Document g26oyxyxjNBkEXQRmRYGZej4a

FOR THE DISTRICT OF COLOMBIA FLETCHER MCDANIEL, et UX, ) ) ) Plaintiffs, ) Civil Action No. 83-3520 ) v. ) Judge Flannery ARMSTRONG WORLD INDUSTRIES, ) ) INC., et al., ) Defendants. ) ) JUN1 a 1984' ) i#i> iwii i rni iimbia PLAINTIFFS1 REPLY TO DEFENDANT TURNER & NEWALL PLC'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF MOTION TO DISMISS. LAW OFFICES ASHCRAFT A GEREL SUITE 706 2000 L STREET. N. W. VASHINGTON. D. C. 20036 202-783-6400 SUITE 220 4660 KENMORE AVENUE ALEXANDRIA. VA. 22304 703-781-7400 SUITE 1002 ONE CENTRAL PLAZA 1 1 300 ROCKVILLE PIKE ROCKVILLE. MD. 20882 301-770-3737 SUITE 101 METRO 400 BUILDINO LANDOVER. MD. 20788 301 -488-8400 SUITE 808 } EAST BALTIMORE STREET BALTIMORE. MD. 21202 301-839-1122 Perhaps the most telling commentary on Turner & Newall PLC's (T & N) approach to this litigation is found in the first footnote of its supplemental memorandum. Here, T & N suggests that Judge Richey was fully informed prior to issuing the Court's July 21, 1982, Order of Dismissal in Catrett v. Johns-Manville Corp., C. A. No. 80-2232, that on May 14, 1982, T & N had filed Turner & Newall PLC v. American Mutual Liability Insurance Co., C. A. No. 82-2732 in this Court. In fact, T & N failed to disclose this jurisdictional contact to either Judge Richey or to opposing counsel at any point in the Catrett proceedings. The following exchange is illustrative of plaintiffs' position. During the course of the July 21, 1982, Catrett oral argument the following colloquy took place between Judge Richey and T & N's counsel:--^ 1/ The transcript from this hearing is attached hereto as Exhibit 1. r LAW OFFICES ASHCRAFT ft GEREL SUITE 700 2000 L STREET. N. W. /ASHINGTON. D. C. 20030 202-703-0400 SUITE 220 4060 KENMORE AVENUE ALEXANDRIA. VA. 22S04 703.781-7400 SUITE 1002 ONE CENTRAL PLAZA 1 1300 ROCKVILLE PIKE ROCKVILLE. MD. 20882 301.770-3737 SUITE 101 METRO 400 BUILOINQ LANDOVER. MD. 20788 long-arm statute requires much less than the District's general jurisdictional statute. D.C. Code 13-334. which permits the exercise of jurisdiction over a nonresident defendant only if the defendant has continuous and systematic contacts with the District. AMAF International Corp. v. Ralston Purina Co.. 428 A.2d 849, 850 (D.C. App. 1981). See also, Calder v. Jones, U.S. ____ _, 104 S. Ct. 1482, 1485 (1984) citing Perkins v. Benguet Mining Co., 342 U.S. 437, 72 S. Ct. 413 (1952) (general jurisdictional statutes permitting the exercise of personal jurisdiction only if the defendant's contacts with the forum are "continuous and systematic"). By contrast, the District of Columbia long-arm statute which is a specific as opposed to a general source of adjudicatory authority, does not require such present day contacts. For example, subsection (a)(1) of the long-arm statute authorizes the exercise of jurisdiction even when a nonresident defendant has engaged in only a small amount or isolated forum-related activities. Such activities are "generally enough to permit the conclusion that a nonresident defendant has transacted business here." Environmental Research Institute v. Lockwood Greene Engineers, 335 A.2d 808, 811 (D.C. App. 1976) . Similarly, subsection (a) (4) provides, in pertinent part, for the exercise of jurisdiction over a nonresident defendant which engages in a "persistent course of conduct" here. "The 'persistent course of conduct' to which the statute refers, denotes connections considerably less sums 808 ' EAST BALTIMORE STREET BALTIMORE. MD. 21802 301*838-1122 substantial than those required to establish general 'all purpose' jurisdiction on the basis of 'doing business' in the forum." Steinberg v. International Police Organization, 672 F.2d 927, 931 (D.C. Cir. 1981)M LAW OFFICES ASHCRAFT ft GEREL SUITE 700 2000 L STREET. N. W. VASHINGTON. D. C. 20096 202-789-6400 SUITE 220 4660 KENMORE AVENUE ALEXANDRIA. VA. 22904 709*781 -7400 SUITE 1002 ONE CENTRAL PLAZA 11900 ROCKVILLE PIKE ROCKVILLE. MD. 20682 901-770.9797 SUITE IOI METRO 400 BUILDINO LANDOVER. MD. 20768 301 *486-6400 SUITE 608 1 EAST BALTIMORE STREET BALTIMORE, MD. 21202 901-896-1122 Similarly, T & N's argument that this Court should ignore the filing before it of T & N's insurance litigation as a "government contacts" exception to the long-arm statute is grounded upon what must be considered a tortured reading of the authority relied upon by T & N. The "government contacts" exception "finds its source in the unique character of the District as the seat of national government and in the correlative need for unfettered access to federal departments and agencies for the national citizenry." Environmental Research Institute, supra at 813. As defined by the District of Columbia Court of Appeals, the "government contacts" exception by its very terms only applies to a nonresident 3/ Accordingly, T & N's reliance on Payton v. Summit Loans, Inc., 253 A.2d 459, (D.C. App. 1969) is misplaced. Payton, was decided before the enactment of our present long-arm statute, D.C. Code S13-423, and thus involved the application of the District's general jurisdictional statute, D.C. Code 13-334. The rigorous "doing business" test of that statute, however, has no place in present day long-arm statute analysis under Section 