIBUTED IN THE 8 EASTERN UNITED STATES. SO, IF THERE WAS CONTACT, IT WAS 9 VERY LIMITED, AND, INDEED, THE COURT OF APPEALS DID NOT 10 DECIDE THIS CASE BASED ON WHETHER OR NOT THERE WAS ANY KIND 11 OF PRESENT-DAY CONTACT. BUT, CERTAINLY, IF THAT WAS 12 SIGNIFICANT, THE COURT CHOSE NOT TO HAVE ITS DECISION TURN 13 ON THAT ISSUE. 14 KAISER IS DIRECTLY ON POINT, AND I THINK IN MANY 15 WAYS RESOLVES THE ISSUE OF TURNER & NEWALL'S RESPONSIBILITY 16 HERE IN TERMS OF BEING SUBJECT TO THE COURT'S JURISDICTION. 17 IN THAT CASE, OUR COURT OF APPEALS HELD THAT WHERE 18 A MANUFACTURER SHIPS PRODUCTS TO AN INTERMEDIARY WITH THE 19 EXPECTATION THAT THAT INTERMEDIARY WOULD DISTRIBUTE THOSE 20 PRODUCTS WITHIN A REGION THAT INCLUDEDED THE DISTRICT OF 21 ; COLUMBIA THAT CONSTITUTES " TRANSACTING BUSINESS " WITHIN 22 THE TERMS OF OUR LONG ARM STATUTE. AND THAT IS THE EXACTLY 23 WHAT TURNER & NEWALL DID HERE. IT SHIPPED THE PRODUCTS TO .24 A.C.& S. WITH THE UNDERSTANDING THAT THOSE PRODUCTS WOULD 25 BE SHIPPED TO KRAFFT MURPHEY TO BE USED IN THE DISTRICT OF 36 1 COLUMBIA. 2 TURNER & NEWALL CANNOT COME BEFORE THIS COURT AND 3 SAY IT DIDN'T KNOW THIS WAS HAPPENING WHEN THEY WERE 4 PROVIDED WITH THE VERY CONTRACT WHICH BY ITS VERY TERMS 5 SAID THOSE PRODUCTS ARE AUTHORIZED AND WILL BE USED IN THE 6 DISTRICT OF COLUMBIA. THEY CERTAINLY KNEW THAT THE PRODUCTS 7 WERE COMING HERE, THEY HAD EVERY REASON TO. 8 I ALSO SUBMIT, YOUR HONOR, THAT TURNER AND NEWALL 9 HAS SATISFIED IN THIS CASE THROUGH ITS ACTIVITY, SUBSECTION 10 A 4 OF THE LONG ARM STATUTE, WHICH PROVIDES FOR 11 JURISDICTION WHERE A TORT IS COMMITTED WITHIN THE DISTRICT 12 OF COLUMBIA BY THE ACT OF THE DEFENDANT OUTSIDE OF THE 13 DISTRICT, WHERE THAT DEFENDANT HAS ENGAGED IN A PERSISTENT 14 COURSE OF CONDUCT OR REAPED SUBSTANTIAL REVENUE FROM THE 15 USE OF ITS PRODUCTS HERE. TURNER & NEWALL DOES NOT DISPUTE 16 THE FACTS SET FORTH IN MR. BOYLE'S AFFIDAVIT THAT 17 SUBSTANTIAL AMOUNTS OF ITS ASBESTOS PRODUCT WERE USED HERE. 18 INDEED, ON ONE JOBSITE ALONE 52 HUNDRED DOLLARS 19 WORTH OF ITS PRODUCTS WERE USED. WHEN YOU TAKE INTO 20 CONSIDERATION THE FACT THAT FROM THE MID-50'S THROUGH THE 21 MID-SEVENTIES, LITERALLY HUNDREDS OF BUILDINGS IN THE 22 DISTRICT OF COLUMBIA HAD THIS PRODUCT APPLIED TO IT. ONE 23 Can only conclude turner & newall must have reaped 24 SUBSTANTIAL REVENUE FROM THE USE OF ITS PRODUCT HERE. 25 WITH REGARD TO THE MOTION FILED BY ATLAS, -- 1 37 1 THE COURT: WELL, BEFORE WE LEAVE TURNER & NEWALL, 2 SEVERAL OTHER JUDGES, JUDGES PARKER AND GASCH ALSO 3 DISMISSED TURNER & NEWALL, DIDN'T THEY? 4 MR. ENSLEIN: WITH REGARD TO THE ORDER OF JUDGE 5 GASCH, MY UNDERSTANDING WAS THAT WAS A MOTION THAT WAS 6 UNOPPOSED. 