Document kDMwk84wE6DZ9bZ9M9yEjo2DJ
FILE NAME: Hercules Chemical (HERC) DATE: 1990 Nov 9 DOC#: HERC015 DOCUMENT DESCRIPTION: Legal - Deposition of Jay W. Fidler
09/20/01 THU 13:13 FAX 701 237 9035
BOECHLER, P.C.
THOMPSON, P.C.
COPY `tV*'-
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA SOUTHWESTERN DIVISION
Oscar Adolf, Charles Anderson, Edward Bossert, George Bunnell, Sr., Robert Clooten, Roger Daub, Richard Denzel, Stanley J. Forstner, Boyd Gilchrist, Robert Glasser, Leslie Hansen, Richard Heck, Douglas Jessen, Albin Johnson, Kenneth Kutzman, Martin Ketterling, James Kinsella, Ben Klein, John Kuntz, Alfred LaFountaine, Myles Lais, Louis Lang, Teanus. Loeb, L. D. MacMartin, John Morrell, Stephen Morrell, Noel Noakes, John Olafson, Walter Poppke, Richard Poukka, Darrell Rathjen, Pete Riedinger, Vernon Solum, Donald Stanek, Gene Thompson, Frank Unser, Virgil Voeller, Eugene Vogel, Joe Vogel, Frank Willson, Joe Winbauer, LaVon Matthews, Betty Hatzenbihler,
Plaintiffs,
) ) ) ) IN RE: NORTH ) DAKOTA PERSONAL ) INJURY ASBESTOS ) LITIGATION NO. 1
) ) CIVIL NOS. ) Al-89-098 thru ) Al-89-138 and ) Al-89-145 thru ) Al-89-146
) )
vs. A-P.I-, Inc -, et al,
) Defendants- _ )
Owens-Corning Fiberglas Corporation, Plaintiff,
vs. The Manville Corporation Asbestos
Disease Compensation Fund (appearing
for the Manville.Personal Injury
Settlement Trust),
Defendant.
) ) ) Court File No. ) Al-90-083
) )
001
DEPOSITION
OF JAY W. FIDLER
REPORTED
November 9, 1990
'
By : Paula D . Weber - R.P.R. Notarv-- Eu ILLlc--
NORMAN E. MARK
Court Reportf
F2a3r5f-l7o5.71Noorrth23D5-a7k57o2ta
09/20/01 THU 13:14 FAX 701 237 9035
BOECHLER, P.C.
->->-> THOMPSON, P.C.
002
1
INDEX
2
WITNESSES
3J
4
JAY W. FIDLER
5
Direct Examination by Mr. Mr. Thompson
6
7
8
DEPOSITION
DESCRIPTION
EXHIBIT NO.
9
1
Second Amended Notice
of Deposition 10
2 11
Response to Second Amended Notice of Deposition
12
3
Product Catalog (5/74)
13
4
Product Catalog (1976)
14
5
Product Catalog (1977)
15
6
Product Catalog (2/79)
16
7
Product Catalog (3/80)
17
8
Product Catalog (4/81)
18
9
Product Catalog (1982)
19
10
Product Catalog (1984)
20
11
21
12 22
Computer Printout of Sales in North Dakota
Report of Case Consulting Laboratories (8/3/83)
23
13
24
Handwritten Table of Sales (1949-1966)
25
PAGE 8
MARKED 8
8
8 8 8 8 8 8 8 8 8
64 72
1
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
09/20/01 THU 13:14 FAI 701 237 9035
BOECHLER, P.C.
THOMPSON, P.C.
@003
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
2
SOUTHWESTERN DIVISION
3
Oscar Adolf, Charles Anderson,
)
Edward Bossert, George Bunnell, Sr.,
)
4
Robert Clooten, Roger Daub, Richard
)
Denzel, Stanley J. Forstner, Boyd
)
5
Gilchrist, Robert Glasser, Leslie
)
Hanson, Richard Heck, Douglas Jessen, )
6
Alvin Johnson, Kenneth Kautzman, Martin )
Ketterling, James Kinsella, Ben Klein, ) IN RE: NORTH
7
John Kuntz, Alfred LaFountain, Myles
) DAKOTA PERSONAL
Lais, Louis Lang, Teanus Loeb, L.D.
) INJURY ASBESTOS
8
MacMartin, John Morrell, Stephen
) LITIGATION
Morrell, Noel Noakes, John Olofson,
) NO. 1
9
Walter Poppke, Richard Pukka, Darrel
)
Rathjen, Pete Riedinger, Vernon Solum, )
10
Donald Stanek, Gene Thompson, Frank
)
Unser, Virgil Voeller, Eugene Vogel,
) Civil Nos.
11
Joe Vogel, Frank Willson, Joe Winbauer, ) Al-89-098
LaVon Matthews, Betty Hatzenbihler,
) thru Al-89-138
12
) and Al-89-145
Plaintiffs,
) thru Al-89-146
13
)
vs.
)
14
)
A.P.I., Inc., et al.,
)
15
)
Defendants.
)
16
)
Owens-Corning Fiberglas Corporation,
)
17
)
Plaintiff,
) Court File
18
) No. Al-90-083
vs.
)
19
)
The Manville Corporation Asbestos
)
20
Disease Compensation Fund (appearing
)
for the Manville Personal Injury
)
21
Settlement Trust),
)
)
22
Defendant.
)
23
24
25
2
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
09/20/01 THU 13:14 FAI 701 237 9035
BOECHLER, P.C.
THOMPSON, P.C.
004
1
TELEPHONIC DEPOSITION
2
of JAY W. FIDLER, taken by and for the Plaintiffs,
3
pursuant to Notice and pursuant to the Federal Rules
4
of Civil Procedure. The deposition was taken at the
5
Radisson Hotel, Fargo, North Dakota, on Friday,
6
November 9, 1990, commencing at the hour of 8s30 a.m.
7
8
APPEARANCES
9
Craft, Thompson & Boechler, P.C. For the Plaintiffs;
Attorneys at Law
10
16 N. Broadway, Suite 315
P.O. Box 1932
11
Fargo, North Dakota 58107
By: David C. Thompson, Esq.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
09/20/01 THU 13:14 FAI 701 237 9035
BOECHLER, P.C.
THOMPSON, P.C.
@]005
1
A P P E A R A N C E S (CONT'D)
2
Serkland, Lundberg, Erickson, For the Defendants
Marcil & McLean, Ltd.
Armstrong World
3
Attorneys at Law
Industries, Inc., a
10 Roberts Street
Delaware corporation;
4
Fargo, North Dakota 58102
(individually and as
successor-in-interest
5
AND
to Armstrong Cork
Foley & Lardner
Company and Keasbey &
6
Attorneys at Law
Mattison Company;
First Wisconsin Center
Flexitallic Gasket Co.,
7
777 East Wisconsin Avenue
Inc., a Connecticut Corp.;
Milwaukee, Wisconsin 53202-5367 GAF Corporation, a
8
Delaware Corporation,
(individually and as
9
successor-in-interest
to The Ruberid Company;
10
A. P. Green Refractories
Co., a Delaware
11
corporation;
National Gypsum
12
Company, a Delaware
Corporation; Turner
13
Asbestos Fibres, Ltd.,
(a subsidiary of Turner &
14
Newall PLC and successor-
in-interest to Keasbey &
15
Mattison Company); Turner
& Newall PLC,
16
(individually and as
successor-in-interest
17
to Turner & Newall,
Ltd and Keasbey &
18
Mattison Company); U.S.
Gypsum Co., a Delaware
19
corporation; Union Carbide
Corp., a New York
20
corporation;
21
Meagher & Geer
For the Defendants
Attorneys at Law
A. H. Bennett
22
4200 Multifoods Tower
Company, a Minnesota
33 South Sixth Street
Corporation; and
23
Minneapolis, Minnesota 55402 S.O.S. Products,
a New York corporation;
24
25
4
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
09/20/01 THU 13:15 FAX 701 237 9035
BOECHLER, P.C.
THOMPSON, P.C.
@ 006
1
A P P E A R A N C E S (CONT'D)
2
Stich, Angel1, Kreidler &
For the Defendant
Muth
Asbestos Product
3
Attorneys at Law
Manufacturing Corporation;
The Crossings, Suite 120
4
250 Second Avenue South
Asbestospray Corporation, (individually and as
Minneapolis, Minnesota 55401 successor-in-interest to
5
Asbestos Product
6
Manufacturing Corporation); H. & A.
Construction Corporation,
7
(individually as
successor-in-interest to
8
Asbestos Product
Manufacturing Corporation,
9
Asbestospray Corporation
and Sprayeraft
10
Corporation); Spraycraft
Corporation, (individually
11
and as successor-in
interest to Asbestos
12
Product Manufacturing
Corporation and
13
Asbestospray Corporation) ;
14
Lucas & Smith
For the Defendant
Attorneys at Law
Building Sprinkler,
15
333 North 4th Street
Co., Inc., a North
Bismarck, North Dakota 58501 Dakota corporation;
16
Degnan, McElroy, Lamb, Camrud, For the Defendant
17
Maddock & Olson, Ltd.
Crane Packing Co.;
Attorneys at Law
18
Fifth Floor FNB Bldg.
P.O. Box 818
19
Grand Forks, North Dakota 58201
20
Arndt and Benton, P.A.
For the Defendant
Attorneys at Law
Eagle-Picher Industries,
21
900 First Bank Place West
Inc., an Ohio Corporation;
Minneapolis, Minnesota 55402
22
23
24
25
5
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
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BOECHLER, P.C.
THOMPSON, P.C.
@1007
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A P P E A R A N C E S (CONT'D)
2
Moss & Barnett
For the Defendant
Attorneys at Law
Flintkote Company,
3
4800 Norwest Center
a Connecticut Corporation;
Minneapolis, Minnesota 55402
4
Vogel, Brantner, Kelly,
For the Defendant
5
Knutson, Weir & Bye, Ltd. Grant Wilson, Inc., an
Attorneys at Law
6
502 1st Avenue North
Illinois corporation;
Fargo, North Dakota 58102 7
Fleck, Mather and Struts
8
Attorneys at Law
For the Defendant W. R. Grace & Co.,
400 East Broadway, Suite 600 a New Jersey corporation,
9
P.O. Box 2798
(individually and as
Bismarck, North Dakota 58502 successor-in-interest to
10
Zonolite Company and
Western Mineral Products
11
Company);
12
Nilles, Hansen & Davies, Ltd. For the Defendant
Attorneys at Law
13
1800 Radisson Tower
Empire Ace Manufacturing Corporation;
Fargo, North Dakota 58102
14
Pustorino, Pederson, Tilton & For the Defendant
15
Parrington
MacArthur Corporation, a
Attorneys at Law
16
West 65th Street
Minnesota corporation; 4005
Suite 200
17
Minneapolis, Minnesota 55435
18
Faegre & Benson
For the Defendant
Attorneys at Law
19
2200 Norwest Center
Owens-Corning Fiberglas Corp., a Delaware
90 South Seventh Street
corporation;
20
Minneapolis, Minnesota 55402
21
Pearce & Durick
For the Defendant
Attorneys at Law
22
314 E. Thayer Avenue
Rutland Fire & Clay, a Vermont corporation;
Bismarck, North Dakota 58501
23
24
25
6
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
09/20/01 THU 13:15 FAI 701 237 9035
BOECHLER, P.C.
THOMPSON, P.C.
@008
1
A P P E A R A I C E S (CONT'D)
2
Jeffries, Olson & Flom, P.A. For the Defendant
Attorneys at Law
SEPCO Corporation, an
3
Suite 302
Alabama corporation;
403 Center Avenue
4
Moorhead, Minnesota 56560
5
Dosland, Nordhougen,
For the Defendant
Lillehaug, Johnson & Saande U. S. Mineral Products
6
Attorneys at Law
Company, (individually
American National Bank Bldg. and as successor-in
7
Moorhead, Minnesota 56560
interest to Turner &
Newall, Ltd. and Keasbey
8
& Mattison Company);
9
Bowman & Brooke
For Hercules Chemical;
Attorneys at Law
10
Suite 600 Midwest Plaza West
Minneapolis, Minnesota 55402
11
By: David Lutz, Esq.
and
12
George W.Soule, Esq. (By Telephone)
13
Collins, Buckley, Sauntry
For Fibreboard Corporation;
& Haugh
Owens-Illinois, Inc.;
14
Attorneys at Law
Pittsburgh Corning;
332 Minnesota Street
15
W-1100 FNB Bldg.
St. Paul, Minnesota 55101
16
Oppenheimer, Wolff &
For Manville Corp;
17
Donnelly
Asbestos Disease
Attorneys at Law
Compensation Fund.
18
45 South 7th Street
Plaza VII, Suite 3400
19
Minneapolis, Minnesota 55402
20
Foley & Mansfield
For the Defendants
Attorneys at Law
Keene Corporation,
21
Ten South Fifth Street
a Delaware corporation,
Minneapolis, Minnesota 55402 individually and as
22
successor-in-interest to
Ehret Magnesia
23
Manufacturing Company,
Baldwin-Hill Company,
24
Baldwin-Ehret-Hill, Inc.,
Keene Building Products
25
Corporation and Mundet
Cork Corporation;
7
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
09/20/01 THU 13:16 FAX 701 237 9035
BOECHLER, P.C.
THOMPSON, P.C.
@1009
1 2 3 4 5
6
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 '25
PROCEEDINGS (Whereupon/ the deposition of JAY W. FIDLER commenced at 8:30 a.m. as follows:)
(Whereupon, Deposition Exhibit Nos. 1-11 were marked for identification by the Court Reporter.)
MR. THOMPSON: Before we start today I'd like to have an agreement on the record that this is a telephonic deposition taken pursuant to Rule 30(b)(7) of the Federal Rules of Civil Procedure and that Mr. Fidler or whoever else is being designated by Hercules pursuant to Rule 30(b)(6) as a corporate deponent for Hercules Chemical Company will be under oath for purposes of this case and that the notary, the court reporter for the Norman Mark Court Reporter Service, will be swearing this witness and that this witness will be testifying under oath pursuant to Rule 30(b)(7).
Counsel, is my recitation of the housekeeping of this deposition in your understanding?
MR. SOULE: Yes, it is. MR. THOMPSON: All right.
8
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
09/20/01 THU 13:16 FAX 701 237 9035
BOECHLER, P.C.
->->* THOMPSON, P.C.
@]010
1
JAY W. FIDLER,
^
2
HAVING BEEN FIRST DULY SWORN TO TESTIFY THE TRUTH,
THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH, RELATIVE
3
4
TO THE CAUSE SPECIFIED, TESTIFIED AS FOLLOWS:
5
DIRECT EXAMINATION
6
BY MR. THOMPSON:
7
Q. Mr. Fidler, my name is David Thompson and I'm
8
a lawyer in Fargo, North Dakota.
9
MR. THOMPSON: First from counsel I'd like to
10
ask counsel how defendant Hercules Chemical Company is
11
responding in this deposition to the Second Amended
12
Notice of Deposition which I have had marked for your
13
information as Deposition Exhibit No. 1.
14
MR. SOULE: Mr. Fidler will respond on behalf
15
of Hercules.
16
MR. THOMPSON: I have also marked as
17
Deposition Exhibit No. 2 Hercules Chemical Company,
18
Inc.'s Response to Second Amended Notice of Deposition
19
for your information, and at some point I'm sure we'll
20
refer to that.
