Document wgKVDgzk5bawdzY0MVRpNg3p3
FILE NAME: Ztt
DATE:
DOC#: t
DOCUMENT DESCRIPTION>tZZZWD /ZZZZWZZZ
IN RE: ALL ASBESTOSRElATED
PERSONAL INJURY OR DEATH
CASES FILED OR TO BE FILED
IN BEXAR COUNIY, TEXAS
IN THE DISTRICI' COURT OF BEXAR COUNTY, TEXAS 285TH JUDICIAL DISTRICf
BORG WARNER CORPORATION'S RESPONSES TO PLAINTIFFS' MASTER INTERROGATORIES AND REOUEST FOR PRODUCTION TO DEFENDANTS
INTERROGATORY NO.1:
State the name, address, job title, length of time employed by Defendant, and a year-by-year list of all other positions, titles, or jobs held when working for Defendant of each person who has supplied any information used in answering these interrogatories.
ANSWER: Laurene H. Horiszny, Vice President-General Counsel, Borg Warner Automotive, Inc., a wholly owned subsidiary of Borg Warner Corporation, 200 S. Michigan Avenue, Chicago Dlinois, 60604, is responsible for these answers, which are based upon information developed through review of numerous documents and communications with many Borg Warner employees over a period of several years.
INTERROGATORY NO.2:
State whether or not you are a corporation. If so, state your correct corporate name, the state of your incorporation, the address of your principal place of business, the name and address of the person or entity authorized to accept seIVice of process on your behalf, and whether or not you have ever held a Certificate of Authority to do business in the State of Texas.
ANSWER: Yes.
State of Incorporation : SeIVice Agent:
Borg Warner Corporation 200 S. Michigan Avenue Chicago, Illinois 60604 Delaware Borg Warner Corporation .. Law Department 200 S. Michigan Avenue Chicago, Illinois 60604
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INTERROGATORY NO.3:
Has Defendant or any of its predecessor or subsidiary companies at any time engaged in the mining and subsequent sale of material containing asbestos fibers? If so, identify the location of the mine(s), the years of its operation, the type of asbestos mined and whether you sold any asbestos to any Defendants in the Dallas County asbestos litigation.
ANSWER: Borg Warner objects to this interrogatory on the basis of Plaintiff's definition of "material". Without waiving its objection, Borg Warner answers: As Defendant understands the meaning of nmaterial", its answer is No. Further, Borg Warner answers that it never mined materials containing asbestos fibers.
INTERROGATORY NO.4:
Identify by name each product containing asbestos fibers that Defendant or any of its predecessor or subsidiary companies at any time manufactured or sold.
ANSWER: See Answer to Interrogatory No. 6.C.
INTERROGATORY NO.5:
Identify by name each product containing asbestos fibers that Defendant or any of its predecessor or subsidiary companies at any time marketed or sold.
ANSWER: See Answer to Interrogatory No. 6.C.
INTERROGATORY NO.6:
If the answer to one or more of the last three interrogatories is in the affirmative or lists any products, state as to each named product the following:
A. As to each product, state whether such product was mined, manufactured, marketed, and/or sold.
B. The names of the companies mining, manufacturing, marketing, and/or selling each product mined, manufactured, marketed, and/or sold.
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C. The trade or brand name of each of those products mined, manufactured, marketed and/or sold.
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D. The date each of the named products was placed on the market
E. A description of the physical (chemical) composition of each of the named products, including the type of asbestos contained in the product and the percentage of asbestos put in each product.
F. The date each of the products was removed from the market and no longer sold or distributed and the reason or reasons therefor.
G. The date asbestos was removed from such products, if ever, and the reasons therefor.
H. A description of the physical appearance of each of the named products.
I. A detailed description of the intended uses of the named products.
J. Identify the last year that you sold each asbestos-containing product.
ANSWER:
6A. Borg Warner's asbestos-bearing products were sold primarily to Original Equipment Manufacturers (OEM's). Some products were distributed through national distributors.
6B. Borg Warner states that three of its business units were involved in the manufacture, distribution and sale of service brake products or clutch assemblies incorporating asbestosbearing materials. They were the following:
Borg & Beck Division 6700 18 1/2 Mile Road Sterling Heights, MI 48078
6558 South Menard Avenue Chicago, IL 60638
Rockford Division 1200 Windsor Road Rockford, IL 61125-7007
SpringIDrummer Division
700 South 25th Avenue
Bellwood, IL 60104
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6C. Brand name(s): Disc brake pad: SD-712. Dutch assembly: No known brand name. Trademark name(s): Disc brake pad: BW-712.
6D. Dutch assemblies containing asbestos-bearing components supplied to Borg Warner by other manufacturers were first sold by Borg Warner in 1928. Disc brake pads were manufactured and sold by Borg Warner for vehicle model years 1971-1975.
6E. Borg Warner disc brake pads incorporated both crocidolite (blue) and chrysotile (serpentine) asbestos fibers. Formulations indicated an asbestos weight percentage varying from 7% to 28% of asbestos fibers depending on the particular type of disc brake pad. Borg Warner does not know the formulations of asbestos fiber in the clutch facings, as the clutch facings were obtained by Borg Warner from suppliers who have maintained this information as proprietary. Borg Warner believes that the facings contained chrysotile fibers.
6F. Borg Warner discontinued the manufacture of service brake products for economic reasons in 1975. Borg Warner's clutch operation was sold in 1988 for economic reasons.
6G. Borg Warner objects to this interrogatory's subpart as it is vague and subject to several interpretations. As Borg Warner understands the meaning of the word "removed", asbestos was not removed from its products. See Answer to Interrogatory 6.F. for discontinuation dates of products that once contained asbestos.
6H. Disc brake pad: solid black products with some visible white fibers impregnated in them. They were marked on one edge with B-W 712 in either white or yellow ink. Another marking identified the particular batch of material (e.g. BD069) and a blue pin stripe was on one end. Dutch facings contained in the clutch assembly: solid form varying in color from gray to black to brown. They were sold as received except Borg Warner affixed them to clutch plates. Generally, clutch facings contained in the clutch assemblies may be distinguished by the part number inside.