13-423. "The 'doing business' criterion of the earlier statute was amended to 'transacting any business', thereby demanding a less systematic and continuous course of conduct by a defendant Environmental Research Institute, supra 855 A.2d 813, N. 10. defendant's contacts with "federal departments and agencies" and not a defendant's contacts with the federal judiciary. Frankly, an elementary survey of the first three Articles of the United States Constitution reveals that the federal courts are neither departments nor agencies of the federal government, rather the judiciary comprises an entirely separate branch of government from the executive and legislative. Nor does T & N's filing of its diversity action here stem from the unique character of the District as the seat of national government. Rather, T & N has carefully shopped for a forum with law favorable to its insurance contract litigation and found such a favorable forum in the District of Columbia. See Keene Corporation v. Insurance Company of North America, 667 F.2d 1034 (D.C. Cir. 1981) Finally, T & N after distorting the District of LAW OFFICES ASHCRAFT & GEREL SUITE 700 2000 L STREET. N. W. VASHINGTON. D. C- 20030 202.783*0400 SUITE 220 4600 KENMORE AVENUE ALEXANDRIA. VA. 22304 703.701-7400 SUITE 1002 ONE CENTRAL PLAZA 11300 ROCKVILLE PIKE ROCKVILLE. MD. 2OS02 301-770.3737 SUITE 101 METRO 400 BUILDING LANDOVER. MD. 20788 301-489^400 SUITE 800 ) EAST BALTIMORE STREET BALTIMORE. MD. 21202 301-099.1 122 Columbia's decisional law, finds it necessary to also ignore it. T & N suggests that it is not subject to this Court's jurisdiction, arguing that the record discloses "there were no sales of Limpet in the District of Columbia." T & N ignores 4/ T & N's argument that to hold T & N subject to jurisdiction based on the filing of its insurance contract litigation here "would have a chilling effect upon the exercise of First and Fifth Amendment rights" is without any factual or precedential support. Indeed, the Supreme Court recently held: "We also reject the suggestion that First Amendment concerns enter into the jurisdictional analysis. The infusion of such considerations would needlessly complicate an already imprecise inquiry." Calder v. Jones, supra. 104 S. Ct. at 1487. 5- THE COURT: You should have. Go ahead. Your company isn't qualified to do business here, is it? MR. DORKEY: No. THE COURT: It does not maintain an office or telephone. MR. DORKEY: And has not done so for ten years. THE COURT: It has no contacts in the district. MR. DORKEY: No, and we have put in four affidavits on this question. We have searched our records back ten years. (emphasis supplied) Catrett Transcript at 11. While T & N's counsel was affirmatively questioned by the Court in order to exhaust any important jurisdictional facts, T & N's counsel chose to not take this opportunity to LAW OFFICES ASHCRAFT ft GEREL SUITE 700 2000 L STREET. N. W. 'ASH1NGTON. D. C. 20036 202*703*6400 SUITE 220 4660 KENMORE AVENUE ALEXANDRIA. VA. 22304 703*761*7400 SUITE 1002 ONE CENTRAL PLAZA 11300 ROCKVILLE PIKE ROCKVILLE. MD. 20682 301-770*3737 SUITE 101 METRO 400 BUILDING LANDOVER. MD. 2076S 301 *406*6400 SUITE SOS EAST BALTIMORE STREET BALTIMORE. MD. 21202 301B36*I 122 reveal to the Court any information concerning T & N's contacts with the District of Columbia including Turner & Newall PLC v. American Mutual Liability Insurance Co., of which it had actual knowledge.--^ T & N's misleading and distorted arguments continue. For example, T & N argues that the District of Columbia long-arm statute somehow requires a showing that a nonresident defendant has present day contacts with the District of Columbia. T & N's argument represents a legal misunderstanding of the requirements of our long-arm statute. The District's 2/ See Code of Professional Responsibility, Disciplinary Rules 7-102 (A)(5) and 7-106 (B)(1). 2 the uncontested factual record in this case which establishes that T & N's approved distributor, Krafft Murphy, sold T & N's Limpet in the District of Columbia for a period spanning three decades. Indeed, even assuming the truth of T & N's convoluted argument, it is well settled that our long-arm statute "does not require that the goods be sold in the District of Columbia" only that the defendant's goods are used here. Gatewood v. Fiat, 617 F.2d 820, 827 (D.C. Cir. 1980). For the foregoing reasons and for the reasons set forth in Plaintiffs' Brief in Opposition to Defendant T & N's Motion to Dismiss, Plaintiffs submit that T & N's Motion to Dismiss is not well taken and should be denied. LAW OFFICES ASHCRAFT ft GEREL SUITE 700 2000 L STREET, N. W. VASHINGTON. O. C. 20036 202.782-6400 SUITE 220 4660 KENMORE AVENUE ALEXANDRIA, VA. 22304 703-791 *7400 SUITE 1002 ONE CENTRAL FIAZA I 1300 ROCKVILLE FlKE ROCKVILLE. MD. 20392 301-770-3737 SUITE 101 METRO 400 BUILDING LANDOVER* MD. 20799 301-499.9400 SUITE 809 0 EAST BALTIMORE STREET BALTIMORE. MD. 21202 30l.9S9.1t22 3365A Respectfully submitted. ASHCRAFT & GEREL Robert B. Adams 2000 L Street, N.W. Washington, D.C. 20036 (202) 783-6400 Attorneys for the Plaintiffs 6 UNITED STATES DXSTRI COURT FOR THE DISTRICT OF COLUMBIA F \ L. E D MYRTLE SELL CATRBTT, JUN1 y 1984 PLAINTIFF, -v- JOHNS-HANVILLE SALES CORPORATION, st al., CLERK**'I** Sft>'WW6T>COURT. D^c.TBiPf nc rrtniMRiA Civil Action 80-2232 DEFENDANTS. Wednesday, July 21, 1982 Washington, D. C. The above-entitled natter came on for a hearing before the Honorable CHARLES R. RICHEY, United States District Judge, Courtroom 11, commencing at approximately 1:35 p.m. APPEARANCESi V PETER NICHOLL, Esq. On behalf of the Plaintiff CHARLES DORKEY, Esq. FRANCIS FORD, Esq. WILLIAM McMURTRIE, Esq. On behalf of the Defendants THIS TRANSCRIPT WAS PRODUCED BY C.A.T. (COMPUTER AIDED TRANSCRIPTION) cMindi JL Cotc&ico Official Court cRepottct 6808 T/.eS Couttiouu *Wa*iiogtoa. 