21
(Whereupon, difficulty was encountered
22
establishing telephonic communication. Upon resolution
23
of the problem the deposition continued as follows:)
24
MR. THOMPSON: Mr. Soule?
25
MR. SOULE: Yeah.
9
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
09/20/01 THU 13:16 FAX 701 237 9035
BOECHLER, P.C.
---> THOMPSON, P.C.
I Oil
1
Q. (Mr. Thompson continuing) Mr. Fidler?
^
2
A. Yes.
3
Q. All right.
4
MR. THOMPSON: And, Mr. Soule, is Mr. Fidler
5
the only person who's going to be designated to testify
6
today by Hercules?
7
MR. SOULE: Yes.
8
Q. (Mr. Thompson continuing) Mr. Fidler, could
9
you please state your full name for the record and spell
10
it for us?
11
A. Jay, J-a-y, W., middle initial, Fidler,
12
F as in Frank, i-d, as in David, 1-e-r.
13
Q. Mr. Fidler, are you currently employed?
14
A. Yes.
"
15
Q. And what is that employment and could you
16
describe your title, please?
17
A. I'm president of the Hercules Chemical
18
Company, Incorporated.
19
Q. And how long have you occupied that position?
20
A. Since 1962.
21
Q. Prior to that time were you employed by
22
Hercules Chemical Company, Inc.?
23
A. Yes.
24
Q. And what was your capacity immediately before
25
you became president in 1962?
10
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
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BOECHLER, P.C.
THOMPSON, P.C.
012
1
A. Sales manager.
2
Q. And when did you begin as sales manager of
3
Hercules Chemical Company?
4
A. Somewhere in the 1950s.
5
Q. Mid '50s, early '50s or late '50s?
6
A. Mid '50s.
7
Q. Was that the capacity which you came to the
8
company in?
9
A. Mo.
10
Q. What position did you occupy with Hercules
11
prior to becoming sales manager?
12
A. Just a general worker.
13
Q. And when did that employment begin?
14
A. In 1946. June of 1946.
15
Q. And I assume from that answer that you did a
16
number of tasks with the company beginning in '46 and
17
extending to the time you became sales manager.
18
A . Yes.
19
Q. Was that employment at the plant in Passaic,
20
New Jersey or was it in New York City?
21
A. It was in New York City.
22
Q. Did Hercules begin in June of 1946 or did the
23
company exist prior to that time?
24
A. The company existed prior to that time.
25
Q. I believe in the Interrogatory Answers it
11
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
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BOECHLER, P.C.
THOMPSON, P.C.
@013
1
states that the company was incorporated in 1915 as a New
2
York corporation. Would that be correct?
3
A. That is correct.
4
Q. And what business was the company in from 1915
5
through the present? Has it basically been in the same
6
type of manufacturing business?
7
A. Yes.
8
Q. And that business is described in the
9
Interrogatory Answer as the business of manufacturing,
10
distributing and selling various consumer trade and
11
industrial products and industrial chemicals. Would that
12
be correct?
13
A. Yes.
14
Q. Is it fair to say that Hercules Chemical
15
Company was in the business of providing chemicals and
16
products for the plumbing industry from the time it began
17
in 1915 through the present?
18
A. That is correct.
19
Q. Is the plumbing industry the primary marketing
20
focus and has it been for the company since 1915 through
21
the present?
22
A. Yes.
23
Q. Thank you. When you came to the company in
24
1946 approximately how many employees were there of
25
Hercules Chemical?
12
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
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BOECHLER, P.C.
THOMPSON, P.C.
@014
1
A. Oh, as I recall there were approximately a
2
dozen.
3
Q. And how many employees does the company have
4
today? Approximately.
5
A. One hundred.
6
Q. Is this the largest that the company has ever
7
been?
8
A. Yes.
9
Q. In the '60s, mid '60s, approximately how many
10
employees did the company have?
11
A. Fifty to sixty.
12
Q. Now in the Interrogatory Answers it states
13
that there is a corporate office at 29 West 38th Street,
14
New York, New York and a plant at 111 South Street,
15
Passaic, New Jersey.
16
A. That is correct.
17
Q. You anticipated my next question. And that
18
would be -- that is still true today, correct?
19
A. That is true today.
20
Q. Was the manufacturing facility ever situated
21
in New York? And I discern from one of your prior
22
answers that it was.
23
A. Ever situated in New York since its founding?
24
Q. Well, at the time that you began with the
25
company in 1946 it's my understanding you were employed
13
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
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BOECHLER, P.C.
THOMPSON, P.C.
@015
1
in a variety of capacities including those associated
^
2
with manufacturing, and you stated that your employment
3
began in New York City. And I assume then from that
4
answer that the company had a plant in New York.
5
A. Yes.
6
Q. Where was that plant located?
7
A. At 332 Canal Street in Manhattan.
8
Q. I'm familiar with where that's located
9
generally. Now was that the location where the company
10
began its manufacturing operations around 1915?
11
A. No.
12
Q. Where did -- where was the company's
13
manufacturing facility prior to that time?
14
A. I don't know.
"
15
Q. Okay. In any event, it had been located on
16
Canal Street at that location for some time as of the
17
time that you arrived at the company.
18
A. Yes.
19
Q. Where did the manufacturing operation of
20
Hercules Chemical Company move from Canal Street in Lower
21
Manhattan to the present? In other words, did it move to
22
Passaic from Canal Street?
23
A. No.
24
Q. All right. Where did you go from Canal
25
Street?
14
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
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BOECHLER, P.C.
*-- THOMPSON, P.C.
016
1
A. It went to the Bronx.
""
2
Q. Where in the Bronx was the manufacturing
3
facility?
4
A. At 740 East 134th Street.
5
Q. When was that move made to the best of your
6
memory today?
7
A. Sometime in the early '60s.
8
Q. And how long did the manufacturing operation
9
of Hercules stay at 740 East 134th Street in the Bronx?
10
A. Approximately ten years.
11
Q. So approximately to the early 1970s. Would
12
that be correct?
13
A. Tes.
14
Q. And as of the early 1970s where did the
"
15
manufacturing operation of Hercules Chemical become
16
located?
17
A. In Passaic, New Jersey.
18
Q. And that location that it moved to at that
19
time would have been 111 South Street, Passaic, New
20
Jersey?
21
A. Yes.
22
Q. Thank you. At the time that you arrived with
23
the company in June of 1946, Mr. Fidler, was Hercules
24
manufacturing a product known as Hercules Furnace
25
Cement?
15
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
09/20/01 THU 13:18 FAX 701 237 9035
BOECHLER, P.C.
THOMPSON, P.C.
017
1
A. No.
2
Q. And right now for purposes of clarity I'm
3
referring to the pre-raixed product that you're probably
4
aware was the subject or one of the subjects of our
5
Interrogatory Answer or questions in this case. At what
6
time did Hercules Chemical Company begin marketing
7
Hercules Furnace Cement? And it's my understanding that
8
it also bore the trade name For, F-o-r, Heat's,
9
H-e-a-t-apostrophe-s, Sake, S-a-k-e. At what time did
10
the company begin manufacturing that product?
11
MR. SOULE: Now you've asked two different
12
questions. One was marketing and one was manufacture.
13
Q. (Mr. Thompson continuing) I'll back it up
14
because I do see your Interrogatory Answers. I want this
^
15
to be clear. First, Mr. Fidler, when did Hercules begin
16
selling a furnace cement, a pre-mixed furnace cement that
17
contained asbestos that was marketed under its name, the
18
name Hercules?
19
A. Prior to my arrival in 1946.
20
Q. Now that does clarify it. To your knowledge
21
how far back was this product marketed under the Hercules
22
trade name?
23
A. I don't know.
24
Q. In any event, Hercules was selling what was
25
designated as Hercules Furnace Cement, a product that
16
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THOMPSON, P.C.
@018
1
contained asbestos, as of June of 1946.
2
A. Yes.
3
Q. At what time did the trade name For Heat's
4
Sake become applied to this product? And it's my
5
understanding that -- first of all, let me ask you this.
6
In your Interrogatory Answers or in the company's
7
Interrogatory Answers it is stated that For Heat's Sake
8
was the same as Hercules Furnace Cement. They were two
9
different trade names of Hercules applying to what in
10
substance was the same product.
11
A. Yes.
12
Q. And that would be correct?
13
A. Yes.
14
Q. At what point did the trade name For Heat's
15
Sake become utilized? First of all, was it utilized as
16
of June of 1946?
17
A. No.
18
Q. When did it become used?
19
A. To my best recollection sometime after 1973.
20
Q. All right. In 1946 was Hercules manufacturing
21
the asbestos-containing furnace cement that we have been
22
describing here that it was selling as of June of 1946?
23
A. No.
24
Q. Do you know who the manufacturer of that
25
product was as of June of 1946?
17
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BOECHLER, P.C.
---> THOMPSON, P.C.
0019
1
A. Yes.
2
Q. Who was it?
3
A . Johns-Manville.
4
Q. Do you know what plant of Johns-Manville was
5
the manufacturer or was the entity that manufactured that
6
product as of June of -- as of June of 1946?
7
A. No.
8
Q. During the latter part of the 1940s, from June
9
of 1946 actually until the year 1973 was Johns- -- did
10
Johns-Manville continue to be the producer of Hercules
11
asbestos furnace cement?
12
A. Yes.
13
Q. Without interruption, sir?
14
A. Yes.
"
15
Q. What happened in the year 1973 with regard to
16
who actually produced Hercules Furnace Cement?
17
A. We stopped buying from Johns-Manville and
18
manufactured the product ourselves.
19
Q. Is it fair to say that the product -- that
20
Hercules began producing the product itself when it moved
21
to its Passaic location or did it begin when you were
22
still in the Bronx?
23
A. It's possible that it was made while we were
24
still in the Bronx.
25
Q. But you're sure that it was the year 1973 when
18
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THOMPSON, P.C.
@020
1
Hercules began manufacturing itself the furnace cement.
^
2
A. Yes.
3
Q. With regard to --
4
MR. THOMPSON: And the record should reflect
5
that the only lawyers present are David Lutz from your
6
office, Mr. Soule or Soule, excuse me, and myself. There
7
is a court reporter present and we're the only three
8
people in this room. We have asked for production of
9
formulae relating to Hercules Furnace Cement or Hercules
10
For Heat's Sake and for Hercules Sta-Put plumbing putty.
11
I can understand concerns about proprietary information.
12
We have attached a copy of the magistrate's order
13
relating to this. The reason I'm getting to this now is
14
that I'm going to ask some questions with regard to
"
15
product formula and whether the product itself was
16
changed in 1973 in composition, et cetera. So maybe you
17
could respond, give me some information as to how you're
18
responding to this request. The magistrate has required
19
companies to produce such formulae subject to a
20
protective order in the past. So what situation are we
21
dealing with on this subject today?
22
MR. SOULE: I have no problems with providing
23
you the formula, but we do need some type of
24
confidentiality provision by agreement or by court
25
order.
19
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-->-> THOMPSON, P.C.
021
1
HR. THOMPSON: We'll, we're --
2
MR. SOULE: I'm perfectly willing to provide
3
you that information in writing later. I think it's
4
difficult to convey at a deposition because other
5
parties, of course, can receive copies of this deposition
6
unless we make some type of a provision to put this
7
confidential information on separate pages and not become
8
part of the deposition that's available to the other
9
parties.
10
MR. THOMPSON: I think probably the way that
11
I'd like it, I'm willing to execute a stipulation and an
12
agreement with your office to obtain the formula.
13
Perhaps for the purposes of today's deposition we can
14
deal with the situation in sufficiently general terms
15
that we don't have to have a problem today. We do want
16
the information. The magistrate in the past has said
17
that it's discoverable subject to protective provisions
18
to protect the company's confident- -- or trade secrets
19
SO *
20
MR. SOULE: And we will provide it to you
21
subject to those provisions. I think, you know, in terms
22
of what percentage was asbestos and what types of
23
asbestos, I think that's something that I don't have any
24
problems with talking about today.
25
MR. THOMPSON: That's fine.
20
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THOMPSON, P.C.
@022
1
Q. (Mr. Thompson continuing) Mr. Fidler, you've
2
heard our conversation and our colloquy on the record
3
just now, haven't you?
4
A. Yes.
5
Q. All right. The next question I'm going to ask
6
you is as of 1973 when Hercules began producing Hercules
7
Furnace Cement that contained asbestos, did Hercules have
8
access to the Johns-Manville formula that had been used
9
to prepare that, the Hercules Furnace Cement that was
10
being sold by Hercules but which was actually being
11
produced by Johns-Manville from at least prior to 1946
12
until 1973?
13
A. I'm not sure I understand what you mean by
14
access to the formula.
15
Q. Well, did Johns-Manville after -- as of 1973
16
continue to make that product itself? To the best of
17
your knowledge.
18
A. I don't know.
19
Q. Did Johns-Manville give you their formula?
20
When I say "you" I mean Hercules. The formula for the
21
furnace cement that they had been producing but which
22
appeared under a Hercules label and which was sold by
23
Hercules.
24
A. No.
25
Q. As of 1973 did Hercules formulate its own
21
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BOECHLER, P.C.
1
product, asbestos furnace cement?
2
A. Yes.
3
Q. Which persons were involved in the development
4
of that product at Hercules, Mr. Fidler?
5
A. The product was developed by an outside
6
consulting laboratory.
7
Q. And what was the identity of that laboratory?
8
A. The name was Foster, F-o-s-t-e-r, D., as in
9
David, Snell, S as in Samuel, n as in new, e-1-1.
10
Q. And was that an individual or was that a
11
laboratory?
12
A. This was a consulting laboratory.
13
Q. And where was Foster D. Snell located?
14
A. I believe they were in New Jersey at that
'
15
time.
16
Q. Do you happen to remember where in New Jersey,
17
Mr. Fidler?
18
A. Hanover, New Jersey.
19
Q. I once worked in Hanover, New Jersey,
20
Mr. Fidler.
21
A. Oh.
22
MR. SOULE: My condolences.
23
MR. THOMPSON: That's a typical remark by a
24
New Yorker toward New Jerseyans.
25
MR. SOULE: That was a remark by a
22
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THOMPSON, P.C.
024
1
Minnesotan.
2
MR. THOMPSON: Well, I can understand that.
3
Q. (Mr. Thompson continuing) As of 1973 then
4
it's my understanding from your testimony that the
5
formulation for this product was developed by this
6
outside consulting firm, Foster D. Snell, which atthe
7
time was located in Hanover, New Jersey. Would that be
8
correct, Mr. Fidler?
9
A. Yes.
10
Q. Thank you. Hercules did have access to the
11
formula though once it was prepared by the consulting
12
firm. Correct?
13
A. It was prepared on Hercules' behalf.
14
Q. Right. In order to prepare the product
15
obviously the written formula had to be on hand at
16
Hercules. Correct?
17
A. Yes.
18
Q. Now as of 1973 -- let me just say this.
19
In the Interrogatory Answers it is stated that the
20
furnace cement or For Heat's Sake alternatively contained
21
6.6 percent chrysotileasbestos fiber. Was that true
22
beginning in 1973?
23
A. Yes.
24
Q. And was that true until the product was no
25
longer manufactured sometime in theyear 1983?
23
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.*--> THOMPSON, P.C.
@025
1
A. Until the product was no longer manufactured?
'
2
Q. Right. It's my understanding that from the
3
Interrogatory Answers it states that the Hercules Furnace
4
Cement was sold -- was marketed until or through 1983.
