Document dnm3YQEMJ76b30XRy6gy92rY6

2 HOUSTON CENTER 909 FANNIN SUITE 3110 HOUSTON, TEXAS 77010 TELEPHONE 1713) 657-1234 FAX (713) 6S7-1 266 Mehaffy &. Weber A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 2615 CALDER AVENUE POST OFFICE BOX 16 BEAUMONT, TEXAS 77704 TELEPHONE (409) 835-5011 FAX (409) 835-5729 (409) 835-5177 1006 GREEN AVENUE P.O. BOX 189 ORANGE TEXAS 77630 TELEPHONE (409) 886-7766 FAX (409) 886-7790 January 4, 1992 RE: A/jvodinent Relative to Document Authentication Mr. Roger Worthington Silber, Pearlman & Worthington 1000 Highland Park Place 4514 Cole Avenue, LB 34 Dallas, Texas 75205 VTA TELECOPIER Dear Roger: The following reflects the agreement I made with respect to authentication of certain documents: (1) Please refer to the exhibit list attached to the First Request for Production and Interrogatories propounded in Alvin Stenzel. et al, Cause No. 91-6526. Those documents were the ones at issue in your Motion to Compel; your trial exhibit list is different and although some of the documents are the same, some are not and the numbers do not necessarily correspond. (2) The Broadnax answers to Request for Admissions correspond to the exhibit list you presented to Grace in your request for production (please refer to your copy of that document; if you do not have a copy, please let me know. I agreed that W. R. Grace would not challenge documents on the basis of authentication that had been authenticated in Broadnax. Although Request for Admissions may not be used in other cases against a particular party, it is unnecessary for you to resubmit the same admissions in each case for the same documents. I did not agree to anything more than that. To make sure the agreement is clear, I will state it for each document. WRG 1-7 - No Authentication by Grace (Dewey & Almay documents); Grace objects on that basis. WRG 8-12 - Admitted except that documents not business record of W. R. Grace Company. MEHAFFY & WEBER Mr. Roger Worthington January 4, 1992 857SFC Page 2 WRG 13 - No authentication-document somewhat different WRG 14-17 - Admitted except that document not business record of W. R. Grace & Company. WRG 18 - No authentication; Grace objects on that basis. WRG 19-25 - Admitted except that document not business record of W. R. Grace & Company. WRG 26 - Not authenticated - document not complete. WRG 27-81 - Admitted except document not business record of W. R. Grace & Company. WRG 82 - No authentication; Grace objects on that basis. WRG 83 - No authentication; Grace objects on that basis. WRG 84-86 - Admitted except not a business record of W. R. Grace & Company. WRG 87 - No authentication; Grace objects on that basis. WRG 88-95 - Admitted except not a business record of W. R. Grace & Company. WRG 96 - No authentication; Grace objects on that basis. WRG 97 - No authentication; Grace objects on that basis. WRG 98-101 - Admitted except not a business record of W. R. Grace & Company. WRG 102-114 - No authentication; Grace objects on that basis. WRG 115-126 - Admitted. MEHAFFY & WEBER Mr. Roger Worthington January 4, 1992 857SFC Page 3 If you have any questions regarding these documents or this agreement, please call me. As you know the agreement relates to authenticity only; Grace may have and I am sure will have serious objections to the admissability of certain documents at the time such documents may be offered at trial. Very truly yours. SFC/alc 857SFC For the Firm TELEPHONE (214) 528-2000 SlLBER, PEARLMAN & WORTHINGTON A PROFESSIONAL CORPORATION Attorneys and Counsstoss 1000 HIGHLAND PARK PLACE 4514 COLE AVENUE. LB 34 DALLAS. TEXAS 75205 January 7, 1992 TELECOPIER <214) 522-7400 via Hand Delivery Ms. Sandra Clark Mehaffy & Weber 2615 Calder Avenue