Document nkByejjre6ox2ekwJQnDoperm

FILE NAME: National Gypsum (NG) DATE: 1975 May 16 DOC#: NG012 DOCUMENT DESCRIPTION: Legal Letter to Armstrong Cork RE Appropriate Warnings as to Asbestos Products  1 /f^ '* ; PlllLLlf*. I . Y T U 5 . H l T C J I C i i C K . D l - V I . V i ; V I l c u i l i i I t M l f 9t<. 4 C*4i4t A tto ux c y k a t Law 3 * 0 0 Ma u i MU M iuu a .n i C u.vti:m PR hB errA Lo. Xcw You* u s o u iy 1 6428 . 'R?SiA $ nu- c e n t H f " " JU 2 - iiaya, Esq^./i Legal Department'' Secretary4a Of fico Armstrong Cork Company Lancaster, Pennsylvania 17604 ' (j Dear'Hr Mays* j Z aa writing you this letter to further amplify the consent in our phone conversation regarding appropriato warnings ns to asbestos products. After considerable reflection on tho ' problem, it is our view as counsel for Rational Cypsua Company that, vhilo sono added benefit say possibly accrue to a vendor j who neJcea cocciai reforence to asbestosls and cancer on labels of asbestos products, that possible benefit say be more than | outweighed by *the additional lawsuits fomented by the constant references to asbestosls and cancer an labels, i j Accordingly, ve think it would be advloabla to ro- I consider whether any such references should be included in the -warning label* This view is based chiefly on four factors* 1* Our concern whether more lawsuits will be brought which otherwise would not ber 2m Our belief that to inelude such terms may be an -ovesrsaction to the unfortunate facts of tho. Eorol decisioni 2m Our belief that the OCJTA requirod label gives deguato warning since tho averego vorhsan must realise -that the "serious bodily harm* that nay bo caused by' breathing asbestos dust can only refer to a possiblo serious ^Lusg involvement: and A. Sari Hay# R jK rA O O U 16, 1975 6427 4 Our belief that aabestos cement products such , *s those purchased by Armstrong from National probably ? would not involve any violation of current OSHA standards since the asbestos fibers are locked in, the products are precut and involve very little cutting on the job because they can be scored and snapped without cutting. * la rereading the Borel case (493 F.2d 1076) with this question, in mind, our attention was drawn to a number of comments A brief review of those c e m e n t s may be helpful. First, the Court noted Borel's ignorance that any serious illness could result. At page 1081: "... he [Borel] never realized that it could cause any serious or terminal Illness. Borel emphasized , that he and his reliow workers thought that the dust 'dissolves as it hits your lungs'.* A t page 1093: For present purposes, it is sufficient to note that Borel testified that he did not know that inhaling asbestos dust could cause serious Illness ...* At page 1098: "Borel testified that he never realized that Inhaling asbestos dust could cause serious illness...* At page 1104: "... he never realized that it could cause any serious or terminal illness.* Secondly, the Court noted the complete lack of any warning: At paga 1090: "... during Borel's working career no manufacturer ever warned contractors or insulation workers, including Borel, of the dangers associated w i t h __ inhaling asbestos dust..." PLAINT EXHIBI 1765 (2 *. -- A Sari Hays 2pfTQrADnij P C M T C R - 3- 6 4 2 8 May 15, 1975 After raforring to bolatci viThlisgs in excessive quantities ovor long ptriodsof tics cay bo haraful tho Court noted at pago 1104 * * none of these so-called 'cautions' intiaated the gravity of the risk ...* At page 1099 m "... defondants gave no instructions- or vaxnisos at all.* -- * % At pago 1103: ' aOero# thero was a sluty to epeaJc# but the defondaats xemained silent.* At page 1105 *Thus, thaxe voro no warnings when they eocld have effectively allowed Corel to cake the choice of encountering or not encountering a known risk.* . On page 1105 appears what is seeningly the only basis in the decision for caking a specific label reference to asbestosis or cancar: *... our roforescea to failure to warn refer to failure to warn of the gravity of tho danger, that .is, tho exposure to asbestosis, nesothellcoa and othor cancers " Thirdly, it noted that failing to follow proper instruc tions would negate any claia against tbs manufacturer. It started at pago 1083 and noted the Restatement* a definition of unreasonably dangerous products *... a product is unreasonably dangerous only whan it is 'dangerous to an extent boyend that contcspletod by tho ordinary consumer who purchases it'...." stated Zt approvod tho Trial Court's ehargo at page 1098 which *... if you find ... that the deceased know of tho dangerous nature of the asbestos products with which. A. Earl Miyi t PCJTAOO'J rCM Jp Hay 1C, 1373 6429 "a ho vas working and appreciated the dancer ... then you would find against the plaintiff ..." aotingt Xt reiterated that approval at pages 1107 and 1108 If you find that the deceased know of the dangerous nature ... and that he assumed the risk by continuing his work, then you would find ... * la favor of the defendants." On page 1099 it referred specifically to tvo Texas decisions where the plaintiff's, failure to follow the eanufacturer's instructions were found to bo misuse and a valid defense to the claim against the manufacturer. We certainly recognize the difficult position in which Iall sollcrs of asbostos products nov find themselves but wo do believe that there may be considerable merit in avoiding reference! to asbostasis, a torn probably unknown to tho avorago reader, and to cancer, a too well known and scary tern that night generate otherwise unbrought lawsuits. X certainly appreciate the opportunity to discuss this quostlon with you and will look forward to hearing further frax you when you have had a chance to reconsider it. Bhl cct Nr. A. It. Fay Mr. W. B.*Hoffman Mr. F. II. Slsscraaa A. L. Beck, Esq. v Mr. F. B. Ziegler HAY 20 75