61. The products were sold as automotive clutch assemblies and automotive disc brake pads, and were intended to be used as such.
6J. See Answer to Interrogatory 6.F. Borg Warner briefly owned an automotive parts
remanufacturer, Unit Parts, between 1972 and 1976 which may have distributed asbestos-
containing brake and clutch products.
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INTERROGATORY NO.7:
Do any documents, including but not limited to written memoranda, specifications, recommendations, blueprints, or other written materials of any kind or character, relating to the design, preparation, or introduction into the market of the products listed in Interrogatory No. 6 still exist? If so, state:
A A description of each such document.
B. The name, address, and job title of each person who currently has possession of each document, and where the documents are currently located.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, harassing and not calculated to lead to the discovery of admissible evidence. Without waiving the foregoing objections, Borg Warner states that any such records no longer exist.
INTERROGATORY NO.8:
Before distributing, selling, or placing the products listed in your responses to Interrogatory Nos. 3-6 into the streams of commerce, were any tests conducted to determine potential health hazards involved in the use of, or exposure to, the materials such as asbestos, contained in those products? If the answer is affirmative, state:
A The names of the products tested and the date of each test.
B. The name, address, and job title of each person conducting the tests or involved with conducting the tests.
C. The results of the tests.
ANSWER: None known.
INTERROGATORY NO.9:
Do any documents, including but not limited to written memoranda, specifications, recommendations, blueprints, or other written materials of any kind or character, relating to the testing of the products referred to in Interrogatory No. 6 now exist? If so, state:
A A description of each such document.
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B. The name, address, and job title of each person who currently has possession of each document, and where it is presently located.
ANSWER: None known.
INTERROGATORY NO. 10:
Did Defendant or any of its predecessor or subsidiary companies make any design changes or modifications as a result of those tests described in responses to Interrogatory No.8? If the answer is affirmative, state:
A The trade names of the products changed.
B. The nature of the changes made and the date of such changes or modifications.
C. The name, address, and job title of each person responsible for having caused a change to be made, or having made a change or modification.
ANSWER: Not applicable.
INTERROGATORY NO. 11: After releasing the products listed in Interrogatory No. 6 to the public, were any tests
conducted on them to determine potential health hazards resulting from the use of or exposure to the materials, such as asbestos, contained in those products? If the answer is affirmative, state:
A The names of the products tested and the dates of such tests.
B. The name, address, and job title of each person who conducted those tests.
C. The results of those tests.
D. Whether, as a result of the tests, any products were removed from the market.
E. The names of all products removed from the market as a result of these tests.
ANSWER: None known.
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INTERROGATORY NO. 12:
Do any documents, including written memoranda, specifications, recommendations, blueprints, or other written materials of any kind or character, relating to the potential health hazards of the products listed in Interrogatory No. 6 now exist? If so, state:
A. The name of each product.
B. A description of each document and how it relates to each product.
C. The name, address, and job title of each person who currently has possession of each document, and where it is presently located.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it makes a contention that Borg Warner's products were potential health hazards. Without waiving its objections, Borg Warner answer: None known.
INTERROGATORY NO. 13:
Did Defendant or any of its subsidiary companies make any design changes as a result
of the tests discussed in your response to Interrogatories No. 8 or 11? If the answer is
affirmative, state:
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A. The names of the products changed or modified.
B. The name, address, and job title of each person responsible for having made a change or modification.
C. The nature of the hazard or defect which resulted in such change or modification.
ANSWER: Not applicable.
INTERROGATORY NO. 14:
Has Defendant or any of its predecessor or subsidiary companies at any time published or distributed any printed material, including brochures, pamphlets, catalogs, packaging or other written material or any kind or character con~ning any warnings concerning the possibility of injury resulting from the use of the asbestos-containing products listed in Interrogatory No.6? If so, state:
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A The names of each relevant product.
B. The exact wording of each warning statement on each printed material.
C. A description of the printed material other than the warning statement.
D. The method used to distribute the warning to persons likely to use the product.
E. The date each warning was first issued, distributed, or placed on packaging.
F. The name, address, and job title of each person responsible for having drafted or issued the warning.
G. The current location of any such printed material and the custodian thereof.
H. The form in which such literature or printed material can be accessed, i.e., the manner in which such literature is indexed or stored.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it is overly broad and burdensome. Without waiving its objection, Defendant states that it placed warning labels on its asbestos-bearing products in accordance with the requirements of the Hazard Communication Rule of 1986.
14A Clutch assembles.
14B. Refer to Warning Label attached as Exhibit A to interrogatories.
14C. The warning label was printed on a yellow sticker label.
140. The sticker label was applied to the packaging that the clutch assembly was in.
14E. 1986 in compliance with the Hazard Communications Rule of OSHA
14F. No records exist indicating the person responsible for having issued the warning. Borg-Warner adopted OSHA's suggested language in compliance with the 1986 Hazard Communications Rule.
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14G. Borg-Warner Automotive, Inc., Law Department, 6700 181/2 Mile Road, Sterling Heights, MI.
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14H. On file in Borg-Warner Automotive Law Department.
INTERROGATORY NO 15:
Before 1970, had you received notice that any individual or individuals, other than those Plaintiffs who have filed personal injury actions in Dallas County, Texas, is or are claiming or has or have claimed an injury as a result of using asbestos products manufactured and/or sold by your company or any of its predecessors or subsidiaries before 1970? If so, state:
A The name and address of each claimant.
