Document ymvBwdzr20BEm4a6VpE1YrvOD

COPY ni cn W - V-'-' -O'CLOCK------4. M AURORA DE LA GARZA D!ST. CLERK JAN 1 8 2001 CAUSE NO. 2000-05-1962-C DISTRI(EF^^t^UNTYJp^ ROBERT HENRY VILLARREAL. Individually and as Personal Representative of the Heirs and Estate of JOHN HENRY VILLARREAL Plaintiffs. vs. GAF CORPORATION HOLDINGS. INC.), ET AL. Defendants. CAMERON COUNTY, TEXAS 197TM JUDICIAL DISTRICT MEMORANDUM OF LAW IN SUPPORT OF MOTION IN LIMINE OF DEFENDANT UNITED STATES GYPSUM COMPANY TO EXCLUDE ARGUMENT AND EVIDENCE RELATING TO THE SARANAC EXPERIMENTS Defendant United States Gypsum Company ("U.S. Gypsum") submits this memorandum of law in support of its motion in limine to exclude argument and evidence that U.S. Gypsum participated with other manufacturers in an effort to suppress certain results of the Saranac experiments. This argument is not supported by the evidence, and allowing plaintiff to so argue would irreparably prejudice U.S. Gypsum. The documents show no such conduct by U.S. Gypsum -- indeed, the documents indicate that U.S. Gypsum never was apprised of or participated in any allegedly improper conduct. The Saranac documents are inadmissible because they are irrelevant and their admission would create a substantial danger of unfair prejudice and jury confusion.- The purpose of the Saranac experiments was to study the manifestation of asbestosis in laboratory animals. The first step was to induce asbgstosis by injection of asbestos into and the inhalation of hundreds of millions of raw asbestos fibers by a variety of animals, including guinea i' The documents also are inadmissible hearsay, and the evidence lacks authentication, foundation and/or identification. L .S. Gypsum reserves these objections, nut does not present them fully herein piss. cats. rats, rabbits and mice. No attempt was made to simulate levels associated with handling of finished products containing only minor amounts of asbestos. Plaintiff argues that the experiments proved that asbestos causes cancer in humans and that the companies that funded the expenments improperly suppressed this finding. The basis for the argument is that Dr. Gardner, who conducted the experiments, observed tumors in eleven out of the hundreds of animals he used. Plaintiffs argument is flatly contradicted by Dr. Gardner himself and numerous other eminent scientists who followed up on, spoke and wrote about, and rejected the tumor observations. Moreover, plaintiff s argument has been rejected by courts that have examined the evidence. Those courts have concluded that: The Saranac documents do not contain "any evidence . . . linking U.S. Gypsum to efforts to conceal the results or to pressure Dr. Gardner or his successors to lim^t publication of their findings." Sealover v. Carey Canada, 793 F. Supp. 569. 577 (M.D. Pa. 1992) (Exhibit A). No "evil motive can be imputed to USG for following Dr. Gardner's advice" to omit the observations of the eleven mice from the final report. Pigozzi v. United States Gypsum Co., No. 98 L 04457, slip op. at 3 (III. Cir., Cook Cty- Aug. 15, 1999) (Exhibit B). "What I saw was minimal evidence with respect to Gypsum connecting them to the study ... in that they struck a provision relating to cancer, for perhaps good reasons and maybe perhaps for bad reasons, but that it was done in a fair exchange of ideas at the time." Davis v. Armstrong World Indus., 86-CIV-763 (W. Va.Cir., Monongalia Cty. June 30, 1988) (Exhibit C). The data allegedly concealed was determinedly Dr. Gardner and other eminent scientists to be of no value, and was omitted from the final report of the Saranac experiments for reasons consistent with good science. From his earliest interim report on the asbestosis work. Dr. Gardner FACCR\Cameron\V illaneal. John\L'SG*Merno-Saranae.doc himself expressed doubt as to whether his tumor observations were any evidence of a cancer causing action. Dr. Gardner wrote that his observations on this issue "are suggestive but not conclusive" and that his methodology was "open to several criticisms." See Outline of Proposed Monograph on Asbestosis at 7-8 (Exhibit D). He stated that he felt that the dubious tumor observations "would better be omitted from the present report. " See Cover Letter to Report. February 24. 1943. at 1 (emphasis supplied) (Exhibit E). Consistent with its marginal role, U.S. Gypsum did not receive a copy of Dr. Gardner's Outline. Nor did U.S. Gypsum participate in or receive the voluminous correspondence between and among the lead sponsors and Dr. Gardner during the late 1930s and early to mid-1940s. Contrary to the argument plaintiff urges, the companies that funded the experiments did not t prohibit Dr. Gardner from sharing his observations. Dr. Gardner applied to the National Cancer Institute ("NCI") for a grant to study the issue of asbestos as a cancer-causing agent.17 Summarizing the discussion of the eminent cancer specialists who reviewed the application, one doctor stated that he did not "believe that this information would be of any tremendous value." See Transcript of Proceedings at 26 (Exhibit F). Others, too, voiced significant doubt as to the scientific importance of Dr. Gardner's observations. Dr. Gardner's grant application w-as put to a vote and was denied. Id. The transcript of that proceeding has been a matter of public record for over 55 years. Dr. Gardner died suddenly in October 1946. without finishing a final report on the asbestosis experiments. His materials were sent to Dr. Kenneth Lynch of the Medical College of the State of South Carolina, whose own work had indicated a possible link between high-level asbestos exposure 2/ The NCI was established by the National Cancer institute Act of 1937. As defined by Congress, its duties included "conducting researches, investigations, experiments, and studies relating to the cause, diagnosis, and treatment of cancer: assisting and fostering similar research activities by other agencies, public and private; and promoting a coordination of all such researches and activities and the useful application of their results, with a view to the development and prompt wide-spread use of the most effective methods of prevention, diagnosis and treatment of cancer " 3- - F \CCR\Camenm\VillarTeal. John\l'SG*Memo-Saranac doc and cancer. Dr. Lvnch cited Dr. Gardner's tumor observations in speeches and published articles.1 On each occasion Dr. Lynch opined - bolstered by his own research -- that "[ajnimai experimentation has not yet provided any conclusive evidence" of a possible relationship between asbestosis and lung cancer - After Dr. Gardner's death, and after his successors at Saranac had reviewed his research, the Saranac researchers stated in a draft report that the nature of the tumors observed Dr. Gardner was unknown, and noted that Dr. Gardner's own laboratory notes referred to the development of non- cancerous tumors or "adenomas." See Interim Report, Sept. 30, 1948, at 49 (Exhibit K).^ It is the omission of these equivocal descriptions of Dr. Gardner's chance observations, pending further study, from the final report published in the American Medical Association Archives of Industrial fc Hygiene and Industrial Medicine in 1951 that plaintiff argues somehow caused the entire medical, scientific and regulatory communities to remain ignorant of the hazards of asbestos for decades, thereby causing injury to plaintiff. Based upon the myriad problems identified by Dr. Gardner regarding his tumor observations in a few mice, numerous courts have recognized that the data U.S. Gypsum is alleged to have 3/ See Address to the Gordon Research Conferences. August 31. 1950. at 3 f Exhibit G) ("we also have knowledge of an unexpectedly high incidence of lung tumors in mice that had been experimentally exposed to asbestos dust. Since this experiment was not designed with the possible production of cancer in mind, it was not controlled in such a manner as to permit any conclusion"): Summary of Presentation at Seventh Saranac Symposium. September 24. 1952. at 9 (Exhibit H) (describing Gardner's work as an "uncompleted experiment" that was "uncontrolled" as to tumor susceptibility of mice used); Lynch. Mclver & Cain. "Pulmonary Tumors in Mice Exposed To Asbestos Dust." 15 A.M.A. Arch, of Ind. Health 207. 213 (March 19571 at n. 13 (Exhibit 1); 4/ Lynch and Pratt-Thomas. "Carcinoma of the Lung in Asbestosis: Report of Two Additional Cases." 48 So. Med. J 565. 568 (Junel955) C[m)ice exposed to concentrations of asbestos dust having the proper specifications as regards panicle volume and size do not develop asbestosis or carcinoma, although the ubiquitous pulmonary adenoma is frequently present") (Exhibit Jl: Lynch. Mclver &. Cain. "P'uTmonarv Tumors in Mice Exposed To Asbestos Dust." 15 A.M.A. Arch, of lnd. Health 207. 213 (March 1957) ("[n]o significant histological or cytological difference was observed between tumors in the control and dusted groups" and "[n]o clear-cut proof of malignancy was found in any of the tumors studied") (Exhibit 1). 5/ One of Dr. Gardner's successors at Saranac. Dr Philip Pratt, has stated under oath that based upon Dr. Gardner's notes and his own independent analysis of the tissue slides, he concluded in 1948 and believes at present that the lesions were adenomas and no; malignant cancers. See Affidavit of Philip Pratt1} 9 (Exhibit L) (exhibits omitted). 4- - F \CCR\Cameron\\ illarreal. Jon n.l; SC--Memo-Saranac doc concealed was of no scientific value. In Lammers v. OwensComing Fiberglas Corp., No. 97CV005649. Tr. at 56-57 (Wis. Cir.. Milw-aukee Ctv. Jan. 29. 1999) (Exhibit M), the court excluded all reference to Dr. Gardner's speculative observations regarding cancer based upon just a simple analysis of relevance based upon the scientific - really I don't mean to be unktnd about the plaintiff's position here, but the scientific worthlessness of the minuscule information that U.S. Gypsum had or at least that plaintiffs can establish that U.S. Gypsum had. . . . [W]e've got a rule of law that requires that scientific evidence be treated with honesty and applying intellectual honesty in this case, the information about possible cancer producing effects of long fibre asbestos noted by Dr. Gardner in 1943 and reported as a question in 1948 that that is again applying the legal standard here not relevant. Other courts have reached similar conclusions: The Saranac experiments reveal "a lack of sound research." t Pigozzi. slip op. at 2 (Exhibit B). "Dr. Gardner found only a possible relationship between exposure to massive amounts of asbestos and malignant tumors in white mice. He himself stated that the implications were unclear. . . ." Sealoverv. Carey Canada, 793 F. Supp. 569, 575 (M.D. Pa. 1992) (Exhibit A). "When you look at Dr. Gardner's report there is no credibility attached to that issue. He says there isn't. He says it is suspect. There just isn't anything there." Board of Educ. of Ciry of Detroit v. Celotex Corp., No. 84429-634-NP, Tr. at 23-24 (Mich. Cir., Wayne Cry. Oct. 20, 1989) (Exhibit N). "I am satisfied that there w-as no scientific validity or no scientific basis then based upon Gardner's studies for the conclusion that there was a tie in with cancer." Board of Educ. of Ciry of Detroit, Tr. at 18-19 (Mich. Cir., Wayne Cry. Sept. 4, 1992) (Exhibit O). As noted by these courts, Dr. Gardner's data were, by his own admission, of highly dubious F'\CCR\Cameron\V'iliarTcal. John\USG-Memo-Saranac.doc -3- scientific value. Even had any concealment occurred, it could have had no effect on the medical communitv's knowledge regarding a link between high level exposure to raw asbestos and the development of lung cancer. Regardless of the scientific validity of Dr. Gardner's data, the Saranac documents are not probative of concealment because no concealment occurred. It was Dr. Gardner's suggestion that the data not be included in the final report because it was both unreliable and inconclusive. In addition, the data was disseminated widely. In 1943, Dr. Gardner himself sent the data to the NCI where it was openly discussed by cancer specialists from around the country, and Dr. Lynch referred to the observations at major symposia in 1950 and 1952. and in articles published in 1955 and 1957. Even if it were true that some sponsors of Dr. Gardner's work attempted to suppress his t findings, U.S. Gypsum was not a party to such efforts. There is no evidence that U.S. Gypsum either sent or received the majority of the Saranac documents, including the 1943 report and voluminous correspondence among other funders of the experiments, which has been produced in asbestos litigation. U.S. Gypsum was not informed of and never participated in any attempt to improperly suppress Dr. Gardner's observations. Accordingly, the documents are not admissible to show the conduct or motivation of U.S. Gypsum. Wesley Theological Seminary of the United Methodist Church v. United States Gypsum Co.. No. CA-85-1606, Order at 3-4 (D.D.C. March 25, 1988) (Exhibit P). affd in relevant part, rev'd in part, 876 F.2d 119, 123 (D.C. Cir. 1989), cert, denied. 