7 THE COURT: UNOPPOSED? 8 MR. ENSLEIN: WITH REGARD TO THE ORDER OF JUDGE 9 PARKER, I DON'T DISPUTE THAT THE RECORD IN THAT CASE IS 10 VERY SIMILAR TO THE ONE HERE. A CAREFUL READING OF JUDGE 11 PARKER'S ORDER REVEALS, HOWEVER, THAT HE CITED THE CATRECT 12 CASE. HE SEEMED TO RELY HEAVILY ON THAT DECISION , A 13 DECISION I INDICATED EARLIER WAS BASED ON A RECORD WHICH 14 WAS AT BEST INCOMPLETE. AND I MIGHT ADD, MY BROTHER 15 ALLUDED TO THE DECISION OF MAGISTRATE DEJACAMO PRIOR TO THE 16 SHEEHAN DECISION, THE TERASKI DECISION, IN WHICH HE WAS 17 HELD THAT TURNER AND NEWALL WAS NOT SUBJECT TO JURISDICTION 18 IN MASSAHUSETTS. 19 WELL, THE TERASKI DECISION WAS BASED ON THE 20 IDENTICAL RECORD AS WAS THE CATRETT CASE, SO THAT SHOWS 21 THE IMPORTANCE OF THE SUPPLEMENT OF THE RECORD, WHICH AS 22 SUPPLEMENTED, THE MAGISTRATE DEJACOMO, IN MASSACHUSETTS, 23 'Found to be sufficient to subject turner and newall to 24 JURISDICTION UNDER THAT STATUTE IN MASSACHUSETTS. 25 THERE IS PENDING, YOUR HONOR, A MOTION FOR 38 1 RECONSIDERATION BEFORE JUDGE PARKER IN WHICH WE HAVE ASKED 2 HIM TO RECONSIDER HIS DECISION BASED ON THIS NEWLY EXPANDED 3 FACTUAL RECORD AND IN LIGHT OF THE DECISION OF MAGISTRATE 4 DEJACOMO SEVERAL WEEKS AGO. AS YET THAT DECISION, THAT 5 MOTION HAS NOT BEEN RULED ON BY JUDGE PARKER. 6 THE COURT: JUDGE PARKER HAD, I TAKE IT, RULED 7 FAIRLY-RECENTLY IN THIS CASE? 8 MR. ENSLEIN: YES, YOUR HONOR, I BELIEVE HIS ORDER 9 WAS IN MARCH. 10 WITH REGARD TO ATLAS AND BELL. ATLAS AND BELL 11 WERE CONTRARY TO MR. DONOHUE'S SUGGESTION OTHERWISE, DID 12 HAVE A VERY LONG AND CLOSE RELATIONSHIP WITH DEFENDANT 13 TURNER AND NEWALL. IN FACT, ATLAS AND BELL WERE BOTH 14 WHOLLY-OWNED SUBSIDIARIES OF THE DEFENDANT TURNER & NEWALL 15 FOR MANY YEARS. 16 THE RELATIONSHIP BETWEEN BELL AND ATLAS IS 17 IMPORTANT. IN THE MASSACHUSETTS LITIGATION, BELL SUBMITTED 18 AN AFFIDAVIT INDICATING THAT THEY NEVER MANUFACTURED 19 ASBESTOS-CONTAINING PRODUCTS. THEY ONLY MINED ASBESTOS. 20 HERE THEY HAVE SUBMITTED AN AFFIDAVIT SAYING WE ONLY MINED 21 ASBESTOS. 22 WELL, IN THEIR ANSWERS TO INTERROGATORIES, YOUR 23 HONOR, IN THE FARREL LITIGATION IN DELAWARE, BELL ADMITTED 24 THAT IN FACT THE ATLAS ASBESTOS COMPANY FROM THE PERIOD 25 1962 THROUGH 1977 WAS AN INTERNAL DIVISION OF THAT COMPANY, T 39 1 AND THAT THE ATLAS ASBESTOS COMPANY MANUFACTURED AND 2 DISTRIBUTED ASBESTOS-CONTAINING PRODUCTS. 