B. The date of notice of each claim.
C. A description of the claim.
D. The type of injuries allegedly sustained.
E. The name and address of each attorney who represents each individual making a claim.
F. The style and court number of each claim.
G. The disposition of each claim that has been settled or taken to judgment.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it is irrelevant in that it is not calculated to lead to the discovery of admissible evidence with regard to persons who have given notice of claims. With regard to lawsuits on file, Borg Warner agrees to produce documents at Borg-Warner Corporation, 6700 18 1/2 Mile Road, Sterling Heights, MI, by pre-arranged appointment. With regard to the disposition of each claim either by settlement or judgment, Borg Warner objects to this Interrogatory on the grounds that it is irrelevant in that it is not calculated to lead to the discovery of admissible evidence. Without waiving the foregoing objections, Borg Warner answers: None known.
INTERROGATORY NO. 16:
Were your asbestos products distributed, marketed, packaged, labeled and/or sold by companies other than your own? If the answer is affirmative, list the names and addresses of each of those companies, and the products in questiQn.
ANSWER: Borg Warner objects to this interrogatory as it is overly broad and unduly burdensome. Further, it asks for information beyond the scope of this witness' knowledge
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in that it asks for information concerning companies not owned or controlled by BorgWarner. Without waiving the foregoing objections, Borg Warner states that its products were primarily sold to original equipment manufacturers. Borg Warner did sell some of its products to the aftermarket through its automotive parts division, a unit of Borg Warner and to some national distributors, the ones which are known being attached and listed on Exhibit B. However, Borg Warner has no way of knowing what happened to those products once they were sold by Borg Warner.
INTERROGATORY NO. 17:
Did you or any of your predecessors, successors, or subsidiaries have any distributors or sales representatives of asbestos products in the States of Alabama, Florida, Mississippi, Oregon, Washington, Georgia, Tennessee, Texas and Virginia? If so, state:
A. The name and address of each such distributor or sales representatives.
B. The years in which such company or person distributed, marketed, or sold your products.
C. What products were distributed, marketed, or sold and in what years.
ANSWER: All known entities are listed on attached Exhibit B.
INTERROGATORY NO. 18:
List each employee (including only physicians andlor hygienists) who has acted in a medical advisory capacity to your company at any time during the past 40 years, including, but not limited to, physicians and industrial hygienists, and the current address, telephone number and job title of each of those individuals and who has, had or may have had any knowledge regarding the hazards of asbestos.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it is overly broad
and burdensome. Without waiving its objections, Borg Warner answers as follows: The
Corporation did not employ an individual for the purposes stated. Divisions of the company
did employ plant physicians. Of the four (4) plants listed in Answer to Interrogatory 6B.
only the Bellwood and Sterling Heights plants are stilled owned and operated by Borg
Warner Corporation.
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(a) During the 1980's Dr. Jamie Galiano was an independent contractor who visited the Bellwood Plant a few days a week to treat injuries and illnesses of the employees. Dr.
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Galiano was not an employee of Borg Warner Corporation, and is no longer retained by the Bellwood plant, though he is presumed to still be practicing medicine. His address and telephone number are unknown.
(b) Dr. William Blair acted as an independent contractor with regard to the Sterling Heights plant. He was last retained by the Sterling Heights plant in the late 1970's or early 1980's. As with Dr. Galiano, Dr. Blair was not an employee of Borg Warner Corporation. Dr. Blair is deceased.
(c) Until approximately 1990, Lois Michelsen, RN., worked at the Sterling Heights plant. Her current address is believed to be 34814 Fuerstenau, Richmond, MI 48062.
INTERROGATORY NO. 19:
Does Defendant have in its possession any books, pamphlets, memoranda, or written materials of any kind or character that would indicate that asbestos fibers, when inhaled, can be hazardous to the health of human beings? If so, state:
A The name of each such publication.
B. The date of publication and the names of the author and publisher (if any).
C. The date received by Defendant, if known.
D. The name, job title, and address of each person who currently has possession of each publication and its present location.
ANSWER: Borg Warner objects on the grounds that this interrogatory is overly broad, unduly burdensome, and harassing. Without waiving this objection, Borg Warner answers as follows:
19A A publication called "Asbestos" in addition to excerpts from various unknown publications.
19B. The exact years of the subscription to this publication are unknown though the publication was discontinued years ago.
19C. Unknown.
190. As former employee, Richard Rosenberg, established a small library on June 12,
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1976. The library was located at Borg Warner's former Roy C. Ingersoll Research Center in Des Plaines, IL Maintenance of the library was discontinued in the 1980's. The Research Center was closed in 1988, and the then-remaining contents of the library were sold or disposed of.
INTERROGATORY NO. 20:
Has Defendant or any of its subsidiary or predecessor companies at any time been a member of any trade organization or association that published or disseminated any documents or information relating to the hazards of asbestos comprised of other manufacturers, miners, marketers, and/or sellers of asbestos products? If so, state:
A The name and address of each such association or organization.
B. The dates during which Defendant or any of its subsidiaries or predecessors were members.
C. The names and dates of any publications, minutes, or reports published, written, or disseminated by any 'of the named associations or organizations.
D. Whether any of those publications are still in your possession, and if so:
1. A description of the publications, including the date.
2. The current location of such publications.
3. The custodian of such publications.
4. The method or manner in which such publications are maintained.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it is overly broad and burdensome. Without waiving its objections, Borg Warner answers as follows:
20A Some of its employees are or were members of, or have attended seminars held by various trade associations such as the American Society of Metals, American Association of Mechanical Engineers, Society of Automotive Engineers, Friction Subcommittee Transmission and Drive Train Technical Committee, 3IlclNationai Safety Counsel.
20B. No further information is available.
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20C. No further information is available.
20D. No further information is available.
INTERROGATORY NO 21.
Identify by name and location each plant or manufacturing facility in which the products listed in your answers to Interrogatory Nos. 3-6 were manufactured, assembled, or prepared for sale or marketing, specifying which plants produced each item, the dates each plant is or was in operation, and the time span during which each named item was produced or manufactured.
ANSWER: See Answer to Interrogatory 6.