5
So that's what I'm asking is if the formulation stayed
6
the same through the time in 1983 that production of it
7
stopped.
8
A. Hercules Furnace Cement was manufactured and
9
is manufactured to this day.
10
Q. I'm talking about --
11
A. We stopped making it in 1983, which is the
12
sense I get from your question.
13
Q. I'm sorry. Of course I was referring
14
specifically to the product in its asbestos formulation,
'
15
sir. So my question is did the product contain 6.6
16
percent chrysotile asbestos fiber by volume from the time
17
in 1973 when Hercules began producing it itself until the
18
time in 1983 when the product no longer contained
19
asbestos fiber as part of its formulation?
20
A. Yes.
21
Q. Prior to 1973 what percentage by volume of the
22
product was asbestos fiber?
23
A. I don't know.
24
Q. That would be something that Johns-Manville
25
would have knowledge of and not Hercules. Is that
24
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->->-> THOMPSON, P.C.
@026
1
correct?
'
2
A. Yes.
3
Q. To your knowledge was the Hercules product
4
substantially the same in terms of the way it functioned
5
and its purpose as the Johns-Manville produced product
6
prior to 1973?
7
A. It was formulated for the same job and
8
performed similarly.
9
Q. Did it have the same appearance?
10
A. Yes.
11
Q. Now was the formula for Hercules Furnace
12
Cement the same from 1973 through 1983?
13
A. Yes.
14
Q. In the Interrogatory Answers, sir, there is a
^
15
reference to the fact that the cement was black in color
16
until 1976 when the color was changed to gray. Was it
17
just a coloring agent that was different?
18
A. Yes.
19
Q. And I assume the product was gray from 1976
20
through 1983 then.
21
A. Yes.
22
Q. What color was the product prior to the year
23
1973 when Hercules began producing it themselves?
24
A. Black.
25
Q. Thank you. What was the purpose, the intended
25
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THOMPSON, P.C.
027
1
purpose, of Hercules Furnace Cement?
2
A. This is a product which is intended for use in
3
the ceiling firebrick and use in combustion chamber
4
repairs and boilers and heating systems generally.
5
Q. Is it fair to characterize it as a heat
6
resistant and perhaps fireproof product?
7
A. Yes.
8
Q. Did the function of that product remain the
9
same from 1946 through the year 1983 when the product no
10
longer contained asbestos fiber?
11
A. Yes.
12
Q. To your knowledge was the product of the same
13
formulation from 19--- from June of 1946 until Hercules
14
began producing it in that year, in 1973?
15
A. Yes.
16
Q. My notes aren't that clear. I believe you did
17
testify that to your knowledge -- or you're fairly
18
certain that Hercules acquired the furnace -- the
19
Hercules brand furnace cement from Johns-Manville, which
20
was the actual producer from before, sometime prior to
21
June of 1946 until Hercules began producing the product
22
itself in 1973. Would that be correct?
23
A. Yes.
24
Q. When Hercules began manufacturing the product
25
in the year 1973 -- first of all, do you remember when in
26
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THOMPSON, P.C.
0028
1
the year 1973 production began?
2
A. No.
3
Q. Which entity was the supplier of the
4
chrysotile asbestos fiber which was a component in the
5
product's formulation?
6
A. Where did we buy it?
7
Q. Yes.
8
A. Johns-Manville in Canada.
9
Q. Would that have been true consistently from
10
the time that Hercules began manufacturing the product at
11
its own plant in 1973 through 1983 when production of it
12
as an asbestos product stopped?
13
A. Yes.
14
Q. Now in other situations involving
15
asbestos-containing products when a changeover was made,
16
I'm referring specifically to S. O. S. Furnace Cement,
17
manufacturing of the product stopped at a particular time
18
and then the -- as an asbestos-containing product, and
19
once the existing inventory of the product containing
20
asbestos was then sold and when that inventory was
21
exhausted then the newly produced product was supplied in
22
its place. Was that what happened with Hercules?
23
A. I'm sorry, I don't -- I don't understand your
24
question.
25
Q. Well, what happened to the Hercules Furnace
27
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BOECHLER, P.C.
THOMPSON, P.C.
029
1
Cement that contained asbestos as of 1983? Was that when
2
the production changed and all inventory of the
3
asbestos-containing product was sold?
4
A. That is the date when we -- that was the year
5
in which we discontinued making the asbestos bearing
6
material and switched to a nonasbestos formula.
7
Q. And the product that contained asbestos that
8
was on hand in 1983 was then I assume sold and replaced
9
with the new product when the stocks became substituted.
10
Would that be correct?
11
A. Yes.
12
Q. So then is it possible that actually for some
13
time into 1984 Hercules continued to sell
14
asbestos-containing furnace cement while this changeover
15
was taking place?
16
A. Possible.
17
Q. Now with regard torecords, let me just get
18
briefly to the Hercules Sta-Put plumber's putty. What
19
was that product, Mr. Fidler?
20
A. As the name indicates, it was a plumber's
21
putty. It was intended for setting toilet boils, sink
22
strainers and all the various types ofoperations
23
plumbers do with putty.
24
Q. And it's identified in theInterrogatory
25
Answers as having been a greenish base mastic material
28
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THOMPSON, P.C.
@030
1
composed of diatomaceous earth, various oils and
2
approximately three percent asbestos fibers. Would that
3
be correct?
4
A. Yes.
5
Q. Getting back to the year 1983, Mr. Fidler,
6
what was the reason as to why Hercules stopped
7
manufacturing furnace cement with an asbestos
8
formulation?
9
A. It was generally known that asbestos had been
10
responsible for certain illnesses in certain forms. And
11
despite the fact that our product was of such a nature
12
that it was not harmful to the user, we felt that it was
13
appropriate to eliminate asbestos from any of our plant
14
manufacturing to primarily safeguard our own employees
15
who were handling the basic fibers, which were not, of
16
course, in a mastic before we started using it.
17
Q. Did that fiber -- was that fiber shipped from
18
Johns-Manvilie Canada to Hercules in bags,
19
Mr. Fidler?
20
A. Yes.
21
Q. Fifty-pound or hundred-pound bags?
22
A. I don't know.
23
Q. And was it shipped by motor carrier or
24
railroad car?
25
A. Motor carrier.
29
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
1
Q. As of 1983 had Hercules had any notice or
2
indication from its employees or that its employees had
3
contracted any asbestos-related illness arising from
4
their employment at Hercules?
5
A. No.
6
Q. Has it had any such notice either through a
7
Workers' Comp claim or some sort of private settlement of
8
any type from an employee at any time?
o S5
<
9
10
Q. Thank you. As of 1983 had any governmental
11
agencies ever inspected the plant at Hercules either in
12
the Bronx, New York if it was being -- if asbestos
13
furnace cement was being made there, and later at
14
Passaic, New Jersey with regard to the fact that Hercules
15
was using asbestos in its products?
16
A. Yes.
17
Q. And when did the first such inspection occur,
18
do you remember?
'
19
A. I don't know.
20
Q. Do you remember who conducted the inspection?
21
A. I believe there were inspections by federal
22
authorities and also by state agencies.
23
Q. State agencies in New Jersey?
24
A. Yes.
25
Q. Do you remember what agencies they would have
30
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THOMPSON, P.C.
1
been? The Workers' Compensation entity?
'
2
A. No.
3
Q. It was not the Workers' Compensation entity or
4
you don't remember?
5
A. It was not the Workers' Compensation entity.
6
Q. Do you remember which agencies they were?
7
A. I believe the federal agency was OSHA.
8
Q. Occupational Safety & Health Administration?
9
A. Right.
10
Q. Okay.
11
A. And the New Jersey entity, I don't recall the
12
name, but they were charged with checking the -- we
13
called them in to check out the situation to be
14
absolutely certain that our people were protected.
'
15
Q. Approximately when did that occur,
16
Mr. Fidler?
17
A. I don't know.
18
Q. It was in the early '80s or late '70s or
19
when?
20
A. I don't know.
21
Q. Do you have any idea?
22
A. No.
23
Q. Did any of your workers complain about the
24
situation to management to your knowledge?
25
A. No.
31
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THOMPSON, P.C.
@033
1
Q. Approximately how many workers were working in
2
the vicinity where the asbestos bags were being
3
incorporated into the asbestos furnace cement and
4
plumber's putty products?
5
A. In the mixing operation --
6
Q . Right.
7
A. -- there was one worker and one supervisor.
8
Q. Could you -- just so that we're clear here,
9
are Hercules Furnace Cement, otherwise known as For
10
Heat's Sake, and the second product, Hercules Sta-Put
11
plumber's putty, are they the only two
12
asbestos-containing products that were manufactured --
13
when I say manufactured I mean in its classic sense.
14
A. Yes.
15
Q. -- by Hercules Chemical Company, Inc. to your
16
knowledge?
17
A. Yes.
18
Q. Were they the only asbestos-containing
19
products that were sold by Hercules Chemical Company?
20
A. To my knowledge, yes.
21
Q. All right. Going back to the mixing
22
operation, Mr. Fidler. Could you describe that operation
23
for me and try to give me a picture for it as these
24
products were being formulated?
25
A. Are you talking about furnace cement?
32
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THOMPSON, P.C.
034
1
Q . Let's start with furnace cement.
2
A. The -- some of the materials were added to
3
a some of the -- I'll try to do it when we come to
4
asbestos. Some of the materials were added to a mixing
5
vat and a slurry was formed. Into this slurry a worker
6
put a pre-measured amount of furnace cement into that
7
mixture.
8
Q. You mean asbestos or furnace cement, sir?
9
A. I'm sorry. The asbestos into that mixture. A
10
cover was then placed on the mixer and that material was
11
mixed and incorporated into the slurry, after which other
12
ingredients were added and the mix continued for the
13
requisite time to make it into the heavy paste product
14
which was furnace cement.
15
Q. That was then put into cans. Is that
16
correct?
17
A. Yes, it was filled into metal cans.
18
Q. In the Interrogatory Answers it is stated that
19
the furnace cement was sold in one--pound and five--pound
20
cans and the same product under the name For Heat's Sake
21
was sold in half gallons, one-gallon and two-gallon
22
cans. Was that true from '73 until 1983 when production
23
of the asbestos-containing products stopped?
24
A. Yes.
25
Q. What about before 1973, was it -- were these
33
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^ THOMPSON, P.C.
1
products always sold in those size containers?
2
A. The furnace cement was. We didn't have the
3
product For Heat's Sake.
4
Q. Prior to 1973.
5
A. Correct.
6
Q. So the product For Heat's Sake began in
7
production when Hercules began producing -- manufacturing
8
the product itself at its own plant in 1973. Would that
9
be correct?
10
A. I'm sorry, I didn't get your question. Would
11
you repeat it, please?
12
Q. So if I understand you correctly, the
13
For Heat's Sake, which was the same product but was sold
14
in larger containers, namely, half gallon, one-gallon and
15
two-gallon cans, that product began in production and
16
sale in 1973. Correct?
17
A. Yes.
18
Q. And that was produced in those sizes until the
19
product -- or through the time that the product stopped
20
having asbestos in it through 1983.
21
A. Yes.
22
Q. Or in 1983, I'm sorry. That would be
23
correct?
24
A. From 1973.
25
Q. Right. Was Hercules Furnace Cement sold in
34
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THOMPSON, P.C.
@036
1
one- and five-pound cans in June of 1946 to your memory?
2
A. Yes.
3
Q. And was consistently sold in those sizes
4
through 1983 when it stopped having asbestos in it?
5
A. Yes.
6
Q. Going back to the mixing and production
7
process from 1973 through 1983. The asbestos, this
8
pre-measured amount of asbestos, was then put into this
9
slurry which was still in a mixing vat or was it after it
10
had come out of the mixing vat?
11
A. It was in the mixing vat.
12
Q. And the employee who was using the asbestos
13
fiber was putting the pre-measured amount of chrysotile
14
fiber into the mixing vat which was then mixing it up,
'
15
and then after the asbestos was put in some other
16
ingredients were incorporated into the product.
17
A. Yes.
18
Q. Was there ever a dust collector placed over
19
the mixing vat at the plant?
20
A. Yes.
21
Q. When did that dust collector first become
22
placed over the mixing vat?
23
A. From the day we started manufacturing the
24
product.
25
Q. And that would be in 1973.
35
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037
1
A . That's correct.
2
Q. But you're not sure when in 1973.
3
A. Nope.
4
Q. Mr. Fidler, I didn't ask you, but what is your
5
educational background?
6
A. I have a bachelor of arts degree from Brown
7
University.
8
Q. And what year did you graduate from Brown, Mr.
9
Fidler?
10
A. 1943.
11
Q. And, I'm sorry, what was the degree in?
12
A. Fine arts.
13
Q. That's interesting.
14
MR. SOULE: Can we just take a short minute
'
15
here?
16
MR. THOMPSON: Sure.
17
MR. SOULE: Okay. Just take a minute or two.
18
(Recess taken).
19
MR. THOMPSON: We're back on the record.
20
Q. (Mr. Thompson continuing) In the year 1973
21
when Hercules began manufacturing the furnace cement and
22
For Heat's Sake, was the dust collector put into place in
23
order to siphon off -- well, first of all, how close was
24
it to the vat, Mr. Fidler?
25
A. It was actually built into the cover of the
36
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1
mixing vessel so that when the material was mixing with
2
the cover closed no powders of any kind# and there were
3
several different types of powders used# could escape
4
into the atmosphere.
5
Q. It's my understanding from listening to you
6
describe the operation that that cover would have to be
7
taken off to put in the pre-mixed amount of asbestos and
8
whatever other ingredients.
9
A. The cover would have to be opened. I believe
10
it was hinged.
11
Q. In order to do that.
12
A. Yes.
13
Q. Mr. Fidler, when was the first time that you
14
acquired knowledge, you had knowledge yourself that
'
15
asbestos was potentially a dangerous substance?
16
A. Oh, I assume sometime in the '70s.
17
Q. Do you know what the basis for your learning
18
about it was?
19
A. Well, I do read newpapers, I do read
20
magazines, I do read a few business publications, and
21
that would be the basis for learning about what was going
22
on.
23
Q. So it was -- to your knowledge it was reading
24
some material someplace in the 1970s.
25
A. Yes.
37
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@039
1
Q. Do you remember whether it was the early '70s,
2
the mid '70s or the late '70s?
3
A. No.
4
Q. Had you ever heard of Dr. Irving Selikoff?
5
A. No.
6
Q. Do you know who he is today?
7
A. No.
8
Q. If I told you that he was a noted physician in
9
Mount Sinai Medical Center in New York City, that
10
wouldn't mean anything to you.
11
A. Mount Sinai's a good medical center.
12
Q. I'm sure it is, but I guess my -- back in the
13
1960s, around 1964, there was a meeting of the New York
14
Academy of Sciences during which Dr. Selikoff presented a
15
paper on asbestos, causation of asbestosis and lung
16
cancer. But do you ever remember anything about that
17
event being that you were in New York at the same time
18
and that this was a fairly -- well, I'll just represent
19
to you that there were newspaper stories in the New York
20
Times and other publications on it. Does that refresh
21
your recollection at all?
22
A. Not really. I could have read it and it could
23
have -- it's a long time ago and we are always alert to
24
those things.
25
Q. But you have no specific recollection of
38
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040
1
reading anything about that today back in the '60s.