2>. 2000f Exhibit 1 # ]i2iI!i2 s . DEPUTY CLERK: Civil Action 30-2232, Myrtle 2 Catrett versus Johns-Mar.ville Sales Corporation, et al. For the plaintiff, Peter Nicholl; for the defendant, Charles Dorkey, Francis Ford, and William McMurtrie. THE COURT: Who represents Celotex? MR. HCMURTRIE: Mr. McMurtrie, Your Honor. THE COURT:* Come forward. Do you want to argue your motion? That is what we are here for. MR. McMURTRIE: Your Honor, I have two motions pending, one the motion for summary judgment and in the alternative, a motion to transfer for lack of venue. In the primary motion. Your Honor,, the motion for summary judgment, I will be very brief because the Court has all the information I believe that it needs. Our position is strikingly similar, if not exactly the same, as Johns-Manville in that although we have a registered agent in this area there has been no product identification of any Celotex products, both carries Philip Carey products, Carey Canada products, what have you, that, have been used in the District of Columbia to which the decedent was exposed. Bv the plaintiff's own documents, its own response to the Celotex inquiry, as well as the master set of interrogatories present.c-J to this court, the only exposure 3 1 to any Celotex product by the decedent was in Chicago and 2 by documents attached to their answers to interrogatories, 3 there is a letter from a T. R. Huff, who is the assistant 4 secretary for a corporation known as Annand & Johnson, 5 saying that he aid work for their company during that 5 period December 22, 1970 to December 22, 1971 and at that 7 time his duties were to supervise and train crews in the 8 application of a fire-bar fireproofing. 9 Now, in 1980,.or 1981, the interrogatories were 1 propounded, the master set as well as my supplemental set. 11 The Court gave them leave to file their answers to my 12 supplemental set at a later date, February 9th, I believe, 13 1952. Those answers to date still would not satisfy that 14 court as to product identification of any Celotex product 15 or co-workers who would then identify on behalf of the 15 decedent, exposure to asbestos products manufactured by 17 Celotex Corporation in this area or in any other area, 18 including Chicago. 19 Your Honor, there is only a letter from the 20 assistant secretary and that is not -- 21 THE COURT: Doesn't plaintiff say that the 22 decedent was exposed to your company's products in the area 23 of Chicago. 24 MR. McMURTRIE: He suggested that there was 25 exposure in Chicago, Your Honor. We do not admit that and 1 there is'no affidavit to support that. We only have a self 2 serving answer to interrogatories. 3 THE COURT: That nays? 4 MR. MCMURTRIE:,. It siipply says -- well, all it is 5 is a letter from a Mr. T. R. Huff. 6 Now -- 7 THE COURT: What does it say? 8 MR. McMURTRIE: It simply says that his duties 9 were to supervise and train crews in the application of a 10 fire-bar fireproofing. He worked only in new construction 11 and traveled from district to district. That was in 12 Chicago. We also have, and they rely on this, the 13 deposition of the decedent that was taken of him prior to 14 his death for the compensation claim, which would not be 15 admissible in this case either. 15 THE COURT: Why? 17 MR. McmURTRIE: Celotex was not there, had no 18 opportunity to cross-examine this defendant or this 19 decedent. But he does say, for the limited purposes of use 20 in this motion, that he was not exposed to any product in 21 the District of Columbia manufactured by Celotex. He only 22 worked in the Chicago area and its environs or in Los 23 Angeles or New York, I believe. 24 THE COURT: What about their argument that the 25 continued tortious effect of the exposure in Illinois I j i i iii i i i i i i . - i continued into the District of Columbia. 5 2 MR. McMURTRIC: Your Honor, I believe we would be 3 governed by your ruling in 1976 in the Leaks versus Ex-lax 4 case at 430 Fed Supp 413 that the tortious injury was in 5 Chicago if he were exposed to a Celotex product or the 5 asbestos fibers of a Celotex product in that area, but that 7 any loss after that, as far as Celotex is concerned, 3 forgetting Johns-Manvilie or any of the other 15 defendants 9 who started in this case, was a pecuniary loss in the 10 District of Columbia; but no further exposure in the 11 District of Columbia and there is no affidavit supporting a 12 further exposure by a Celotex product. 13 I think what we have here. Your Honor, is a time 14 when these asbestos cases were first blooming in the 15 District of Columbia, having happened in Norfolk and 16 Philadelphia long before this, but there was a race to the 17 courthouse by different law firms to gain control of a 13 union. This case was inadequately prepared at that time to 19 sufficiently identify the manufacturers of certain asbestos 20 products. 