494 U.S. 1003 (1990). Whatever its motivation, the omission of Dr. Gardner's speculative cancer findings could not have caused any injury to plaintiff. As the court held in Board ofEduc. of City1 of Detroit, Tr. at 19 (Mich. Cir.. Wayne Cty. Sept. 4. 1992) (Exhibit O): "[Tjhere certainly couldn't be any proximate cause from it because the information was disseminated, there wasn't any secret kept about it." F\CCR\Cameron\Vilhrreal. Joh^L'SG-Memo-Saranac.doc -6 - Information regarding the hazards of asbestos dust exposure, as understood by the science of the time, including Dr. Gardner's inconclusive results, was published in the scientific literature both before and during the time in which plaintiff alleges concealment. Indeed, plaintiffs own state of the art experts routinely opine that a link between asbestos exposure and cancer was well-established and accepted before 1951, when the final report of the Saranac experiments was published.^ Thus, anv assertion that the omission of a reference to tumors in the final report of Dr. Gardner's asbestosis experiments in 1951 somehow concealed the cancer issue is absurd. Even more absurd is the suggestion that plaintiff, whose first alleged exposure to asbestos-containing products occurred vears later, was harmed by the failure to include a questionable finding of non-cancerous tumors in the report on the Saranac experiments. t Plaintiff will attempt to present bits and pieces of the Saranac story out of context, and U.S. Gypsum will be forced to respond by presenting extensive scientific and medical evidence to the contrary. The evidence is highly inflammatory and bears no relevance to causation, which is plaintiff s burden in this liability case. See Perlmutter v. United States Gypsum Co.. No. 87 M 510, Tr. at 595-99 (D. Colo. May 6. 1991) (Exhibit S); J.H. Snyder Co. v. Carey Canada, Inc.. No. C 728 816. Order (Cal. Super.. L.A. Cty. Apr. 18. 1994) (Exhibit T). For the foregoing reasons, U.S. Gypsum respectfully requests that this Court enter an order in limine precluding plaintiff from introducing any argument or evidence concerning animal experiments conducted by Dr. LeRoy Gardner at the Saranac Laboratory in the late 1930s and early 1940s. 6/ See. d'.g., Wiyley v. Untied Slates Gypsum Company, et at.. Cause No 98-10710-B (Dallas Cty.. Texas) Julv 29, 1999 Tr SS.18-89:1 r|C)ertainly there was a general consensus, if not a complete consensus, that by 1949. based on that JAMA editorial that was in the medical community, that asbestos couid cause Cancer [sic].") (Exhibit Q): Sanchez v. Untied Slates Gypsum Company, et at.. Cause No 96-2807 (El Paso Cty .. Texas) Julv 29. 1999 90:22-24 CQ: We are talking about lung cancer now and the development of that relationship9 A By the end of the '40s.") (Exhibit R). F'\CCR\Cameron\Villarreal. Jotintl'SG-Memo-Saranac.doc 7- - Respectfully submitted, POWERS & FROST, L.L.P. ihy.______________________ James H. Powers Texas State Bar No. 16217400 Sharia J. Frost Texas State Bar No. 07491100 Gwendolyn S. Frost Texas State Bar No. 07488750 2600 Two Houston Center 909 Fannin Houston, Texas 77010 Telephone: (713) 767-1555 Facsimile: (713) 767-1799 t ATTORNEYS FOR DEFENDANT UNITED STATES GYPSUM COMPANY CERTIFICATE OF SERVICE I hereby certify that a true and correct of Defendant United States Gypsum Company's Motion in Limine has been forwarded to Plaintiffs' counsel of record.either by first class mail, return receipt requested, delivery or facsimile on this the dav of \, 2001. Ch //Ck^_________ F \CCR\CameronW tllarreal. JohnM.'SG-Memo-Saranac doc -8- Exhibits for: Memorandum of Law in Support of Motion In Limine of Defendant United States Gypsum Company to Exclude Argument and Evidence Relating to the Saranac Experiments MEMORANDUM OF LAW IN SUPPORT OF MOTION IX I/.W.VE of defendant lotted states gypsum company to exclude ARGUN CENT .ANT) EVIDENCE RELATING TO THE SARANAC EXPERIMENTS .APPENDIX OF EXHIBITS r '53 .* Suco. 569 Prcd. Liao. Rep. (CCH) ? 13.2:0 (Cite is: 793 F.Supp. 69) Alma M. SEALOVER, individually, and in her capacity as Administratrix of the Estate of Donald Sealover, deceased. Plaintiff, v. CAREY CANADA, et al,, Defendants. .Vo. CV-88-0643. Uniced States District Court, M.D. Pennsylvania. April 3. 1992. Widow of deceased construction worker brought products liability action, both individually and as administratrix of her husband's estate, seeking to recover damages 6om asbestos manufacturers. On manufacturers' motions for summaty judgment on widow's punitive damages claim, the District Court, McClure, J.. held that: (1) to recover punitive damages from asbestos manufacturers, widow had burden of showing that manufacturers had actual knowledge, prior to worker's exposure, of the serious health risks posed by their products, and (2) manufacturers' knowledge that asbestos fibers might cause cancer in laboratory annals exposed to massive quantities of asbestos could not be equated with knowledge that construction workers would suffer same ill effects to same degree. Page 1 dust in far greater quantities than typical construction worker. [3] DAMAGES <= 179 H5kl79 Evidence regarding asbestos manufacmrer's knowledge of dangers associated with their products at time subsequent to construction worker's exposure thereto was inadmissible, as irrelevant to punitive damages issue and as to whether manufacturers had actual imowledge of dangers associated with their product ax time of worker's exposure. [4] DAMAGES <*= 94 115k94 Any limitation on extent of asbestos manufacturer's liability for punitive damages, in order to preserve fitnd for payment of subsequent compensatory asbestos claims, was matter more properly addressed to legislature than to district court. 569 John McN. Broaddus, Deborah K. Hines, Shepard A. Hoffman. Connerton, Ray & Simon, Washington, D.C., for plaintiff. Robert B. Lawler, Beth Evans Valocchi, Wilbraham St Coleman, Philadelphia, Pa., for defendant U.S. Gypsum Co. Motion granted. [1] DAMAGES = 91(1) I15k91(l) To recover punitive damages from asbestos manufacmrers, widow of deceased construction worker had burden of showing that manufacturers had actual knowledge, prior to time of construction worker's exposure, of the serious health risks posed by their products. [2] DAMAGES <Ss 91(1) 115k9l(l) Widow of deceased construction worker failed to show that asbestos mamiraeurers had actual and not just constructive knowledge of health risks posed by their produos, so that manufacmrers were not liable for punitive damages, where only evidence of causal connection between asbestos and cancer involved laboratory mice and manufacturing or mining employees, each of whom was exposed to asbestos James P. Gannon, Barnard and Gannon. Media, Pa., for defendant W.R. Grace St Co. MEMORANDUM McCLURE, District Judge. BACKGROUND Plaintiffs Alma M. Sealover and Donald E. Sealover filed this produce liability action *570 against defendants W.R. Grace Company. ('W.R. Grace"), United States Gypsum Company (*U.S. Gypsum*) [FN1] among others. Plaintiffs alleged that as a result of Donald Sealover's exposure to asbestos during his sojourn in the Merchant Marines and during his forty-year career as a carpenter, he consacted mesothelioma. [FN2] asbestosis and other asbestos-relaied diseases which ultimately led to his death on May 2, 1988. Alma Sealover. acting both individually and as Administratrix of her husband's Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works 793 r.Supo. 569 (Cite as: 793 F.Supp. 369, *570) estate, sought :o recover for her husband's illness ir.d for his death. FN1. U.S. Gypsum is part of i group of defendants, affiliated for purposes of defeating scaons such as diis. winch are town as the Center for Claims Resoiucon Defendants or 'CQ dQssdajDQ. * The other defeadus which ire part of that group are: (a) GAP Corporation (b) .Vanonai Gypsum Company and (e) Turner & Vevail Of die four. pUisoff seeks punitive diinages only against U.S. Gypsum. (Record Document No. 232. filed Sept. H. 1991) FN2. Mesothelioma is a terminal oncer of the Immfl gf hie lllAg. The trial was bifurcated with the first phase an stria liability only. The first phase of the trial concluded with the jury awarding compensatory damages of $400,000 to the estate and 5210,000 to Alma Sealover. The negligence and punitive damage claims have yet to be tried. Defendants W.R. Grace and U.S. Gypsum have moved to defer indefinitely trial of plaintiffs punitive damage claim. Before the court are: (1) a motion (Record Document No. 234, filed October 29, 1991) by U.S. Gypsum to bar plaintiffs from proceeding with tbeir punitive damage claim or, in the alternative, to defer indefinitely the trial on punitive damages; (2) a motion (Record Document No. 238. filed November 15, 1991) by W.R. Grace for summary judgment on the punitive damage claim: P) and a motion by U.S. Gypsum to exclude evidence on punitive damages. [FN3] For the reasons set forth below, the court will grant all three motions and direct entry of summary judgment in defendants' favor on the punitive damage claims. [FN4] FN3. Also outsondisg are plaintiff's motion for delay damages; defendants' modoos for a aew trial or j.a.o.v.: plaintiff's modon to sever the case against GAF: and defendants' motions to seat Johns-Manville as a settled defendant mold the verdict. These motions will be addressed in a separate memorandum. Page pLurcfT5 punitive damage clauns. DISCUSSION Summary judgment standard The parties have agreed thar the court should crear the motions to bar plaintiff from trying the punitive damage claim as a motion for partial summary judgment. We will, therefore, apply the summary judgment standard in determining the sufficiency of plaintiff's evidence. Summary judgment is appropriate if the 'pleadings, depositions, answers to interrogatories, and admissions an file, together with the affidavits, if my. show that there is no genuine issue as to any material fact and thar the moving parry is entitled to judgment as a matter of law.* Fed.R.Gv.P. 56(c) (Emphasis supplied). ... [T]he plain language of Rule 56(c) manHmx the entry of summary judgment, after time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element to that party's case, an on which thar party will hvr the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily tenders all other facts immaterial. The moving patty is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Celotex v. Carres. 477 U.S. 317, 323-24, 106 S.C:. 2548, 2553 . 91 L.E<L2d 265 (1986). r *571 The moving patty beats the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by 'showing ... that there is an absence of evidence to support the nonmoving party's case.' Celotex. supra/477 U.S. at 323 and 325. 106 S.Ct. a: 2553- 54."' FN4. The pardes have agreed that the court should treat the motions filed by W.R. Grace and U.S. Gypsum as motions for summary judgment on Issues of fact are 'genuine only if a reasonable jury, considering the evidence presented, could find for the non-moving party.' Childers v. Joseph, 842 Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works "3 r.Supp. 569 (Cite as: 793 F.5upp. 569, *fl) Page 3 ?.2i 639. 694 (3d Cir.1988). citmg Anderson v. L.Perry Lobby, be.. 477 U.S. 242. 249, 106 S.C:. 2505. 2510, 91 L.Ed.Id 202 (1986). Mareriai fams are those which will affect the outcome of the crial under governing law. Anderson. supra, 477 U.S. ar 243, 106 S.Ct. ac 2510. La determining wheer an issue of material fan exists, the court must consider ail evidence in the Light most favorable to the non* moving party. White v. Westinghouse Eecrric Company, 862 F.2d 56. 59 (3d Cir.1988). Evidentiary issues Defendants contend that: (1) plaintiff will be unable to meet the high standard of proof Pennsylvania Law requires for an award of punitive damages; (2) plaintiffs in personal injury asbestos acaons have in the past been unable to muster such evidence and the Pennsylvania courts [FN5] have consistently precluded plaintiffs from proceeding to trial on punitive damage claims; (3) plainriff in this has offered no new evidence which would warrant this court teaching a different conclusion. FN3. All parties agree that Pennsylvania law applies under Erie RJL v. Tompkins. 304 U.S. 64. 53 S.Ct. 817, 32 L.Ed. 1138 (1938) and its progeny. In Martin v. Johns-Manville Corp., 508 Pa. 154. 494 A.2d 1088, 1096 (1985), the Pennsylvania Supreme Court held that to recover punitive damages, a plaintiff must show, by a preponderance of the evidence, [FN6] chat the defendant's conduct met the requiremenu of Section 908(2) of the Restatement (Second) of Torts: FN6. Although some courts require a higher standard of proof, the Pennsylvania courts have rejected chat approach and require plaiebff prove esndement to punitive damages by a preponderance of the evidence only. Martin, supra. 494 A.2d at 1098 a. 14 (*We believe the goal of limiting punitive damage awards in the context of products liability litigation is best served by focusing on the B2Q1TC Of the defeadaitt'S rntuh&r wmimH Qf increasing the plaintiff's burden of persuasion.") (2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the tner of fact can properly consider the character of the defendant's act, he nature and extent of he harm to the plaintiff hat the defendant caused or inn.rf.H to attse and the wealth of the defendant. The court's holding was stated in a plurality opinion wffcea by Justice Hutchinson. Justice Hutchinson rejemed a construcave knowledge (i.e. reasonable man) standard in favor of a standard requiring -nui knowledge of the hanrrt os the part of the defendant. Although a majority of the ocher justices joined is the result, they did not specifically adopt the acnial knowledge standard endorsed by Hutchinson, generating confusion as to the acprooriaie standard. In Burice v. Maasen. 904 F.2d 178, 181 (3d Cir.1990), the Third Circuit analyzed is considerable detail the state of Pennsylvania law on punitive damages: ... [the plurality is Martin ] held that a jury may award punitive damages only where the evidence shows the defendant knows, or has reason to r know, of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act in conscious disregard of. or indifference to. that risk.... (Cation omitted.) ... [Iji is sot suffices: to show that a reasonable person in the defendant's position would have realized or appreciated the high degree of risk from his arsons ... (Cation omitted.) ... The Martin plurality opinion reject Restatement 500's general definition of 'reckless disregard of safety' as the standard for imposition of punitive damages. *572 That section states. 'In order chat an amor's conduct may be reckless, it is sot necessary that he himself recognize it as being extremely dangerous.... It is enough chat he knows or has reason to know of droimstances which would bring home to the realization of the ordinary reasonable man the highly dangerous chancer of his conduct.' ... Restatement 500, comment c. Instead, Martin requires the mors culpable mental sure of conscious indifference to another's safety as the test for mental state of conscious indifference to another's safety as the test for 'reckless indifference' under Restatement .1 908. There must be some evidence that the pesoa amually realized the risk and acred in conscious disregard or indifference to it.... (Citation omitted.)... The opinion announcing the judgment of the court Copr. 0 West 1998 No Cairn to Orig. U.S. Govt. Works "53 F.Scpp. 569 (Cite as: 793 F.Supp. 69, *73) in Mania is zee clearly the law of Pennsylvania on Jus issue. Only Justices Hutcheson ^ rlaherr/ joined in the reasoning of :fce plurality opuiion.... Thus, a majority of the Supreme Court has aoc dectded whether punitive damages may be awarded only where there is proof of conscious disregard of a known risk, or whether disregard of a risk that would be obvious to a reasonable person would suffice.... [I]a subsequent cases. Pennsylvania's Superior Court has not applied a 'reasonable man' standard, hut followed the lead of Justices Hutchinson and Flaherty, adopting and applying the 'conscious disregard' formulation.... (Citations omitted.).... [T]he rule of the opinion announcing judgment of the court in Martin furthers the purpose of punitive damages, which is to punish nrf 'conduct involving some element of outrage similar to rfiar usually found is crime.' ....In sum, we predict the Pennsylvania Supreme Court would adopt the standard set forth is the Martin plurality opinion were it to confront the issue today. Burke, supra. 904 F.2d at 181 (Emphasis original). Accord: VHlari v. Termini* International, Inc., 663 F.Supp. 727, 734 (E.D.Pa. 1987). The only post-Martin Pennsylvania Supreme Court decision on this issue is SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 493. 587 A.2d 702. 704-05 (1990). There, che Court excerpted the portion of the Hutchinson opinion in Martin, supra, which adopts the actual knowledge standard. SHV Coal, coupled with the Third Circuit's analysis in Burke, supra, leave no doubt that the actual knowledge standard applies to this case. See also: Tunis Brothers Company, Inc. v. Ford Motor Company. 952 F.2d 715. 740 (3d Cir.1991). [1] Thus, to recover. Sealover must prove that W.R. Grace and U.S. Gypsum were await, prior to Donald Sealover's exposure, that the exposure of construction workers to asbestos released during the installation of their products was a health hazard and failed to warn of that risk. In Smith v. Ceiotex Corp., 387 Pa.Super. 340. 564 A.2d 209. 211-13 (1989), the Pennsylvania Superior Court discussed the quantum of evidence necessary to prove such knowledge. Using Martin as the foundation for its analysis, the court stated: The evidence deemed insufficient in Martin was testimony by two doctors concerning what the Page 4 medical profession knew of the risks posed to appliers of finished asbestos produce and when they knew it.... Justice Hutchinson ... emphasized that plaintiff had not produced sufficient evidence of the awareness of the defendants of the specific risks associated with application of finished asbestos products, as opposed to risks associated with the manufacmre of asbestos produce. Justice Hutchinson distinguished those cases where the plaintiffs were employees of manufacurers of asbestos product and produced evidence of the specific knowledge of the defendants as to the risks posed to manufacturing employees such as the plaintiffs long before the defendants took any measures to protec the employees. See, e.g. Neal v. Carey Canadian Mines, Inc., 662 F.Supp. 64, 70-71 (E.D.Pa.1987). *573 Smith, supra, 564 A.2d at 211 (Emphasis supplied.) Finding such evidence lacking, the Superior Court reversed the jury's award of punitive damages, staring: [hjere, the evidence submitted ... did not establish either that the management of appellant knew or had reason to know of facs indicating that appellant's conduct posed a substantial risk of physical harm to an applier of finished produce like plaintiff.... There is no [medical] testimony specifically relating to knowledge by the m^inl profession as to the risks posed by finish^ asbestos products to those who installed or applied them. We, therefore, conclude that Dr. Sturgis offered no testimony in any way probative of outrageous conduct by appellant vis-a-vis plaintiff. Smith, supra, 564 A.2d at 211. (Emphasis supplied.) The court dismissed as immaterial evidence of worfcnen's compensation claims filed against the manufacurer, explaining that: [t]he existence of those claims alone, with no evidence demonstrating anything relating to how they were ultimately resolved, does not indicate anything regarding appellants knowledge of the risks posed to appliers of asbestos products for numerous reasons. Most importantly, we note that the claimants were manufacturing employees and not appliers. Thus we do not see how the mere fact that these worken' compensation claims were made is relevant to plaintiffs punitive damages claim. Smith, supra, 564 A.2d at 212 (Emphasis supplied.). See also: Catasaugua Area School Copr. e W*st 1998 No Claim to Orig. U.S. Govt. Works 1 T93 F.Susp. 569 (Cite as: 793 F.Suop. 569, *573) Page 5 District v. Raytnark Icduscr.es. he.. 562 r.Supp. 54, 70-71 (E.D.Pa.1987) (evidence of pu=juv damages insufficient where plaintiff failed to demonstme defendant's awareness of risks associated specifically with the installation of finished asbestos products in schools). In Moran v. G. Sc. W.H. Corson. Inc.. 402 PiSuper. 101. 586 A.2d 416. 422-26 (1991). the outcome was the same. The Pennsylvania Supertor Court overturned a verdict assessing punitive damages against Corson, finding insufficient evidence that Corson, an asbestos supplier, was aware of the hazard asbestos posed to coostrucrian workers prior to the exposure of plaintiff's husband. There was, the court stated, 'no support in the record for the assertion that officials or managerial employees of G. Sc. W.H. Carson were aware in the mid 60's that exposure to asbestos fibers could result in cancer.* Plaintiff had attempted to prove such knowledge through: (1) testimony from G. & W.H. Corson Vice President John Evans about general discissions he had, prior to 1969. with business colleagues about the hazards of asbestos; (2) Evans's testimony that he took no action to relay this information to his customers or warn them of the potential danger, bin relied instead on the manufacturer, Baldwin Hill, to take such acrioo; (3) Evans's testimony that he had never dimmed the issue of asbestos with Baldwin HOI: and (4) articles about the hazards of asbestos published in medical and trade journals circulated in Europe and the United States since the turn-of-the-cenrury. Noting, among other things, the absence of any proof that 'anyone at Corson knew or had reason to know of these articles or any medical research studies on the risks involved in the use of insulation materials containing asbestos', the Superior Court found that such evidence did not prove knowledge on the pan of Corson that asbestos exposure posed a threar to Moran. Moran, supra. 586 A.2d at 425. Pennsylvania is not unique in adhering to the 'acmai knowledge' standard. Missouri follows the same standard and its courts have likewise rejected punitive damage, claims against asbestos suppliers and manufacturers in cases in which there was insufficient evidence that the defendant actually knew chat even exposure to relatively moderate levels of asbestos posed a serious health risk. In Angocti v. Ceiotex Corp.. 812 S.W.2d 742 (Mo.Ct.App.1991), the Missouri Court of Appeals found insufficient evidence chat Ceiotex actually knew, at the rime of plaintiffs exposure, of the hazard asbestos posed :o consnuction workers, sraeng: ....The record here shows chat information in regard to the harmful effect of *574 asbestos was still developing, but it does not establish that, at the relevant times ... there was already information available to show chat Philip Carey's finished produca were acnully known to present a health hazard to insulators. In ocher words, the record does not reflect that scientific knowledge even existed, at the relevant times [from 1931 through 1973] ... to establish legal causation sufficient to submit punitive damages against Ceiotex for the injuries of William Angocti as a result of his exposure, as an insulator, to Ceiotex'! products. Without even a showing of scientific knowledge sufficient to establish legal causation, Ceiotex can not be held to have had acmai knowledge of the danger to William Angocti on the basis of the record in this case. Angocti, septa. 812 S.W.2d at 746-47. See also: r School District of the Gry of Independence v. U.S. Gypsum, 750 S.WJd 442. 446-48 (Mo.Cr.App.1988), (Court found insufficient evidence that U.S. Gypsum had actual knowledge at the time of sale that the ceiling tiles sold for installation in schools would release asbestos fibers if abraded (rubbed against or scraped], thereby posing a health risk to school employees and students). Evidence proffered by Seaiover Plaintiff's principal witness on Seaiover's exposure to defendants' asbestos produca was Martin Brehm. Brehm was Seaiover's brother-inlaw and. like Seaiover, worked as a carpenter in the Harrisburg, Pennsylvania area. Brehm and Seaiover worked on the same construeson projects on several occasions during the late 1950's and early 1960's. It was during chat time that Seaiover was exposed to defendants' asbestos products. Brehm testified that Seaiover was exposed to (1) Zonolite, a W.R. Grace fireproofing spray, [FN7] during construction of the Cumberland County Courthouse in Carlisle, Pennsylvania in 1960-61: [FN8] (2) Red Top plater, a U.S. Gypsum product, and to Zonolite, during construction of the Archives Building in Harrisburg, Pennsylvania in 1961-62; [FN9] and (3) Red Top plaster, during construction of the William Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works ivtwifewi 793 r.Supo. 569 (Cite as: 793 F.Suop. 569, *579) Page 6 ?;aa Museum [FN1Q] in Harrisburg. Pennsylvania in 1962-61. (FNllJ As a carpenter, Donald Sealover was not involved in the actual Ttrajlarion of asoestos produce, but worked sear locations where sued produce were used. FN7. W.R. Grace acquired die asses of the Zooolite Company in Apnl. 1963 and argues that punitive damages should act be assessed against it because it was sot a manuocsirer of asbestos products prior to 1963. Plaintiff argues WJL Grace is liable as a successor corporation to Zonoiite. Our ruling on me sufficiency of the evidence disposes of plaintiff*s claim and eliminates, Use need to consider dus issue. FN8. N.T., July 8. 1991. pp. 23-31 and 64 (Brehm, M.). FN9. N.T.. July 8. 1991. pp. 32-33. 38-39 (Brehm. M.). FN10. N.T.. July 8. 1991. pp. 3*41. (Brehm. M.). FNI1. Brehm rmrifird that Sealover was also exposed to Cold Bond products manufactured by National Gypsum on the three construction projects: the Cumberland County Courthouse, the Archives Building in Harrisburg, and the William Pens Museum. Plaintiff is oat seeking punitive damages against National Gypsum. To recover on her punitive damage claim, the plaintiff must prove that W.R. Grace and U.S. Gypsum had actual knowledge, before 1960 and 1961 respectively, that the installation of their products presented a serious health risk to construction bystanders and failed to warn of the danger. Plaintiff bases her case against U.S. Gypsum on information derived from two sources: [FN12] (1) experiments performed on animals at Lake Saranac laboratory in New York during the 1930's by Dr. Leroy Gardner and the reports generated by those experiments (the 'Lake Saranac* evidence); and (2) a suit filed by a bookkeeper formerly employed in one of its plants who alleged that he had contracted asbestosis as a result of working in an asbestos plant. [FN13] FN12. We assume, without deciding, that for purposes of ruling on deresdants' canons, out ill evidence which pUinnff proffers would be admissible at xial. FNI3. Toe bookkeeper worked at an asbestos acrory owned by me National Asbestos Manufacturing Co., and the suit was filed against that company. U.S. Gypsum plant acquired the faemry in 1936. *575 Plaintiff bases her case against W.R. Grace on the Lake Sarmar evidence as well as on other information allegedly available to it through its acquisition of two companies in the 1950`s and 1960's. W.R. Grace did not become involved in manufacsiring asbestos-containing produca until December, 1954 when it acquired the Dewey and Almy Chemical Company ('Dewey and Aimy*). [FNI4] Dewey and Almy had been involved in manufacsiring products which incorporated asbestos since the 1930's when its acquired Multfoestos, a company which mannfacaxred brake linings. During the 1930's, Muiribestos plant employees exhibited symptoms of asbestosis and their conditions and symptoms were reported in two articles published in medical journals. r FNI4. Because we find the evidence profeed by plaintiff legally insufficient, we need nor ddr WJL Grace's contention it cannot be liable for punitive damages as a successor corporation to Zonoiite. the corporation which mamifacatred the asbestos producs to which Sealover was exposed. In April of 1963, W.R. Grace acquired a second company involved with asbestos produca, the Zonoiite Company ('Zonoiite*). Zonoiite operated a vermiculite mine in Libby. Montana, a vermiculite mine in South Carolina, and several processing plants at which the ores mined at Libby were used to manufacture fireproof plaster, among other produca. The vermiculite ore mined at Libby was contaminated with asbestos, and Zonoiite employees' had exhibited problems stemming from their-exposure to asbestos during mining and processing operations. Zonoiite was aware of such problems since at least the early 1950's, when it implemented regulations requiring Libby employees to wear respirators. Despite precautionary Coor. 0 West 1998 No Claim to Orig. U.S. Govt. Works 793 r.Supp. 569 (Che as: 793 F.Supp. 569, *575) Page 7 measures. such as the use of respiraiors, x-rays of Lfo'oy employees taken in the late 1950's revealed a 'zizh incidence of abnormal lung cnntiidocs. The conditions observed included pleural thickening, interstirial fibrosis and pneumonocosis or possible asbestosis. Troubling dust conditions in the Libby mine were noted and reported by public health officials. For example, a report generared daring a ,1956 inspection of the Libby mine by the Montana Board of Health found 'the asbestos dust in the air* to be 'of considerable toxicity. * Saranac Lake experiments [2] The Sanmac Lake experiments are the cornerstone of plaintiffs case against U.S. Gypsum. The experiments were performed in the late I930's and the early 1940's by Dr. Leroy Gardner. Dr. Gardner exposed to mice, rabbits, cats and other animak to asbestos dust and other types of dust and documented the effect on their lungs. His initial intent was to study whether the """< exposed to asbestos developed asbestosis, the conditions under which it developed, etc. He was surprised when the results in mice revealed a high mririmce of lung tumors which he believed to be cancerous. The population of mice exposed to the asbestos dust was small, numbering only eleven. The significance of certain aspects of Dr. Gardner's experiments is vigorously disputed, but one point is clear. The experiments did not establish a definite rami relationship between asbestos exposure at levels comparable to those experienced by construction bystanders and cancer. Dr. Gardner found only a possible relationship between exposure to massive amounts of asbestos and malignant tumors of the lung in white mice. He himself stated that the implications were nw'Mr and that the matter required further study before any clear conclusions could be drawn. Further, possible flaws in the methodology were identified by Dr. Gardner and by others who later reviewed foe results. Among the flaws was the fact that the suaia of white mice studied was thought to be particularly susceptible to lung rumors. In February of 1943, Dr. Gardner released an 'Outline of Proposed Monograph on Asbestosis*, in which he characterized the significance of his findings as follows: These observations are suggestive but not conclusive evidence of a cancer scmuiaring action bv asbestos dust. They are open to several criticisms. The strain of mice was not the same in the *576 asbestos experiment as in many of the other cited; apparently, the farmer were unusually susceptible. Not enough animals survived in the dust for longer than the 15 apparently necessary to produce many tumors. There were no unexposed controls of the same strain and age, and no similar controls exposed to Other dUSCS. It is hoped rhk ^nry^'m^nf be repeated under properly controlled conditions to determine whether asbestos acmally favors cancer of the lung. (Record Document No. 245, filed December 11, 1991, p. 19 referencing plaintiffs exhibit USG-152 at l26-66-{7) through 126-66-(8) (emphasis supplied)). See generally: Angotri, supra, SI2 S.W.2d at 746-49 (Responding to the alleged significance of a prediction by a physician working for the company that someday * `even the minor use of asbestos may ... be considered ... dangerous to the general populace' *, the court stared: *A r forecast of what may be determined in the fixture does not establish present knowledge that a health hazard existed for those wotting as insulators.*) In a letter and report to Johns-Manville rfanM February 24, 1943. Dr. Gardner again described the results as inconclusive and sored the need for further study on the question of a possible link to cancer The question of cancer susceptibility now seems more significant than I previously imagined. I believe l can obtain support for repeating it from the cancer research group. As it will rake two or three years to complete such a study, 1 believe it would be better to be omitted from the present report. If it should become possible to make this study. T hope I any [sic] count on some of your members to supply me with enough pure, long fiber asbestos for the purpose ... (Record Document No. 245, filed December II, 1991, p. 23, referencing plaintiffs exhibit USG-152 at 126-66-<7) through !26-66-<8)). Plaintiff argues that the results of the Saranac Lake research were more definite than this and, as support for chat assertion, points to a statement in a letter, dated August 13, 1936 from W.L. Keady, a U.S. Gypsum executive. Keady summarizes the contents of a report by Dr. Gardner on conditions at a Jersey City plant which U.S. Gypsum had Copr. 0 West 1998 No Gaim to Orig. U.S. Govt. Works 793 F.Supp. 569 (Cite as: 793 F.5upp. 569, *576) purchased frets another asbestos manufacturer. Dr. keady states at one pome that "there was so saie leve! of exposure to asbestos.* Plaintiff argues that, by this, be meant that exposure to any amount of asbestos, however minute, posed a hazard. Plaintiff's interpretation is inconsistent with the rest of the passage. The entire passage reads: Dr. Gardner points out chat various authorities have tentatively suggested a concentration of five million panicles of free silica per cubic foot of air as limits above which a silicosis hazard might exist, and this value has met with some recognition. There is no standard for safe concentration of asbestos dust comparable to the value just given for free silica dust. (Record Document No. 245, filed December 11, 1991. Exhibit *N'). We are not the first court to consider the import of the Keady letter. The Court of Appeals for the District of Columbia Circuit considered the letter in Wesley Theological Sesninaty v. U.S. Gypsum Co., 876 F.2d 119, 123 (D.C.Ctr.1939). and rejected plaintiffs proposed interpretation. The court explained: Dr. Gardner concluded that a serious asbestos dust hazard existed in the plant. He discussed ocher studies which proposed a mariwmm safe level of 'five million parades of free silica per cubic foot of air.' He distinguished silica duct from asbestos dust, however, and conduded that this standard was not necessarily applicable to asbestos dust. Wesley seeks to treat as a smoking gun the letter's observation that '(tjhere is no standard for safe concentration of asbestos dust comparable to the value just given for free silica dust.' In context, however, this is simply a statement that, due to the absence of enough research, no one could yet identify the safe level for occupational exposure. Similarly, the letter's discussion of an *577 asbestos dust study which found a 10% asbestosis rate among workers exposed to five million parades per cubic foot of dust was of remote relevance at best. While it suggests that U.S. Gypsum was on notice that the safe level for occupational exposure to asbestos dust on a full time basis was less than five million parades per cubic foot of air. it does almost nothing to establish Wesley's central thesis-that the defendant was aware that asbestos-containing ceiling tiles, once installed, created hazardous concentrations. Page 3 Wesley Theological, supra. 376 r.Zz a: ilj (Emphasis supplied.) We are aware of the controversy concerning the alleged anempts of the Saranac study suonsors, a group of asbestos manu/aemrers which inri,,*** U.S. Gypsum, to conceal the suspected link to cancer revealed by Dr. Gardner's study, it is not clear from the documents we have reviewed that U.S. Gypsum knowingly participated in any conspiracy to conceal the results by pressuring Dr. Gardner or bis successors to omit any mention of cancer from die published reports of the study. This distinguishes its position from thar of ocher asbestos manufacniren, such as Johns-Manville, with respect to which there is dear direct evidence of knowing participation in efforts to block publication of results linking asbestos-exposure in animals to cancer. Moreover, the Pennsylvania courts have found even such knowing participation an insufficient basis for imposing punitive damages. See: Martin, supra. and Angotti. supra. 312 S.W.2d at 746-49 (Efforts to keep a medical advisor's 'observations and evaluation confidential does not show yn<al knowledge of a health hazard to an individual working as an insulator.') Cf. Neal v. Carey Canadian Mines. Lai.. 548 F.Supp. 357, 365 (E.D.Pa.1982). r Plaintiff has not pointed to any evidence that U.S. Gypsum was directly or knowingly involved in attempts to conceal Dr. Gardner's finding of a suspected cancer link or to curtail publication of his findings. The Lake Saranac experiments were sponsored by a group of asbestos manufacniren which included U.S. Gypsum. [FN15] Dr. Gardner was in contact with office.*: of Johns-Manville and Raybestos-Manhamn about his experiments, and such evidence, as well as attempts by the principals of those companies to suppress the study results, has been the basis for an award of punitive damages against them in a number of cases. Plaintiff has not, however, directed our attention to any evidence similarly linking U.S. Gypsum to efforts to conceal the results or to pressure Dr. Gardner or his successors to limit publication of their findings. Without such direst evidence. U.S. Gypsum cannot be tarred with the same brush as Raybestos or JohnsManville. FN15. W.R. Grace was not one of the sponsors. At tie aae tie experisests were conduced, it 'was Copr. e West 1998 No Cairn to Orig. U.S. Govt. Works 793 F.Scpp. 569 (Cite as: 793 F.Stipp. 569, *577) Page 9 aoc involved -ji die mining of processing of asbestos. it did not acquire asbestos-reiatfid iadusr.es uaxti die 1950's. Farther. without the underpinnings of evidence establishing acmai iciowledge of the hazard asbestos posed to those who evea indirectly came into contact with their products, plaintiffs evidence of alleged attempts to conceal the Saranac Lake experiments, as well as its alleged failure to use alternatives to asbestos has no probative value. Such evidence alone does not establish culpable conduct. U.S. Gypsum employee The other evidence on which plaintiff relies to establish actual knowledge oa the part of U.S. Gypsum is evidence that in the I930's a bookkeeper employed at one of its manufacturing plants in Jersey City, New Jersey contracted asbestosis as a result of his employment. Plaintiff argues that this proves U.S. Gypsum knew that exposure to even relatively moderate levels of asbestos posed a significant health hazard. Such evidence does not equate to knowledge that construction bystanders were at risk. As the court pointed out in Angotd, supra, asbestos-plant workers were exposed to far greater quantities of asbestos dust than the average construction worker, because their work environments differed. The manufacturing processes generated enormous *578 quantities of dust. Day-after-day, each worker labored is the same location and was exposed to the same, extremely dusty cooditioas. Ventilation was ofttimes non-existent during the early manufacturing days, and the worker had no reprieve from the repetitive accumulation of asbestos dust. Knowledge that workers laboring under such conditions suffered from a cumulative exposure to asbestos cannot be equated with knowledge chat construction workers, presumably laboring under less disagreeable conditions and less dusty conditions fFNlfi] would suffer the same ill-effecs to the same degree. In Angotd, supra, the court commented: FN16. See. e.g.. Record Document No. 2*5, Bed December 11. 1991. referencing plaintiffs exhibit USG-16 at p. 3. ... While there was evidence chat sawing of asbestos products by insulators produced dust in varying degrees, depending on the type of material and die size of the cur, there was no evidence to show thar the exposure of the plant employees with asbesrosis was to the degree as the exposure of an insulator. There are many products and environmental conditions chat are known to create a health hazard to individuals exposed to a given degree which do not create a hazard to one exposed to a lesser degree.... .... [TJhe fact thar workers at the Philip Carr/ plant exposed to high volumes of asbestos dust within the manufacturing proems contracted asbestosis does not show actual knowledge by Philip Carey that a health hazard existed from the exposure of an insulator, who did aoc work in the manufaemring process and within the confines of its plant, but who worked with its finished products. The evidence did not establish that Philip Carey had actual knowledge chat insulators were exposed to a dangerous level of asbestos fibers by use of their produca or that Philip Carey was pur on notice and consciously chose to ignore information that showed its products were actually known to be harmful to insulators. Angocti. supra. 812 S.W.2d at 747-748 (Emphasis supplied.). See also: Martin, supra. 494 A.2d at 1099 n. 15 (noting the distinction between articles and research studying the risks associated with mining and manufaemring raw asbestos and the risks associated with installing or applying asbestos- containing produos), and Smith, supra, 564 A.2d at 212. Clearly, then, evidence that U.S. Gypsum was an notice that a bookkeeper in one of its manufacturing plants contracted asbestosis does not equate to knowledge thar construction bystanders, such as Donald Sealover, were equally at risk. Libby mine workers Of all of the evidence which plaintiff proffers against W.R. Grace, char which brings her elosese to proving actual knowledge of the hazard asbestos posed to construction workers is proof sha :he workers who experienced problems t>ere, purportedly, exposed to only relatively small amounts of asbestos contained in the vermiculite. Plaintiff argues that this served as notice thar even casuaPor indirect exposure to relatively mull amounts of asbestos can cause serious lung problems. She contends that this also distinguishes this case from others decided by the Pennsylvania courts in which the courts renised to equate long- Copr. e West 1998 No Claim to Orig. U.S. Govt. Works WESTLflWI 793 r.Supp. 569 (Cite as: 793 F.Supp. 569, *573) Page 10 standing knowledge of lung problems Lu plant workers with knowledge dial asbestos would have an equally devastating effect on construction workers exposed to lesser quantities and lower concentrations. [FN17] See, e.g.. Neal v. Carey Canadian Mines and Martin, supra. The conclusion which plaintiff seeks to draw from the problems experienced by the Libby mine and plane workers does not follow. Knowledge of their health problems does not equaie under Pennsylvania law to acniai knowledge that construction bystanders would surfer like problems from exposure on consmicnon sites to asbestos-containing products. It stands to reason that exposure during the manufacturing process and during mining, when asbestoscontaining *579 raw materials were being crushed, sorted, and otherwise manipulated, would pose a greater risk of mare extensive exposure than would the installation of the manufactured product. See. e.g. Angotri, supra. 812 S.W.2d at 746-49 (*[A]nicles from medical literazure relating to the `hazards of asbestos exposure in industrial emoloyment, and to the surrounding population.' .... and warnings by a medical advisor of `possible liability to persons other than employees' does not establish actual knowledge and it does not establish that information was available to show that ... [defendant's] products were actually known to constitute a health hazard to insulators.*) Further, the reports upon which plaintiff relies indicate that workers and miners were exposed to a large volume of dust. For example, a 19S6 report from the Montana Board of Health stares: 'dust vibrates almost continuously off the rafters which have become loaded and are continuously loaded with dust generating from many sources.* (Record Document No. 248, filed December 11, 1991 at p. 22. referencing W.R. Grace Exhibit 2). A letter written in 1961 by a Zonolite official expresses similar concerns, staring: `There is a relatively large amount of asbestos dust present in our mill and this is difficult to control.* (Record Document No. 248, filed December 11, 1991 atp. 23). Thus, even though the dust workers were exposed to may have contained only .trace amounts of asbestos, the fact that it was generamd continuously and allowed to accumulate day after day distinguishes their situation from that of consmicnon workers, where one would reasonably expect the volume of dust to be less. Once installation was completed installers move to a new location, so that one would assume that there is not the same opportunity for dust to accumulate day after day in die same location and endanger die health of bystanders. Cf. Wamr-ncSr v. Celotex Corp.. 835 F.2d 813. 822 (11th Cir.1988) (punitive damages award against National Gypsum uoheid based, irner alia on evidence that National Gypsum was aware of hazards asbestos exposure posed to miners, plant worken and others exposed to high concentrations of the dust and could be found to be consciously indifferent* to the threat posed to construction workers by failing to act on that information to protect such workers from exposure). FN17. (See: Record Document No. 2*8. filed December 11. 1991 u p. 17. Emphasis supplied.) Post-1961-1962 evidence [3] Plaintiff's reliance an post-1961-1962 evidence is misplaced. Evidence that W.R. Grace and U.S. Gypsum leaned of the hazards of asbestos sometime after Sealover's exposure is in no way probative of what they actually knew prior to Sealover's exposure. Although such evidence is" relevant in some cases, depending upon the claims raised, it is sot relevant to the before court. Cf. Rowan County Board of Education v. U.S. Gypsum. 103 N.CApp. 288, 407 S.E.2d 860 (1991) (post-exposure evidence relevant to refine defendant's assertions that asbestos cgflmg tiles it marketed were suitable for installation in schools) and Eagle-Picher Indnstries, Inc. v. Balbos, 84 Md.App. 10. 578 A.2d 228, 249-50 (1990) (post exposure evidence relevant to prove a duty to alert plaintiff after exposure and avert possibility of him worsening his condition by coatinning to smoke cigareaes and/or to prompt the persons exposed to seek treatment earlier and thereby perhaps prolong their lives). Cases cited by plaintiff Plaintiff urges the court to follow Ivins v. Celotex Corporation. 115 F.R.D. 159 (E.D.Pa.1986). in which Judge Newcomer found the ranar documents sufficient to support a elam for punitive damages against Owens-Illinois and Owens Corning Fiberglas. Ivins is inapposite, because the court did not follow what we now know to be the Pennsylvania standard for imposing punitive damages. Although the court stated that liability had bees established under both Martin and the line of cases which preceded it (cases which did not Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works 793 F.Supp. 569 (Cite as: 793 F.Supp. 69, *79) Page 11 require the plaintiff to prove actual knowledge). its folding was framed in terms of wtm tie defendants sbouid have or could have inferred from the Saranac findings, not in terms of what they acrually Smew *80 about the effect of asbestos on construction workers. The court stated: [T]he Saranac documents couid indicate that Owens-Illinois and OCF had Imowtedge of the danger sometime between 1948 and 1958. Second ... testimony with respect to OCF's familiarity with asbestos and the contemplated publicadon of the 'asbestos file' may support the inference that OCF was aware of the hazards of asbestos in mining and factory settings. Such evidence could also show ihat OCF knew or should have known of such facts as would a reasonable person to realize the existence of a serious danger. Since plaintiffs' proofs may support the inference that defendant OCF-long before it took ameliorative action--(1) knew of the risks associated with asbestos or (2) knew or should have known of facts which would cause a reasonable person to realize that exposure to asbestos caused significant health risks, it would be inappropriate to dismiss plaintiff's claim for punitive damages as a matter of law. Ivins, supra. 115 F.R.D. at 166. City of Greenville v. W.R. Grace & Co., 827 F.2d 975, 981-83 (4th Cir.1987) is distinguishable on its facts. The City of Greenville, South Carolina sued W.R. Grace to recover the cost of removing a fireproofing product called Monokote from the Greenville City Hall. The city was awarded compensatory and punidve damages on its negligence and breach of warranty claims. On appeal, the award was upheld by the Fourth Circuit Court of Appeals. Unlike the case before us. W.R. Grace sold the asbestos-containing Monokote to Greenville in 1971 to 1972, at a time when it was frilly aware of the hazards associated with asbestos products, knew that the asbestos-containing Monokote was not suitable for the purposes for which it was sold because of its tendency not to bond to the surfaces to which it was applied, and, acting in response to well-publicized concerns about the health risks associated with asbestos exposure, had developed and was marketing commercially a non-asbestos Monokote product. Repeated punitive damage awards Defendants raise several policy masons for aot permitting punitive damages in this case, which we will address briefly. Defendants cite: (1) the compensatory and punitive damage judgments assessed against them in prior cases: (2) pending asbestos claims; [FNI8] (3) the dire finanr^i jnaics of other asbestos manufacturers as reasons far disallowing punitive damages in this case; and the fact that plaintiff has been frilly compensated for her injuries. They argue under the circumstance, subjecting them to punitive damages would serve no purpose and 'unreasonably endanger future litigants' rhanr.-< to recovery compensatory damages* by further draining defendants' limited financial resources. If their coffers are ftirther depleted by large punitive damage awards in cases such as this, they argue, the injuries of future claims will go uncornprnsarrri, Other injured parties, having an equal right to receive frill compensation for their losses, will receive nothing. By allowing plaintiffs to proceed to trial on the punitive damage issue, defendants argue, the court would be sanctioning a practice contrary to (he interests of other injured f ' parties. FNIS. Untold numbers of asbestos personal injury actions have already been litigated to conclusion and stabstics TMrhar gig stream of libgabon is far from waning. Cottat records nvKnw itm 'presently in die federal system nearly two new asbestos actions are being Sled fcr every acnon terminated, and that at cbe current rate, there will be more than 48.000 actions pending in the federal cours at the end of three years.* In re: Asbestos Produca Liability Libgabon (No. VH). 771 F.Supp. 415. 418 (J.P.MX.1991) (citing Report of the Judicial Conference Ad Hoc Committee on Asbestos Libgabon. 3 (1991)). The Third Circuit Court of Appeals has recognized the legitimacy of the concerns which defendants raise. In In Re School Asbesms Litigation. 789 F.2d 996, 1003-04 (3d Cir.1986), the court commented on the inappropriateness of punitive damages in mass tort litigation, stating; In the era when most tort suits were 'one-againstone' contests, a single act triggered a single punishment. The increasingly "581 prevalent ' mass tort situation, however, exposes a defendant to repetitious punishment for the same culpable conduct. The parallels between the assessment of exemplary damages and a fine levied in criminal Copr. 8 West 1998 No Claim :o Orig. U.S. Govt. Works 793 F.Supp. 569 (Cite as: 793 F.Supp. 569, *531) courts have led :o suggestions hat he concepts of double jeopardy and excessive pmusnrtenc should be invoiced in tie civil field as well.... (Citations ociced.).... Similar concerns have prompted highly respected judges to comment on the possibility thai the due process clause might contain some consocutiona! limitation on the amount of exemplary damages to be awarded. 'Unlimited multiple punishment for the am determined in a succession of individual lawsuits and bearing no relation to the defendants' culpability or the actual injuries suffered by victims, would violate the sense of * fairrn* * rtiai is tO constitutional due process.' la re Federal Skywalk Cases, 680 F.2d 1175, 1188 (8th Cir. 1982) (Heaney, J. dissenting). Thee must, therefore, be some limit, either as a marter of policy or as a matter of due process, to the amount of times defendants may be punished for a single transaction.' In re 'Agent Orange' Product Liability Litigation. 100 FJLD. 718.728 (1983). In addition to a possible federal constitutional limitation, state substantive ton law could place i wri-iint< on repetitive punitive damage awards.... Thus powerful arguments have been made that, as a matter of constitutional law or of substantive ton 'law, the couns shoulder some responsibility for preventing repeated awards of punitive damages for the same ams or series of acts. ... [T]he tens of thousands of personal injury suits in which punitive damage verdicts have been and continue to be assessed ... are satisfied from the same pool of assets to which the school districts now look. If a limit is ever placed on die total punitive damages to be imposed on the asbestos defendants, then that limit probably would apply to ail claims whether they arise in property damage or personal injury suits. ... [Djespite strong arguments favoring limitations on punitive damages and the increasing number of bankruptcies, the 'business as usual' attitude still prevails.... (Citations omitted.) School Asbestos Litigation, supra. 789 F.2d at 1003-05 and 1007. Although the Third Circuit recognized the need for controls, it has not thus Car adopted a rule limiting the number of punitive damage recoveries against a single defendant for a single product or course of action. The United Page 12 Stares Supreme Court has also acknowledged that mere ire Fourteenth Amendment due process constraints on punitive damage awards. Pacific Mutual Life Insurance Co. v. Hasiio, 499 U.S i 111 S.Cr. 1032.113 LZd.2d l (1991). Be:,frlanis ftinher argue chat allowing plaintiff to proceed with her punitive damage claim would be tncansisteii with che order of the Judicial Panel on Multi-Disnis Litigation (the 'Panel") darH July 30, 1991 consolidating the pre-trial proceedings of ail federal personal injury and wrongful death asbesios cases. In its decision to consolidate, the Panel made reference to concerns along these lines expressed in 'he March 1991 report of he Judicial Conference Ad Hoc Committee on Asbestos Litigation: The ... five years [since 1985] have seen ... increased filings, larger backlogs, higher costs, more bankruptcies and poorer prospects that judgmenn-if ever obtained--can be collected. The most objectionable aspects of asbestos litigation can be briefly summarized ... exhaustion of assets threatens and distorts the process; and tore claimants may lose altogether. In re: Asbestos Products Liability Litigation (No. VI). 771 F.Supp. 415. 418-19 (J.P..M.L.1991) (quoting Report of he Judicial Conference Ad Hoc Committee on Asbestos Litigation, 1-3, 9 (1991)). [4] *582 Although the defendants raise legitimate concerns, his court is not the proper forum for redress. [FN19] If restrictions are to be imposed on he number of punitive damage awards which may be assessed against a single defendant for the same product or course of action, they must be established by he Pennsylvania legislature or *a higher judicial authority*, but ant by this court. See: Glasscock v. Armstrong Cork Co.. 946 F.2d 1085. 1096-97 (5th Cir.1991) ('If here is to be ftinher control of repeated punitive damage awards, the solution must be found through legislation.*); King v. Armstrong World Industries, Ias., 906 F.2d 1022, 1031-33 (5th Cir. 1990), cert, denied, 500 U.S. 942, 111 S.Ct. 2236. 114 Lsd.2d 478 (1991); McCleary v. Armstrong World Industries, Inc., 913 F.2d 257, 260-61 (5th Cir. 1990). Cf. Juzwin v. Amrorg Trading Corp., 718 F.Supp. 1233, 1235 (D.N.J.1989) ('[Tibia court does not have the power or he authority to prohibit subsequent [punitive damage] awards in other couns Copr. c West 1998 No Gaim to Orig. U.S. Govt. Works WE5TL 793 F.Supp. 569 (Cite is: 793 F.Supp. 569, *582) notwithstanding its opinion that such subsequent awards violate the due process rights of die defendants against whom sued verdicts are entered. Until there is uniformity either through Supreme Court decision or national legislation, this court is powerless to fashion a remedy which will protect the due process rights of this defendant or other defendants similarly situated. *) and Gogol v. JahasManville Sales Carp.. 595 F.Supp. 971, 975-76 (D.N.J.1984). Page 13 plaintiffs punitive damage claim, summary judgment is granted in defendants' favor on that claim. 4. The Clerk is directed to defer entry of final judgmear until further order of court. END OF DOCUMENT FN19. Cammenaton have recognized the legitimacy of these concerns, but have also urged a legislative solution. See: Robert E. Scott. Jr.. Pmiave Damages: Consofliccialiry, Ehsncoo ind Defense--The Defense Perspective. 387 PLJ *25 (March 1. 1990). Commentators have urged the seed br a restraint on the number of punitive damage awards that may be on any one company fcr injuries arising from a single product or line of produca. See: Jack 3. Weinstein and Eileen B. Hershenov. The Elite of Equity on Mass Ton Law, 1991 UJLLJlev. 269 (1991). ORDER For the reasons stated in the accompanying memorandum, IT IS ORDERED THAT: 1. The motions [FN1] (Record Document No. 234, filed October 29. 1991 and Record Document Nos. 245 and 246, filed December 11, 1991) by U.S. Gypsum to bar plaintiffs from proceeding with their punitive damage giamt to evidence of punitive damages are granted. FN1. Also oucooding an piaisccflTs tsocon for delay damages; defeadaaa* moboos for a aew trial or J.O.O.V.* plaintiffs motion do sever the against GAF; defendants' motion oo treat Johm-MasviUe as a settled defoadam aad mold the verdict. These monoos wt11 be addressed in a separate order. 2. The motion (Record Document No. 238, filed November 15, 1991) by W.R. Grace for summary judgment on plaintiff's punitive damage e!.im is granted. 3. The parties having agreed char the court should treat the above motions filed by W.R. Grace andU.S. Gypsum as motions for summary judgment on Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works / ,' -i . Tut i* ' t+ . \* 9 t IX THE astern OUST Of MCaOHOUA COUHTT. MEET VltUZXlA ...................- - - -- ~ . . - ..... . 3QHM QAHia OAVIS, tt l\.. Mastiff I ashstschc wuj :xsst<ues. ihc.. fti.*. > ) ) ) > ) ) ) ) ) ) CIVIL action file HQ. U-C-T63 -I.- fuC \4 I t C 2 1 !xi w;. s k*f 3 akuiod, 2 til2It, la mn do tia 2 filial court* U 21(0 utla ul tMsfi Ilka tat, 4 1*1 S a mllr vtrr *f tlia, 2*1 2 t21*2 It laal<* * I pic;li tk* rl?kt of fair mSiSfi of liiu prill*!**;; I t mat* *11 last* of itolilsa*. ? 2 juat doa*t fool ta*k tkl klsi of I utlTltr* ad tiiuaia? Try bit of It li truo tire I Ui 2ia praaoattd to ta* Court, e*a pul21y rita to " Ifi t*i livil of 0oa>lr*y, 11 mt s **v v*i *ii**i ifUiai* vita **p*t 12 ta Oypoum teaaaotiaf. ta* to tia at4y -- ad '* 13 raoall tko idsoo* la ta* a. X. Pottir, uybi toiaai. 14 It wooa't KliltlU to a, 2 auppaaa - - i* t*i t*r IS truck o proviiloa nlttltf ti otasar, for pirlip* II food mitsi aad aoyfci park*pi for a*4 tuitti, but 17 tli: it vti doaa la * fair 00***091 of lda* at tka II tla*. If 2 tkiak that you t*r* to put tais la tk* 20 pinpiitlTi of tka tlsa It v Aaaa asd 11 latalllfast 21 kuilsiitai* *ad aeloatlats. 22 vtiftix or at tka i;;ri;:liti follov-up was 21 dsso or vk*t v* doao lukoattott to tk*t la tarst of 24 It 1* of * fftatar ooaosra. 2 1 Z im imi of u lisfup Z tow caerslfi' 1 vmlafi Hove ao n<t ttifi < iitvht of 1 oalloai4 fiw of tr?lag to In M;l kacv ti* 4Wft. 4 of tho )(ilnt tin til? vx* <n:iaf with. s .2 4n't aaythiaf tin mil Im iMa u I Ulifi* lit im tii fwml ioun lay, : riiyut, ? tin rou ov * 1st? f m pnm to aotii aoe to I da tilafi linitl to tiu. I Itt iniytlif tilt ti iilif tit seuee lav to of tho tin, 2 doa't hov yo-s ns i? tin tho n foot tilt til? tiiii to doloto o uetlia of i rayect to tt that tin vesll enitlteti a naiyint?. : Jun 11 stall? doa't. X aaaa X stall? doa't. 14 lei 2 im to toy that Z itartad tiialia? oa *t It tfcla with tho idoa ol torl*f t* loov* iw l *! c^xisf *l II ts rlfit than# hat X doa't in it that way. | It 1 stall? doa't > a imyltaiy. 1 II Tht aotioa fas a disaotad tirllet it fsaatod l vordlot with siiyin to io&i9l:m oa n. X. iortit aad 1 19 20 Baltad linn tyym. t 21 I l 22 l l 22 t 24 l 1 ) ' -G*l cimret or rnsfosro xsssjju?* ok lasgrgjTB ' `* 8>r-c Uterratarg _3rv*T wndfr Print fwa limits, f >!? j w*.m aji;?s31s r Z Susan Jiia:lcr - a indr 9t tS autapay aiii^Illaitntii C 2 X-riy hcttrai la libutsiii, Xlluatratad 3 ill ud Xiaaral VUan la lisua Ja)(i:sili 4 Casplleitlena of libiitsili (a) SuseiptiAllity to inXaetloa 1 TuAarauloua 11 Koa-?u&<reuloua 111 Caaear of tAa luaj . 3 SUiV.ll;r, etuiii lai essparlaaa i*.i alllsaala . ^ 6 SUtMili (a) Hii-ary alacsatt ix^iri . <k) X-.-ay Tils ?i::ra * (c) ?bytleal axialnatloa (A) Aabaataaia bodlaa la ay:V, t>.air air.l?ls*nea ( (2) ?X?" 21 CrviBrl >st t * 2 Katnda ' fa) Islulitlaa tx^ivi to plant tmti. (bi lajootioa lata lua* taroufS traobaa or r- ciaara: (a) 2aJaction of port alatrala lata otbar or;ta*. * , 2 I;cim Juic*;:iSiU:; Xaa, fjXatM pigt, rabella, cats, vfcita d.'t a*d n; ta;t. 2 Xtsslitr Charaotarlatloa of labcitoila * * ^ (a) Ceaaual laealltaioa of e&rfiotll* flbri la lca^a. (bj JUto of raoultaat tiaswa naetioa can rapid to ouartx. (e) Xaaetloa ta chmotila aat prsfrutire aftor txpeaurt cum: a?*la taa rtrtrtt of taa aituatiaa la lUieti: (!) labaataala Xadlta 1 Caspoaltlon and etthoda of ferxaties. 11 Ocstiriaei la dirfcrta: ixtlu. Ill fersatloa Coca not parallal <trils;sca: of flbroa: IT Oradual dluppccuci aflar.txpoaura eum. 4 CoaparatlTo tffisti of Siffarant Xabaatiferc siaenla. * (a) Canadian Gfcnaotllt. (b) Iritoru Cbr/aotilt, lav iron. (a) Cnel&ollto 1 XollTian aptciaaa, itiff and alaatls. 11 Paata African, aoft and flaxibla. (t) lataspaflllta (t) m;t it a. . it) traaalit#. 1 Sff'teta of Control Xlaarala \ (a) flrar.r.clar Sorptailat, atca oheciexl oocaocitlea ta .. earjaotila. . , (b) Olaaa Vool, a aratbaUc allleatt flbn. <a) lnialtt, a fibraua a^nulu bpdrsxida alaoat foot of gillea Cbealeal Coepoal? Irritation- . - of JLtbaatifarc al&anla' la delation ta (a) Hotair^ la eec- Jltlaa esrrtlatcd viti nlatira irritati 'capacity. (b) Prtlieinarf aeii tnataar.t * 1 Hydrochloric told' li Carbonic .all * 4 12) It) Xffaeta of XLvsLzsst 7 ?byalal *repartlea la X^litlaa * Irritation -- - (a) Lanctb of fibre <bj Sffaot of Crushing (a) JUat traatsaat I lUian and tl{alflaiac of iibutaili Xedy (i) formation Jb) Protective affaat preventing further Irritation (a) Oltlaata aolubllity la tlaaue 9 Theerlaa of Action of labeatifera Xinerala (a) Ciesieal - raaaoaa far ee&Jldarinf invalid (fe) haehanieal - enpcrisental desoaatretiaa of. * 1 10 Cesplleatlena o (a) Infection, tubareuloaia and ether variatiaa (b) Caaear of lung - espcrisental data it^iiUTi but not proven , . # 11 Suability * IS Sciential faaturaa of Xaxardeua Espeeura {a) tittri of duat - flbroua eosponent and lira fasten . (b) Atsnapherie Cone antrationa - probably lovtr than for . quarta. 1 Inadequacy of ctaaderd isplnetr aaspling aethnd * which data not oollaet the dar^irou* flbrta 11 Claotroitatle precipitatoramplijvj prtfcrablt but aethod suit ba nodiflad (e} Duration of lapeaure ' 13 .Jteeessendatlonc far a Sev Standard of Safa Atsoapheris Can, jecatratlonc of Xibeatoa Suat (a) The Qyaal-emelal atandard-of 4 to S Billion partlelei par ou. ft. (b) Verb upon battar method of aaplia; - . (c) Keccealty tv .-oaparieon^of raaulta with X-ray findings in esployee. ' 14 Prevention - (a) Chesieal meant net pra ctical (4) I Aoldoolo atatitu-7 to Calri ft6ri , tain 44cou 4 r* 18 11 JUuai&tta Tbtfkp^ iaoppliaablo 111 C&lif rtlliati otlll (pea 4tut SP*T*;ian ***> op#ll ispftiii* upon tio ribrotu ooepflr:I'~ V 2 )?"* ** *fc*l2I e"d ewi - fi*criptioa *i;w upon 23 bunas autopsies xih Klnenl ~0t Kuan 3 Can?!*cities *X dbtotg () Susceptibility X* lafeotioa 1 tuberculous- 11 fh incidence is ta^llsS n;erii::i not duplicated la int;i of Jbtruts 21*.*.:*. inUiDlt :*;; lUtlitici bcmu or sel ection of sattrial. * 11 Ken-tuberculous- Th* tons rtsson prabebly *pplles should be eatskil by analysis ef *b> as:alas tssa; asbestos vorlira. 11* Castar of tusj Pitta, but than ora aavoa record 10 eaata of. lunj eanctr la aabaataa verfcsr . Cospared to tli total ausbor of autapai oa ftabaataala, this incidence la ensesi. Xo such frequency Saa btca discovered li ollleaala other fcrsa 'of pneusncssio* ala tipt/.ta Sebnetber; elftii of radii etlva eras, "ha atUiaei la *tuettii but not conclusive taot aabaataaia say * 'precipitate t&a devalspsest of oanocr la susceptible individuals. < outbtmv Clinical experience surest* that truly iiuMiag aaUratoCa la sanlfedted by laa* striding X-ray chansea than a corresponding d.rree Of allies*!*. Bush dlaoblllty is aabaataaia la Cua to disease vitals ta lunge and net to secondary heart disease. la is alli'eoali, ataoeiat*4 pulaanary lnfaettoa iaerteaea tft* assu.n V aararitj of the dust flbroaia vita raul:*r.: aesantufttian ef disability. ?** H T seed for a caraful physiological study *of pulsanary function In oabeataaia of varying severity. Undoubtedly, there *rt eany dianeeable caeca vita no signiflces disability. . S Pit moil a depends upsa three factor*. (a) History of sdeeuet* zposure, ueually 6 to S year*, ecstlsca lonprr, at e: . vhcre both the concentration and character of the ***6*ato*` duet art hatardsua. <V { tw (r m - % *.rf -* ? *. Kr.k.i. *rif* * '* ,* < ' ()>}. Ziiitzzt of dliiui^a i x.Psr < (; t 'ft)- jl ^ilcal jsiaiaitiiB rtwtla tirtala e.fc_rartt,-:i !/ <*/ riTMl ifUiatu i: diaabXlitjr i' *%** * (4} Aabutsaia bodlte data* ipoise art aenfirsatar. vna tr< prtrisuB fieten arr all poaiut*. Iwnr, ta# &acitt > ear k iDiiat/jtrunUr^ ^ *a of krsssiitii, taxation. *."' *i A*bMtoboddM unaupportad *7 itiir lame* da sat su.it . a diagnoaia. 'Cecaaional oaea &m beta found in about id autepif. apaeiacn* of pansna vita aa kaevn cxpeaurf and c fibroin, probabl/df-aaa-ocaopaUoaal erici*. . .. *-. .< *1 > <. , '.> *: 4 * * **... 7X.TT II grstrlstntal Xibutetli * *."t*'**. * "fi# t** '4 * * ^ * *%# V. /* iC, * .v f' . M . * * V. *' Vf * * V 't (b) In____ * SAxtlar rtaulla. .'4 * <** *,** * `` (el In!#etlon 21 &?.* t?nt ^ . .------- " J'- J ^ otdip cTfiz .in any organ tnt lunga of in flbraala _A'iba<teaHiedrt<>^j1^'t^8n7'rar?<yibrgVl> ^ M* *; -r? 1 < '4+ r* *- -r4SJrs;v.--v*iri cv* * v *. Cat*-*'* duinea ?ig ! babbit ? r <*'*--- .o.T 3* -- * * * icTTfvita TU*.* \ "** ' u -^V^r.*'-Set>7)>*fcx>s 0 * - r*V" d* % . -`o'* * * v 0 r <g>y. III *evltr Choriiattfrrliiiisix: Q,Mtooi^ r.*If -*r . *_ ** ' . ,, : -' Col Laeallaatlen of cranu 1 rito'ti llba ifinMtlli h*tl*f a liruia degree of ntsiiii::: nd elasticity oe.'usulate vitbia the finest otr tub** prenu:*.- tfuit u serried ' u la vUtl; mtunl tit tirslul air spaoee. * * (b) JUte of tlaaua reaction to la nob sort rapid tjua to u active deal Ilia quarts. Crilaaeii of rersatioa a;;u.* at aeon aa auffloieat concentration of fibre baa localized 'la specific areas; vltb quarts, tbcra la a latent period of aaetla. (e) Xiutlaa to asbestos data aat pncrtu oa oeaaatioa of u;:i. ure. laua; tear tlaaua that oaf bata forsad, contrasts and btessu esrt daaaa but tti arta of lavolreoeat dteraaaaa lbalar. 2a alllcoala, tho .young fiodulta beesas larger after exposure oraaaa. (d) libtittiii Sodlat art a eptoifl: eanaassitaat of tbia fors f pntusaeoueals. They art duo to a deposit of prattin and ires upon tit aurfaet of labeled flbrtt. Zo guinea yira they fors aft ar about (0 daya of ooataat vltb tba tlaaua. in*ibusi aat la tan aad guinea pigs, (Sat psrsrspa 2 absra) but ousb larger la tba fararr probably baeauaa tba larger alzrd air tubs ids;: larger flbrra. Za eata,- rabbitt aad alea, tbtr* la as atypical coating of f of tba flbrca after such lancer mi* dessa la tba lunga; la rata and dogs so bodlaa could ba dieeovsred. * Troa paragraph 2 It la apparent tbat tbalr o curtsi* data act parallel devalopaant if floratla. Za lung injection exp* risers, tba bodlaa bote xaC developed ant/1 after flbrosli W-uuall t.&*T2Ztd. tba nuabar of bodlaa atcaa u utcrtiu MTtril ytara after exposure oaaaaa.* (i) Effect! of 8tffrnt libtatli V'ntr.lt a* (i) Ciriiit; - highly Irritating. * (b) Arltar.a Cnrt-totllt (lev la Iron) equally irritating d produett juet.ae aaay aabiatotla bodies at tba Canadian product uttb over 11 tlaaa aa aucb iron. (e) Crocidalltg - ?be Soutfc-Afrlean blue asbestos la fcnovn to eautt atbtstoaia. Only * Halted supply ,qtf tbia material is pure fora vat available, soas-of it vaa used earlier la titnorx is non-productive exparir . Tor tba latercritical ls;tstion taata .Into tba lung a, -e-oollvlaa variety vaa aubatituted bcauat of ita high purl;. Zta fibres vtra aueb otraifAtar. stirrer and core elatti---Cbaa tba oottoay South Afrieaa variety. Perhaps btcauae of tbaa* peculiarities. It has aat given rttetiona eesparable to csrytotlle. Zt produced oibeatoila bcdlct but did not localize la the terminal air tubes nor cautt any fibreala. Testa sow being repeated vltb a typical South i-'.-lean eroeidolila vltb pfiyeietl cS*re:r;ilie* emulating cb.-yictlli. * ' (43 lrthaohrmte --atirt. fibres - atypical )b*a:o<l beds* rorst alowly but aa loealiistloa or flbraeit iz lssajs. (t) ItssUt - situ. * it) x-.ohlbst* - Bitto. (f) Ir/.-alllt Bitto but ii7 tav uhiMilt boiii'r> Cbterrttiof.' brief eoatlaued. .*.-tv* ; * J. *' r Car si Kint-el f , ; *. (t) Cryjl* gyrr.tlnr of fas* cbtsistl aospetitloa at airraotile la laart cautia? so flbrotlt Is lusft or oWar erftaa. Ct V- * r.vttti Isos fns tba lucfs bi: r oeurat. so `bodita1 4tiLj; 'm (b) 81t Yogi(a ajrathetia slllsste) fibrst art so? labtlsblt ?rsz airborss mptatUni, ippirtatl; beatuta or fbilr atlffaest (tat dltatter la aat ratpoatiblt at tost Bird vr* lata tbss'T* 1 cl cron tiieb) Oa iajaotloa lata tba lucft. tber do sot 7 *f ImcUxi la tat air .tube* but art tidily aeattarrd. Thtr i` as flbrotlt. XTtar 3 or 4 eoatbt is aoataot wits lurf fluid, a f*v flatt ribrta taJca up lrsa but yistla isoetb. taiy aster ifc tba ivtllia eada aad litirtlprojections or tba true v llbdtKll bodies. . *u * V ' r (el of interact btoautt .lt It a fiiroua einertl prioileilly rru or tillea (a.9S). CryiulUsriiMally tba crir^iats: er lu He 02 froupa la ttah unit ttU la aislltr to taat la ebrytstilt, ?b* saspla uttd alto aoatiisad about 15< lrsa, pro* btbly froo seataaiaatiaf ctfoefitc. tba fibres art s'tiff tad nt,ilt liir.' Obacrvdloat 'not ye* aesplttad but artar 2 csntbt H_tit luaft, typlpal atbtitotlt bodies detsle? but Ultra Is tr 71;*no fibrosis. *ht flbrs art sosttertd Sbrouja tbt lunj lax:is: or bring. loeallstd laaldt lit temlfttl air tubas and tltiut rtseiloa*.eesurt around, lasttad of vitbia tbs tubes. e* * n Chestgl Csroaeltlon ia Xelatlsn to Irritation * (t) JfctilAf la tbs following ehfoiesl -eospotltiona' can be cor related vita tarlatlor- la capacity to provobc tlaauc*reaction. (let Table Ken: *aft) ( '.j e- * r. 7 0. P-t 0 ll^C* C- 0 M 0 CvO atllf ?7.43<r'_ 2.35* . 0 0.38< o.es* as. rr.* o.M 0.08 CraoidOlHf 1 4.??< As * * *. nr./sf *>*'<. f. 0 7 .....-33.83* .. - r__f3;04*`* *8.rs* * r. ^7.*21* -0.7H -Vi 4e '* ` 8,35 l.o* 0.79t e.f 0.44* 2.Mf . 1.09* ` -.0,3^*' o.aff-V . 2.01* * 4.43* ` t.tJOi * r * -9.T9S 23.W* ** 20 *S2I> . 83. 99***"'. *?* 0.57 . ..... 0.-33 0.13 _ 0.10 P.40 # 8.78 '.0 .**?"* , 0.12 " -0.99 v 0.1 *<LJ#dlO* d.sa * r>ici* 14.92 (to) - .0.02 2.58 0.82 2.42 *P.8 0.32 - 0,34 0.33 laSl_ ... li'.v. 2.78 23.88 -***'* ' ' , *1 ** \* ,i,V*W'>'--> :id tr*ats*at.ef otorptotll* fitortay?,*/: . % ` Vi,'r ' - .T^rr'jrf 1 Oonn* hnoeur l;a dai;lutu* or *iteantoianttrri*tti*sd'SscCi.l dtaout* ans; altar tp- p*arane of fltor* bat aftr ouoh treats*ns it raptdlj'dlJ- islYti and dlaapptara ea lajictls; lets living tiuuu.'U . * * ` , . ' *vfs 11 ?r*ataent vltto CS2 toutotolcd through vatar or lur.g Juiet *uap*njloaa of etorrsotil* fltor** oaua*a partial aalutlst ith liberation ot alllea and earn* a la. ." . ' ?#* % *i *. (e) Colloidal allusir.a do** net neutralise tho'affcsti of attoute a* it do** quarts. On meeting etorraetil* *ui;;?id*d in aiuslr.us hrdrat* aolutle.% fib.-atia and attotCei toedltt It:* clap at tsi uaual rat*. 1; resale* to desanatrat* vbittoer ti fitor*;to*03* ooated vltto a lapcr of aluslnus sonohrtrat* at ' ha* b#n proved la tto* eat* of quarts. *f tft*jr btrt, ttot oca daaa net afftat tto*lr oapaeitp to irritate tKaua. . - vi: ?toT*ia^l ?raoertif }n geloMan Ja Irrttttien of Lurr. Tiiim "_.r` *' (a> Lanrth of fltor* *.*.. .* . \v i Short ohrrtotll* fil under 3 aloroaa ar* praetie*alij Inert.' 20.to 30 sioran fltor*j eauit trpleal fltorooia. . ?h effect* of long*; ant* eevid not to* t**tcd far ttehnleal'* rcaaona. * * .*j. (to) CrvMnr oo?l*tlr dtitrs?* tn* fltorau* otructur* of chrr*otilt. Vltto loaaef itnetun, *11 oapaeltf to lrritat* dlaappear*. 4ltM typiaal looalitatsea*vitain a#T-r; ti:i of Mi Area i sort Hbl77 to^i .Ui lung Uiiai Jixn `mi Bluril Itulf at Mi w Uijii ;Jat a*-ftet7*a ;fibrous lasr* should wscrui tfSir Mpcivi'ouiujrtiM is tan ea*.. Cd) ?ha gradual Uu;;ictnti af .bodlas {and*fibri) !losg after' j* >expasurf*bln:a.to ultlsatt solubility ^ tiiaue fluids. (i) `Si bodies art praiiSl; a fortuitous oenoesaiust ri*.St; than* " a ciust of fibrosis. fc IX The or*.e> of Irril er.t las Ion of AabtIfora Xlneril (a) owl Sheer experisente do nos esafira the theory that ut4ita;li is ntrely a fora of tlllaotii resulting frua frsa lilies liberated la tsi solution of s silicate eolieule. Zf tfiis were true asbestos ,111s cuarts^jheuld eaun fibroin In *r.7 organ ef at species fer tie tx.atriser.ts tar* shsvr. that injected siSicii dissolves In these location*. Severer,\ It dors r.et. e.usi such reaction is any loeation but the lung*'of f-ile spceles. . *-, . *.. (S) X;>.sf,lcl Irritation V are proposing the tfnrory of Bechaaiesl irritation vhich is ssaifeeted only in tSe lungs beesuse this organ is ths only one Vhsss naraal physiologisal funotions involve a high degree of mobility. Zxperisent. resigned to prove the necessity for eotic in this tlsaue hart :...id for technical rtaions.- for this theory to be explicable,.it la beeeiiary Mi: the fibres-be eonciatrated :a ths fi^s temiaal sir tubes. It bn been t^ova that only e* yeotils of ths ssbritifors einersld tsu ferjaas .the proper phy:.:al oharsetcrietios.to Insure sues localisation. 1: ie alto essential that the fibre aSall ptrsif* .long enough before it diseolvee In the`lungs of spaeise lib* sice, rata.'dofi. 2: ^^{cilr dieolvt aa rapidly that it exerts no irrltttlcr.. Ciailarly rapid, aolutisr. a*r *:?-*1" 5 f- n.'.rt. the 3a.*v af -*-je in c-r*r.* r*. 7 7he r:i?n nr. b* l"f *nov^a ao that tfii; tiuut be es-a' .... - lurro^id b7 phago7tie till vai- wyli prie: roving, brahan'ande with tha delicate cclla auppartinr ... Obu.'HUan 11 t.iat Uni esadmani rt r~=M ;:;i triatrt vita lane fibre chrraetllt tad mnm rui( Vita taa other aibMUfart ainerala Uat htvi beta te--.-. (:i 0. *11 of t*a prar;iiti vara laeiiac iud ao ribr;,.. : f*. ' (c) If the Irritation Vara ehealeal, flat serpentine vsish a*< t. icu thdtil eospaeltlaa a tbrptatUt aiiaald tun alao tut flbrocle. She eruahod chryaotlle ahoudl have bara sort aer;\ than Intact Tlbraa. beenuae of ta frrttir aurfaoe errae er- paead to bad; flaid a. On tti aaausptloa taat ohryeotilc, Zli ra.*tt, beeonea eoatad a vary tsia la7ar of alusias on trcataaat vita eelloidal ilelna brdmldi, capacity .to cut fibroida ahould b destroyed If tat aotloa vara cAi::cil bat eush 1$ set taa aaaa. , ^ (d) `St heavy coating resulting froa aaocataala body fersatlon t;r parently data atop tlssua raaction but hcra tha affasta are probably acedacieil for raaaoaa eitad. (a) Ktat sufficient to altar chssioal itnettri d aatroya pev? to lrntata but it alao altara aaaentlal phyiiosl character!/ taat affaet loealitatlsn of tha flbrea la taa lungs. X Ce ollcntlone* 1 11 (a) ^jecettibllltv ta Inrotl-n 1 .-ubereuleua - libestoe behaves llhe salt ether eincrsl/, ir tail respect and net llhe ouartz vhleh ipcelflsally inert/ native auaeaptlblllty ta tha tubarcIt baelllua. *?hla In flation say sorted far a tlsa but than heal*. Tha rtultt fibraila aesentu&tts that caused by the slntral fibre. 11 Kar.-Iubereuleua - of no freatar frequency tins la anlnali Inhaling duata of other kinds. Ooeailenal epileslsa of ' pntunonia occur la our duat room, but then are due ta aathada of houalng rather than ta duat; they *-m alio eea*. ` .In unszpoted anlsala. 1 Wo ezperiasnti vtre.daiigned to alueldata thie point but certain avidanec suggests that aebtatoiu say actually favor dmlopawt of tuaera in susceptible species. 2 In guinea pigs, rabbitri'rata, eata and dogi lung tusa art rare. 2 Vhen then spteits vera aubjeoted ta 2 to S years In halation of at&eatoa duet, tnc Incidence of lung tusar vae not laeraaisd. ; 3 Socs itrilai of aUi else is iifilsp tuss.*i * appersat oauae. j < 3ea a train of white sics vse unlntsatlonall'y iuci is tbrc* lAhalatioa s;irlatst< vttt utiitsi, i Of 11 ales inhaling loan fibre asbestos for 15 to 2 asm i developed aalignsLBt tuaors la tnslr lungs and-fi of Si;: had tuaors la atAar orgaaa. *>! InalQ^na* rT II-is li nnvt. e Of 22 doe Inhaling hgrt fibre asbeitos for aot longer t 12 neatha only 2 imlspci luag tussrs. t l:V6* 7 X* controls. v have only Wi vith sloe la e;.r gust nptrlsiati. iT ahert sT*.ed. there van 51 des ixpsici to < ether l.M.dads of duet far 10 to 12 saaths. Zaaidsao* of lung ts jfff lenr periods. there ware 1<3 dee exposed to 4 differ hinds of oust, including pure quart*, 23 to 31 aontha. . r. all this psap of des ths avtrare laeidenes of lung tuaa: vis 13.9i: the highest rata (25J was In a subgroup expos- to flint duat. 7hus the incidence of lung esneer la the lenr fibre asbestos elec vs* over Id tines the average for sloe mailing ether duets for eospersbls periods and over 3 tines the esxlsus for any other*grs Klee exposed to the praotioally laert chgrt fibre aebestos shoved fever lung tuners although 7 tisss ssrs than those la short expos-, to other duets. 'hett observations are suggestive but aot conclusive evidence of a ear.etr etlaulatlag aetisa by ssbtstes dust. .?htjr ari open to sevirsl eritielsas. ths strain of siee vis tax the ease in ths liiutts exteriatat as in stay of ths others oited; apparently thr it.rz.tr were ur.ususlly eusseptlbls. Kct tnsugh anlaals survive, in dust for longer than the 15 eanthe apparently necessary to produce csnytueors. *here vers no uatxpcsed ecntrcle of ths sane strain and age sad no dlallar controls sxpoisd to other dusts. It is hoped the: this exporiaent ean be rtpestid under properly osntralled conditions to date mine vhsther asbeitos actuslly fever esncsr.'p f ths lung. xz a;sib'nitv * * '* 4 CeMst be detersined 1 anlssle. *tt secldental deaths vert frss the esat causes a.* vi th in all our dust inhalation expertetr-ts. XII 1 *h h!L*ii lAerttid *m Uf tnpsnita aMatie; ntrii >, la ta due*, Ormulxr laert diluent*. u:<?ul isi irutd fibre Are <' V'-' 11 'hi lea? flirt* eait be this enough (1*3 Xlcron*} bad ii:.*: eaeupa (osier SO 2iersa*t) u b inhaled. *m 111 Y*ry ihsrt flbrtii (under 3 Xlsran*} are pr*eideally inert. (b) Atsaecherlc Conc*fi?rtisn 6tiH under study. ** Apparently t:le fee tor la lever than la tie cate ef dust* oospoatd c: granular slaeral* but aatnade of eatiaatlon are Bleleadlag. . I 7b* avtrag* ataadard fublls health*ferric* ispiager eaust la tbe long fibre aabeeto* dsat roea*vaa .40 silUaa partial- per eu. ft. af air. `Ihi**ecfteatration`oau*ed fibre* 1* lalble ts the aabtd aye la 20 to 24 ninth*. for essparltc: tbe average laplhgtr count* la aa ezperlaeat vita pure euartt *a 120 Billion particle* per culfi.'aad fibreel* developed at about tli ease rate, t .T-V."*. . > t t* . .* r*r*T*-*- * - II Hrever, Ispinrcr eouate art deceptive beeauae by this a*tied of saspiiag very fv flbrt*,-which arc the eignifiet alaaeat* la the duat art ooll*et*d.v*Y.v: 111 Saspiiag vlth aa electrsetatlc precipitator 1* a such esrt efficient aeana ef collecting fibre* frsa air-bsm* sue ptniloa*. Sasplti free cur long fibre aabeatos roea ehovtd that the duet la the air contained 32.if of fibre* rev of-which had beta collected er esunted In the ispiager . .easple. *he latter aaspled largely the Inert granular par: .lM.- - ..*/ * lv A* ordinarily esplcyed precipitator aanplea art weighed is the reedta xpretied in ag. per cubic feet of air., there ' la ao aeaaa of converting each values late ausbera ef pertielea particularly whan the** vary In site, chape and "apeclfle gravity. .. * u' v 31sult*aeeua eanpi-zg with praeipltater and standard is- piagir yielded w reipeetlve value* of 0.63 ag and 60 all lloa particle* per ruble feet of air. vi *h*oretlsally th* teat index ef herard would be either the nuaber or weight of fibroue elcseate In the duet. V * IT. (c) Suvatl aft J: . . , '-ID- fur; V. ? / J-*.. * *# ^ -i 1'* .* > 1 rttmli viaibl* ta Wt ukii yi after 15 twAt:.'i szjovsrt iBortaatt 1 axtaat la luiitQws.t 1C Baath*. ., . */ U Tfca aaan ef life ef w Beat iui;UUt laboratory salsa! t< rulae* B1C he* prerenttd eoatiaula; bxpdurt losrtr ti, three rears. 2a liil period only-the oouparativtly CArir iucm ofaabtatosi* hat* .beta`produced.: Vita the Jtao.-. ` litri tzt vi h*vt (tlaid. It*Is-probable that Bare extras, diets** could hsvo been produced vita a purer lone fib-e ehrrietile. *ht Ion* lived epecisa,.lib* etu, doe* art e f fortunately aot susceptible.: . j 4V, . K* in Tar these res*ana 2-rir chaases "been Bialsal and v* * % :**r tv >; i * * ** *i*. ^*4 * * . (b) This 1* probebly unrullable because it;ls'based upon tesplicr vita a standard lapiaccr v&ieh vt hevershova data not eollsct .* . cssfif the fibres that . s art ta* source ; o# f*A*u: ri. (e) Vt eav think that a atandard should be`bated upon staples esllrotrd vita an eleetrsststie precipitator If It la feasible ta dsttrslne readily the relative proportloa of.flbaoa lh such erttrial. .a7* . '.W! .* r. *a ,,SI I *. * XI'f '. . - .. : m **x''i * --I' ~ >, ,< -i t '\"* '+ tf V'." : -- . -T ~. 1 **. ? ; *!. . - .*>-!.) * .* V r- * yz*FZ*? * - * * i * t *- *> .* *.