INTERROGATORY NO. 22:
Have printed sales materials been prepared by Defendant or any of its subsidiary or predecessor companies or their agents for purposes of marketing or advertising products containing asbestos? If so state:
A. The name, address, and job title of each person or entity who prepared such materials.
B. The name, address, and job title of each person who currently has possession of such materials and their present location.
C. The date the materials were prepared.
D. The media used to disseminate the sales materials.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it is overly broad, burdensome and harassing. Without waiving its objections, Borg Warner answers: Yes. Borg Warner agrees to produce non-privileged documents which are responsive to this request at Borg Warner Automotive, 6700 18 1/2 Mile Road, Sterling Heights, MI.
INTERROGATORY NO. 23:
Have any written or printed materials or instructiQns of any kind or character been prepared by Defendant or any of its subsidiary or predecessor companies or their agents indicating how asbestos products should be used and maintained? If so, state:
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A The name, address, and job title of each person who prepared such materials or instructions or assisted in their preparation.
B. The name, address and job title of each person who currently has possession of such materials or instructions and their present location.
C. The dates of distribution or use and the manner in which .such materials or instructions were distributed to purchasers of Defendant's products or those of its subsidiaries or predecessors.
D. The year each such written material or instruction was prepared and disclosed to potential consumers.
ANSWER: No.
INfERROGATORY NO. 24:
Does Defendant have insurance policies that might cover the claims made by Plaintiffs in these cases? If so, list the name of each insurance carrier, the amount of initial coverage, amount of coverage remaining at the present time, and the effective dates of each policy. (If properly answered, this Interrogatory need not be supplemented as to the remaining amount of coverage).
ANSWER: See attached Exhibit C.
INfERROGATORY NO. 25:
As to the disease asbestosis, state:
A The date on which Defendant or its subsidiary or predecessor first learned that such disease was caused by inhalation of asbestos fibers by humans.
B. How Defendant became aware of the existence of the disease.
c. Who within the company first discovered, recognized or understood the adverse
consequences or effects of the disease and/or of asbestos exposure.
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D. What information was disseminated within Defendant's company or its subsidiary or predecessor regarding such adverse consequences or effects.
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E. Whether any such information is still maintained by Defendant or its subsidiary or predecessor in any written form.
F. Who is the custodian of such information.
G. The date on which you first received knowledge or information that asbestosis was caused by inhalation of asbestos fibers.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it calls for a medical and scientific conclusions, invades the work product privilege, attorney-client privilege, and party communications privilege. Without waiving the foregoing objections, Borg Warner answers that it is unaware of a specific date on which it learned that there may be adverse health effects associated with exposure to asbestos, but is certain that it learned this information when, and in the same manner in which, that information became general public knowledge.
INTERROGATORY NO. 26:
As to the disease lung cancer, state:
A. The date on which Defendant or its subsidiary or predecessor first learned that such disease was caused by inhalation of asbestos fibers by humans.
B. How Defendant or its subsidiary or predecessor became aware of the disease and its relationship to asbestos exposure.
c. Who within the company or its subsidiary or predecessor first discovered or recognized
the adverse consequences or effects of asbestos exposure.
D. What information was disseminated within Defendant's company or its subsidiary or predecessor regarding such adverse consequences or effects.
E. Whether any such information is still maintained by Defendants or its subsidiaries or predecessors in a written form.
F. Who is the custodian of such information.
y
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G. The date on which you first received knowledge or information that lung cancer was
caused by inhalation of asbestos dust and fibers.
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ANSWER: See Answer to Interrogatory 25. INTERROGATORY NO. 27:
As to pleural disease, pleural thickening or pleural plaques, state:
A. The date on which Defendant or its subsidiary or predecessor learned such disease was caused by inhalation of asbestos fibers by humans.
B. How Defendant or its subsidiary or predecessor became aware of the disease and that it was caused by exposure to asbestos.
c. Who within the company or its subsidiary or predecessor first discovered or recognized
the adverse consequences or effects of asbestos exposure.
D. What information was disseminated within Defendant's company or its subsidiary or predecessor regarding such adverse consequences or effects.
E. Whether any such information is still maintained by Defendant or its subsidiary or predecessor in a written form.
F. Who is the custodian of such information.
ANSWER: See Answer to Interrogatory No. 25.
INTERROGATORY NO. 28:
As to the disease mesothelioma, state:
A. The date on which Defendant or its subsidiary or predecessor first learned such disease was caused by inhalation of asbestos fibers by humans.
B. The date on which Defendant first suspected that mesothelioma was caused by inhalation of asbestos dust and fibers.
C. How Defendant or its subsidiary or predecessor became aware of the disease and that
it was caused by exposure to asbestos.
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D. Who within the company or its subsidiary or predecessor first discovered or recognized the adverse consequences or effects of asbestos exposure.
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E. What information was disseminated within Defendant's company or its subsidiary or predecessor regarding such adverse consequences or effects.
F. Whether any such information is still maintained by Defendants or its subsidiary or predecessor in a written form.
G. Who is the custodian of such information.
H. Whether Defendant agrees that there is no known medical cure for mesothelioma.
ANSWER: See Answer to Interrogatory No. 25.
INTERROGATORY NO. 29:
As to gastrointestinal cancer, laryngeal cancer, pharyngeal cancer or lymphatic cancer, state:
A. The type of cancer and the date on which Defendant or its subsidiary or predecessor first learned that such diseases were caused by inhalation of asbestos fibers by humans.
B. What cancers has the Defendant or its subsidiary or predecessor become aware can be caused by exposure to asbestos fibers?
C. The date on which Defendant first suspected other cancers were caused by asbestos inhalation.
D. Who within the company or its subsidiary or predecessor first discovered the adverse consequences or effects of asbestos exposure.
E. What information was disseminated with Defendant's company or its subsidiary or predecessor regarding such adverse consequences or effects.