2
A. No.
3
Q. It's my understanding that -- from your
i
4
testimony that Johns-Manville was the exclusive supplier
5
of raw asbestos fiber or chrysotile asbestos fiber that
6
was used in Hercules Furnace Cement from 1973 until
7
1983. Correct? Or through 1983. Right?
8
A. Yes.
9
Q. Did you ever have occasion to see the bags
10
that the Johns-Manville asbestos fiber came in?
11
A. I don't recall.
12
Q. What is the basis for your knowledge that it
13
was Johns-Manville? Is it just -- well, you were the
14
president of the company at the time I guess.
/
15
A. Yes.
16
Q. Was it your decision to purchase from
17
Johns-Manville the asbestos?
18
A. I undoubtedly okayed the decision to buy from
19
Johns-Manville.
20
Q. Okay.
21
A. Or didn't interfere with the decision.
22
Q. Were you ever aware that Johns-Manville had
23
placed warnings, health warnings, on its bags of raw
24
asbestos fiber during the time that Hercules was
25
manufacturing asbestos furnace cement?
39
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1041
1
A. I don't recall.
2
Q. In other words, -- inotherwords, you have no
3
present recollection today of ever being aware of that.
4
A. That's correct.
5
Q- Did anyone in the Hercules organization ever
6
communicate to you a concernabout health hazards
7
associated with asbestos?
8
A. There were no communications as such from
9
anyone about the health hazards of asbestos.
10
Q. Were any tests ever performed ;-- you testified
11
earlier I believe that ~ I think the words were that
12
your -- you believed that the Hercules Furnace Cement was
13
of such a nature that it was not hazardous to the user.
14
What is the basis for that conclusion? I'm talking about
15
when it contained its asbestos formulation, sir.
16
A. Principally the initial basis isthe fact that
17
the asbestos fibers in furnace cement were completely
18
encapsulated, that there was very low percentages of
19
asbestos content in the total product, and that the user
20
did, therefore, have no exposure to the asbestos when the
21
product was used.
22
Q. It's my understanding from reading the
23
Interrogatory Answers that there was never any warning
24
placed on the packaging of asbestos furnace cement or the
25
other product that contained asbestos that was sold by
40
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@042
1
Hercules and manufactured, Hercules plumbing -- or
^
2
Sta-Put plumber's putty. Would that be correct?
3
A. Yes.
4
Q. And could you tell me, sir, what the reason
5
was as to why no warning was ever placed upon any of the
6
packaging of these materials at any time?
7
A. There was no warning because there was no
8
danger, and there was certainly no requirement by any
9
agency of government at any level to place such a
10
warning.
11
q . you say there was no requirement to place any
12
such warning on the product. What was your understanding
13
on the state of governmental regulations relating to
14
warnings for products containing asbestos from 1973
15
through 1983?
16
A. There wereno Federal Hazardous Substances
17
Labeling Act requirements, there were no Poison
18
Prevention Packaging Act requirements. And that is my
19
understanding about labeling requirements as it relates
20
to hazardous materials, particularly asbestos, for that
21
period of time.
22
Q. And that was the primary reason why the
23
company placed no warnings on the packaging?
24
A. No, Ididn't say that.
25
Q. All right.
41
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0 043
1
A. I said the primary reason was because there
2
was no hazard.
3
Q. Okay. What tests were performed on those
4
products, if any, to determine if there was any hazard to
5
a user because of the asbestos content of those
6
products?
7
A. I repeat our belief because the product was
8
completely encapsulated, because asbestos was completely
9
encapsulated, and because there was such a small
10
percentage of that material in the product.
11
Q. I infer from your answer then that there were
12
never any such tests, any tests to determine there was
13
any hazard to a user. Correct?
14
A. No.
15
Q. I'm not correct or I am correct?
16
A. You're not.
17
Q. All right. Why am I not correct?
18
A. Because there were some tests performed.
19
Q. All right. What tests were performed, sir?
20
A. Tests were performed by an independent
21
laboratory.
22
Q. When did that occur, sir?
23
A. That occurred -- I believe it was in 1983.
24
Let me check my recollection. Yes.
25
Q. Are you looking at documents, sir, relating to
42
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044
1
that?
2
A. Yes.
3
Q. Now they weren't produced here today. What
4
documents are you looking at?
5
A. The Case Consulting Laboratories.
6
Q. A report from Case Consulting Laboratories?
7
A. Yes.
8
Q. And that's C-a-s-e --
9
A. Yes.
10
Q. -- Consulting, C-o-n-s-u-l-t-i-n-g, --
11
A. Yes.
12
Q- -- Laboratories?
13
A. Yes.
14
Q. Where are they located? And if you could give
15
us their address, please.
16
A. In New Jersey.
17
Q. Where in New Jersey?
18
A. In Whippany, New Jersey, 622 Route Ten.
19
MR. THOMPSON: Mr. Soule, --
20
Q. (Mr. Thompson continuing) Well, let me ask
21
you this, Mr. Fidler. How many pages is that report?
22
A. Several pages. Not particularly lengthy.
23
Q. I'm sorry, Mr. Fidler, what did you say?
24
A. I said several pages.
25
Q. Six or seven?
43
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THOMPSON, P.C.
@]045
1
A. Six.
2
MR. THOMPSONS Mr. Soule, this is in the
3
nature of -- if you want I can specifically reference the
4
part of the Deposition Notice that's applicable, but it
5
is in the nature of 16 and 17 and Production Request No.
6
4 of the Second Amended Notice of Deposition.
7
MR. SOULE: Mr. Fidler is prepared to respond
8
to your category 16 and 17. I don't believe that there
9
was a request for documents that encompassed this
10
document. We're certainly prepared to discuss it with
11
you, and if you ask me for it I will probably give you a
12
copy.
13
Q. (Mr. Thompson continuing) Mr. Fidler, could
14
you read the document for me in its entirety?
15
A. In its entirety?
16
Q. Please. We could have avoided this if I had
17
access to it, but I think I'm just going to ask you to
18
read it. And I will make the request that counsel
19
produce it at some future time, but this will help me
20
understand this and ultimately might save us time, sir.
21
A. Okay. Subject is furnace cement. "In
22
accordance with the -- "
23
Q. (Mr. Thompson continuing) You're going to
24
haveto read a little slower for the court reporter, and
25
also I'd like you to give me the date of the report.
44
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
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THOMPSON, P.C.
046
1
A. Date is August 3rd, 1983. Excuse me just a
2
moment.
3
MR. SOULE: How about if we fax it to the
4
hotel?
5
MR. THOMPSON: That's not a bad idea. Don't
6
hang up or anything. I'll just go find out what the fax
7
number is.
8
(Off the record).
9
MR. THOMPSON: Why don't we talk about other
10
documents for the time being that have been produced.
11
I'm in receipt of Hercules Chemical Company, Inc.'s
12
Response to Second Amended Notice of Deposition, Mr.
13
Soule. I've had it marked as Deposition Exhibit No. 2.
14
MR. SOULE: Okay.
15
Q. (Mr. Thompson continuing) Now in the
16
Deposition Notice we have asked for -- I'm going to the
17
page here -- all sales records showing sales and
18
purchases of asbestos-containing products for use or sale
19
in the state of North Dakota during the years 1955
20
through 1986. That's No. 1 of the document requests made
21
pursuant to Rule 30. It's my understanding from reading
22
the response to the Notice of Deposition that what you're
23
producing today is a -- appears to be a computer run of
24
sales of -- or sales deriving back to -- or into the year
25
1983.
45
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THOMPSON, P.C.
@1047
1
A. That's right.
2
Q. Now are these sales --
3
HR. THOMPSON: I've had all of these computer
4
-- or copies of computer runs marked as Deposition
5
Exhibit No. 11.
6
MR. SOULE: Okay.
7
Q. (Mr. Thompson continuing) So looking at
8
Deposition Exhibit No. 11, it begins with Acme Electric
9
Motor in Bismarck, and the last page relates to Western
10
Steel Plumbing -- & Plumbing Supply. Excuse me. So
11
we're looking at the same thing, are we not?
12
A. Yes.
13
MR. SOULE: Yes.
14
Q. (Mr. Thompson continuing) Just let's take as
15
a representative sample the last page, Western Steel &
16
Plumbing Supply. Would that represent -- would that
17
contain reference to all sales of Hercules Furnace Cement
18
and/or For Heat's Sake to Western Steel & Plumbing Supply
19
in back through the year 1983?
20
A. Yes.
21
Q. And do you represent, Mr. Fidler, that the
22
documents produced here today are -- include sales
23
records for the entire year or records of sales in the
24
entire year of 1983?
25
A. Yes. For that product. For those products.
46
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THOMPSON, P.C.
IS 048
1
To that customer.
2
q . And so this -- just so I'm understanding what
3
this document represents, this last page relating to
4
Western Steel & Plumbing Supply, all the references on
5
that page are to Hercules Furnace Cement or For Heat's
6
Sake. Correct?
7
A. Yes.
8
Q. And that would be true of all of the other
9
pages to other customers.
10
A. Yes.
11
Q. Now I'm looking at some other documents just
12
for the moment, and I'll make them available to Mr. Lutz,
13
but the only dates relevant for our purposes -- well, how
14
long was it into 1984 that
15
t h e _or let me ask you this. How long is it usually
16
from the time that Hercules Furnace Cement is
17
manufactured until the time that it's sold?
18
A. There's no way to tell that.
19
Q. I suppose that varies on market conditions.
20
A. Yes.
21
Q. Is there a range that you can provide me
22
understanding that there are cyclical phases of our
23
economy?
24
A. No.
25
Q. Is there -- can it be as long as a year from
47
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@049
1
the time of production to the time of sale?
2
A. Not likely.
3
Q. What is likely? Six months?
4
A. Usually less.
5
Q. Sometimes more, sometimes less?
6
A. Usually less.
7
Q. Okay. What was the date that Hercules stopped
8
manufacturing asbestos furnace cement?
9
A. It was a date in 1982. I don't have a date in
10
front of me.
11
Q. Are there any documents that would refresh
12
your recollection as to what date it was?
13
A. Possible.
14
MR. THOMPSONj Counsel, we'd ask that there be
15
some effort made to determine that.
16
MR. SOULE: To determine the date?
17
MR. THOMPSON: That manufacturing stopped of
18
the Hercules Furnace Cement.
19
MR. SOULE: Okay. We can try to do that.
20
Q. (Mr. Thompson continuing) Going back to what
21
I've had marked as Deposition Exhibit No. 11 which is --
22
which comprises all of those computer run records, Mr.
23
Fidler. Does this represent total sales amounts of all
24
and quantities of all furnace cement and For Heat's Sake
25
that was sold by Hercules from the beginning of 1983
48
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THOMPSON, P.C
1
through November of 1990? Or until November of 1990.
"
2
A. Yes.
3
Q. And because of the form that these documents
4
take I assume that all of this information is and has
5
been in a computer at Hercules.
6
A. Yes.
7
Q. And it is maintained there probably for use in
8
sales and marketing and production control, et cetera?
9
A. Yes.
10
MR. THOMPSON: Mr. Soule, the copy I have is
11
pretty good but it was faxed from Hercules to your office
12
and then I believe Federal Expressed to our office. I
13
would ask that the originals to the extent they exist in
14
your possession be available if we want to compare them
15
to these copies that we have.
16
MR. SOULE: That's fine.
17
Q. (Mr. Thompson continuing) How long does it --
18
did it take to run off these computerized records, Mr.
19
Fidler?
20
A. I don't know how long it took to run them
21
off.
22
Q. If this information is in the computer -- I
23
see that you are able to access it for sales for North
24
Dakota, furnace cement/For Heat's Sake for a period of
25
time covering March '83 through November 1990. I assume
49
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THOMPSON, P.C.
@051
1
that if this request is made to the computer it can spit
2
out these sales fairly readily. Is that correct?
3
A. No, it took some work on the part of our
4
programmer because there hadn't been a program written to
5
retrieve this kind of information before.
6
Q. I see. But you now have such a program. Is
7
that right?
8
A. That's correct. Now we do.
9
Q. Right. And was that program basically put
10
into place to respond to this request?
11
A. Yes.
12
Q. Thank you. And I appreciate the effort. I'm
13
not being sarcastic. I'm serious.
14
MR. THOMPSON: Now with regard to sales ~
15
with regard to invoices there is an objection made, Mr.
16
Soule, on the grounds that to retrieve these would be
17
overly burdensome.
18
Q. (Mr. Thompson continuing) Mr. Fidler, why
19
would that be the case?
20
MR. SOULE: Let me add, David, and this is
21
something I had not put in the response, but the computer
22
runs do show each sale and the date of each sale and the
23
amount involved with each sale both by case, number of
24
cases and by dollar amounts. I really think that
25
basically all the information that would be contained on
50
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THOMPSON, P.C.
121052
1
the invoice is set forth on the computer run. And I just
2
might put that on the record.
3
MR. THOMPSON: Okay.
4
Q. (Mr. Thompson continuing) But then I just
5
want to ask Mr. Fidler. Looking at that last page then,
6
Mr. Fidler, that would represent a complete record of all
7
sales, that's Exhibit 11, that last page, page involving
8
Western Steel & Plumbing Supply would represent all sales
9
by Hercules of either furnace cement or For Heat's Sake
10
to Western Steel & Plumbing Supply from March of '83
11
through -- until November of 1990 when this information
12
was retrieved from your computer?
13
A. That is correct.
14
q . Okay. And indeed the documents that have been
15
produced with regard to the request made forproduction
16
in connection with this depositionand that I have marked
17
copies of which as Deposition Exhibit No. 11 represent
18
such records of all such sales to all customers in North
19
Dakota during that same time period. Would that be
20
correct?
21
a . I'm sorry, I was --- I was floating somewhere.
22
Please repeat the question.
23
Q. Could -- I'll -- well, could we have it read
24
back? Court reporter's going to read it back.
25
(Question read.)
51
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THOMPSON, P.C.
Si 053
1
A. Yes.
2
MR. SOULE: I would just add as a matter of
3
clarification on your choice of the term "customers," Mr.
4
Thompson, because Hercules does not sell to retail
5
customers, it sells to wholesalers, so those would be a
6
record of its sales to wholesalers and Hercules would not
7
receive records of sales by the wholesalers to the
8
individual customers.
9
MR. THOMPSON: Thank you for that
10
clarification. That's what I meant in my question but
11
I'm glad you clarified the record.
12
Q. (Mr. Thompson continuing) Now going then to
13
-- I have marked as Deposition Exhibits 3 --
14
MR. THOMPSON: Well, Deposition Exhibit No. 3,
15
Mr. Soule, I have marked a group of documents that has
16
5/74 on the front.
17
MR. SOULE: Are these the catalogs now?
18
MR. THOMPSON: Yeah, I believe they're catalog
19
references, but I'm asking for the record what they are.
20
I've had the sets marked as Deposition Exhibits 3 through
21
10 and they extend from 5 of 1974 until -- well, the year
22
1984 would be the last one, DepositionExhibit10. And
23
they are in sequence. I'll just designate them for
24
authentication purposes.
25
q . (Mr. Thompson continuing) Exhibit 3 has the
52
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THOMPSON, P.C.
@ 054
1
designation 5/74. Does that mean May 1974?
2
A. Yes.
3
Q. Exhibit 4 just contains the year 1976, the
4
numbers 1976. That would be the year 1976?
5
A. Yes.
6
Q. Deposition Exhibit 5 has the number 1977 on
7
the front , so this would be a catalog for the year 1977?