21 We know, for example, that the decedent was 22 exposed for a considerable period during World War II to 23 asbestos products. 24 This court has already ruled in the Johns-Manville 25 motion for summary judgment that although there is a i m. 1 suggestion of exposure in 1952 and 1953 to J. M. Plaster 2 products, there is no affidavit to support that exposure by 3 way of co-workers. And that is exactly the same situation 4 as Celotex is in. 5 THE COURT: All right. Let me hear from the other 6 side. 7 MR. N1CH0LL: Thank you. Your Honor. 8 Your Honor; Peter Nicholl for the p]aintiff, sir. 9 Regarding our substantiation that there was an exposure to a Celotex product we do have Mr. Huff's letter which states 11 that he was exposed to fire-bar during the period of time 12 for the year ending, I believe, December 1971 1971 being 13 the year in question. 14 By virtue of attachments to Celotex's motion to 15 change venue, those attachments being the purchasing 16 records from the Carey Canadian Mine Company to Annard & 17 Johnson, the employer in Chicago, we do have indications 18 that this fire-bar product was indeed an asbestos product 19 and that that ties in the fact that this fire-bar 20 fireproofing was an asbestos product. 21 THE COURT: Let me see the Huff letter. 22 Where does it say it was done in the District of 23 Columbia? 24 MR. NICHOLL: I did not say in the District of 25 Columbia I ! I ( iII il t * i 7 1 THE COURT: It had no contact with the District of 2 Columbia. 3 MR. McMURTRIE: I readily admit that there was no 4 exposure to the Celotex products in the District of 5 Columbia but that does not go to the question of the merits 6 of the case for purposes of summary judgment. It may go to 7 the question of changing venue, which is the other motion 8 that Mr.McMurtie filed. 9 THE COURT: Was your client exposed to it in the 10 in the District of Columbia? 11 MR. NICHOLL: No, sir, he was not. He was exposed 12 to it in Chicago and I believe three or four other areas 13 out west. 14 THE COURT: How can I entertain the action here 15 and avoid granting their- motion for summary judgment? 16 MR. NICHOLL: Summary judgment would go to the 17 merits of the case by saying that we cannot prove exposure 18 to their product. We can show exposure to their product. 19 THE COURT: What have you shown in opposition to 20 their statement of material facts which are not in dispute? 21 MR. NICHOLL: We have opposed that, Your Honor, 22 with our own in response to their motion. 23 THE COURT: You have what? 24 MR. NICHOLL: We have stated our own in response 25 to their motion. i "t 8 1 THE COURT: You don't state it was exposed here. 2 HR. NICHOLL: No, sir, we admit he was not exposed 3 to their product in Washington. But again that would go to 4 a change of venue as opposed to summary judgment. In that 5 regard -- 6 THE COURT: Would they be obliged to defend an 7 action in this district? 3 MR. NICHOLE: They do business in the district. 9 They readily admit that. Mrs. Catrett is still a resident 10 of the district. Mr. Catrett was a resident of the 11 district. Our witnesses are nearby in Virginia. It would 12 be, I think, dilatory to transfer it to Chicago, I submit, 13 but'on the other hand, it again does not go to the merits 14 of the case. 15 THE COURT: It an't be tried here, you know that. 16 MR. NICHOLL: I don't know that. I think it would 17 do an injustice to Mrs. Catrett to exchange or to transfer 18 the case to Chicago when it has been in front of Your Honor 19 for two years. 20 THE COURT: When it has been in front of me for 21 two years? 22 MR. NICHOLL: In front of the court here for two 23 years. 24 THE COURT: Not in front of this court. 25 MR. NICHOLL: That is right. It was previously in I \i I I i i i l i i I i ! i i i i i i i i i i j .# 9 1 front of another judge. 2 THE COURT: What if we transfer it out to Chicago, 3 you can't oppose that really, can you? 4 MR. NICHOLL: Your Honor, I can only oppose it on 5 grounds that it would delay the natter, that it has already 6 been approxinately two years, that it would cause an 7 inordinate cost to Mrs. Catrett being that she is a 8 resident of the district, and we feel that it is her right 9 to bring her action here. She can proof exposure but not IP in the district, and I think that should be certainly 11 sufficient for the Court here to maintain jurisdiction over 12 the action. If there is any hardship -- Mr. McMurtrie 13 doesn't really speak of any hardship that is going to 14 accrue to him by keeping the case here. 15 THE COURT: He doesn't have to. All right. 16 Anything else you want to say? 17 MR. NICHOLL: No, sir. Your Honor. 18 THE COURT: The Court will grant the defendant 19 Celotex's notion for sunnary judgment there being no 20 showing that the plaintiff was exposed to the defendant 21 Celotex's product in the District of Columbia or elsewhere 22 within the statutory period. 23 Let's have the Turner & Newall notion to dismiss 24 for lack of jurisdiction, insufficiency of process or 25 service of process. 