3 ' THE RECORD IN THIS LITIGATION -- I MIGHT ADD THAT 4 JUDGE MCNAUGHT IN MASSACHUSETTS SO FOUND IN BOTH THE MOONEY 5 AND THE SHEEHAN DECISION, THE PREVIOUS SHEEHAN DECISION IN 6 THAT LITIGATION, WHICH IS PART OF OUR BRIEF IN OPPOSITION 7 WHICH IS BEFORE YOUR HONOR. 8 THE IMPORTANT POINT IS THAT THAT FOR THE PERIOD 9 1963 THROUGH 1977 ATLAS AND BELL WERE THE SAME COMPANY. 10 NOW, ATLAS -- LET ME BACK UP. ATLAS-TURNER HAS 11 ADMITTED IN THE QUIGGLEY LITIGATION IN THIS JURISDICTION 12 THAT IT IS A SUCCESSOR IN INTEREST TO THE ATLAS ASBESTOS 13 COMPANY. SO, WHAT IS IMPORTANT HERE TO UNDERSTAND IS THAT 14 DURING THE PERIOD OF TIME THAT ATLAS ASBESTOS COMPANY WAS 15 DISTRIBUTING PRODUCTS WITHIN THE DISTRICT OF COLUMBIA. THAT 16 BEING '62 THROUGH '67, -- EXCUSE ME. '67 THROUGH 1972 WAS 17 THE PERIOD THAT ATLAS WAS DISTRIBUTING SPRAYED LIMPET 18 ASBESTOS IN THE DISTRICT OF COLUMBIA. 19 THAT, IN FACT WERE THE ACTS OF NOT ONLY THE ATLAS 20 ASBESTOS COMPANY TODAY ATLAS-TURNER, BUT ALSO THE BELL 21 ASBESTOS MINES. 22 SO, WE DO OPPOSE THE MOTION TO DISMISS OF BELL IN 23 THIS LITIGATION. 24 AGAIN, UNDER THE KAISER DECISION, ATLAS, AND 25 THEREFORE, BELL, SHIPPED ITS PRODUCT DIRECTLY INTO THE 40 1 DISTRICT OF COLUMBIA AS WELL AS THROUGH AN INTERMEDIARY, 2 KRAFFT MURPHEY, AND, AGAIN, UNDER THE KAISER DECISION 3 CLEARLY TRANSACTED BUSINESS IN OUR VIEW IN THE DISTRICT OF 4 COLUMBIA. 5 NOW, THEY ALSO SAY IN THEIR AFFIDAVIT THEY HAVE NO 6 RECORDS OF ANY SALES OF ASBESTOS-CONTAINING PRODUCTS' IN THE 7 DISTRICT OF COLUMBIA. WELL, ATLAS, IN 1967, WHEN A C AND S 8 NO LONGER HELD THE LICENSE FOR SPRAYED LIMPET ASBESTOS HAD 9 THE A.C.& S. CONTRACT WITH KRAFFT MURPHEY ASSIGNED TO THEM. 10 THAT CONTRACT BY THE VERY TERMS PROVIDED FOR DISTRIBUTION 11 OF ITS PRODUCT IN THE DISTRICT OF COLUMBIA. INDEED, IF YOU 12 LOOK AT THEIR ANSWER TO INTERROGATORIES IN THE CASE KNOWN 13 AS "IN RE, ASBESTOSIS CASES " FROM SOUTH CAROLINA, ALSO 14 PART OF OUR RECORD HERE, THIS DEFENDANT ADMITS SALES TO THE 15 KRAFFT MURPHEY COMPANY FOR VIRTUALLY EVERY YEAR IN WHICH IT 16 SERVED AS THE EXCLUSIVE LICENSEE FOR LIMPET MANUFACTURED BY 17 ATLAS, THAT IS, THE PERIOD '67 TO 1972. 18 IN ADDITION, THOSE VERY SAME AFFIDAVITS INDICATE 19 THA ATLAS HAS ADMITTED TO THE SALE OF THIS PRODUCT TO THE 20 BUREAU OF NATIONAL STANDARDS, NOT N I. H. BUT THE BUREAU OF 21 'NATIONAL STANDARDS IN THE YEARS 1971 AND 1972, AS WELL AS 22 TO OTHER ENTITIES LOCATED AROUND THE DISTRICT OF COLUMBIA. 