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 09/20/01 THU 13:15 FAI 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. @1007 1 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 09/20/01 THU 13:17 FAX 701 237 9035 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 09/20/01 THU 13:17 FAX 701 237 9035 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 09/20/01 THU 13:17 FAX 701 237 9035 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 09/20/01 THU 13:17 FAX 701 237 9035 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 09/20/01 THU 13:18 FAI 701 237 9035 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 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. @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 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. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:19 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:19 FAI 701 237 9035 BOECHLER, P.C. -->-> 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:19 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:20 FAI 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:20 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:20 FAX 701 237 9035 BOECHLER, P.C. .*--> 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:21 FAX 701 237 9035 BOECHLER, P.C. ->->-> 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:21 FAI 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:21 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:22 FAX 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:22 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:23 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:23 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:23 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:24 FAX 701 237 9035 BOECHLER. P.C. ^ 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:24 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:24 FAI 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:25 FAX 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING# FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:25 FAI 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. @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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:26 FAX 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:26 FAX 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:26 FAX 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. @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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:27 FAX 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:27 FAX 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:28 FAX 701 237 9035 BOECHLER, P.C. 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 09/20/01 THU 13:28 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:29 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:29 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:30 FAI 701 237 9035 BOECHLER, P.C. THOMPSON. P.C. @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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:30 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:31 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:31 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:32 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:32 FAI 701 237 9035 BOECHLER, P.C. 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 09/20/01 THU 13:33 FAX 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:33 FAX 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BIiACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:34 FAX 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:34 FAX 701 237 9035 BOECHLER, P.C. 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 09/20/01 THU 13:35 FAX 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:36 FAX 701 237 9035 BOECHLER, P.C. 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. 59 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:36 FAX 701 237 9035 BOECHLER, P.C. ->-- 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. 60 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:37 FAX 701 237 9035 BOECHLER, P.C. 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? 61 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:37 FAX 701 237 9035 BOECHLER, P.C. 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. 62 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:38 FAX 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:38 FAX 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:39 FAX 701 237 9035 BOECHLER, P.C. ->--> 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:39 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:40 FAX 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:40 FAX 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:41 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:42 FAX 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:42 FAX 701 237 9035 BOECHLER, P.C. 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 71 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:43 FAX 701 237 9035 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. 72 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:43 FAX 701 237 9035 BOECHLER, P.C. 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. 73 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:44 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:45 FAX 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:45 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:46 FAX 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. 1078 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 77 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:46 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:47 FAI 701 237 9035 BOECHLER, P.C. 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. 79 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:48 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:48 FAX 701 237 9035 BOECHLER, P.C. 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 09/20/01 THU 13:49 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:49 FAX 701 237 9035 BOECHLER, P.C. 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:50 FAX 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. 085 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:50 FAX 701 237 9035 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 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:51 FAI 701 237 9035 BOECHLER, P.c. -*->- THOMPSON, P.C. 087 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 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 09/20/01 THU 13:51 FAI 701 237 9035 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. 87 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING/ FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:52 FAX 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. @089 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. 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? 88 NORMAN E. MARK - COURT REPORTER SERVICE 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:52 FAX 701 237 9035 BOECHLER, P.c . THOMPSON, p.c. @090 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 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 09/20/01 THU 13:53 FAX 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. @091 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. 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 312 BLACK BUILDING, FARGO, N.D. 58103 (701) 235-7571 09/20/01 THU 13:54 FAI 701 237 9035 BOECHLER, P.C. THOMPSON, P.C. 111092 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 0CO .; 01 , rco CSJ O t"- 3 tu o o Cvl o: ^ o 'idilli^i':'-'' ;.. QUESTIONS? C, Wmiim ; AIRBILL P--*-- I . I I w -- .... / PACKAGE' TRACKING NUMBER ` y m f i ' i o a s iTw j i a i i s ^ p a s : v.;;. $&y?y.-r . '' v :';rv Sk iv `v ;'- O t t e " * - 11/7/90 RECI PI ENT' S COPY I George Vi* Soule - ' -xw-v.v ^ Frotn'(YjwrNed).Please Prfnl - , . . ,-.C7 X -'v ; ; - jvour Phone Ntrbef (Vety importahl) w l^(R 8C pienl'sN afne) PteaseFrint ' . * ^ -'( 61% 39-8682 fp:;Jeanette T, Boechler ; Redplant's Ptorw Nunber (Very Important} it .-.e y / - ....... - . v ' a/.-.y -x.; . ax-`-x : '> 'liII- Company K- t. i;0WtAN 6?:0wK <'* ' v >' S|*A(dWi' X " y f.: viti'-r"-.'' 1 peertmenl/F!oqr Nij, ci"; NKQULyT tfALk 4,TkpO ; m\-. c i t y '. a ie . <:". [fRequired;' -.: K-yyyo r i l K N f e P C L l S - ' n' ; C o m p a n y .'' ... . ' ., .. ' Depanment/Floor No. : GRAFT/ TllCtlPSaj & BOBCHLER, P.C. Exact.Street Address (Wt cvnO U ntr toPO. Box* aP. 0 .& Cada*./ :16 North Broadway, Suite315 C4y". .-7' ' ' ' S- ate r--Z iP R e q v w e d ' - Fargo/ 58107t1932 t IFHOLDFORPICK-UPPrintFEDEXAddressHen - ' ;>:V(- :; . . ;reet Address C ity: . ' . *' ' ' . State ZIP.Required itianmANa$PBCiAihaning:- j <\ri{Check jenkfea.mgiiitea)' W8QKT-:.: mp. No. ' Q Cash Peciivad 1.0WVUSWaAYttm'ri is^iszu, QAAAA --/CD -V 0 j h /vcti ' f~] ; {N*wfit*to**tuot*) j :-.. . -V--J s- 0 Return Shipment ' Third Perty Street Address . City ' 0-^f 7 , 1 Total Total Total, s Received By: 14Q-HIW:;>sipl W*e::-i .k v y e riS rtS *^ ' : -Snio '. ' flo iB L 0*ij ny,- ftomwy SJantamAir) : p*<*eor (S0.ti r ..tM w ytiyaKentf ;-70'. LJantt'f'iw.*?f, 39_._0...tHysiUr's.:W;;,,__[_J-ffitPl8ft:*. fOMlifctwlvyhonoimnr>t-imni>i.m>a] .'`-'*C0tIdtian'tlVeiMkmjtUtmnetUJtl.iij. (EMnchvgi). -P;r . ; v / : /tlbt X - p ^ / T im e Ftecelved , ; j p flepylflr;$iop. 3 0 . prop Box . - 4.DB%jC.' ? a '0f-Cafl5t^> ` SBOBEon-l.SiQflamt ` FedEx . Erop N o . ' '.pat/fim e Date ChgToOei . ' Stale O g ToHold , . . 2tp ; - FedEx Employee Number f;eooiCiitAprcsi;Usu Base Charyos tj<;rJ<*u:ciViiIih;Dmr'jr; Qlliuf 1 Other 2 Total Charges ; PRAEHV!ISIVOIN DAT1EI0'a/9E0WU-l' FORMAT #041 \ M; wr~ : ,<5' T&&Z.ir-~ . . ' .;XC'.'WCX5'.vV 9 .5 ^ 4 f "*: S 5* ;}i J' vxcxv % sisSSTHt-a ' 1: . ~ ~112(k*51^ - ' s . . ?<' ? : k '" ;:P? rtiC---xtOv :V>>'X/