10 1 MR. DORKEY: Yes, Your Honor. My names is Charles 2 Dorkey. I represent Turner & Newall on this motion. 3 THE COURT: Yes. 4 MR. DORKEY: I.don't know whether you want me to 5 recite the procedural history of the case or go to the 6 facts. 7 THE COURT: Go to the facts. 8 MR. DORKEY: It seems to -- 9 THE COURT: Why doesn't this court have 10 jurisdiction? ! II j i ! 11 MR. DORKEY: Because plaintiff has not made out 12 the statutory prerequisites under either 13-423A3 or A4. 13 And moreover, there is insufficient contacts for this court 14 to constitutionally exercise its jurisdiction. Under A3 15 which requires an act in:the jurisdiction and injury in the 16 jurisdiction, plaintiff has shown no act by Turner & Newall 17 in the jurisdiction. The cases supplied in my reply brief 18 indicate that all of those cases involve automobile 19 accidents in the district or an employee going into the i 20 district and hurting somebody. 21 In this case what the most we have is we have a 22 product allegedly manufactured in England, shipped to a 23 company in Pennsylvania, which company in Pennsylvania i i \ i l i j i 24 shipped it to a Virginia company, which Virginia company by 25 its own unilaterally act used in the District of Columbia.  11 1 Under A4 of the personal jurisdiction statute, 2 that would clearly be, as alleged, an act without the 3 jurisdiction and injury within. However, A4 requires 4 substantial affiliating circumstances. 5 THE COURT: Are you familiar with the case of 6 Collins versus Mew York Central? You didn't cite it. 7 MR. DORKEY: No, Your Honor. 8 THE COURT: You should have. 9 Go ahead. Your company isn't qualified to do 10 business here, is it? 11 MR. DORKEY: Ho. 12 THE COURT: It does not maintain an office or 13 telephone. 14 MR. DORKEY: And has not done so for ten years. 15 THE COURT: It has no contacts in the district. 16 MR. DORKEY: No, and we have put in four 17 affidavits on this question. We have searched our records 18 back ten years. 19 THE COURT: What about your wholly-owned 20 subsidiary. 21 MR. DORKEY: Keasbey & Mattison Company? First of i 22 all, for a wholly-owned subsidiary, plaintiff has made the 23 insufficient allegations or indeed a showing to impute the 24 acts of the subsidiary to Turner & Newall but even assuming 25 that plaintiff has done that, there are two answers I have i ---------------------------- -------------------------------------------------------------------- -------------------------------------- j 12 1 to -- 2 . THE COURT: He never worked for Craft and Murphy 3 or Keasby and Mattison. 4 MR. DORKEY: Plaintiff worked for Craft Murphy, 5 that is clear. Plaintiff did not work for Keasby and 6 Mattison. However, Keasby and Mattison -- there is no I j 7 proof that Keasby and Mattison had the affiliating 3 circumstances with the District of Columbia. In order for 9 the act from without the jurisdiction to cause injury < I I ! ! 10 within there has to be not only that act and injury within 11 but there has to be affiliating circumstances of Keasby and 12 Mattison. There is no showing that Keasby and Mattison had 13 any of these affiliating circumstances. 14 THE COURT: Anything else you want to tell roe? * i ! i 15 MR. DORKEY: The only other thing is that section 16 A4 speaks of present day affiliating circumstances Keasby 17 was involved in 1962 and therefore it could not have done ? 18 business anywhere for 20 years. 'i 19 THE COURT: All right. Counsel. 1 lI 20 MR. NICHOLL: Thank you, Your Honor. Your Honor, i 21 Mr. Catrett, by affidavit to our opposition to their motion, j i i 22 was exposed- to a product known as limpet spray which Mr. 23 Boil, the representative of Kraft Murphy states in an j i i j 24 affidavit they purchased from Keasby Mattison and Armstrong 25 Contracting -and Supply, which was in fact purchased further 13 1 from Turner & Newall. 2 We further have an affidavit from Mr. Timmis, a 3 co-worker, who states that he was exposed to limpet spray 4 in 1962 -- 5 THE COURT: You are going awfully fast and some of 6 the words are running right together, if I don't understand 7 them, I don't think anyone else does either. 8 MR. NICHOLL: 1 will slow down. 9 THE COURT: You better start over again.. 10 MR. NICHOLL: Okay. We have an affidavit in 11 opposition to the motion to dismiss by Mr. Dorkey that an 12 affidavit by Richard Boil of Craft Murphy, an employer of 13 Mr. Catrett, that Mr. Catrett was indeed exposed to a 14 product known as limpet spray. 15 THE COURT: Spell it. 16 MR. NICHOLL: L-I-M-P-E-T. We further have an 17 affidavit from a Mr. Timmis, a co-worker of Mr. Catrett's, 18 while he was employed at Craft Murphy. 19 THE COURT: Where? 20 MR. NICHOLL: At Craft Murphy in D.C., that he was 21 exposed to limpet spray in 1962 while working on the U.S. 22 capitol, and those affidavits are contained in our 23 opposition to the motion to dismiss. Your Honor. We 24 maintain that that of course is sufficient evidence. 25 THE COURT: That was in 1962, wasn't it? 14 1 HR. NICHOLL: That is correct, sir. 2 . THE COURT: How do you get around the statute of 3 limitations, assuming there is sufficient jurisdiction 4 personal jurisdiction here? 5 MR. NICHOLL: The discovery rule, Mr. Catrett 6 wasn't aware of the disease process until the late 7 seventies, that in fact his exposure at that time caused 8 his mesothelioma. 