8
A. Yes.
9
Q. Exhibit 6 bears the numbers 2/79. That would
10
represent February of 1979?
11
A. Two slash what?
12
Q. 79.
13
A. Yes.
14
Q. Exhibit 7 bears the numbers on its cover
15
3/80. That would be March of 1980?
16
A. Yes.
17
Q. Exhibit 8 bears the number 4/81. That would
18
be April 1981?
19
A. Yes.
'
20
Q. Deposition Exhibit No. 9 bears the number
21
1982. That would represent the year 1982. Correct?
22
A. Yes.
23
Q. Deposition Exhibit 10 bears the number 1984,
24
and that would be a product catalog for the year 1984.
25
A. Yes.
53
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
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BOECHLER, P.C.
THOMPSON, P.C.
055
1
Q. And once again because I didn't say it as to
2
each one, I did for some of them, but Deposition Exhibits
3
3 through 10 are complete product catalogs of Hercules
4
during those particular time periods or for those
5
particular times or are they excerpts from Hercules
6
product catalogs?
7
A. This is what we designate as our product
8
catalog and they are complete.
9
Q. All right. That was my question. So each of
10
these documents, 3 through 10, represent complete product
11
catalogs for those respective times as we have referenced
12
this morning, namely, May of 1974 through 1984.
13
A. Yes.
14
Q. With regard to sales and records prior to
15
1983, Mr. Fidler, why do they no longer exist? Or that
16
isn't really what you said in the objection. The
17
objection states, "Hercules no longer has in its
18
possession or subject to its control records of sales to
19
customers in North Dakota prior to 1983." What does that
20
mean?
21
A. It means we don't have the records.
22
Q. Does somebody else have the records?
23
A. No.
24
Q. What happened to those records?
25
A. They're disposed of.
54
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BOECHLER, P.C.
THOMPSON, P.C.
@056
1
Q. Could you describe for me why that is?
^
2
A. Because we don't have any room or the
3
inclination to keep around a lot of paper which is not
4
useful in carrying out a business.
5
Q. Is there a regular records retension policy at
6
Hercules ?
7
A. No.
8
Q. Why is it that Hercules has records only back
9
to March of 1983?
10
A. Well, it may be because of it's -- of the old
11
habit of keeping papers for seven years which came up
12
somewhere along the line. And we hope to eliminate as
13
much of the paper as we possibly can since we are now
14
into the 20th century and have computer records.
^
15
Q. When -- I do understand that sales invoices do
16
exist going back to -- I'm not saying I'm asking for them
17
at this time, Mr. Soule, but it is my understanding that
18
sales invoices backing up the computerized information
19
that has been provided do exist. Is that correct?
20
Dating back to at least March of 1983.
21
A. I believe so.
22
Q. Now do such sales invoices exist prior to
23
1983? Now I know that it would be a substantial job to
24
get them but I'm just asking you.
25
A. They do not.
55
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BOECHLER, P.C.
THOMPSON, P.C.
@057
1
Q. Why is it that the paper records correspond
2
with the computer records exactly?
3
A. It turns out that they really don't. The
4
computer record happens to reflect the fact that we
5
started this and went back 25 months when we started.
6
And that's the reason we got as far back as '83.
7
Whereas, the paper records do in fact -- there is some
8
indication that there might be some paper records as far
9
back as '83. The computer record by its -- by its
10
peculiarity in setting it up to keep a long range useful
11
record for sales primarily, sales purposes, goes back 25
12
months. And when this was set up there was a 25-month
13
period. It was taken into consideration at the start.
14
And while generally speaking those papers don't exist,
15
you know, we have been able to find some, some of the
16
papers that do go back farther. So there's not a direct
17
correlation.
18
q . All right. Now what I'm asking is -- well,
19
first of all, with regard to the computer records, it's
20
my understanding that the computerized information that
21
has been provided extends back to March of 1983.
22
Correct?
23
A. Yes.
24
q . And March of 1983 would have been about 25
25
months prior to the time that
56
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THOMPSON, P.C.
@058
1
A. Actually it's 25 months prior to the time we
'
2
started the new computer.
3
Q. Right. So that would have been sometime in
4
May or June of 1985 that these records were placed on
5
computer. Correct ?
6
A. Yes.
7
Q. Now you did mention that there are some paper
8
records that extend farther back than March of 1983.
9
Correct?
10
A. No. I said there is some that extend back to
11
March of '85.
12
Q. I'm sorry. And some of them extend back as
13
far as 1983?
14
A. That's my understanding.
V
15
Q. Were all the paper records kept that were
16
utilized to place the information on the computer?
17
A. I don't know.
18
Q. What was the manner of marketing or the scheme
19
of marketing that was used -- I don't mean to use the
20
term scheme in its bad connotation. I'm talking about
21
the marketing scheme that was used to sell Hercules
22
Furnace Cement and Hercules products generally in the
23
state of North Dakota. Was a-manufacturer's rep
24
utilized?
25
A. Yes.
57
NORMAN E. MARK - COURT REPORTER SERVICE 312 pT.ar-TC BUILDING, FARGO, N.D. 58103 (701) 235-7571
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BOECHLER, P.C.
THOMPSON, P.C.
0059
1
Q. Now we took the deposition of Western -- Maury
2
Kamins at Western Steel & Plumbing Supply. Have you ever
3
met Mr. Kamins?
4
A. I believe I have.
5
Q. And where would that have been?
6
A. At a trade show.
7
Q. When was that, do you remember?
8
A. No.
9
Q. Have you ever spoken to Mr. Kamins since that
10
time?
11
A. Not that I recall.
12
Q. Did you ever speak to Mr. Kamins in relation
13
to asbestos litigation?
14
A. No.
15
Q. Now I have Mr. Kamins' deposition here, and I
16
believe he identifies a manufacturer's rep through whom
17
he dealt. I don't have it right at hand. Do you
18
remember who the manufacturer's rep would have been,
19
let's put it this way, from 1973 through 1983? And if
20
there are more than one I guess start in 1983 and work
21
backwards for the manufacturer's rep who would have had
22
access.
23
A. The manufacturer's rep --
24
Q. For North Dakota.
25
A. -- on board at that time and still is is the
58
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THOMPSON, P.C.
060
1
R. L. Marten, M-a-r-t-e-n, Company.
2
Q. M-a-r-t-i-n?
3
A. M-a-r-t-e-n Company.
4
Q. It's R. L. M-a-r-t-e-n?
5
A. That's right. Company.
6
Q. We cut each other off over the speaker. It's
7
my understanding they're based in the Twin Cities,
8
Minnesota area?
9
A. That's correct.
10
Q. Are they in Minneapolis?
11
A. Yes.
12
Q. Do you have their address?
13
A. I can get it for you.
14
Q. Okay.
15
A. Would you like to have it?
16
Q. Sure.
17
A. Just a minute. Okay. Marten. And it's
18
Marten, M--a-r-t-e-n, & Associates, Inc., at 924 North
19
Fifth Street in Minneapolis. ZIP is 55401.
20
Q. Thank you. Do you know any individual at
21
Marten & Associates, Inc. -- well, first of all, how far
22
back <does this relation extend with Hercules?
23
A. It's a long time.
24
Q. Earlier than 1983?
25
A. Oh, yes.
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->-- THOMPSON, P.C.
@3 061
1
Q. How about earlier than 1973?
2
A. Well, you're getting to the border. We had
3
one rep for another 20 or so odd years before and he
4
became ill and passed away.
5
Q. who's the principal in Marten & Associates
6
with whom you have dealt?
7
A. Well, the principals are -- I guess the
8
principal is Bob Marten. And we've also dealt with his
9
son, J im.
10
Q. And that relationship would extend back -- the
11
son is now in charge of Marten & Associates?
12
A. Not really. Bob is still I guess nominally in
13
charge.
14
Q. And Bob was in charge dating back to
15
approximately 1973 or thereabouts?
16
A. I believe so.
17
Q. Who was the manufacturer's rep prior to that
18
time who had the North Dakota territory?
19
A. Gentleman by the name of Fred Sweeney.
20
Q . Fred Sweeney?
21
A. Sweeney.
22
Q. And what was his company known as?
23
A. Fred Sweeney.
24
Q. Was he a resident of Minneapolis?
25
A. Yes.
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THOMPSON, P.C.
@062
1
Q. Was it Minneapolis proper or some other town
2
around it?
3
A. No, Minneapolis proper in the early days. I
4
guess he moved out to the country as he got older.
5
Q. Do you know what his middle initial was?
6
A. No.
7
Q. Do you know if Mr. Sweeney is still alive?
8
A. He is not.
9
Q. Would he have passed away in the early 1970s?
10
A. No. He would have passed away in the early
11
'80s.
12
Q. Thank you. Does Marten & Associates or has it
13
historically in marketing your products visited accounts
14
such as Western Steel & Plumbing Supply in Bismarck?
15
A. Yes.
16
Q. And how are orders placed? I believe
17
Mr. Kamins stated that they can be placed one of two
18
ways. Either Western Steel & Plumbing Supply can contact
19
Marten & Associates or they can contact Hercules
20
directly.
21
A. Yes.
22
Q. Has that been a practice which has been
23
employed consistently dating back to at least 1973?
24
A. Yes.
25
Q. How about back to 1955?
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THOMPSON, P.C.
@063
1
A. Yes.
2
Q. Understanding, of course, that Marten &
3
Associates was not the rep until the early 1970s.
4
A . That's correct.
5
Q. Are there any other sales records other than
6
invoices that might exist which would evidence sales of
7
Hercules Furnace Cement, For Heat's Sake or Sta-Put
8
plumber's putty other than what has been produced today
9
with the exception of the sales invoices to your
10
knowledge, M r . Fidler?
11
A. Yes.
12
Q. What other documents are there?
13
A. There is a very rudimentary document that I
14
keep myself by hand which shows our monthly and annual
"
15
sales of this product, furnace cement, by month and year
16
going through -- I guess starting in '49 or so.
17
Q. And you still have this material?
18
A . Yup.
19
MR. SOULE: It is not specifically directed at
20
North Dakota though.
21
A. No, it's not. It's national sales.
22
Q. (Mr. Thompson continuing) Okay. How many
23
pages does it comprise? I'm not going to ask you to fax
24
it today but I think I am --
25
A. Two pages.
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BOECHLER, P.C.
THOMPSON, P.C.
@064
1
Q. I'm sorry?
2
A. Two pages.
3
MR. THOMPSON: Well, maybe in the interest of
4
expediency I think I would ask that that be faxed and
5
then make both of these things exhibits in the
6
deposition, Mr. Soule, since it's just two pages.
7
MR. SOULE: Fine. I can tell you that it
8
covers a period from 1949 to 1966. It just shows monthly
9
sales of furnace cement by dollar during those years and
10
it's not broken down into any region or state or anything
11
like that.
12
MR. THOMPSON: I understand that. I just
13
think it might be helpful in looking at least the overall
14
production during those years to the extent that it would
7
15
be relevant.
16
MR. SOULE: Okay.
17
MR. THOMPSON: Do you want to make those
18
arrangements? We'll just stop for a second.
19
MR. SOULE: Yeah.
20
(Short recess taken).
21
MR. THOMPSON: I'd like to have marked the
22
report from Case Consulting Laboratories dated August 3,
23
1983, and I believe it would be Deposition Exhibit No.
24
12. We'll just have that marked right now.
25
63
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BOECHLER, P.C.
THOMPSON, P.C.
065
1
(Whereupon, Deposition Exhibit No. 12
was marked for identification by the
2
Court Reporter.)
3
Q. (Mr. Thompson continuing) Okay.
4
Mr. Fidler, I'm looking at that report and I've had it
5
marked as Deposition Exhibit No. 12. And as I understand
6
it, in looking at it it's a six-page document with an
7
Exhibit I --
8
A. I have to get my copy back. I haven't gotten
9
it yet.
10
Q. Okay. Well, then we'll wait a minute.
11
A. Just a minute.
12
Yup, go ahead.
13
Q. All right. Now could you tell me what the
14
circumstances were for requesting -- the company
15
requesting, and when I say "the company" I mean Hercules,
16
requesting that this testing be conducted? I see that a
17
Mr. N. George Tucker is listed as an addressee on this
18
report. Could you tell me what the circumstances were
19
which predicated Mr. --
20
MR. THOMPSON: Mr. Soule said to go ahead.
21
MR. LUTZ: Great.
22
Q. (Mr. Thompson continuing) What the
23
circumstances were that predicated this request for this
24
testing in August of 1983?
25
A. Well, it was intended for us simply to be sure
64
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->--> THOMPSON, P.C
1
that all bases were touched, that we knew all the things
2
that we had in some cases assumed and based on reasonable
3
assumptions but wanted to have that information
4
solidified by formal testing procedures.
5
Q. And it's my understanding that the methodology
6
-- well, first of all, Mr. Tucker is listed as an expert
7
witness in these cases for Hercules. It's my
8
understanding that he is -- has an engineering
9
background. Would that be correct?
10
A. Yes.
11
Q. And as of 1983 he was vice president for
12
manufacturing.
13
A . That's correct.
14
Q. And that he occupied that position until I
^
15
believe 1988, would it be?
16
A. Yes.
17
Q. But he is still associated with the company.
18
Is that right?
19
A. No.
20
Q. He's not associated with the company in any
21
capacity?
22
A. No.
23
Q. That would be correct?
24
MR. SOULE: It is correct, he is not
25
associated with the company.
65
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THOMPSON, P.C.
@067
1
Q. (Mr. Thompson continuing) Okay. That is
2
correct, Mr. Fidler, since --
3
A. I didn't understand the question. Yes, that
4
is correct
5
Q. To your knowledge where does Mr. Tucker reside
6
today?
7
A. In New Jersey in I believe it's Montvale.
8
Q. You said Montvale, M-o-n-t-v-a-l-e?
9
A. I don't have his address right at hand.
10
Q. And that's the town in Morris County?
11
A. I don't know.
12
Q. Okay. Is it Mr. Tucker that made the request
13
on behalf of Hercules that this testing be done in 1983?
14
A. Yes.
15
Q. Now I've been looking at this document.
16
Looking at the fifth page of it --
17
A. Fifth page?
18
Q. The last page of the letter.
19
A. Yes.
20
Q. I'm not talking about the exhibit now.
21
MR. SOULE: Page 4 it says.
22
MR. THOMPSON* I'm sorry, I don't have it on
23
mine.
24
THE WITNESS: Page 5.
25
MR. SOULE: On the top left does it say page
66
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BOECHLER, P.C.
THOMPSON, P.C.
@068
1
4?
2
MR. THOMPSON: It does say page 4, I'm sorry.
3
All right.
4
Q. (Mr. Thompson continuing) Looking at the last
5
paragraph, and I'm going to read it, it says, "From a
6
practical standpoint, it would seem, based on this data,
7
that no realistic hazard exists. The most probable
8
possibility could arise from sanding the cured cement or
9
vigorous scraping of cement deposits on tools."
10
Now I'm going to stop there. When it says
11
"the most probable possiblity," does that mean to your
12
understanding or did itmean the mostprobable
13
possibility of a possible hazard arising from sanding the
14
cured cement or vigorous scraping of cement deposits on
15
tools?
16
A. The most probable, it means to me that the
17
most probable possiblityof any realistic hazard.
18
Q. Okay. Was it as a result of receiving this
19
report that a decision was made that rather than place --
20
the next sentence, rather -- I'm sorry -- says, "As a
21
precaution, it may be useful to advisethat tools be
22
cleaned before the residue drys and that no standing --
23
or no sanding, rather, of the dried or cured material be
24
done without proper particulate mask protection." Do you
25
see that sentence, Mr. Fidler?
