Document mmKJBeDvno33m8Ge5d9RkybYQ

f,'*! ` iflf ff j f ,, 1 SEDGWICK, DETERT, HORAN & ARNOLD NICHOLAS W. HELDT 2 111 Pine Street San Francisco, California 94111 3 Telephone: (415) 982-0303 . 4 Attorneys for Special Party in Interest, THE DOW CHEMICAL COMPANY 5 MARIE MATTROCCE IN OPEN COURT APR 5 1983 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO 10 DEPARTMENT NUMBER NINE 11 Coordination Proceeding Special Title (Rule 1550(b)) 12 ASBESTOS INSURANCE COVERAGE CASES 13 14 15 ) JUDICIAL COUNCIL COOR ) DINATION PROCEEDING ) NO. 1072 ) ) DECLARATION OF ) JAMES H. HANES ) ) 16 I, james H. hanes, declare: 17 I am Vice President of Dow Chemical U.S.A., an operating 18 unit of The Dow Chemical Company, and Associate General Counsel of 19 The Dow Chemical Company. I am authorized to make this declara 20 tion on behalf of The Dow Chemcial Company. 21 The Dow Chemical Company ("Dow") manufactures a broad 22 variety of industrial, commercial and consumer products. The 23 plaintiffs herein (i.e., Johns-Manville Corporation, Fibreboard 24 Corporation, Armstrong World Industries, and GAF Corporation) 25 compete with Dow in a number of product areas. 26 /// >* 1 During the last twenty-seven years, Dow has been insured 2 by Fireman's Fund Insurance Company (1956 to 1976) and by Aetna 3 Casualty and Surety Company (1976 to present). Many claims have 4 been brought against Dow during that period which allege damages 5 arising out of the use of, or exposure to, Dow products. Alarge 6 number of such claims allege injuries due to sustained exposure to 7 one or more Dow products; that is, cumulative trauma injuries. 8 In order to assist its insurers in their investigation 9 of claims and preparation for litigation, Dow provided Fireman's 10 Fund and Aetna with an enormous amount of information, including: 11 product design and composition specifications; laboratory studies 12 and data relating to the effects, hazards, and toxicity of the 13 product or products in question; historical data; market informa 14 tion; and whatever other information was required by the insurer 15 in order to accurately evaluate and fully defend each individual 16 claim. 17 The information provided by Dow to its insurers in con 18 nection with claims brought against Dow was, and .is, considered 19 highly sensitive and confidential. It is the type of information i 20 that is considered confidential within Dow, and is shared only 21 among those who have a bona fide need for the information. Dow 22 would not willingly provide such information to any person or 23 entity outside Dow unless it was assured that the information 24 would remain strictly confidential. The confidential information 25 provided to Fireman's Fund and Aetna was subject to the clear and 26 /// StDGWICK. DtTtAT. MORAN * AJtNOCO *.-. in tfatir ilCvInt* rioo* ] AN HCl|CO (4191 0)01 2 * **" S d. -i - - V A.lAd^^,:UaA^A.fi.x.i^. --^Ijf',; explicit understanding that such information would be held in confidence. The files maintained by its insurers are trade secrets 4 of Dow. In addition to specific details or bits of information 5 contained in any individual file which constitute trade secrets, 6 the overall picture represented by files, which include names of 7 plaintiffs, their counsel, the products which are alleged to be 8 injurious, the types of injuries alleged, theories of recovery, 9 and so forth, constitutes a compilation of adverse and highly 10 sensitive information concerning Dow, and that such a compilation 11 is itself a trade secret of The Dow Chemical Company. 12 In many claims, Dow obtains and transmits to its in 13 surers the medical records pertaining to the claimant. Often 14 these records are obtained through the authorization of the 15 ! claimant. Dow feels an obligation to the claimant to take 16 reasonable steps to avoid broad dissemination of this personal 17 information. 18 Dow is concerned that should a compilation of informa 19 tion contained in the files of its insurers be made and distri 20 buted, even if limited only to the parties to this action, Dow's 21 interests will be irreparably prejudiced in that: 22 1. Its competitors will obtain a competitive advantage; 23 2. Its ability to effectively negotiate with insurers 24 for liability insurance will be greatly impaired; 25 3. It will make the negotiation and settlement of 26 law o*'K Socwcx. oertKT. MOHAN 4 A**O10 4 * *<VvM I 4vV*^ HI IH| ftTftCtl tVC I *1004 )AN rnANClSCO |4iV - pending and future liability claims more difficult, and possibly 3. 1 more expensive, through publication of past and present reserves 2 and information concerning individual claims evaluations, and 3 4. Litigation against Dow will be stimulated by dis 4 semination. of information regarding past and present claims 5 brought against Dow. 6 If this Court orders disclosure of underwriting and 7 claims files pertaining to The Dow Chemical Company it will B forever affect Dow's dealings with its insurers. No sensitive 9 business information will be provided to Dow's insurers even 10 though that might assist the prompt, fair and efficient handling 11 of claims. Based on my years of experience in handling claims 12 against Dow, the risk of harm to The Dow Chemical Company that may 13 result if a compendium of claims information is ordered produced 14 in this action is so enormous that it may call for re-evaluation 15 of the desirability of carrying insurance at all. 16 I am charged with the duty to supervise the handling of 17 all claims and litigation against The Dow Chemical Co., and am 18 personally familiar with the coverage position taken by Dow's ' 19 insurance carriers with respect to claims. Fireman's Fund and 20 Aetna have always consistently adhered to the manifestation theory 21 of coverage on cumulative trauma claims against Dow. 22 I declare under penalty of perjury that the foregoing is 23 true and correct of my own personal knowledge and if called as a 24 witness I could and would competently testify thereto. 25 /// 26 /// r 4 * u , ', - y ^ - ^ . > - i^ ^ 'v w . , f a t l ir y ...j . lLhr-" f" 1 Executed this 28th day of March/ 1983/ at San Francisco, 2 California. 3 4 5 6 7 B 9 10 11 12 13 14 1 15 16 17 18 19 20 21 22 23 24 25 26 LAW 0*f.C<4 *DCWICK. OtTWT. UOfiAN a AimOLO 1/tan.tMx^ Ci u~< 1L 1>I fKOO*t! .'iSC TAfiT A.1 fOA.NC!*v:0 MI?I tAl-OIOJ 5