9 THE COURT: What year? 10 MR. NICHOLL: What year did he contract the 11 disease, sir? 12 THE COURT: Yes. 13 MR. NICHOLL: 1978. 14 THE COURT: When did he file suit? 15 MR. NICHOLL: In 1980, within three years of the 16 date of discovery. 17 THE COURT: All right. Anything else you want to 18 tell me? 19 MR. NICHOLL: Additionally, I think that further 20 in that attachment to our opposition to their motion, I 21 have a brochure from Turner Newall which states in the 22 brochure that Keasby Mattison was one of their subsidiaries, 23 and in that brochure it states something to the effect and 24 I can cite the page. Your Honor, If you want me to, page 32 25 of that brochure ~ and it states that Keasbv Mattison 15 1 being in the United States was basically at the doorsteps 2 of the entire country of the United States for purposes of 3 distribution of their product. 4 We maintain that that knowledge on the part of 5 Turner & Newall that distribution of its limpet spray to a 6 subsidiary, Keasby Mattison, put them on knowledge within 7 the foreseeability, as stated in the Volkswagen versus 8 Woodson case, that their product could very well end up in 9 the District of Columbia, like it did, and that Mr. Catrett 10 could end up being exposed to their product, like he did, 11 and that Mr. Catrett could end up developing a cancer, like 12 he did, some 20 years later. 13 THE COURT: All right. Mr. Dorkey, do you want to 14 respond? 15 MR. DORKEY: Just a few points. Your Honor. 16 First, in 1962, Craft Murphy was located in 17 Virginia not in the District of Columbia. Second, for 18 Keasby and Mattison, the brochure, the brochure on page 19 three says, "Under the Turner & Newall*s method of 20 organization, under this method of working, the separate 21 units in the organization, subsidiary companies, operate 22 with a large measure of freedom and flexibility and local 23 tradition and good will are fostered". This brochure is 24 completely consistent with the several affidavits of the 25 group solicitor of Turner Newall that Keasby was a wholly 1 owned but independently operated subsidiary of Turner 16 j 2 Newall. 3 THE COURT: It did business in the District of 4 Columbia, didn't it? 5 MR. DORKEY: Because it happened prior to 1962, I 6 am not aware that it did business other than this single 7 use of the product that Mr. Catrett's co-worker testified j i 8 to, which was brought unilaterally by Craft Murphy to the 9 District of Columbia. 10 It is not clear to me, and the record doesn't show 11 and I think that this is one of the great problems with 12 these.cases, that you are dealing with events 20, 30, 40 13 and 50 years ago and there is no way that people can know i i 14 these things. 15 THE COURT: Anything else? 16 MR. DORKEY: No, Your Honor. 17 MR. NICHOLL: Your Honor, could I add something very quickly, sir, and that is that in 1955 according to i 19 Mr. Boil's affidavit, Craft Murphy was located at 2302 20 Wisconsin Avenue, Washington, D. C. 21 THE COURT: The motion is overruled. i 22 Who wants to speak for Armstrong? 23 MR. DORKEY: Your Honor, did you deny our motion 24 to dismiss for lack of personal jurisdiction? 25 THE COURT: That is correct. I overruled it. 17 1 MR. FORD: Good afternoon. Your Honor. 2 THE COURT: Mr. Ford, nice to see you, sir. 3 MR. FORD: In this case, we have filed a motion 4 for summary judgment on behaif of the defendant named herein 5 as Armstrong Cork. 6 THE COURT: It is Armstrong World Industries. 7 MR. FORD: Yes, Your Honor, we have answered the 8 suit in the name of Armstrong World Industries, which is 9 the successor corporation of Armstrong Cork. There is no 10 problem on that score. 11 THE COURT: All right. 12 MR. FORD: In the complaint, the plaintiff alleges 13 that Armstrong World Industries, if you will, was negligent 14 and/or that it breached warranties in that it designed, 15 manufactured, produced, tested and labeled certain asbestos 16 products which the decedent was exposed to. 17 We filed, on behalf of ourselves and all 18 defendants, a general set of interrogatories to the 19 plaintiff, and the answers to those interrogatories failed 20 to reveal any exposure by the decedent to any asbestos 21 containing product manufactured or produced by Armstrong 22 World Industries. Subsequently, we filed a motion for 23 summary judgment on the grounds that there was no such 24 exposure. 25 The plaintiff, in her opposition to that motion. 18 1 comes back and says, in effect, "We agree that Armstrong 2 World Industries did not manufacture or produce any such 3 asbestos containing product, but Armstrong Contracting and 4 Supply was a licensee of. tbe product known as limpet, which 5 in turn was manufactured by others, and there was such an 6 exposure to Mr. Catrett to limpet sometime back in the mid i > 7 sixties". 8 The opposition to the motion for summary judgment 9 then is that in lieu of Armstrong World Industries, the . i j ! 10 Court should look to Armstrong Contracting and Supply, 11 which was a subsidiary corporation. 12 Among the papers filed by the plaintiff in 13 opposition to the motion^ for summary judgment, is a ! 