Document ypE8qjZE7EB1bBRO4Ew12wXOD
FILE NAM E: National Gypsum (NG) DATE: 1987 Jan 23 DOC#: NG064 DO CU M EN T DESCRIPTION: Legal - Direct Exam ination of R.F. W ard
1
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
2
SOUTHERN DIVISION
-
3
4 ATHENS CITY BOARD OF EDUCATION,
)
)
5
Plaintiff )
)
) CIVIL ACTION NO.
6 vs.
)
1-85-355
7
)
NATIONAL GYPSUM COMPANY,
>
8
)
Defendant.
9
10
11
12
Chattanooga, Tennessee
January 23, 1987 13
14
15
16
17
BEFORE :
18
19
THE HONORABLE THOMAS HULL, JUDGE UNITED STATES DISTRICT COURT
20
21
22 VOLUME 4 ... - f V f c 23
Mh;. $
'^Ts
813
1 January 23, 1987 9:00 a.m.
2
THE COURT: All right, you can proceed.
3 It wasn't so bad getting in today, was it?
4
JUROR: Pretty rough.
5
THE COURT: Was it? OKay.
6
RUSSELL F . WARD,
7 having been previously sworn, was examined and testified
3 further as follows:
9
FURTHER DIRECT EXAMINATION
10 BY MS. HERSCHEL:
11
Q
May it-please the Court, good morning, Mr.
12
Ward.
13
A
Good morning. -
14
q
Mr. Ward, you told me yesterday, just to get
15 us started today,.over your 31 years with National
j
16 Gypsum, you had visited most of the National Gypsum
17 plants? is that correct?
18
A
Yes, ma'am.
19
Q
And you visitedplants,therefore, where
20
asbestos-containing products were made. Is that
21
correct?
22
A
Yes, I did.
23
Q Mr. Ward, did the company ever take any
24 precautions against dust, whether it was asbestos or any .
25 other kind of dust, in its plants or factories?
814
1
A
Yes, they did. They had a safety program in
2 effect at each plant that was administered both by the
3 plant manager and by the personnel safety supervisor,
4 and that, among other things, contained instructions for
5 operating equipment properly so that dust would be
6 minimized. They made respirators available in locations
7 that might be dusty, and they installed dust collection 8 equipment, exhaust fans and such. They were quite
9 careful about it.
10
Q
Let me ask you a question I asked you in a
11 slightly different context yesterday. In your
12 experience and based on your review, did the company
13 always do a perfect job in keeping its plants clean?
14
A
I don't think you can characterize it as a
15 perfect job, no. .No, they are only human. But I do
16 know that top management always emphasized safety, and
17
there may have been a manager in the field here and
18 there that didn't carry it out to the fullest extent,
19 but they certainly tried.
20
Q
Now, again, Mr. Ward, to pick up from
21
yesterday, today, in 1987, does the company make or sell
22
any asbestos-containing products?
23
A
No, they have not for several years.
24
Q
Does it have today, the company, any
25 asbestos-containing construction products in place in
815
1 its plants or factories?
2
A
Yes. I would say almost all the plants have
3 some pipe and boiler insulation* and some of them would
4 have asbestos cement sheets as part of the exterior
5 siding on the plant.
6
Q
Did you say sheets?
7
A
Yes. They are a heavy corrugated sheet such
8 as are used to build the large shed-like buildings that
9 contain large machinery.
10
Q
During the time that National Gypsum made
11 asbestos-containing products* did it make what you are
12
referring to as asbestos cement sheets?
13
A
Yes.
14
Q
Did it put any of its own asbestos-containing
15 sheets in its own- plants or factories?
16
A
Yes.
17
Q
In your plants or factories do you have in
18 place any accoustical ceiling plaster?
19
A
No* I don't believe so.
20
q
Mr. Ward* does the company have any policy
21
today regarding maintenance or repair of its in-place
22
asbestos-containing products in its plant* its piping
23
insulation* asbestos cement sheets?
24
A
Yes* they follow the OSHA regulations with
25 that* and if the job is any more than minimal* they
816
1 would use an outside contractor.
2
Q
Does the company have any policy with respect
3 to what you do to replace asbestos-containing products
4 in place if you need to replace them?
5
A
Yes. We have employed nine
6 asbestos-containing products and replaced them.
7
Q
Mr. Ward again how many documents have you
8 reviewed while preparing to present information in this
9 case and other cases?
10
A
I really don't know how many but it's in the
11 thousands.
-
12
Q
And how many former and present National
13 Gypsum employees have you talked to interviewed about
14 the company's history?
15
A
I nave' said I think dozens of them, and it
16 probably approaches a hundred or maybe a little more.
17
Q
Now, have you looked specifically for
18 documents or information in your files showing when
19 anyone at National Gypsum might have been aware in any
20
way that asbestos-containing products in-place might
21 constitute a hazard to building occupants?
22
A
Yes, I did look.
23
q
You made that specific search?
24
A
Yes.
25
Q What were the first documents or information
817
1 in point of time, is what I'm talking about; when were 2 the first documents or information dated, if they had
3 dates on them, that you found in the company's files
4 that referred in any way to possible hazards to building
5 occupants from in-place asbestos-containing products?
6
A
We found some clippings of newspaper articles
7 that would have been in the latter half of the '70's.
3
Q
In the latter half of the '70's?
9
A
Yes. I think '76 may have been the first
10
one. I'm not sure of the exact date.
11
q
Hr. Ward, have you found any evidence from
12 any source, whether from documents, or from people, or
13
from anywhere else that suggests that the people at
14 National Gypsum Company were aware in any way of a
15 possible hazard to building occupants from in-place 16 asbestos-containing products when the Athens Junior High
17 was built in 1966?
13
A
No, definitely not.
19
q
You said that the company did get some
20
information on possible hazards in buildings in maybe
21 1976 or the late `70*s. Is that what you said?
22
A
That's right,.
23
q
At that time why didn't the company pass this
24
information on to building owners?
25
A Well, with products such as acoustical
818
1 plaster, those were normally sold through a dealer
2 network, and we did not have information ordinarily or 3 keep track of information about what specific job that 4 product may have wound up in. It's not like automobiles
5 where everything is registered.
6
q
But we have seen evidence in this courtroom
7 that the company knew, at least at one point in time,
8 that it was in the Athens Junior High because of the
9 correspondence on the lime problem in the late '60's.
10
You are aware of that, aren't you, Mr. Ward?
11
A
Yes, I am.
12
q
Okay. Why, then, didn't you pass the
13
information on to Athens?
14
A
Well, I think that information was pretty
15 well buried in ten-year-old files at the time that we
16
first got those newspaper clippings. I don't think
17 there was anything that would have necessarily called it
18 to mind. 19 q Have you ever passed on any information to 20 building owners with respect to potential hazards from
21
in--place materials?
A
Yes.
*
q
When did you start doing that and in what
context did you do that?
A
The latter part of the '7Q's, maybe `78 or
819
1 79. I'm not sure again of the exact date, but we did 2 get requests from building owners for information as to
3 whether a product that they knew to be installed in
4 their building contained asbestos. If it did, we told
5 them, yes, it does, and we referred them to the EPA s
6 regional office for guidance.
7
Q
Mr. Ward, in your review of the company
8 documents have you ever come across any complaints about
9 Sprayolite's dusting?
10
A
Yes, there are some, what we would call
11 quality complaints in the latter part of the *50's,
12 while the product was still fairly new, where it was
13 determined that perlite had dropped out when research
14
investigated those, but the formula for that product was
15 stabilized, I think in 1959. I don't believe it changed
16 after that until it was discontinued in 1972, and I
17 don't recall dusting complaints after *59.
18
Q
What is perlite, Mr. Ward?
19
A
Perlite is a lightweight mineral that was
20
used as an aggregate in Sprayolite.
21
q
Now, in the documents discussing the dusting
22 complaint, some of which we have seen -- let me start
23 over again. Let me refer you to those documents, some 24 of which we have seen in this courtroom, about the
25 dusting complaint. