Document x18oevXJnMVGXZVL09MEXjLQQ

FILE NAME: Eagle-Picher (EP) DATE: 1988 DOC#: EP030 DOCUMENT DESCRIPTION: Legal - Affidavit of James Ralston with Feb 1964 Inspection Report of EP Insulation Plant in Joplin, MO } IN THE DISTRICT COURT OF BRAZORIA COUNTY, TEXAS 23RD JUDICIAL DISTRICT TOMMY L. HEATHMAN and wife ) DIXIE A. HEATHMAN, ) Plaintiffs, ) v ) ' ) OWENS-CORNING FIBERGLAS ) CORPORATION, ET. A L , ) Defendants. ) ' CASE NO. 87-C-1934 STATE OF OHIO COUNTY OF HAMILTON AFFIDAVIT ) ) ss: ) I, follows: JAMES A. RALSTON, being first duly sworn, do depose and say as 1. I am an attorney licensed to practice 1n the State of Ohio. 2. 1 am a Vice President of Eagle-Picher Industries, Inc., ("Eagle-P1cher") and its General Counsel. 3. I have been continuously employed by Eagle-P1cher since July 9, 1979. 4. During my employment with Eagle-Picher, I personally examined Eagle-Picher's files and records relating to a civil action filed on August 15, 1963 in the Circuit Court of Jasper Conty, Missouri, bearing the caption Russell L. Pickard v. The Eagle-Picher Company, Case Ho. 56126 (the "Pickard case"). 5. A. E. Spencer, Jr. of the law firm of Spencer, Scott & Dwyer, Joplin, Missouri, was counsel of record for Eagle-Picher in the Pickard litigation. Eagle-Picher received information and the documents 1n its files on the Pickard case from Spencer, Scott and Dwyer. 6. One of the documents in Eagle-Picher's files on the Pickard case 1s a document entitled "Conference February 19, 1964, Eagle-Picher Insulation Plant, Joplin, Missouri" (the "Attorney Memorandum"), a legally privileged communication from A. E. Spencer, Jr. to Eagle-Picher's Assistant General Counsel, Mr. Charles S. Dautel. Mr. Spencer prepared the Attorney Memorandum to provide legal advice to Eagle-Picher 1n connection with the Pickard case. 7. Eagle-Picher has at all times protected the Attorney Memorandum from disclosure by segregating 1t from other corporate documents. Eagle-Picher has never been compelled to produce this privileged document and has objected to and opposed Its production whenever 1t has been requested or made the subject of a motion to compel In the underlying asbestos-related litigation. 8. Access to the Attorney Nenormdum hes been strictly United to avoid knowing disclosure to pintles or counsel not Involved In the representitlon of Eagle-Picher In lltlgitlon. Access to i c U I file in which the Attorney Keeionndum Is maintained his been provided, In complete confidence, only to corporste counsel for E.gle-PIcher, outside counsel retilned by in Eigle-Picher Insurer involved in the handling m d defense of Eagle-Picher's asbestos-related litigation, and outside counsel retained directly by Eagle-Picher to represent It In asbestos-related litigation. 9. In November, 1985, Eagle-Picher produced for the U. S. Governments' review In a case in the United States Claims Court captioned Eagle-Picher Inc - United States of America, Case No. 170-83C (the -Claims Court litigation-), nearly one million docu-nts comprising .11 non-privileged asbestos-rel.Md doc*ents in the possession of Eagle-Picher or its counsel in asbestos-related insurance litigation. 10. The Attorney Memorandum was accidentally and inadvertantly included among the d o c - e n t s produced to the U. S. Government < C U I U S Court litigation. 11. Upon discovery of this inadvertent production, I immediately wrote to the trial counsel for the U. S. Government, advising that the Attorney Memorandum was protect! by the attorney-client privilege, and revesting that the U. S. Government destroy all copies of the Attorney - r a n d o m in the possession of any U. S. Government agency and that the Government UJ expunge any copy thereof from any microfilm reels of documents In the Claims Court litigation. Eagle-Picher also Immediately filed a Motion for a Protective Order regarding this inadvertent production. 12. On February 9, 1987, prior to a ruling by the court on agle-Picher's Motion for a Protective Order, trial counsel for the U. S. Government in the Claims Court litigation agreed that Eagle-Picher had properly asserted the attorney-client privilege and the attorney work, product doctrine 1n connection with the Attorney Memorandum, and agreed further to return to trial counsel for Eagle-Picher all copies thereof and to expunge all copies thereof from the microfilm reels of documents 1n the Claims Court litigation. 13. The foregoing facts are true and based upon my personal knowledge. Jftes A. Ralston Sworn to before me and subscribed 1n my presence this / f `a w .* ( 1988. day of My Commission expires: Notary Public - State of Ohio -4- I CONFERENCE FEBRUARY 19, 1 9 ^ , EAGLE-PICHKR INSULATION PLANT, JOPLIN, MISSOURI. Alton Jones I first met Charles Dautel/and Dr. Kenneth E. Smith, Medical Director, Industrial Relations, Johns-Manvllle Company, for break fast at Mickey Mantle's, where the Pickard Case and the general hazards of the Company In Its Insulation Plant were discussed. Dr. Smith was given a rather detailed general statement of plaintiffs employment as to time exposures, missing work from slckness, etc. and that he was discharged at the completion of 25 years of service, but could have continued employment for approximately 12 more years, until age 65, had his work been satisfactory. The four of us picked up Fred Laas and then moved to the office of Alton Jones, and made a thorough check of the Insulation Plant, including the concrete mixer area. ,Dr. Smith discussed the various components used in the manufacture of diatlametlous earth, insulation, c-- nt. Calcine was discussed at length in various com binations, including the mix used by the Eagle-Picher. 