23 * SO, I QUESTION WHAT VALUE ONE CAN GIVE -- AND 24 WHAT BASIS SUPPORT OF THESE AFFIDAVITS WHICH I MIGHT ADD 25 JUDGE MCNAUGHT CHARACTERIZED AS CONTAINING VERY 41 1 QUESTIONABLE LANGUAGE. AND I THINK THAT IS RATHER 2 CHARITABLE. -- WHAT SUPPORT THESE AFFIDAVITS CAN GIVE 3 ATLAS IN ITS MOTION TO DISMISS HERE. INDEED, WHEN ONE 4 TAKES A CAREFUL LOOK AT THIS DEFENDANT'S ACTIVITIES, ONE 5 CAN FIND THAT THEY HAVE SATISFIED NOT ONLY SUBSECTION A(l) 6 OF THE LONG ARM STATUTE BUT A(4) AS WELL INASMUCH AS THEIR 7 PRODUCT WAS EXTENSIVELY USED FOR MANY YEARS IN THE DISTRICT 8 OF COLUMBIA AS EVIDENCED BY THE BOYLE AFFIDAVIT. USED ON A 9 WEEKLY BASIS. 10 THE COURT: WHAT SPECIFIC EVIDENCE IS THERE THAT 11 THESE DEFENDANTS EARNED SUBSTANTIAL REVENUE FROM THE SALE 12 OF ASBESTOS IN THE DISTRICT OF COLUMBIA? 13 MR. ENSLEIN: WELL, YOUR HONOR, WE HAVE PROPOUNDED 14 INTERROGATORIES TO THESE DEFENDANTS FOR THAT INFORMATION AS 15 TO THE EXACT REVENUE THEY GARNERED FROM THESE SALES. WE 16 HAVE NOT RECEIVED ANSWERS TO OUR INTERROGATORY ON THAT 17 POINT, BUT WE DO HAVE EVIDENCE FROM THE KRAFFT MURPHY 18 COMPANY, AND THAT IS PRIMARILY THROUGH THE BOYLE AFFIDAVIT, 19 YOUR HONOR. THE BOYLE AFFIDAVIT INDICATES THAT SPRAYED 20 LIMPET ASBESTOS THROUGHOUT THE PERIOD THAT KRAFFT MURPHY 21 SERVED AS A SUB-LICENSEE FOR SPRAYED LIMPET ASBESTOS, THE 22 MID-FIFTIES THROUGH 1971 WAS USED BY KRAFFT MURPHY ON A 23 WEEKLY BASIS IN THE DISTRICT OF COLUMBIA AND THAT SALES 24 TYPICALLY AVERAGED FROM 50 TO A HUNDRED DOLLARS PER JOB. 25 THERE WERE LITERALLY HUNDREDS OF JOBS ACCORDING TO KRAFFT 42 1 MURPHEY IN WHICH SPRAYED LIMPET ASBESTOS WAS USED IN THE 2 DISTRICT OF COLUMBIA. SO, ONE COULD EXTRAPOLATE FROM THAT BASED ON THAT INFORMATION THAT CERTAINLY THIS WAS NOT AN 4 INSIGNIFICANT AMOUNT OF INCOME FOR THESE DEFENDANTS. 5 IN ADDITION, YOUR HONOR, I WOULD SUBMIT THAT THESE 6 DEFENDANTS HAVE ALSO ENGAGED IN A PERSISTENT COURSE OF 7 CONDUCT WITHIN THE MEANING OF SUBSECTION A(4) OF THE 8 STATUTE INASMUCH AS FOR A CONSISTENT PERIOD OF TIME ON A 9 REGULAR BASIS SHIPPED THEIR PRODUCT INTO THE DISTRICT OF 10 COLUMBIA OR FOR USE IN THE DISTRICT OF COLUMBIA AND THAT 11 THEY HAVE ALSO SATISFIED SUBSECTION (A) (4) OF THE LONG ARM 12 STATUTE FOR THAT REASON. 