F. Whether any such information is still maintained by Defendant or its subsidiary or predecessor in a written form.
G. Who is the custodian of such information.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it calls for a medical and scientific conclusions, invades the work product privilege, attorney-client privilege and party communications privilege. Without waiving the foregoing objections,
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Borg Warner answers that it is unaware of any evidence that the above listed diseases are "caused by inhalation of asbestos fibers by humans".
INTERROGATORY NO. 30:
Does Defendant contend that asbestos products can be manufactured or designed so as to eliminate all potential health hazards to persons working with or exposed to them? If the answer is affirmative, explain in detail, and attach any studies or surveys on which this answer is based.
ANSWER: Borg Warner objects to this interrogatOlY on the grounds that it calls for a medical and scientific conclusions that this Defendant is not qualified to render. Without waiving the foregoing objections, Borg Warner answers Yes. Borg Warner believes that its asbestos-bearing products did not allow for easy release of asbestos fibers because the asbestos fibers were encapsulated and/or impregnated within the product.
INTERROGATORY NO. 31:
Describe in detail the types of packages or packaging which Defendant or any of its subsidiary or predecessor companies used for asbestos material or products, listing the dates each type of package was used, a physical description of each type of package, and providing a description of any printed material or trademarks that appeared thereon.
ANSWER: Most of Borg Warner's clutch products were sold to original equipment manufacturers (OEMs). Such clutch products were packaged in individual boxes which in tum were placed in master cartons containing two to six packages. Master cartons were placed on skids for shipment. The packaging is generally composed of various strengths and sizes of die-cut corrugated cardboard. Shipping was also done in bulk -- a wooden pallet bottom, boxed or unboxed assemblies, and a wooden pallet top all banded together. Various types of boxes were used, based on the specifications of the various OEMs. With regard to aftermarket or service parts, clutch products manufactured by Borg Warner were often sold by the OEMs in their own packaging. Those clutch parts sold to the aftermarket were packaged in blue and gold boxes prior to 1967. The box was blue with gold lettering, pictured a clutch and the words "Borg Warner Outches". After 1967, a black, red and white box was used. This box, which was white with a red rectangular area on the left and a black rectangular area on the right, displayed the Borg Warner logo and the words "Borg Warner".
The disc brake pads were placed in cardboard cartons. The exact size of the cartons is unknown since such records are not maintained. However, it is believed that they were approximately four to six inches high, eight inches wide, and twelve inches long. The cartons
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contained approximately one hundred (100) disc brake pads in two layers - separated by a cardboard divider. The disc brake pads were not placed in individual packages. The cartons were placed on skids for shipping. The skids consisted of two or four layers of cartons.
INTERROGATORY NO. 32:
Has Defendant or any of its subsidiary or predecessor companies at any time entered into a "rebranding" agreement with any other company, either as buyer or seller, concerning asbestos materials or asbestos products? If so, state, as to each such agreement:
A The name of the company manufacturing the asbestos products.
B. The trade name affixed to those products.
C. The periods of time covered by each such agreemenL
D. The volume, in dollar amount, of each transaction.
E. The initial purchaser of the products.
ANSWER: No.
INTERROGATORY NO. 33:
List the name and address of each company from which Defendant or its subsidiary or predecessor purchased materials or asbestos products which Defendant sold or distributed in any form, stating the form of the materials, the dates of such purchases, and the ultimate disposal of such materials.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it is overly broad and burdensome. Without waiving the foregoing objections, Borg Warner answers: All the asbestos bearing friction materials incorporated in Borg Warner's clutch assemblies were supplied to Borg Warner by other manufacturers, including Raybestos-Manhattan (Raymark), American Brake Shoe, Ausco, Gatke, Johns-Manville, National Friction Products, Russe, Standco, H.K.Porter, Inc., Thermoid Division, Akebono, America, Inc., Bendix Textar, andAmco Works. Borg Warner purchased such materials over approximately sixty (60) years beginning in 1928. Borg Warner did.net resell those friction materials themselves; but rather, they were used as components in Borg Warner's clutch products.
The asbestos for Borg Warner's disc brake pads for model years 1971 to 1975, was
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purchased from Asbestos Corporation, Thetford Mines, Quebec, Canada. They sold the asbestos fibers to Borg Warner through the Donald R. Fitzgerald Co., Chicago, IL
INTERROGATORY NO. 34:
Does Defendant or any of its subsidiaries or predecessor currently have possession of any writings or contracts on those rebranding agreements set forth in the answer to Interrogatory No. 32? If the answer is affirmative, state:
A The name, address, and job title of each person having custody of each of those documents and their current location.
B. A brief description of each such document, including the dates and the parties signatory.
ANSWER: Not applicable.
INTERROGATORY NO. 35:
Prior to 1968, did any person file a claim against a Worker's Compensation carrier covering Defendant or any of its subsidiaries or predecessors alleging that he/she contracted a disease from inhaling asbestos fibers? If so, provide:
A A list of the claims, including each claimant's name, address and the date each claim was filed, and including the caption and jurisdiction of the claim.
B. The disease alleged in each such claim.
C. A brief summary of the disposition of each such claim.
D. The name, address and title of the person having custody of the records pertaining to each such claim.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it seeks information that is irrelevant in that it is not calculated to lead to the discovery of admissible evidence. Without waiving the foregoing objections, Borg Warner answers None.
INTERROGATORY NO. 36:
Did Defendant or any of its subsidiaries or predecessors maintain written minutes of
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corporate meetings, either board of directors, departmental, or otherwise, which reflect discussions pertaining to any subject matter related to asbestos, asbestos health hazards or asbestos products? If so, for each such set of minutes, state:
A. The dates of each such meeting.
B. The general subject matter discussed at each meeting.
c. Who was in attendance at each meeting.
D. Where and by whom the written minutes are presently maintained.
E. By whom the minutes were taken and put into final format.
F. Whether the minutes were abstracted and reports disseminated to other individuals, and if so, the names and job titles of those individuals.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it is unduly burdensome, vague, and irrelevant in that it is not calculated to lead to the discovery of admissible evidence, invades work product privilege, attomey-client privilege, and party communication privilege. Without waiving the foregoing objections, Borg Warner answers None knOWD.