67
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BOECHLER, P.C.
THOMPSON, P.C.
@069
1
A. Yes.
2
Q. With regard to that sentence, was a decision
3
made at Hercules that rather than place a warning on the
4
can to that effect that it would be wiser simply to
5
produce the product with a nonasbestos formulation?
6
A. No.
7
q . I am correct in my conclusion from your
8
testimony that no warning concerning asbestos health
9
hazards ever did appear on either Hercules Furnace Cement
10
or Hercules For Heat's Sake. Correct?
11
A. Correct.
12
Q. Have you discussed asbestos litigation with
13
Case Consulting Laboratories, Inc., Mr. Fidler?
14
A. No.
15
q . When did you first become aware that asbestos
16
personal injury litigation was occurring?
17
A. I don't recall the starting date.
18
Q. I'm asking for your best approximation today
19
based on your present recollection.
20
A. I'm sorry, I don't recall. It's a matter of
21
record, we have it in our papers somewhere, but I don't
22
recall it. It's a date I'd rather forget.
23
Q. What papers are those, Mr. Fidler?
24
a . Papers informing us of asbestos litigation.
25
Q. Oh, no, I'm not referring to your case in
68
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THOMPSON, P.C.
@070
1
which Hercules was named as a party, sir. I'm talking
2
about generally the fact that people claim that they'd
3
been injured by asbestos products.
4
A. A lot of years.
5
Q. '70s?
6
A. Yes.
7
Q. Early '70s?
8
A. Yes.
9
Q. Okay. What was the basis for that knowledge,
10
Mr. Fidler?
11
A. As indicated previously, reading newpapers,
12
magazines, journals.
13
Q. What, about the late 1960s?
14
A. I think I answered.
15
Q. Okay. Early 1970s then, sir, correct?
16
A. Yes.
17
Q. Did you ever circulate any memos or were any
18
memos to your knowledge ever circulated in the company
19
addressing asbestos personal injury litigation? I'm not
20
talking about -- let's say prior to 1985. And I'm not
21
talking about letters to your attorneys; I'm talking
22
about within the company.
23
A. We're a small company and matters that we
24
consider important we usually talk about. We don t
25
circulate memos generally speaking.
69
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BOECHLER, P-C.
THOMPSON, P.C.
11071
1
Q. So the answer would be you're not aware of any
2
such memos that exist?
3
A . That's correct.
4
Q. Or that ever have existed?
5
A . That's correct.
6
Q. Is the testing that's reflected in the report
7
dated August 3, 1983 or the Deposition Exhibit No. 12 as
8
marked today the only test that was ever performed or
9
only testing that was ever performed of any Hercules
10
asbestos-containing products concerning possible hazards
11
of asbestos in those products?
12
A. Yes.
13
Q. Was any similar testing ever performed with
14
regard to the Sta-Put plumber's putty, sir?
15
A. No.
16
Q. And from the Interrogatory Answers, sir, it's
17
my understanding that that product was discontinued in
18
its asbestos formulation in November of 1986.
19
A. Yes.
20
Q. And what was the reasons for -- just strike
21
that. In Hercules Chemical Company's disclosure of
22
experts N. George Tucker is listed as of Tucker
23
Associates, Inc. in River Vale, New Jersey. That's the
24
same N. George Tucker who was a vice president of
25
manufacturing for Hercules for a number of years?
70
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THOMPSON, P.C.
072
1
A. Yes.
2
Q. When did he first become associated with the
3
company?
4
A. Approximately 20 years ago.
5
Q. All right. I'm now looking at his resume. It
6
says that from 1960 to 1967 Mr. Tucker operated
7
Goodman-Tucker Associates in New York as a management
8
consulting firm, stating that Hercules Chemical Company
9
was a client of that company for a year and a half before
10
Mr. Tucker joined Hercules. And it states that he, Mr.
11
Tucker, joined Hercules on January 1, 1968 and left the
12
company on December 31, 1988. Would that be correct?
13
A. Yes. That's about 20 years.
14
Q. And looking at the -- at my notes, it was not
15
the Tucker Associates, Inc. but rather Foster D. Snell
16
which formulated the formulation for asbestos furnace
17
cement as used in -- when Hercules began producing,
18
manufacturing the product itself in 1973. Correct?
19
A. Yes.
20
Q. Now we've just been handed what I'm going to
21
have marked as Deposition Exhibit No. 13, and that's
22
going to be the handwritten notes, notations that you
23
described, Mr. Fidler.
24
25
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BOECHLER, P.C.
THOMPSON, P.C.
@073
1
(Whereupon/ Deposition Exhibit No. 13
was marked for identification by the
2
Court Reporter.)
3
Q. (Mr. Thompson continuing) All right. I'm
4
looking at Deposition Exhibit No. 13, and it appears to
5
be a table or two pages of a table extending from 1949
6
through 1966. Do you see what I'm talking about?
7
A. Yes, sir.
8
Q. And could you describe when you began
9
preparing this document or how it is -- how it was
10
developed?
11
A. Obviously it's one of our very rudimentary
12
sales records which started back in 1949 where I was able
13
to take a look and see how much of a certain product we
14
sold across the country on any given month.
15
Q. What do these numbers represent, sir?
16
A. Those are dollar sales of the product by
17
month, by year.
18
Q. All right. Let's just take, for example, the
19
year of my birth, 1953.
20
A. All right.
21
Q. Looking to the month of my birth, July. It
22
says 168.
23
A . Right.
24
Q. Does that mean $168?
25
A. That's exactly what it means.
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THOMPSON, P.C.
074
1
Q. Looking at the year 1965. For July of that
2
year it' s $909. Correct?
3
A. 1965.
4
Q. July.
5
A. July? Yes, $909 is correct. That's national
6
sales.
7
Q. Of the product.
8
A. Of the product for that month.
9
Q. Okay. Where did you go to obtain these
10
numbers, Mr. Fidler?
11
A. I presume I obtained them from invoices,
12
invoice copies.
13
Q. Okay. And you prepared this document when?
14
I'm talking about the document that I've had marked as
15
Deposition Exhibit 13 which is two pages.
16
A. Oh, that document was prepared many years
17
ago. I didn't even know I had it.
18
Q. Would it have been prepared in the year 1966?
19
a . Well, it would have been prepared -- it would
20
have been perhaps consolidated in 1966, but the
21
information was going over the years and it's strictly --
22
strictly factual and a very rudimentary kind of sales
23
recordkeeping.
24
Q. I understand. It seems to extend from January
25
of 1949 through February of 1966.
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THOMPSON, P.C.
@07
1
A. There's a few holes.
2
Q. I see the holes. The holes would noticeably
3
be the year 1954 with the exception of two months, August
4
and September of that year.
5
A. Right.
6
Q. That would be right?
7
A. Yes.
8
Q. And the entire year of 1955.
9
A. Right.
10
Q. What is the reason for these holes, sir?
11
A. I don't know. I got lazy I guess.
12
Q. Okay. And was there any reason why it stopped
13
in February of 1966?
14
A. Well, we were developing a little more
15
sophisticated operation and ways of maintaining sales
16
information and obviously it was no longer a useful
17
tool.
18
Q. In 1968 -- or '66, rather, how did -- what
19
kinds of sales records were maintained at that time that
20
were more up-to-date and efficient for sales purposes?
21
a . I can't -- I can't tell you offhand. I don't
22
recall exactly what the changes were or when exactly the
23
changes may have been made. But it doesn't look anything
24
like our sales records look today.
25
Q. Do consolidated sales records relating to
74
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BOECHLER, P.C.
THOMPSON, P.C.
076
1
Hercules Furnace Cement exist from like March of 1966
2
where Exhibit 13 leaves off until 1983?
3
A. No.
4
Q. I presume --
5
A. You mean the product by year or by month?
6
Q. By month, --
7
A. Nationally.
8
Q. -- right. The same type of information.
9
A. Yeah. I don't know that they exist, no.
10
Q. Was one reason why Hercules stopped
11
manufacturing asbestos furnace cement because there was a
12
potential hazard as recorded on the last page in the last
13
paragraph of Exhibit 12, the letter dated August 3,
14
1983?
15
A. No.
16
Q. Thank you.
17
MR. THOMPSONS Mr. Soule, do you have a copy
18
of the Deposition Notice in front of you?
19
MR. SOULE: Yes, I do.
20
MR. THOMPSON: Okay. If you could make it
21
available to Mr. Fidler. I don't know how you guys are
22
situated there.
23
MR. SOULE: I think he has a copy too.
24
Q. (Mr. Thompson continuing) Mr. Fidler, do you
25
have a copy?
75
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THOMPSON, P.C.
077
1
A. Please tell me what you're referring to.
2
Q. I'm going to go through it. I just want to do
3
it kind of like a checklist. We're almost done here, and
4
I want to make sure that we've covered the waterfront.
5
A. Go ahead.
6
Q. With regard to No. 1, the chemical composition
7
including asbestos classification and type, can you tell
8
me what -- this is on page 1 of Deposition Exhibit 1
9
which is the Second Amended Notice of Deposition.
10
MR. SOULE: Do you have that, Jay?
11
a . I have the -- I have -- was it --
12
Q. (Mr. Thompson continuing) Just No. 1 on the
13
Notice page.
14
A. Yes.
15
q . Okay. The request is concerning the name,
16
chemical composition including asbestos fiber
17
classification and type, et cetera.
18
A. Yeah, I thought that was already covered.
19
Q. Yeah.
20
A. And that was going to be provided under
21
certain circumstances to you.
22
Q. That's correct. And that was fine. And I was
23
going to say that myself. The question I wanted to ask
24
was do you know what classification of asbestos fiber was
25
used?
76
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THOMPSON, P.C.
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1
A. I understand it was chrysotile.
2
Q. Right. That's the fiber type. But it had
3
many different grades.
4
A. No.
5
Q. Like --
6
A. That should be on the formula information.
7
Q. Now with regard to records of raw fiber
8
purchases from Johns-Manville, do any such records exist?
9
A. No.
10
Q. Did Johns-Manville -- just a minute. We're
11
taking a break for the court reporter here.
12
(Short recess taken).
13
Q. (Mr. Thompson continuing) Okay.
14
Mr. Fidler, did Johns-Manville ever communicate with
15
Hercules Chemical Company, Inc. during the time that it
16
was the supplier of asbestos fiber for use in Hercules
17
products with regard to hazards of asbestos?
18
A. I don't know.
19
Q. If there was any such correspondence to that
20
effect would it still exist?
21
A. Unlikely.
22
MR. THOMPSON: Mr. Soule, I'd just ask that
23
Mr. Pidler make an effort to at least attempt to locate
24
any such information and if it -- to the extent it exists
25
I would ask that it be provided through you in a timely
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THOMPSON, P.C.
079
1
manner.
2
MR. SOULE; Okay.
3
Q. (Mr. Thompson continuing) Have we pretty well
4
-- with the exception of the formula which we've
5
discussed, Mr. Fidler, have we pretty well discussed the
6
intended purpose and use of the two asbestos-containing
7
products that were manufactured by Hercules beginning in
8
the year 1973?
9
A. Yes.
10
Q. And sold by Hercules at least back to June of
11
'46.
12
A. Yes.
13
Q. Going to No. 3. Have we pretty well discussed
14
the sale of asbestos-containing products, those that
15
we've discussed, to sellers, distributors, contractors or
16
job sites in the state of North Dakota? And I do
17
understand from your counsel's remarks that Hercules
18
marketed through wholesalers. So we've pretty well
19
covered that subject, have we?
20
A. Yes, we have.
21
Q . The same would be true of N o . 4 with regard to
22
the identities of manufacturers of asbestos-containing
23
products purchased by Hercules for use or resale?
24
A. Yes.
25
Q. And we've talked about No. 5, the identities
78
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THOMPSON, P.C.
12)080
1
of the providers of raw asbestos fiber or asbestos
2
components for any products used, sold or manufactured by
3
Hercules. That would be correct?
4
A. Yes.
5
Q. No. 6 as well concerning records evidencing
6
those sales of product from Hercules in North
7
Dakota we've covered as well?
8
A. Yup.
9
Q. 7 as well? Understanding that there
10
may --
11
A. Existence and content of invoices?
12
Q. Well, I understand that you have some invoices
13
dating back perhaps as far as 1983, but I'm not asking
14
that you produce them at this time. I'm just saying we
15
have covered that, correct?
16
A. Yes.
17
Q. The same with regard to purchase orders, No.
18
8?
19
A. We touched base on it, yes.
20
Q. Is there any more information or any other
21
documents regarding 7 and 8 that we haven't discussed?
22
A. No.
23
Q. And we've talked about the records compilation
24
and retension policies, No. 9?
25
A. Yes.
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THOMPSON, P.C.
@1081
1
Q. No. 10, covered as well?
2
A. Yes.
3
Q. Now with regard to No. 11, I'm asking the
4
names and addresses -- I'm not going to ask the
5
addresses, but the clerical employees with duties
6
involving the processing of sales. I think we'll forgo
7
that today in light of the information that has been
8
produced.
9
A. Thank you.
10
Q. And the same with regard to No. 12.
11
A. All right.
12
Q. Are there any other -- going down to No. 14.
13
Are there any communications that you're aware of that
14
exist or that existed as of the commencement of this
15
lawsuit, these lawsuits, relating to communications
16
between Hercules and manufacturers, other sellers and
17
distributors of asbestos products concerning health
18
hazards concerning asbestos?
19
A. No.
20
Q . Now do you know M r . Prior who operates S .0.S .
21
Products Company, Inc.?
22
A. Yup.
23
Q . Would it be fair to say that S . 0. S . is a
24
competitor of your company?
25
A. I guess so.
`
80
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THOMPSON, P.C.
@082
1
Q. Your company, as I understand it, is
2
substantially larger though.
3
A. I beg your pardon?
4
Q. Your company I believe is substantially larger
5
based on at least the number of employees that you
6
presently have in comparison with the number of employees
7
he has.
8
A. Yes, we think so.
9
Q. Well, I'm talking like a hundred as compared
10
to about ten.
11
A. Yeah.
12
Q. Have you ever seen his operation?
13
A. Yes. I haven't seen his operation. I've seen
14
his building.
15
Q. Okay.
16
A. Since he moved from Brooklyn.
17
Q. Right. Has Hercules ever manufactured furnace
18
cement for some other entity where you've rebranded it
19
for anybody else?
20
A. No.
21
Q- So all Hercules Furnace Cement, all Hercules
22
For Heat 's Sake, all Hercules Sta-Put plumber's putty
23
manufactured by Hercules from 1973 through 1983 was sold
24
under the Hercules label?
25
A. Yes.
81
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
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THOMPSON, P.C.
1^083
1
Q. Are you familiar with the Rutland furnace
'
2
cement product line? Or that did exist at one time?
3
A. I'm somewhat familiar with it, yes. It's
4
ancient history.
5
Q. Yeah, I think they stopped making it in the
6
early or mid, late 1970s.
7
A. Yeah.
8
Q. Is it fair to say that S. 0. S. Products
9
Company, Inc. is your primary competitor in the
10
field -- well, I'll confine it for time. Up through 1983
11
was S. O. S. Products Company, Inc. your primary
12
competitor in the market for Hercules Furnace Cement?
13
And I'm including in that For Heat's Sake.