13 WITH REGARD TO THE MOTION TO DISMISS OF NICOLET: 14 NICOLET, AGAIN, WANTING TO DISTANCE ITSELF FROM THIS 15 PRODUCT HAS SUGGESTED THAT THEY REALLY DIDN'T HAVE MUCH OF 16 A RELATIONSHIP WITH KEASBEY AND MATTISON AT ALL. WELL, IN 17 POINT OF FACT, NICOLET ACQUIRED THE INDUSTRIAL PRODUCTS 18 DIVISION OF THE COMPANY, KEASBEY AND MATTISON. AND IT IS 19 OUR UNDERSTANDING THAT IT WAS THAT DIVISION WHICH WAS 20 RESPONSIBLE FOR THE DISTRIBUTION OF SPRAYED LIMPET ASBESTOS. 21 .NOW, WHEN NICOLET ACQUIRED THOSE ASSETS, IT IMMEDIATELY 22 CONTINUED THE OPERATION OF NICOLET IN MANUFACTURING AND 23 DISTRIBUTING NOT SPRAYED LIMPET ASBESTOS, BUT ASBESTOS 24 CONTAINING PRODUCTS USING THE KEASBEY AND MATTISON LOGO, 25 IT'S ASSETS AND ITS DISTRIBUTION SYSTEM. THOSE ACTIVITIES 43 1 HAVE BEEN HELD BY A NUMBER OF COURTS TO CONSTITUTE 2 SUFFICIENT FACTS WARRANTING THE IMPOSITION OF SUCCESSOR LIABILITY ON DEFENDANT, NICOLET, FOR THE ACTION OF KEASBEY 4 AND MATTISON. BUT NICOLET HAS NOT BRIEFED OR HAS NOT 5 RAISED BY SUMMARY JUDGMENT UP UNTIL THIS POINT OF THIS 6 LITIGATION THE QUESTION OF ITS SUCCESSOR LIABILITY FOR THE 7 ACTS OF KEASBEY AND MATTISON. 8 IN OUR COMPLAINT WE ALLEGE THAT NICOLET WAS IN 9 FACT THE SUCCESSOR TO KEASBEY AND MATTISON. IT IS THE 10 BURDEN ON NICOLET TO COME FORWARD WITH AFFIDAVIT TO DISPUTE 11 THAT ASPECT OF OUR COMPLAINT. IN A PROCEEDING SUCH AS THIS, 12 A MOTION TO DISMISS, THE FACTS ALLEGED BY PLAINTIFFS IN 13 THEIR COMPLAINT ARE ASSUMED TO BE TRUE UNLESS CONTROVERTED 14 BY THE MOVING PARTY. 15 NICOLET. ONLY YESTERDAY HAS ATTEMPTED TO CONTROVERT 16 THOSE FACTS -- AND I MIGHT ADD, OUT OF RULE. THEIR TIME 17 FOR REPLY HAS LONG SINCE PASSED AND I SUBMIT, YOUR HONOR, 18 THAT IN THIS RECORD, THE RECORD PROPERLY BEFORE THIS COURT, 19 ESTABLISHES THAT, AND THIS COURT I THINK UNDER THE RULES IS 20 CONSTRAINED TO CONCLUDE FOR THE PURPOSES OF THIS MOTION 21 .THAT NICOLET IS A SUCCESSOR IN INTEREST TO KEASBEY AND 22 MATTISON, AND, THEREFORE, IS SUBJECT TO THE ACTIVITY OF 23 KEASBEY AND MATTISON. 24 THOSE ACTS ARE THEN THE ACTS OF NICOLET. WHEN A 25 MERGER OCCURS, SUCCESSOR LIABILITY, THE CONCEPT OF THE 44 1 CORPORATE PERSON, THESE TWO COMPANIES ESSENTIALLY COME 2 TOGETHER AND THAT IS THE EFFECT OF THE MERGER OR SUCCESSOR > LIABILITY. ONE ASSUMES RESPONSIBILITY FOR THE ACTION OF 4 ITS PREDECESSOR. 5 NICOLET, EVEN WITHOUT CONSIDERING THE QUESTION OF 6 ITS RELATIONSHIP WITH KEASBEY AND MATTISON, ACKNOWLEDGES 7 THAT IT HAS ENGAGED IN A PERSISTENT COURSE OF CONDUCT IN 8 THE DISTRICT OF COLUMBIA. INDEED, IT HAS SHOWN SALES SINCE 9 THE SEVENTIES OF ITS PRODUCT IN THE DISTRICT OF COLUMBIA. 