INTERROGATORY NO. 37:
Do you or any of your subsidiaries, including foreign business entities, currently manufacture any products containing asbestos? If so, state:
A. As to each product, whether such product is mined, manufactured, andlor marketed or sold.
B. The names and addresses of the companies mining, manufacturing, marketing, andlor selling each of those products.
C. The trade or brand name of each of those products mined, manufactured, marketed, andlor sold.
D. The date each of the named products was placed on the market.
E. A description of the physical (chemical) composition of each of the named products,
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including the type of asbestos contained in the product.
F. A description of the physical appearance of each product and its packaging.
G. A detailed description of the intended uses of each of the named products.
H. Whether there are any warning labels on said products or containers regarding potential asbestos-related health hazards.
ANSWER: No.
INTERROGATORY NO. 38:
State whether you or any of your predecessors andlor subsidiaries maintain, from 1940 through the present or for any portion thereof, copies of invoices, shipping documents, bills of lading, purchase orders, or other documents of a similar nature relating to the mining, manufacture, marketing, sale or distribution of asbestos products. If so, state:
A The location of such documents.
B. The name and address of the custodian of the documents.
C. The format in which the documents are kept, i.e., hard copy, microfilm, microfiche, etc.
D. In what form the documents can be accessed, i.e, by state, by product, etc., and if by product, whether kept according to asbestos or non-asbestos.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it requires a search of records over a 54 year period. Without waiving the foregoing objection, Borg Warner answers that such documents were most likely destroyed in compliance with its record retention policy. None are known to exist.
INTERROGATORY NO. 39:
May you call company representatives as witnesses at the trial of any of these cases? If so, list:
A The name, address, and job title of each company representative who may be called.
B. A summary of the testimony expected to be given by each such witness.
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C. List any and all previous times that the named wimesses have either given deposition or trial testimony in an asbestos-related case, including the jurisdiction, style of the case, case number, date of testimony, and the name of the attorney taking the deposition for the Plaintiffs in that case.
ANSWER: Borg Warner objects to this interrogatory to the extent that it requires a summary of testimony expected to be given by each wimess as such is requested in violation of Tex.RCiv.P. 166b. Without waiving the foregoing objection, Borg Warner answers as follows:
Robert Hornick 1650 Research Drive Troy, MI 48083
James R Grady Borg Warner Automotive 6700 18 1/2 Mile Road P. O. Box 8022 Sterling Heights, MI 48311-8022
INTERROGATORY NO. 40:
Have Defendant or its subsidiaries or predecessors ever acquired through purchase, reorganization, or merger another corporation, .company, or business which manufactured, sold, processed, distributed, or contracted or supplied products containing asbestos? If so, for each such entity, state:
A. Full and correct name;
B. Principal place of business;
C. State of incorporation;
D. Date of acquisition by Defendant;
E. Whether or not the business entity was ever authorized to transact business in the State
of Texas;
~ -
ANSWER: Borg Warner objects to this interrogatory on the grounds that it is overly broad, burdensome, harassing and not relevant to the instant lawsuit. Without waiving the
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foregoing objections, Borg Warner answers that at Borg Warner's inception on June 5, 1928, four companies (Borg & Beck Co., Marvel Carburetor Co., Warner Gear Co., and Mechanics Universal Joint Co.) merged to form Borg Warner Corporation. Approximately one year later, Long Manufacturing Co., merged with Borg Warner Corporation. Those five companies were the original core companies of Borg Warner Corporation.
INTERROGATORY NO. 41:
Was each of your asbestos products generally expected to reach, or packaged to reach, the consumer or user, without substantial change in the condition in which it was sold? If not, with respect to any such product, explain in what way the Defendant claims its products were altered or substantially changed after sale or distribution and before reaching the user.
ANSWER: Borg Warner manufactured asbestos-bearing products primarily for original equipment manufacturers (OEMs), although some products were sold to the aftermarket. Borg Warner's products were ready for installation upon delivery.
INTERROGATORY NO. 42:
For each asbestos-containing product identified in response to Interrogatory No.6, identify all foreseeable users such as insulators, helpers, pipefitters, welders, machinists, plasterers, drywall finishers, carpenters, boilermakers, shipwrights and riggers, etc. of any of Defendant's asbestos-containing products.
ANSWER: Borg Warner manufactured asbestos-bearing products primarily for original equipment manufacturers (OEMs), although some products were sold to the aftermarket. Borg Warner's products were ready for installation upon delivery. They were primarily to be used by automotive assembly workers and automotive mechanics.
INTERROGATORY NO. 43:
Based upon the material contents of your asbestos-containing products, the method of manufacturing, and the method of application, can such products be generally applied without liberating asbestos fibers into the air?
A If there is a different answer concerning different products manufactured, sold, distributed, or used by your company, then specify dle different products by precise manufacturer's name and popular name.
B. If there is a difference in your answer depending on the year or years in which a
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particular product was used, then specify in detail what year or years you are referring to and the specific products you are referring to and year involved.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it calls for medical and scientific conclusions that this defendant is not qualified to render. Borg Warner's asbestos-bearing products were automotive components, not generally considered to be applied, but rather were installed. However, Borg Warner answers Yes. Borg Warner believes that its asbestos-bearing products did not allow for easy release of asbestos fibers because the asbestos fibers were encapsulated and/or impregnated within the product.
INTERROGATORY NO. 44:
Was it a foreseeable use of your asbestos-containing products that they may have been removed, stripped, of replaced at some time after installation?
ANSWER: Yes. Automotive components containing asbestos-bearing materials were capable of being removed and replaced.
IN1ERROGATORY NO. 45:
Before 1970, did you or your subsidiaries or predecessor(s) ever arrange for any labor inspectors, insurance company inspectors or anyone from your company to go to job sites where your products were being used or installed to make or take dust level counts? If so, state when this procedure started, the purpose .of such procedures, and all results of such procedures.