14
A. I would say so.
"
15
Q. And it seems like they're a distant second.
16
Is that correct?
17
A. In that market?
18
Q. I'm just confining it to that particular
19
market for that product.
20
A. Not at all.
21
Q. Okay. Explain that answer if you could.
22
A. Okay. The answer was that these --
23
S. 0. S. to our knowledge had always sold substantially
24
more furnace cement and refractory products than we had.
25
Their line and their distribution to heating wholesalers
82
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THOMPSON, P.C.
084
1
in the oil burner industry and the fact that they
/
2
manufactured a sectional combustion chamber for
3
installation by contractors put the emphasis on this type
4
of product. We were way in the rear when
5
I came into the business. We were smaller than
6
S. 0. S. altogether.
7
Q. I'm confining it to now furnace cement or For
8
Heat's Sake later on.
9
A. That'8 correct.
10
Q. All right. What about for Sta-Put plumber's
11
putty? They make a similar -- or they made a similar
12
product?
13
A. No contest.
14
Q. No contest who? You guys beat them quite a
^
15
bit over the years?
16
A. Yes.
17
Q. Okay. So I'm clear, your voice was breaking
18
up a little bit in your answer on the furnace cement.
19
that you believe S. 0. S. was from the time you came to
20
the company in 1946 -- first of all, you were both based
21
in New York City at that time?
22
A. They were based in Brooklyn, yes.
23
Q. They were based in Brooklyn and you were based
24
in downtown Manhattan.
25
A . That's correct.
83
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THOMPSON, P.C.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Q. And at that time S. 0. S. was producing more
or selling more asbestos furnace cement than Hercules was.
A. By far.
Q. You said --
A. By far.
Q. Okay. And then could you estimate what
percentage you folks sold in comparison with what they sold?
A. On furnace cement?
Q. Right.
A. I can't estimate that.
Q. Okay. Except that they were larger than you.
A. Yes.
Q. Where did Rutland stand in the market?
A. When they were operational --
Q. Right.
A. -- they were very active, sold a fair amount of material and sold a lot as I recall to the consumer trades.
Q. Now what do you mean, sold a lot to the
consumer trades? A. Through hardware stores, other wholesalers.
Q. Now Hercules also sold through its
manufacturer reps to hardware wholesalers too. Correct?
84
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BOECHLER, P.C.
THOMPSON, P.C.
0086
1
A. Right.
7
2
Q. And when I talked about Rutland I was
3
referring to furnace cement only. That was your
4
understanding?
5
A. That's what I'm referring to.
6
Q. Okay. Now I'm also aware of a product known
7
as Laclede Furnace Cement. Are you aware that?
8
A. No.
9
Q. Is it fair to say that the major three
10
producers from -- of asbestos furnace cement, the product
11
we've been talking about, from 1946 when you came to
12
Hercules through 1983 -- or let's put it this way --
13
through the late '70s were S. 0. S., yourselves and
14
Rutland?
'
15
A. No.
16
Q. Okay. Who else was involved?
17
A. A company in Philadelphia by the name of
18
Pecora.
19
Q. Pecora?
20
A. P-e-c-o-r-a. I believe they're out of
21
business now.
22
Q. Okay. Did OM also make a product like this?
23
A. Johns-Manville? Yes.
24
Q. Did Johns-Manville continue to make asbestos
25
furnace cement after Hercules began manufacturing the
85
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-*->- THOMPSON, P.C.
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product itself in 1973? A* I don't know. Q. All right. I'm going to list these off now.
Johns-Manville, Pecora, Hercules, Rutland, S. O. s. Does that pretty well cover the furnace cement market as far as you're aware of it? And you were -- first of all, your background is in sales, correct?
A. Yes.
Q. So I assume you had some knowledge of the competition.
A. Yes.
Q. Naming it again, Johns-Manville, Pecora, Hercules, S.O.S., Rutland, have we pretty -- and Johns-Manville, have we pretty well covered it, the market?
A. if yoU are calling these the leading manufacturers _
Q* Of asbestos furnace cement. A. -- i would be hardpressed to include us in that figure. You have some sales information which should give you a very clear clue of the fact that we were very minor players in the entire furnace cement industry. Q. Okay. A. And there are other companies, too many to
n, 0 or
" COURT REPORTER SERVICE
312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
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BOECHLER, P.C.
THOMPSON, P.C.
088
1
mention a
2
Q. Well, have we covered pretty much those
3
companies
4
productio
5
A. As I said, there are others.
6
Q. Okay. Which others can you tell me about?
7
A. I can tell you there was Utility manufacturing
8
company.
9
Q. Utility?
10
A. Yeah. It was called Utility Laboratories.
11
Q. Did they market a product under their own
12
name?
13
A. Yes.
14
Q. What was the product trade name? Furnace
15
Cement?
16
A. Utility.
17
Q. It was called Utility Furnace Cement?
18
A. Yes.
19
Q. Do you know where they were based?
20
A. Brooklyn at that time. They're now on Long
21
Island.
22
Q. And they're still in business?
23
A. Yes.
24
Q. Any others?
25
A. Wonder-King Manufacturing.
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THOMPSON, P.C.
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Q. Is that hyphenated? A. Yes. Wonder, hyphen, King. Q. And they made an asbestos furnace cement? A. Yes.
Q. And are they still in business? A. They are part of Utility now.
Q. Where were they based? A. I believe in Westchester County. sure. Or the Bronx. One of the two. Q. Okay. Atlas? A. Atlas I've heard of.
I'm not
Q. You're familiar with an Atlas furnace cement and stove cement?
A. Yes.
Q. Where did they stand in the market? A. I don't know.
Q. If you had to rank these based on y o u r _ well , let' s go who would be the largest in the furnace cement field?
A. I don't know.
Q. Would S. 0. S. likely be close to the largest? A. Yes.
Q. What about Johns-Manville? A. Probably number one. Q. So perhaps S. O. S., generally number two?
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THOMPSON, p.c.
@090
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A. Yes, in the smaller containers. Johns-Manville didn't s e n to my knowledge in the small sizes.
Q. Johns-Manville sold furnace cement in larger containers.
A. That's correct.
Q. cement?
Where does Grant Wilson fit in on furnace
A. They fit in. Q. What? A. They fit in.
Q. Would they be after S. O. S.? A. I don't know.
Q. Are you familiar with any asbestos furnace cement manufactured by an outfit in Chicago called Sure Seal Products Company, Inc.?
A. Yes.
Q. What was their trade name? A. Sure Seal was the trade name. The company is Lichten, L-i-c-h-t-e-n. They're out of business. Q. And they were based in Chicago. A. Yes.
Q- Did anyone take over their operation? A. They may have been partly taken over by Black Swan, which is another chemical manufacturer in Chicago.
ORMAN E MARK -- COURT REPORTER ^PRVTfi?
312 BLACK BUILDING, FARGO,
35-7571
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BOECHLER, P.C.
THOMPSON, P.C.
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Q. Did they buy their assets or did they merge with them or you don't know?
A. I do not know.
Q. Okay. Where did Atlas fit in?
A. I don't know.
Q. But they fit in.
.
A. Yes. it should also be noted _
Q. Go ahead.
A. -- that there was a lot of people making
material for use as furnace cement that had to be mixed
with water and that was a friable powdery material.
Q. Now I've been talking about just pre-mixed products.
A. That's exactly right. And that's why I mentioned a nonpre-mixed product.
Q. Okay. But the manufacturers we've been talking about were pre-mixed product?
A. They were pre-mixed product. Q. All right. It's my understanding that there was also a product that was intended for use as furnace cement which was a - which came in a powderous form that was mixed with water to be used in its application. A. Yes.
Q. And was this product also -- could it be used in essentially the same applications as the pre-mixed
90
,n
E * MARK " COURT REPORTER SERVICE
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THOMPSON, P.C.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
products?
A. Yes.
Q. product?
Do you know any people that manufactured that
A. I dn't have -- name, i don't know.
i can't tell you them fay
Q. But you know that they did exist? A. Absolutely.
Q. Was that product known as a furnace cement or
A. Yes.
Q. Was it a refractory cement and a furnace cement or --
A. Yes.
Q. product?
Was A. p. Green a manufacturer of that
A. I don't recall.
Q. What about Refractory & Insulation Corporation?
A. I don't know.
Q. Ever heard of R & i? A. Armite? A-r-m as in M a r y _ Q. No, the letter R, ampersand, and then I. A. I don't know that name. Q. Okay. Did you ever buy any raw asbestos fiber
33 11 22
B B
L L
A A
C C
K K
I
R B
n U
T I
f L
A D
? r S
ING
R,
K
t,r FAR
C G
0 O
D,
R
T N
.
R D
E.
P
50
8R
1T
0E3R
SE( 7RV0 I1 C) E 2 3 5 - 7 5 7 1
09/20/01 THU 13:54 FAI 701 237 9035
BOECHLER, P.C.
THOMPSON, P.C.
093
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
for use in your products from Empire Ace in Brooklyn? A. No.
Q- Do you know the folks at Empire Ace?
A. No.
Q. Okay. Moving on to the Deposition Notice again. He really are just about done here. We've talked at - 16 and 17, I'll talk about them together. Again, the only study concerning asbestos fiber or only tests concerning asbestos fiber at least for any Hercules Chemical Company product, whether manufactured or sold by Hercules, was this test that's reflected in the report of August 3, 1983 that we've had marked today as Exhibit 12.
A. Yes.
MR. THOMPSON. Mr. Soule, if I can have a couple of minutes, a minute here just to look through my notes.
MR. SOULE: Sure.
Q- (Mr. Thompson continuing) One more question.
Nhen Johns-Manville was the producer of the Hercules brand asbestos furnace cement prior to 1973, Mr. Pidler, did Hercules did Johns-Manville ever advise Hercules to put a warning on the product?
A. No.
Q. Did Johns-Manville physically put the furnace
92
312
" C0URT Re p o r t e r SERVICE
2 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
09/20/01 THU 13:55 FAX 701 237 9035
BOECHLER, P.c .
THOMPSON, P.c.
@ 094
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
cement product into the can, the Hercules marked cans, at a Johns--Manville factory?
A. No.
Q* Could you describe the process that Johns-Manville went through then? in other words, I guess I'd assumed that and I'd like to get that clear. Did Johns-Manville --
A. drums.
Johns-Manville shipped us finished material in
Q Okay.
A. We emptied the drums into our extruding equipment and put the furnace cement into our own cans at our own plant.
Q. Okay, when -- was that the practice from the time that you arrived at Hercules in 1946 until Hercules began manufacturing the product itself in 1 9 7 3 ?
A. Yes.
Q. To your knowledge was there ever any warning concerning asbestos fiber dangers on the drums that Johns-Manville shipped?
A. No.
Q. And it's my understanding that the product that was shipped in the drums was - when you say put into your extruding equipment, what do you mean by that?
A. Well, we had some rudimentary machines that
NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571
09/20/01 THU 13:55 FAI 701 237 9035
BOECHLER, P.c .
THOMPSON, P.C.
@095
1 2 3 4 5
6 7
8
9
10
11
12 13
14 15 16 17
18 19
20
21 22 23 24 25
would turn a screw or whatever, and it was very heavy material. Sometimes in the larger containers it may have been troweled into the cans.
Q. And perhaps more rudimentary the earlier the time period.
A. Yes.
h r . THOMPSON! Mr. Fidler, 1 appreciate your time today, your counsel will advise you of your rights to read and sign. And X thank you for your time, sir.
THE WITNESS: Yes, sir. MR. SOULE: Thank you for your courtesies. We will read and sign.
record. MR. THOMPSON: Very good. We're off the
(Whereupon, the deposition of JAY W. FIDLER concluded at 11:05 a.ra.)
331122 BBLLAACCK^BmUrIrLDfInNrGi,^FA~RGCO,URNT.D. 58103 SE(R70V1I)CE235-7571
THU 13:56 FAX 701 237 9035
BOECHLER, p.c
THOMPSON, P.c.
STATE OF NORTH DAKOTA)
COUNTY OF CASS
!
CERTIFICATE OF DEPONENT
the aforegoing^transcript^
haTO read and examined
correct record of tol S s i C l
Sam? ls a tr"e and
corrections, if any as
gf^en bY me, with
sheets.
'
ny# as noted on the attached sheet or
DATE:
T
JAY W. FIDLER - Witness
CERTIFICATE OF REPORTER
deposition of J A Y ^ ^ f i d t f r 1 at the
t*le telephonic 1 * 0
and for t h a ^ t ^ f iase'a ^ s S ? * 5tary Public 1
that by virtue thereof l 5 as du?v i,t^f ?orth Dakota! and
administer an oath;
W3S duly authtised to
first dulyTsworah?oWies?Hvb?ier^ t?Stlfying was by but the truth relatiiel^LIS Juse? t" th " " n*hi"9
in Stenograph by'myseXf^nd3^ ffld "jtness was recorded
typewritten fori ^ lciBu?er-e?rt!ieieafter " * "<* to direction; and that the deDosi-t-ion ,tanscription under my the testimony given * t h T S ^ S . " 3 true rec*d of 7
t* hereto, n o r ^ r S t ^ i f ^ ^ n y ^ o f the parties
*transcribedT,hawtasthe said udeePpo2SJi-?t?ioonn, hLavi^ng beenaction'*
deponent by me, Paula D ^ e b e r ^ f n available to said
and signing.
Weber, for purposes of reading
WITNESS my hand this 3rd day of December, 1 9 9 0 .
piua%T"^bert^RPR^ Notary Public Cass County, North Dakota
My Commission Expires June 15, 1 9 9 2 .
95
312
S^
E2 35.757
'U1 237 9035
BOECHLER, p.c.
Thompson, p.c. @1097
UK T"B DISTRICT OP DNIOSRTTRHI"niiCrOnU^RT SOUTHWESTERN DIVISION
DEPOSITION | EXHIBIT
t ! Hercules Chenl i & 6 0 "'
; 1JrtmSEC0ND a m e n d e d ) NOTICE OP DEPOSITION
.,,
action KllltakrOCe<iUre th6MalntlfS
-- *" >
- above-
P^sons designated by Hercu/ dePSitlnS f the Pe^ o n or
-- - --
: : ~ l c- ' m -
to day until corapleted at
' ` and contlnurng from day
YU are ntified that pursuant to ^
Roles of civil Procedure the i
-- tatters:
feiSMteat; testifywith
^ Farg'
Dakta`
f the Federal
, U M those resnoi'T *.
spect to the following
l- The bane, chemical composition incl a-
classification and type
a
^
asbesCos fiber
Magistrate's Order in Aa
" i0r""la <P" u a n t to the
#1), intended purpose anJ _ I V l a t T s
distribution for all asbest . . .
"anufacture and
deponent. Including. Her 1 0"tainin9 Prducts manufactured by
- --
t Plumbers putty.
^' The classification
cheraica] ai
and fiber
composition
,n,, n ,.
asbestos .
' d Cor"'ula (Pursuant to the
"'l
1 3 : 5 7 FAX 701 2 3 7 9 0 3 5
BOECHLER, p.c
THOMPSON, p.c.
098
Magistrates Ordr <,,
,,
nda, Inn, .t -,U , C l v u Ko 3_
#
.
# D , intended purpose and use and d a t ^ ates
. .....................