14 financial statement put out by Armstrong World Industries, 15 and the plaintiff highlighted the following in its 1 16 opposition: In 1958 a subsidiary, Armstrong Contracting 17 and Supply Corporation, was formed to handle contract 18 insulation business and allied sales. 19 The facts before the Court are that in 1958 .I i 20 actually in 1959 this corporation was formed as a wholly-owned 21 subsidiary, it has continued or did continue to function i 22 as such until approximately 1969, when all of the stock was 23 sold to another corporation and it continues to operate to I i 24 this day. it is a viable, ongoing concern and has been a 25 viable going concern since 1959. We see no reason why the 19 1 corporate identity of AC&S should be ignored in order to 2 allow the plaintiff to sue. 3 THE COURT: They could get leave to amend, could 4 they not? 5 MR. FORD: Absolutely. 6 THE COURT: Come up here. Stand beside Mr. Ford. 7 I don't see how I can avoid granting Armstrong World 8 Industries' motion for summary judgment, but you probably 9 would have a right to substitute the other successor 10 corporation. 11 MR. NICHOLL: Would Your Honor be stating that if 12 we filed the motion to amend bringing in AC&S that Your 13 Honor would have no problem with that? 14 THE COURT: I don't see any off the top of my head. 15 MR. FORD: I can not speak for AC&S. Patently 16 there is a limitations problem. 17 MR. NICHOLL: That is patently obvious, Your Honor. 18 Which is one of my major concerns. 19 THE COURT: You sued the wrong person. 20 MR. DORKEY: May I be here heard because we put in 21 papers the opposition to Armstrong World Industries' motion. 22 THE COURT: Are you involved in that? 23 MR. DORKEY: I object to the fact of dismissing 24 out Armstrong because I think we put in sufficient factual 25 evidence to put in issue the question of the relationship 20 1 between Armstrong Cork and Armstrong Contracting and Supply. 2 . Even if we have not put in sufficient evidence 3 from discovery in other cases, we have not had an 4 opportunity, under Rule.56F of the Federal Rules of Civil 5 Procedure, because subject to the Court's jurisdiction we 6 were not able to take discovery on this very issue of the 7 relationship between Armstrong Cork, as it was then known, 8 and Armstrong World; as it is now known, and Armstrong 9 Contracting and Supply. 10 THE COURT: Why weren't you? 11 MR. NICHOLL: They just became a party today. 12 MR. DORKEY: By your ruling today, and I would 13 like to reargue and try to convince Your Honor that we 14 really are not subject to jurisdiction under either the 15 D.C. code or the United States constitution, but until 16 today we were not a party to the action. 17 THE COURT: You can take discovery ever, before you -- 13 MR. DORKEY: But, Your Honor, it is inconsistent 19 with our position of jurisdiction, and to take discovery on 20 the merits. Your Honor, is oftentimes considered to be a 21 waiver of a party's jurisdictional objections and we face 22 that other problems in other jurisdictions. 23 THE COURT: You don't have that problem in the 24 federal courts anymore. That used to be the rule but not 25 today. 21 1 MR. DORKEY: I am sure Your Honor is more 2 understanding than other judges, but we have had this 3 problem in other courts. 4 THE COURT: That is an old rule older than Mr. 5 Ford even. S MR. OORKEY: But we have not had an opportunity to 7 take discovery on that issue in this case and under Rule 8 56F I think we have made out a case why in addition to the 9 affidavits and the deposition evidence we have put in this ID case, which clearly raises a factual issue. Your Honor, 11 going to the control of Armstrong Cork over AC&S -- 12 THE COURT: Why should Mr. Ford be penalized 13 because of you? 14 MR. DORKEY: He is not being penalized because of 15 me. Armstrong Contracting and Supply, when it was a 16 subsidiary of Armstrong Cork, had no legal department, had 17 no accounting department. 18 THE COURT: We are talking about Armstrong World 19 Industries' motion for summary judgment. 20 MR. DORKEY: That is right, on the grounds that it 21 is not responsible for Armstrong Contracting and Supply, a 22 subsidiary. 23 THE COURT: That is right. 24 MR. DORKEY: There is law in this district and in 25 ether jurisdictions that sometimes if a parent exercises 22 1 overwhelming control, and given other circumstances, it is 2 responsible for the acts or omissions of its subsidiaries. 3 THE COURT: Do I understand the plaintiff to be 4 contending that the decedent was exposed to tke products of 5 a subsidiary of Armstrong World Industries, namely, 6 Armstrong Contracting and Supply Company, Inc.? 7 MR. NICHOLL: That is correct. Your Honor. 8 MR. FORD: *It was not a product. That is the 9 irony of Mr. Dorkey's position. 10 THE COURT: They are distributors. 11 MR. FORD: Of Mr. Dorkey product, and in effect he 12 is arguing to hold AC&S in, or Armstrong in, so he can seek 13 contribution or indemnification against them for his 14 product. And my position is very clear, that if he wants 15 to go after someone he ought to go after his distributor, i 15 which was AS&C, and who he licensed. Why come after 17 Armstrong World Industries when there is a viable 18 corporation and his own papers show that they have 19 liability insurance? 