ANSWER: No.
INTERROGATORY NO. 46:
If Defendant performed or had performed any dust level counts, what action, based on the results, did your company take?
ANSWER: Not applicable.
INTERROGATORY NO. 47:
Has your company or its subsidiaries or predecessor(s) ever conducted or caused to be conducted any studies designed to assist in minimizing or eliminating the inhalation of asbestos dust and fibers by those exposed to the use of your company's products? If so, give
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the following:
A Name of the person or firm conducting such studies;
B. The date the studies began and the date they were completed;
C. Any publication or other written dissemination of the results of the studies;
D. The nature of any action to eliminate or minimize the inhalation of asbestos dust fibers;
ANSWER: No.
INTERROGATORY NO. 48:
Does your company have, has it ever had, or have your predecessor(s) or subsidiaries ever had, a Research Department? If so, give the year such Research Department was established, and whether or not such Research Department has operated continuously since being established. State also:
A The amount of time and money expended each year on research concerning asbestos or asbestos-containing products?
B. What percentage of gross sales did your company or its predecessor(s} spend on research concerning the health effects of asbestos?
C. State in detail the purposes, duties, and responsibilities or such Research Department.
ANSWER: Yes. Borg Warner maintained a Research Center in Des Plaines, IL from 1956 to 1988 when it was disbanded.
48A Borg Warner expended approximately $10,000,000 per year on research.
48B. No percentage of gross sales were spent on research concerning health affects of asbestos, no such research ever took place.
48C. Its purpose was for product development, testing and research. The Research Center supported all of Borg Warners diverse operations,.but the bulk of its work was for Defendant's former Chemical subsidiary until late 1986, when it became more concerned .with automotive products.
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INTERROGATORY NO. 49:
Does your company have, or has it ever had, or have your predecessor(s) or subsidiaries ever had, a Medical Department? If so, state:
A The year such Medical Department was established;
B. Whether or not such Medical Department has operated continuously since being established;
C. The name of each director, chief, or head of your Medical Department year by year, beginning with the first year you had a Medical Director or Medical Department, and the last known address and phone number of each;
D. State the duties and responsibilities of such Medical Department.
ANSWER: No.
INTERROGATORY NO. SO:
Did your company or its predecessor(s) or subsidiaries ever place any warning directly on any of its asbestos-coIitaining product or on their packaging. If so, identify the product(s) and year said warning was first applied.
ANSWER: See Answer to Interrogatory 14.
INTERROGATORY NO. 51:
Did your company or its predecessor(s) or subsidiaries ever stamp or place the name of the company, its initials, or any identifying logo on any of its asbestos-containing products? If so, please state the name brand names of such products, a description of such stamp or logo and the dates such were placed on the referred products.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it is overly broad,
burdensome, harassing and requires a search of records over a sixty-six (66) year period.
Without
waiving
the
foregoing
objections,
Borg
. Warner answers -
to
see
Interrogatory
6H.
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INTERROGATORY NO. 52:
Has your company, or your predecessor(s) or subsidiaries ever devised a research plan to develop, or actually developed or had developed, a product which did not contain asbestos and which could be substituted for one or more of your asbestos-containing products? If so, state the date that such research plan was begun and when such asbestos-free product was first placed on the market
ANSWER: Borg Warner objects to this interrogatory on the grounds that it is vague and seeks irrelevant information. Without waiving the foregoing objections, Borg Warner states that it did begin a research plan for an asbestos substitute, which plan began in 1976. Commercialization of asbestos substitute product began in 1985.
INTERROGATORY NO. 53:
Did your company or its predecessor(s) or subsidiaries ever recall any products containing asbestos from the market or stream of commerce? If so, state:
A. All details of such recall;
B. The name of the product recalled, including the reason for the recall and the names and current addresses of those individuals who determined that it should take place;
C. The dates of recall;
D. The purpose for the recall.
ANSWER: No.
INTERROGATORY NO. 54:
Before 1970, did you ever manufacture or sell products which did not contain asbestos and which could be substituted for your asbestos-containing products? If so, state the date such asbestos-free products were first placed on the market.
ANSWER: No.
INTERROGATORY NO. 55:
Have any products you identified in your response to Interrogatory Nos. 52 and 54 not
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performed as intended? Please list all such products that have not performed as intended.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it is vague and capable of more than one interpretation. Without waiving the foregoing objections, Borg Warner answers that as it understands the interrogatory: No.
INTERROGATORY NO. 56:
Did your company or its predecessor(s) or subsidiaries ever make, order, or arrange for any industrial hygiene surveys regarding asbestos or asbestos-containing dust? If so, give the date of such surveys and state who, or what entity, was responsible for completion of such surveys.
ANSWER: Borg Warner objects to this interrogatory on the grounds that it seeks information regarding Borg Warner's internal practices which are not relevant to the instant suit. Without waiving the foregoing objection, Borg Warner answers: No.
INTERROGATORY NO. 57:
As to either the threshold limit values or maximum allowable concentrations of both asbestos dust and total dust provided by the American Conference of Governmental Industrial Hygienists, state:
A The year in which Defendant or any predecessor (s) or subsidiaries were first advised of such limits or concentrations;
B. The name of the employee or official of the company receiving such advice;
C. How Defendant received notice of such limits or concentrations.
ANSWER: No information is available to show a specific date upon which such information became known to Borg Warner, but Borg Warner became aware of such information approximately when and in the same manner in which that information became general public knowledge.
INTERROGATORY NO. 58:
Were the threshold limit values or maximum allowable concentrations inquired about in Interrogatory No. 57 for total dust, and not asbestos dust alone?
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ANSWER: Not applicable.
INTERROGATORY NO. 59:
State in detail what tests, if any, Defendant ever made with regard to the quantity, quality, or threshold limit values of asbestos dust or particles to which workers were exposed while using, working with or around, or installing your asbestos-ontaining products.