10 NOW, I MIGHT ADD THAT EVEN WITH THE VERY CURSORY NUMBERS 11 WHICH NICOLET HAS GIVEN US, THAT IS, OF SALES DIRECTLY INTO 12 THE DISTRICT, NICOLET HAS NOT DISCUSSED, FOR EXAMPLE, THE 13 SALE OF ITS PRODUCT TO COMPANIES SURROUNDING THE DISTRICT 14 WHICH ARE THEN LATER USED IN THE DISTRICT OF COLUMBIA. AND 15 THAT IS A PROPER ANALYSIS UNDER OUR LONG ARM STATUE, YOUR 16 HONOR, UNDER GATEWOOD VERSUS FIAT. 17 THE COURT: ALL RIGHT, I HAVE THINK YOU HAVE 18 COVERED IT VERY WELL. 19 MR. ENSLEIN: LET ME THEN CONCLUDE, YOUR HONOR. I 20 THINK EACH OF THESE DEFENDANTS IS SUBJECT TO THIS COURT'S 21 JURISDICTION BOTH UNDER SUBSECTION A(l) AND A(4) OF THE 22 LONG ARM STATUTE. 23 AND I WOULD ASK THAT THE COURT ORDER ACCORDINGLY. 24 THE COURT: ALL RIGHT. I AM GOING TO HAVE TO 25 REVIEW THESE PROCEEDINGS AGAIN AND LET YOU KNOW. DO YOU 45 1 WANT TO ADD ANYTHING?. 2 MR. DORKEY: YOUR HONOR, COULD I MAKE A BRIEF Qu.CK Cx NT? 4 THE COURT: ALL RIGHT. 5 MR. DORKEY: THE FIRST POINT IS TO WHATEVER EXTENT 6 TURNER & NEWALL HAD CONTACT WITH KRAFFT MURPHEY THAT WAS 7 THROUGH KEASBEY OR A.C.& S. THROUGH THEM. AND IT WAS THE 8 KRAFFT MURPHEY IN VIRGINIA NOT THE DISTRICT OF COLUMBIA. 9 IT IS OUR POSITION THAT GIVEN THESE FACTS THE 10 STREAM OF COMMERCE ENDED IN VIRGINIA, AND IT WAS A 11 UNILATERAL ACT OF KRAFFT MURPHEY THAT BROUGHT THIS PRODUCT 12 INTO THE DISTRICT OF COLUMBIA. 13 ON THE QUESTION OF THE LAWSUIT HERE, YOUR HONOR, 14 THAT TURNER AND NEWALL FILED AGAINST AMERICAN MUTUAL, THE 15 DEFINITION OF THAT LAWSUIT MAY VERY WELL COME WITHIN THE 16 GOVERNMENT EXCEPTION OF THE DISTRICT OF COLUMBIA LONG ARM 17 STATUTE. 18 THE FOOTNOTE IN THE KAISER-STUHL CASE SAYS THAT 19 EXCEPTION HOLDS THAT THE LOCAL COURTS DO NOT EXERCISE 20 PERSONAL JURISDICTION OVER A NONRESIDENT ON THE BASIS OF 21 ACTIVITY IN THE DISTRICT RELATED SOLELY TO DEALING WITH THE 22 FEDERAL GOVERNMENT. THE FEDERAL COURTS HERE ARE CERTAINLY 23 BARTS OF THE FEDERAL GOVERNMENT, AND IF THIS IS AN ACCURATE 24 STATEMENT OF THE RULE, I THINK THE CASE THE LAWYER FOR 25 ATLAS CITED ALSO IS NOT JUST LOBBYING. IT IS A BROADER 46 1 EXCEPTION THAN THAT. THEN THAT EXCEPTION WOULD COVER 2 FILING OF THE AMERICAN MUTUAL LAWSUIT. THAT'S FOOTNOTE 11 i OF THE KAISER-STUHL CASE. 4 FINALLY, YOUR HONOR, YOU GAVE ME PERMISSION TO 5 FILE PAPERS WITHIN 3 BUSINESS DAYS. I WONDER IF YOUR HONOR 6 WOULD EXTEND IT TO FIVE BUSINESS DAYS IN LIGHT OF MANY 7 ARGUMENTS HERE. 8 THE COURT: THAT WOULD BRING IT UP TO WHAT DATE? 9 MR. DORKEY: I THINK NEXT TUESDAY. 