1 l f I 20 THE COURT: Turner Newall also opposes, don't they? 21 MR. FORD: Yes, sir. 1 22 MR* DORKEY: One reason is that -- one reason we 23 go after both Armstrong World and Armstrong Contracting 24 Supply is because at the time, the relevant time, they were 25 essentially one entity. Your Honor. It was a division 23 1 prior to 1959. They made it into a subsidiary. Nothing 2 else changed. It kept the big "A", Armstrong logo during 3 that time period and throughout the time period it operated 4 under the egis, it was all part of one enterprise, same 5 logo, same advertising, everything. 6 THE COURT: Do you want to say anything else? 7 MR. DORKEY: I would like to say some things on 8 your denial of the motion for personal jurisdiction. 9 THE COURT: I am not going to let you reargue that. 10 Do you want to say anything else? 11 MR. NICHOLL: I would simply state for the record 12 that we adopt the opposition of Turner & Newall to the 13 motion for summary judgment by Armstrong World. 14 THE COURT: What would be the effect if I grant 15 Mr. Ford's motion? It seems to me the Court is almost 16 compelled to. 17 MR. NICHOLL: I would think, Your Honor, if I 18 could add something, in January of 1982 we did propound a 19 second set of interrogatories, which would perhaps go to 20 the issue of control of AC6S, or Armstrong Contracting and 21 Supply and Armstrong World. 22 Mr. Ford did answer those interrogatories, I 23 believe, a couple of weeks ago, but unfortunately when we 24 reached the questions of Armstrong Contracting and Supply 25 and their relationship with Armstrong World they were 24 1 silent. I would at least request. Your Honor, that we have 2 . THE COURT: You have had more than ample time. 3 How long has your motion been pending Mr. Ford? 4 MR. FORD: A number of months. 5 THE COURT: The motion will be granted, the motion 6 for summary judgment, by Armstrong World Industries. 7 MR. DORKEY: As long as I am stuck in the case now 8 that you have let everybody else out, even though there are 9 many other people's products who this plaintiff was exposed 10 to -- 11 THE COURT: What else do you have? 12 MR. OORKEY: I would like to know whether you have 13 any written rulings on these? 14 THE COURT: No, I do not, counsel. 15 Who has this Huff letter? Did you hand that up to 16 me? | I i 17 MR. McMURTRIE: I did. Your Honor. 18 THE COURT: You can present an order, Mr. Ford, or 19 have I already gotten it? 20 MR. McMURTRIE: I think you have an order from 21 Celotex. t I i 22 THE COURT: You can work with Mr. Ford. 23 MR. DORKEY: Excuse me. Your Honor. So what you 24 will do is just simply sign -- 25 THE COURT: I am signing an order based on the  - # 1 authorities in the opposition given. 25 2 MR. DORKEY: Could you explain the reasoning why 3 you held us in on jurisdiction? 4 THE COURT: Sir, no judge has to give you the 5 reason. MR. DORKEY: I know, 1 was just asking Cor some 7 guidance, that is all. Your Honor. 8 THE COURT: No thank you, sir. The Court has 9 ruled. 10 (Whereupon, at 2:07 p.m., the hearing in the 11 above-entitled case was recessed.) 12 13 14 15 16 17 18 REPORTER'S CERTIFICATE 19 This record is certified by the undersigned to be the 20 official transcript in the above-entitled case. 21 i 22 23 24 25  CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was mailed, postage prepaid, this / day of 1984 to: Michael P. Chervenak, Esquire FORD & O'NEILL 17 West Jefferson Street Rockville, Maryland 20850 Attorney for Armstrong World Industries, Inc. Kevin J. McCarthy, Esquire Charles E. Gallagher, Jr., Esquire O'MALLEY, MILES, FARRINGTON & MCCARTHY 99 Commerce Place Upper Marlboro, Maryland 20772 Attorneys for A. C. & S. H. Patrick Donohue, Esquire DONAHUE, EHRMANTRAUT & MONTEDONICO, CHARTERED 51 Monroe Street Suite 700 Rockville, Maryland 20850 Attorneys for Atlas Turner, Inc. and Bell Asbestos Mines, Ltd. H. Emslie Parks, Esquire Leland S. Van Koten, Esquire WRIGHT & PARKS Suite 1012 409 Washington Avenue Towson, Maryland 21204 Attorneys for Celotex Corporation David P. Durbin, Esquire JORDAN, COYNE, SAVITS & LOPATA Suite 500 1030 15th Street, N.W. Washington, D.C. 20005 Louis R. Moffa, Jr., Esquire SCHNADER, HARRISON, SEGAL & LEWIS 1111 - 19th Street, N.W. Washington, D.C. 20036 Attorney for National Gypsum Company Charles E. Dorkey, III, Esq. RICHARDS, O'NEIL & ALLEGAERT 15th Floor 660 Madison Avenue New York, New York 10021 Attorney for Turner & Newall PLC R. G. Guziak, Esquire BRAULT, GRAHAM, SCOTT & BRAULT 1314 - 19th Street, N.W. Washington, D.C. 20036 Attorney for Nicolet, Inc. Hopewell H. Darneille, III, Esquire BOWMAN, CONNER, TOUHEY & PETRILLO, P.C. 2828, Pennsylvania Avenue, N.W. Washington, D.C. 20007 jAttorney for Turner & Newall PLC and > Turner & Newall, Ltd. and J. W. Roberts Company Brock/ R. Landry, Esquire KECK, MAHIN & CATE 1333 New Hampshire Avenue, N.W. Suite 1220 Washington, D.C. 20036 Attorney for United States Gypsum Co. Patrick J. Attridge MACLEAY, LYNCH, BERNHARD & GREGG 51 Monroe Street Suite 806 Rockville, Maryland 20850 Attorneys for United States Mineral Products Company Edward J. Lopata, Esquire JORDAN, COYNE, SAVITS & LOPATA 1030 Fifteenth Street, N.W. Suite 500 Washington, D.C. 20005 Attorney for W. R. Grace Company Peter T. Enslein ASHCRAFT & GEREL Suite 700 2000 L Street, N.W. Washinaton, D.C. 20036 (202) 783-6400