200 bags per year of calcine ace used by Eagle-Picher and now the mixing is with oil-previous to that the dust was much worse. A point was made that flex-calclne, which is apparently more hazardous than calcine, ia not used by Eagle-Picher. We then moved to the office of Harold H a m e r in the Research Department, where Dr. H a m e r . Paul Lessee and Mr. Richey Joined us. The chemical and analytical aspect, of the product were quite thoro- by I**., I asked Dr. Smith a few questions, one being whether a more or less constant exposure creates a traumatic breakdown of the natural protections in a man's nose, larynx, throat and bronchia, and It was hla opinion that constant trauma during a man's lifetime m could not destroy the natural protections to a degree that the man ` K 3 3!>M could actually Inhale particles of dust above the maximum allowable content (MAC) and, If ao, that such particles would not get to the lungs-- he finally stated that It possibly could be possible, but was certainly highly improbable. He suggested that we examine the study made by Dr. Parker, of Pittsburgh, Pennsylvania, dealing with what happened to particles of various sizes when Inhaled. Dr. Smith gave us an example of samples taken of a man who was exposed approximately 5 minutes an hour who sustained a serious asbestosls In a working period of only a few months. He agreed that the human tolerance would naturally enter into any case and that what might be highly toxic to one man could be tolerated by another for years without disability. He stated that even limited exposure to a small amount of calcine might result In disability if the individual's human toleranoe was low. r The question of free uncombined silica (hereinafter abbreviated FUS) in the slag product and air borne dust was discussed at length, first, what constituted FUS, and secondly, what tests had been used to determine this. It is the opinion of Dr. Smith and Dr. Harner that there could be no FUS In a silicate or fused material such as blown through the blower In the Insulation Plant, so that any FUS contained In the ' not slag could make no difference; and again, that It would-be possible to have PUS in the silicate product that came through the blower. The quiatlon then got on the question as to what tests Bruce Williams could have used In finding 18* FUS In the sample of coal cinder slag - sent him, of FUS In the product and the minimal percentages of FUS in the air borne dust maaxdtaamsaadxa May 29, 1961, silica (not FUS) - 38.1# - classed as good wool May 29, 1961, - taken on another sample, classed as wool, showing silica (again not PUS) **0* October 15, 1963 * Slag November 9, 1963 * Hock Wool 1 .80* i.6o Air borne dust: Sample A Sample B Sample C Sample D 0 .82* O.kQ 0.78 7.20 Furnished by Mr. Jonas is an appendix showing silica (again, not FUS) in samples of mineral wool from June 21, 195^< through September 25, 19 6 1. There is.a substantial variance in the silica (not PUS) running as low as 2.2?i to kCfc. Note: These can be ob tained from Mr, Lossee and are company records made from samples run by Bruce Williams Laboratory. Dr, Smith suggested that tests should be made by a midget lmpinger following each man's movement through his work so that it could be determined the actual character .of the air breathed by him in doing his dally Job. The count should be taken in the employee's breathing zone on an hourly basis to determine exposure. All pre vious tests made by Burr Aton have been of an area character. He suggested particularly more accurate midget lmpinger tests on the baggers, weighers and shippers at the cement mixer area. Dr. Smith indicated at the conference there,and later in a discussion in our office, that he felt the cement mixer was hazard ous and particularly that any asbestos would be industrially hazard ous. The mix varies as to content, depending on the product being prepared, but at various times contains the following: asbestos fiber, dlatlametlous earth (natural and calcine), bentonite clay, mineral wool fiber, glass fiber, gypsum plaster, Portland cement, rust inhibitor (trlsodlum phosphate and sodium nitrate), fire clay, d detergent, and expanded perlite (new within the last year). Dr. Smith was quite positive that the cement operation, or any operation involving calcine or asbestos would constitute an occupational nazara. Dr. Smith Indicated that.the American Industrial Hygienists Association report based on the checks by Dr. Steeples of lung damage to animals and humans in fiberglass manufacture were not accurate, as correct samples were not used. He emphasized that fiberglass and mineral or rock wool were not Interchangeable as the terms were used in this report. The binder used might cause problems, >3- but not the glass fiber itself. He did state that so far as the cement mixer that the report of the ACOTH would be the Bible of the industry and is used by insurance companies, but did not feel that this would be true as to the manufacture of fiberglass or mineral wool. A discussion of the possibility of Parkinson's disease re sulting from the exposure of an employee indicated that it was Dr. Smith's opinion that this disease was one only of the nerve centers of the rear lobes of the brain and could not be caused, contributed to, or aggravated by inhalation of any dusts. He also stated pos itively that it could not result from emphysema or silicosis began*less of how they were contracted. Since this disease was a nervous disorder, it was not connected with the lungs. Dr. Smith did not see how PUS could run the percentage shown t by Bruce Williams' analysis and Mr. Paul Losse is to check this with Williams Laboratory. He again confirmed that the PUS in the slag could not enter into the picture in his opinion. He suggested that possibly Wllliasui was not distinguishing between quartz and silica and possibly was not testing for what really is PUS. Dr. Smith advised that putting the Insulation Division under the Compensation Act and qualifying under Missouri Occupational Disease Statutes would be beneficial in the end,plus some better housekeeping. Public warnings contained on or In product bags were discussed and all that are required in the type of product that Eagle-Plcher was making were under the Pederal Labeling Act or any of the 27 states statutes (not including Missouri). Johns-Kanville does warn on some of their products involving asbestos base for domestic consumption.