Beaumont, TX 77702 Re: W.R. Grace Document Authentication and Prove Up Dear Sandra: I am in receipt of your letter of January 4, 1992. However, I believe your letter agreement differs from our agreement of November 8, 1991 (and later memorialized by my letter of November 20) in a few ways which I would like to clarify. First, prior to my motion to compel in the Stenzel case, we agreed that you would authenticate all of the documents, save the Dewey & Almy Chemical Company documents. We would therefore appreciate it if you would agree to authenticate Plaintiff's Exhibits 18 and 112. If you cannot agree, I would appreciate knowing the basis of W.R. Grace's denial. Secondly, the agreement we reached with respect to the Stenzel motion to compel also covered the elements of the Texas "business records" exception to the hearsay rule. Please see Interrogatory No. 2 [sub-parts (a) through (d)] in Plaintiff's First Reguest for Production and Interrogatories to Defendant W.H. Grace & Co.-Conn, in the Alvin Stenzel case. Again, your January 4, 1992 letter, according to my understanding, does not meet the spirit or letter of our agreement. In your January 4 letter, for a number of specific documents W.R. Grace has declined to agree that the respective document meets the business record exception. For each such document other than the Dewey & Almy Chemical documents that Grace does not agree meets the business record exception, please answer each of the four sub parts (i.e., was the document kept, generated or received by W.R. Grace and/or its predecessor in the regular course of business, etc.) pursuant to the Stenzel interrogatories and motion to compel. Ms. Sandra Clark January 7, 1992 Page 2 It is not clear from your letter whether W.R. Grace has agreed to stipulate that the exhibit is a business record if it has not expressly declined to do so in your letter of January 4. Can you please clarify this? Finally, as we discussed on January 6th in Judge Tyson's courtroom, you are willing to evaluate Plaintiff's Exhibits 127 through 179 for the purpose of stipulating to the authenticity of the document as well as the three elements of the business record exception (See the Stenzel interrogatories, No. 2), i.e. (a) was said document kept, generated or received in the regular course of business; (b) was the document recorded at or near the time of the event or soon thereafter; and (c) was the document kept, generated, or received by a person with knowledge of the act, event, etc. I have provided all the documents in our exhibit list. Please let me know at your earliest opportunity whether you can stipulate to the new exhibits or whether I need to serve interrogatories. Thank you for your attention to this matter. Very truly/ yours. RGW:ms enclosures urg\exhib.stp RpgerG. Worthington ^ </ VAN A. W IGGINTON 82 OUC -ft fO' 2m wt ^W 2U wD <bJ 0) iuid< i- z O (A 08o tf> Z ( ( SELDER, PEARLMAN & WORTHINGTON A PROFESSIONAL CORPORATION Anmmrj* CrnuumUrt 1000 HIGHLAND PARK PLACE 4514 COLE AVENUE. LB 34 DALLAS. TEXAS 75205 November 20, 1991 TELECOPIER (214) 522-7400 CERTIFIED MAIL RETURN RECEIPT REQUESTED . Sandra F. Clark Mehaffy & Weber P.0. Box 16 Beaumont, TX 77704 RE:. Plaintiff's Motion To Compel in the Stenzel and Shipley Cases Dear Sandra: This will confirm our agreement of November 8, 1991, with respect to Plaintiff's Motion To Compel W. R. Grace in the Alvin Stenzel case. I have agreed to withdraw the motion. In.return, you have agreed that W. R. Grace will not challenge or object to the authenticity of the documents appearing on Plaintiff's exhibit list (attached to the Motion as an Exhibit) in any lawsuit against R. Grace tried by my law firm, except for the Dewey & Almy .lemical and