' attached as Appendix
n*
*
f manufacture and sale
i;nc; ll uudring:u l a Hs erccuhlae"sioFaulrnacCeM pCaa mnynf
1 ,
u<lce tement, For Heai-'c
,
'
neat s Sake, and Sta-Put
Plumbers putty.
seile a r " le by daPnent SSbeStOS
Planets to
sellers, stributors, contractors, and,or jobsltas In the state
of North Dakota or otherwise for use In th ,
* 5 through 1985,
--
^ containing purchased h,,
9 P rchased by years 1955 through 1986;
* the manufacturers of ^ deponent for use and/or resale
asbestos sbestos
from 6
a n a 5'
identltleS the PrViderS *" - t . . fiber
3 eStOS ntainln3 or manufactured bv t-kfi ,
ior any product used sola ' s ld
1986
Y hS dePOMnt duri-
y . r . 1955 through
- The existence ana content of Hercules chemical
C"'Pa"i 5 ' ^
documents evidencing the ,
eoni-ai r> containing products for use/nv
Clng the sa^
of asbestos-
resale m North Dakota during the
Period from 1955 through 1986;
7- The existence and content- <->e a
of ash. ,
invoices showing the sale
asbestos~containing products for use/or resal
1955 through 1936;
Nrth
the a't THe aX1Stene and ntent PUrCha-
proau
9UantitiSS
identiii"
- --
1986;
fr USS/0r rSSale ^ Nrth akota
--
--
9
-containing
1955 through
^ t u x 237 9035
BOECHLER, p.c
THOMPSON, p.c
0099
*lie m hods used by aeponent
maintaining sales record
ords,
Plans and specifications ons
purchase or sale of a
.
-Piling and
invoices, purchase orders ,,
and , and employee
recorrfn
lobsite ncerning the
through 1986;
^ s - c o n taining products ^
The methods and procedures used bv d
retention and destruction of ,, 1
rscoi'rfe
4'
Purchase orders. i,,Volving ashestos-containi
"
through 1986;
g products
^ ^
' ^ from 1 9 5 5
The "a"eS a"d addresses of all cl Hercules chemical Company ,,ith d,,ti
les. purchase order
lnV 1V1" 3
e"Pl ^ a f of
chemical Company fro,, 1 9yi5>55 through 1986; ^ 12' The a a K e s and addresses of a,,
Sld bP Hercules
Products
-ceipt and shipment T a T
^
purchased and sold h u
sbestos-containing
1955 through 1 9 8 6 ,
* arCUUs Chamical Company fro.
" content of any document ,,
W i r e d by the subpoena a c
deponent is
corapanying this notice to h
deposition, ,,hen the documents ,,ere rec
` ^
Information, ,,ho had kfnoowwlleeddge of th* notified of the information;
ir** ' "h SUPP" ad tha
N a t i o n , and who was
U - H U communications between the d.
manufacturers, other sellers and d .
the
pr0d"c
concerning the
t
1StribUtrS
nature, oualitv
asbestos
manufacturing metnods, hards. availability.
distribution method ' COntent'
in,t.1 U t .
'
haalbb
on procedures, warranties,
3
09/20/01 THU 13:58 FAX 701 237 9035
BOECHLER, P.C.
THOMPSON, P.C.
@100
guaranties and asbestos related products from 1955 through 1986;
litigation with regard
to such
15. The identity of shippers used by deponent and/or
distributors of deponent's asbestos-containing products for use or sale at sites in North Dakota from 1955 through 1986;
16. Identification and description of experiment conducted
by you or for you to determine and establish the quantity of
asbestos fibers which would become airborne as a result of manufacturing, processing or use of your asbestos products and the dates of said tests and experiments, including the findings, conclusions, and results from such tests.
17. In the manner and extent to which your asbestos fibers and/or products were investigated, tested, examined and
experimented with to determine the effects of airborne asbestos fibers upon being inhaled into the human body as a result of the use of such asbestos products.
You are further notified that a subpoena duces tecum is being served , upon Hercules Chemical Company and persons designated by Hercules Chemical Company are required to bring with them to the deposition the following items, documents or
things within the care, custody or control of Hercules Chemical
Company for inspection and copying, encompassing through 1986 inclusive:
the years 1955
1.
All sales records showing sales and purchases of
asbestos-containing products for use or sale in the state of
North Dakota, during the years 1955 through 1986;
A
09/20/01 THU 13:59 FAI 701 237 9 0 3 5
BOECHLER, P.c
THOMPSON, P.C.
@101
2 . All invoices showing the sale and purchase o asbestoscontaining products for use or sale in the state of North Dakota, during the years 1955 through 1986;
3 . All correspondence and documentary materials received from distributors concerning the sale of Hercules Chemical Company products containing asbestos from 1955 through 1966:
4- All information received from or sent or delivered to distributors of Hercules Chemical Company concerning the nature, duality, content, use, manufacturing methods, distribution -thods, safety, health harards, availability, installation
S, warranties and guaranties asbestos-containing products;
concerning Hercules
S` *11
I P t . and bills of lading concerning
the shipping and receiving of asbestos-containing products for
use or sale in the state of North Dakota from 1955 through 1986;
Dated this 29th day of October, 1990.
'
*>**) k Jegmette T. Boechler
David C. Thompson
CRAFT, THOMPSON & BOECHLER, P.c 16 North Broadway, Suite 315 ' P.0. Box 1932
(701) 237-3071Dakota 58107-1932
5
r09/20/01
THU 13:59 FA1 701 237 9035
r
BOECHLER, p.c.
r
THOMPSON, P.C.
102
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA SOUTHEASTERN DIVISION
Adams Public School District, )
Plaintiff,
j
vs.
Carey Canada, Inc., a foreign corporation, et al.
Defendants,
)
) Civil No. A3-88-89
)
t)
)
FILED
%
)
J H 3 01993
ORDER
ALL'..lL:\ S}i3J.
us.oarac?c& k^v ::.-
Defendants* Motion
Motions to compel^ were filed in this case by defendants
Keene Corporation, W.R. Grace and Eagle-Picher Industries,
Inc., seeking an order requiring the plaintiff to answer
interrogatories. Defendants Grace and Eagle-Picher's motions
also seek an order requiring plaintiff to respond to requests
for production of documents and things. Plaintiff opposes the
motions, stating that the three defendants were served with
interrogatory answers on November 13, 1989.
Therefore,
defendants' motions to compel discovery are moot at least with
respect to the interrogatory answers. Plaintiff's brief does
not specifically state that the production requests have been
answered; however, it appears plaintiff may be treating the
document 'requests as just a part of the interrogatories. Since
he court has heard nothing more from the moving defendants,
it assumes the requested documents have been produced as well
APPENDiy AT
ua/Z0 /01ii THU 14:00 FAX 701 237 9035
r
ana that th* notions moot.
can
BOECHLER, P.C.
c
be aeniea in their
THOMPSON, P.C.
entirety as::
@103
-
jtotipn for Rule -37 fs*,,4.<rn
Also before the court is plaintiffs motion for Rule 3 7
sanctions for failure to answer interrogatories. Rule 3 7
sanctions are inposea when an oraer for discovery has been
entered by the court, and the party against whom the order is
entered does not conply. P r e f e r s sanctions are prenature at this tine. However, plaintiff has briefed the issue as a
notion to compel rather than as a notion for sanctions, so the court will consider the notion as a notion to compel.
Plaintiff requests that defendant Keene Corporation be
ordered to answer Interrogatory No in
^
y ory wo. 1 0 , which reads as follows:
containing^nsulat^o^product!^ " b" t J Keene objects to this interrogatory, alleging that it seehs
ldentla1^ trade secret, and other proprietary information or materials. The court finds i-ha-t- j -
nds that discovery of the formulas necessary for product identification essential for Plaintiffs trial preparation. The court also finds that . Keene is arguably entitled to some protection of the formulas
trade ^secrets. The in_caffiera inspection procedure proposed
y Kaene 1 too complex and too time consuming, consequently the parties w i n have until March 15. ls90, to worh out a '
2
r
agreement for a
-
M aiM~
xUMPSON, p . c
c
--
*.
agreement, they shall
'
y Sha11 each " * "
to the court by A m H i ,
*
d not reach an
- proposed protective orde lve tder
tthhe court of what eff' 199' al0nS With a Etat=nent innffoorrmm!m g were made to ininfi , .
protective order' without the court-
* 3
court's involvement,
U IS ORDERED:
@104
Defendants * motions to compel with respect to
interrogatory answers and document reguests are
denaed as moot.
2- Plaintiff.* motion for Rule 37 sanctions, which
" tr6ated ^ 3 Eti0n to
interrogatory'
answers is gra,,ted. Defendant Keene ^ ^
o p e n e d to answer Plaintiffs Interrogatory
h- 10 , subject to a protective order to be
ottered by the court at a later time.
3 * Defendant Keene c
^
Gne S re<^ ^ t for oral argument
is denied.
0 a te d :
NOTICE OF ENTRY i3ks flot,cetfettoeoriginalofthis
United States Magistrate
3
,ui 237 9035
OECHLER, p.c
T h o m p s o n , p.c.
105
^mZ^TRTCTlDISTRICT COURT
b ?v
a.ss,s-. )
oompaot,
A M EN nen ~ rT rt; - ^ f ^ C0KD
giAJg--g--Dg-POSI'rTnM
TO; Plaintiffs and th *
1932 PLEASE TAKE NOTICE fhaf ^
s1932' Fargo, North
Inc" hereby r P M S to p l a i n t i f f s HerUleS Che"iCal COEpany'
deposition. .
s: r 4 fo r d --
d ainended notice of
BEQUEST no . i m
Purchases of~ash#r^
Sa^es records shnoi
~ SESPONSE:
--- -
A _niIm a computer lis*-
have Purchased M d s o w Hercuieg
955 throngh
^ "6rs "
SL in the
1986.
Dakota that
bStWeen Mar<* * and November
Hercules no longer has in ita
.
"* ** ^ P l a c e d herewith.
control records of sales t PSSeSslon or ebject to its
1 ,3 3 .
- 1" t 0
* north Dakota prior to
_ REQUEST n o . o . A11 . .
RESPONSE; Fo7
y<SarS 1955
T p-- ase
^ Stat* <*
purchased and sold Hercules
Wh *
between aroh 1 S 8 3
83
178937\Adolf.res
and ,,
'"n " * "
a"d for H e a f s
and Hovember l990, please
.
* the llSt
1
Sake
-- 'x of 9035
b o e c h l e r , p .c
THOMPSON, p.c
106
produced icuxt,
response if not lmpossiMe ^
o b ' *' *-
- -uld
this time period. Thus ,,
ai" CPleS f invioes or
grounds that it is Unduly burdensome>
^
on the
customers produced herewith identifies the Ver'
6aCh
In addition, Hercuus " " " tit, of saxes to
reveals copies of invoices dated prior
^
reCrdS
3 5 fifigfflST Mn.
A11
=
r 1983 no longer exist. tos from W 5 5 through
ESE2i!SS-- Hercuxes has conducted a re
- r r ; : search of it, records as kept in rh
. aSnable and H H g e n t
for any correspondence and othe a * OMlnalry CUrSe of business
containing asbestos from x955 thr ,,
Products
revealed that such documents respoT' ^
^
haS
no longer exist.
onsive to this request, if any.
the Mature f0quaiitybu^ors"Lof0Herculesrchemic<^j^rom or sent or
installation p ethodo-^iflty,' h|JitahUfactubing0"ethord|n0ernl''g Hercule^fr^
containing products
ntees concerning
S S S Q m E : Copies q -f ,,
V I , l979 L r r ~
--
- - e years
borewith. The product'catali s h' ^ ^ ^ " " " =ad lino, including Hercules
PUt PlUB,ber's Putty, for the
6nt' ^ Heat'S Sake and Sta
c S W B O U e a j . A11
ldSntifiad-
concerning the - i p p i n g ^ ^ L I n l l f ^ b " ^ " ^
iTBWTvwoif.p
asbestos-containing
- 2-
'"i 3/ 9035
b o e c h l e r , p .c<
THOMPSON, P c
r> @107
products for Use nrU9h 198s.
in the state of North Dakota
SSS S U S E : Hercules has
--
* it. ^ o r . as keptr : r a --
- - igent
any ShiPPln9 -ipts and bllis ofrdlnary COUrSe ** business
asbestos-containing products shipped f
"
Hercules
fro i 955 t hrwgh w s 6
r use or sale ln North
SUh dCU"- b s responsive to th-
haS
Dated: Novenber 7 , 1990. " " W " t " l0n^
th exist.
BOWMAN AND BROOKE
^
5 c y n ^ l a " r i t s a t t (#^ ^"
S? i s x a ^
i7r~ ~ "
'
' in =-
m937\Molf.res
- 3 -
4
t u x I 9035
BOECHLER, p.c.
THOMPSON, p.c
@10 8
STATE o f MINNESOTA) COUNTY OF HENNEPIN,J SS`
dr ses Thompson ^nd f, fecon<* AKendedNoS^ ! 1 Company, fn|h? srved
S K "
s
S i s - f:S i
CRAFT, THOMPSnw hl6r' Es9-
F*r9,HD 16 North Broadway 58107
-
1
9
3
2
315
P 'c-
" "
and
COUNSEE OF RECORD
in the United States
. Minneapolis, Minnesota.
;; ;! '' V
LORRAINE A. JENSEN
NOTARY PU8UC - MINNESOTA
t>VHCEomNmNisEsiPonIENxpCireOs UDoNc.TS.Y1990 '
09/20/01 THU 14:04 FAX 701 237 9035
BOECHLER, P.C.
THOMPSON, P.C.
@109
Bowman anAdTTOBRNErYSooATkLAeW
MINNEAPOLIS OFFICE
Suite 600 Midwest Ptaza West 801 N icollet Ma* M inneapolis, MN 55402
Telephone 612/339-8682
Telecopier 612/339-7679
Richard A. Bowman
John O. McShane
David 8 . Kelly
David W. Graves, Jr.
George W. Soule
H ildy Bowbeer
Kent B. Hanson
Wayne D. Struble
Janice K. O'Grady
Matthew J. Valitchka
Robert K. M iller
M arcia M. Kull
Mickey W. Greene
Cynthia J. Atsatt
Leziie O. Marek
Ja
Haibrooks, Jr.
Ma^^Bolkcom
Mary T. Novacheck
Kkn M. Schmid
Timothy J. Mattson
Timothy J. Bette nga
David N. Lutz
PHOENIX OFFICE
Suite 2100 Phoenix Townehoose 100 West Clarendon Phoenix, Arizona 85013
6T0e2le/2p4h6o-n0e899
Telecopier 602/248-0947
Jeffrey R. Brooke David C. Author Paul G. Cereghini Thomas M. Klein Thomas C. Howard Aimee L. Burr Peter A. Frazier
November 7, 1990
VIA FEDERAL EXPRESS
Jeanette T. Boechler, Esq. Craft, Thompson & Boechler, P.C. 16 North Broadway, Suite 315 P.O. Box 1932 Fargo, North Dakota 58107-1932
Re: North Dakota Personal Injury Asbestos Litigation No. 1
Dear Ms, Boechler:
Enclosed herewith and served upon you, please find defendant Hercules Chemical Company, Inc.'s response to plaintiff's second amended notice of deposition. Also enclosed are copies of responsive documents being produced pursuant to subpoena duces tecum.
By copy of this letter, all counsel of record are being served with the pleading only. Any counsel wanting copies of the documents may contact us.
Sincerely,
DSL/bmp Enclosure
cc: All counsel of Record
Ai ,'
IO
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11/7/90
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