10 THE COURT: ALL RIGHT. I'LL GIVE YOU UNTIL NEXT 11 TUESDAY. DO YOU WANT TO ADD ANYTHING? 12 MR. GUZIAK: ONE POINT. 13 THE COURT: ALL RIGHT. 14 MR. GUZIAK: THE FIRST POINT BEING THAT COUNSEL 15 HAS ARGUED THAT IT BELIEVES THAT THE LIMPET PRODUCT WAS 16 PART OF THIS INDUSTRIAL PRODUCTS DIVISION PURCHASED BY 17 NICOLET. THERE IS NO EVIDENCE OF THAT IN THIS RECORD, YOUR 18 HONOR, AND IF IN FACT YOUR HONOR WOULD LOOK AT THE 19 PAPERWORK SUBMITTED BY COUNSEL FOR PLAINTIFF, I THINK IT IS 20 REFERRED TO AS NUMBER 28 IN ITS OPPOSITION OF T & L'S BRIEF, 21 THERE IS A CONTRACT THAT GRANT A.C.& S. THE EXCLUSIVE 22 LICENSING AGREEMENT TO DISTRIBUTE AND SELL LIMPET IN THIS 23 COUNTRY. THAT CONTRACT, I BELIEVE PRE-DATES THE SALE OF 24 ASSETS FROM KEASBEY AND MATTISON TO NICOLET BY SEVERAL 25 MONTHS. THERE IS ANOTHER CONTRACT THAT A.C.& S. WHO THEN 47 1 WAS THE EXCLUSIVE LICENSING DISTRIBUTOR LIMPET HAS WITH 2 KRAFFT MURPHEY, DATED DECEMBER 21/'62. WITHIN TWO MONTHS | OF THE TIME K&M BOUGHT THE INDUSTRIAL PRODUCTS DIVISION. 4 SO, AT LEAST THAT TIME CERTAINLY A C AND S AND NOT NICOLET 5 WAS DISTRIBUTING THIS PRODUCT. 6 FINALLY, COUNSEL HAS SET FORTH FROM '62 TO '67 7 A.C.& S. WAS THE EXCLUSIVE DISTRIBUTOR, AND AFTER 1967 8 ATLAS WAS. HE HAS NOT MENTIONED NICOLET EVER BEING THE 9 DISTRIBUTOR OF THIS PRODUCT. I THINK THE PUBLIC POLICY FOR 10 SUCCESSOR LIABILITY ISSUES, YOUR HONOR, IS THAT THE 11 PLAINTIFF HAS NO PLACE TO GO. 12 AND I THINK IN THIS CASE, THERE HAVE BEEN OTHER 13 CORPORATIONS MENTIONED THAT SEEM TO BE MORE INVOLVED WITH 14 THIS PRODUCT AND PERHAPS MORE SUCCESSOR CORPORATION THAN 15 NICOLET. THERE'S NO EVIDENCE IN THIS RECORD THAT WE HAD 16 ANY CORPORATE OFFICER THE SAME OR THE STOCK BEING THE SAME; 17 THAT WE CONTINUED TO SELL THE PRODUCT; WE USED THE TRADE NAME, 18 ET CETERA; OR CONTINUED TO SERVICE OR ANYTHING. ON THAT 19 BASIS, YOUR HONOR, WE SUBMIT. 20 THE COURT: ALL RIGHT. 21 I WILL LET YOU KNOW. I HAVE TO READ THESE PAPERS, 22 AND THINK ABOUT IT A LITTLE BIT. 23 THANK YOU. 24 (WHEREUPON, AT APPROXIMATELY 3:20 P.M., THE 25 ABOVE-ENTITLED MATTER WAS ADJOURNED.) 48 1 2 CERTIFICATE OF REPORTER -T .J HEREBY CERTIFIED BY THE UNDERSIGNED OFFICIAL 4 REPORTER OF THE UNITED STATES DISTRICT COURT FOR THE 5 DISTRICT OF COLUMBIAT THAT THE FOREGOING TRANSCRIPT IS THE 6 OFFICIAL RECORD OF THE PROCEEDINGS INDICATED. 7 -V.M V-* t J c_- 8 SHIRLEY POPEJOY, OFFICIAL ^REPORTER 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 % 24 c* n- 25 V V,