ANSWER: Not applicable.
INTERROGATORY NO. 60:
Please state the following with respect to each expert witness you (sic) that you may call during trial of these cases. Please designate with specificity the expert witnesses that you will call, including:
(a) The name, address, and job classification of each such expert witness;
(b) The subject matter on which the expert is expected to testify;
(c) The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion;
(d) Whether any person identified in subparagraph (a) above has provided a report or other documentation to you, and if so, identify each such document or report;
(e) Identify all documents that you have provided to each person identified in response to subparagraph (a) above;
(f) Describe in detail the education and work history of, and identify any books, treatises, articles, published and unpublished reports, studies or other scholarly works authored by any individual identified in response to subparagraph (a) above. Alternatively, in lieu of said response, attach a copy of a resume or curriculum vitae and a list of publications to your answers.
ANSWER: See attached Exhibit D.
y
-
INTERROGATORY NO. 61:
Please state the name, present address and present telephone number, along with the
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experience and qualifications, if applicable, of each and every person, known to Defendant or to Defendant's agents, having knowledge of facts relevant to these cases involving, but not limited to:
(a) identification of asbestos-containing products to which each and every individual Plaintiff, separate and distinct from all other Plaintiffs within the group, allegedly was exposed or facts disputing the identification of asbestos-containing products in this case.
(b) Each and every individual Plaintiffs, separate and distinct from all other Plaintiffs within the group, alleged damages, injuries andlor facts disputing each and every Plaintiffs alleged damages andlor injuries;
(c) the negligence of any person or entity other than Defendant which Defendant contends was a cause of each-and every individual Plaintiffs, separate and distinct from all other Plaintiffs within the group, alleged injuries andlor damages;
(d) each of Defendant's defenses enumerated in Defendant's last filed Answer in each of these cases.
ANSWER: See answers to Interrogatory 39 and 60. Additionally, Borg Warner would identify the named Plaintiffs, and any co-workers which Plaintiffs have identified with regard to this defendant's products; any and all health care providers which have seen or provided treatment to Plaintiffs; custodians of records for health care providers which have seen or
provided treatment to Plaintiffs.
INTERROGATORY NO. 62:
Please identify documents which will be used at time of trial, (Exhibit List, Deposition List), which are relevant to each of Defendant's enumerated defenses in Defendant's last filed Answer.
ANSWER: To be supplemented pursuant to the Standing Order and Amended Standing Order currently on file in Travis County. INTERROGATORY NO. 63:
Please state when you first received a copy of the Fieischer/Drinker Report published
in 1945/1946.
.~
ANSWER: Borg Warner has no records which indicate that it ever received a copy of the Fieischer/Drinker Report.
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01~.~""
REOUESTFORPRODUCTION
REOUEST FOR PRODUCTION NO.1:
Please produce a true and correct copy of each photograph of each asbestos-containing product identified in answer to Interrogatory No.4.
ANSWER: Exemplars of Borg Warner's products are available for viewing at Borg Warner
Automotive, Inc., 6700 18 112 Mile Road, Sterling Heights, MI.
REOUEST FOR PRODUCTION NO.2:
Please produce any diagrams or schematics indicating, stating or detailing the existence of any of your subsidiaries, predecessors, or divisions as defined on Page 1 of these Interrogatories and Request for Production.
ANSWER: Borg Warner objects to this request as it is overly broad, burdensome, harassing and requires a search of records covering a 66 year period.
.Elizabeth 1.. Phifer State Bar No. 15908550
L ' I
MCCUE & LEE, P.C. Three Lincoln Centre 5430 LBJ Freeway Suite 1050, 1..B. 11 Dallas, Texas 75240 (214) 490-0808 (214) 490-9545 (FAX)
ATTORNEYS FOR DEFENDANT BORG WARNER CORPORATION
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Ol~nI\PIea<NIWRop.BIr
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was sent
to Russell Budd, Attorney for Plaintiff, via certified mail on this if..... day of,,)- olLudv:\'
1994; and to all known counsel of record via first class mail.
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VERIFICATION
REC~'VED SEF' 2 ~ 1994
BARUN &dUU[
STATE OF ILLINOIS
COUNTY OF COOK
BEFORE ME, the undersigned authority, upon this day personally appeared Laurene H. Horiszny, Vice President-General Counsel for Borg Warner Automotive, Inc., known to me to be the undersigned, who after being duly swom by me stated that she has read the foregoing Borg Warner Corporation's Responses to Plaintiffs' Master Interrogatories and Request for Production to Defendants and knows them to be true and correct to the best of her knowledge, information and belief.
SWORN TO AND SUBSCRIBED BEFORE ME this 30th
Augus t
, 1994.
day of
~~ Notary Public, state! llIinois
My Commission Expires:
August 5, 1996
1D19SO\pnetal\fonns\Vcrif-pg.bxr
Carol Martinkus
Typed or Printed Name of Notary
OFFICIAL SEAL CAROL MARTINKUS
NOTARY PUBLIIl. STATE Of ILLINOIS MY COMMISSION EXPIRES 8/6/96
CAU'rroN
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Primary Insurance Carriers Include the Following;
Coyerage Period 1940-1950
carrier Liberty Mutual
1950-1957
Indemnity Insurance Co. of N.A. c/o INA
1957-1969 Royal Ind-.nity
1969-1975 1975-1979
1/1/79-
Present
Continental ,Insurance
Aetna Casualty , surety
CNA
Policy Numbers
SMC04-513410 .. -515991 .. -00484 .. -02072 .. -03588 .. -04929 .. -06145 II -07604 .. -08945 II -00860
9LB 18767 II 18939 II 17411 .. 18930 24293
RLG 05095 II 090208 .. 090201 .. 090204 .. 090205 .. 091609 II 091646
11 L 1416028
08AL 802694 SCA .. 115127 SCA
CCP 4725154
~ EXHIBIT
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