Multibestos correspondence documents in the 1930's. Additionally, you have agreed that the above documents qualify as "business records", as that term is used in the Texas Rules of Civil Procedure. In short, you have agreed that W. R. Grace will not challenge the admissibility of the W.'R. Grace and Zonolite Company documents in our exhibit list on authenticity or hearsay. With respect to Plaintiff's Motion To Compel in the Wally Shipley case, W. R. , Grace has agreed to answer Interrogatories 1, 3-7, 9, 13-15, 18, 20 and 22. Judge Rhea has ordered Grace to answer Interrogatories 2, 8, 10-12, 16-17, .19 and 21. These interrogatories were served on September 4, 1991. Please provide me with the answers by December 7 if you can. If I have misstated our agreements in any way, please let me know upon receipt of this letter. RGW:ms vrg\authen.agr I NO. 91-04588-K 2 EUGENE PERKINS, JAMES * IN THE DISTRICT COURT 3 KUCHAR, FRANK IAZEOLLA, * 4 STEPHEN HNETKA, ROY JONES, * 5 RICHARD KRAHN, MARTIN * 6 KUNTZ, ROBERT NIELSEN, * 7 DONALD WOLFER and JOHN * 8 NEWMAN, * DALLAS COUNTY, TEXAS 9 Plaintiffs, * 10 vs. * 11 ARMSTRONG WORLD INDUSTRIES, * 12 ET AL., * 13 Defendants. * 192nd <JUDICIAL DISTRICT 14 15 16 STATEMENT OF FACTS 17 SETTLEMENT AGREEMENT 18 19 20 BE IT REMEMBERED that on the 11th day of 21 March, A.D., 1992, the above entitled and numbered cause came 22 on for hearing before the HONORABLE MERRILL HARTMAN, Judge of 23 the 192nd Judicial District Court of Dallas County, State of 24 Texas, and a Jury, and the following is an excerpt from 25 proceedings held: PATRICIA R. COLVIN, C.S.R 1 1 APPEARANCES 2 3 4 Mr. Roger Worthington 5 Mr. Joseph F. Bruegger 6 SILBER, PEARLMAN & WORTHINGTON 7 1000 Highland Park Place 8 4514 Cole Avenue - LB 34 9 Dallas, Texas 75205 10 APPEARING FOR PLAINTIFFS 11 12 13 Mr. David W. Crowe 14 DEHAY & BLANCHARD, L.L.P. 15 Plaza of the Americas 16 2500 South Tower - LB 201 17 600 North Pearl Street 18 Dallas, Texas 75201-2880 19 APPEARING FOR DEFENDANTS 20 ARMSTRONG WORLD INDUSTRIES, 21 INC., NATIONAL GYPSUM, U.S. 22 GYPSUM, GAF CORPORATION, 23 CERTAINTEED CORPORATION and 24 GEORGIA PACIFIC CORPORATION 25 PATRICIA R. COLVIN, C.S.R 2 y 1 APPEARANCES- Continued 2 3 Ms. Sandra F. Clark 4 MEHAFFY & WEBER 5 2615 Calder 6 P.0. Box 16 7 Beaumont, Texas 77704 8 APPEARING FOR DEFENDANT 9 W.R. GRACE & COMPANY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PATRICIA R. COLVIN, C.S.R 3 1 EXCERPT FROM PROCEEDINGS 2 March 11, 1992 3 Dallas, Texas 4 5 THE COURT: All right. Proceed. 6 MR. BRUEGGER: Your Honor, if it please 7 the Court: On behalf of Plaintiffs, we are here 8 to announce that we have reached a settlement with 9 all parties in the subject case that is still on 10 trial before the Court, and the appropriate Orders 11 will be forthcoming. 12 MS. CLARK: That's true. Your Honor, for 13 W.R. Grace; we have settled with the Plaintiffs. 14 MR. BRUEGGER: At some point, can we 15 make a specific record of the settlement? 16 MR. CROWE: It's true for National 17 Gypsum, as well. 18 MR. BRUEGGER: That's correct. Would 19 you like me to make a specific record now or -- 20 THE COURT: Yeah, you might as well, 21 while you're rolling. 22 MR. WORTHINGTON: W.R. Grace has agreed 23 to settle the following groups of cases: the 24 Perkins group, the Bilyeau group, B-i-l-y-e-a-u, 25 the Verklin group, the Dills group, the Muth, PATRICIA R. COLVIN, C.S.R. 4 1 M-u-t-h, group, the Webster group, the Barnard, 2 B-a-r-n-a-r-d, group, the Brown group, the Willie 3 Carroll group, the Diane Surls, S-u-r-l-s, group, 4 and the Shipley group. 5 The total number of cases that W.R. 6 Grace has agreed to settle with us is eighty-four. 7 The Carroll case does not include the case of 8 Elijah Clark, which has been severed, and the 9 Brown group does include the Santowsky case, which 10 has also been settled. So, the total number of 11 Plaintiffs is eighty-four. 12 W.R. Grace has agreed to pay in a lump 13 sum within sixty days of today; furthermore, W.R. 14 Grace will provide Plaintiffs' Counsel with the 15 releases for all eighty-four Plaintiffs. 16 And finally -- well, not finally, but 17 thirdly, W.R. Grace has agreed to generate the 18 Dismissal Orders for all eighty-four Plaintiffs. 19 And finally, W.R. Grace has agreed to 20 authenticate a number of documents with our firm 21 in any trial in which our firm is involved, 22 whether it's in Dallas County, Tarrant County, 23 Nueces County, Travis County; any other county or 24 state. 25 Ms. Clark and I have made an agreement PATRICIA R. COLVIN, C.S.R. 5 1 as to the precise documents that W.R. Grace has 2 agreed to authenticate. 3 In short order, they are everything -- 4 all the documents that have been admitted into 5 evidence in this trial, save for the Dewey & Almy, 6 documents which are W.R. Grace Exhibits -- W.R. 7 Grace Exhibits 8, 9, 13 and 14. 8 Grace will -- will preserve their right 9 to object to authentication of those documents. 10 On Document W.R. Grace 56, Grace will 11 determine within ten days whether they are going 12 to challenge authentication of that document. 13 Plaintiffs have not asked W.R. Grace to 14 authenticate W.R. Grace Exhibit 78, which is a 15 picture of Ernest Summerall, and all the documents 16 that have been admitted into this trial W.R. Grace 17 has agreed to authenticate. 18 I can list those numbers, but it may 19 take a while. 20 MS. CLARK: I think we can just do that 21 by a letter -- 22 MR. WORTHINGTON: Okay. 23 MS. CLARK: -- exchange later. 24 Further, the Plaintiffs agree not to 25 pursue, by Motion to Compel, any pending Requests PATRICIA R. COLVIN, C.S.R 6 1 for Production, and we don't have to put anything 2 on the record here, because we'll work out the 3 details on that. 4 The only other thing is that the 5 releases that you said we would provide to you, 6 those are releases for the Plaintiffs to sign. I 7 didn't want that to be unclear -- 8 MR. WORTHINGTON: Okay. 9 MS. CLARK: -- that we were somehow 10 providing a release from Grace. 11 MR. WORTHINGTON: Right. 12 MS. CLARK: But that accurately reflects 13 the settlement agreement. 14 MR. WORTHINGTON: And disregard any 15 Requests for Production, and that's before Judge 16 Rhea. We will -- Plaintiffs will agree not to 17 pursue the Order in Judge Rhea's Court. 18 MS. CLARK: Right. And further action 19 would have to be taken up, I think, with Judge 20 Rhea on that. 21 THE COURT: Well, the Court approves the 22 agreement as it has been read into the record, and 23 the agreement as it has been read into the record 24 is the Order of the Court. 25 END OF EXCERPT FROM PROCEEDINGS PATRICIA R. COLVIN, C.S.R. 7 1 CERTIFICATE OF REPORTER 2 3 THE STATE OF TEXAS / 4 COUNTY OF DALLAS / 5 I, PATRICIA R. COLVIN, Official Court Reporter in 6 and for the 192nd Judicial District Court of Dallas County, 7 State of Texas, do hereby certify that the above and fore 8 going contains a true and correct transcription of an excerpt 9 from proceedings held in the above entitled and numbered 10 cause on the 11th day of March, A.D., 1992, all of which 11 occurred in open Court and were reported by me. 12 WITNESS MY HAND this the 6> ^ day of May, 13 A.D., 1992. 14 15 ns 16 PATRICIA R. COLVIN, C.S.R. 17 192nd Judicial District Court 18 Dallas County Courthouse 19 Dallas, Texas 75202 20 Telephones 214/653-7766 21 Certificate No. 821 22 Expiration Date: 12/31/92 23 24 Cost of Original: 0o.~ 25 Paid by: ORIGIN*1- PATRICIA R. COLVIN, C.S.R. 8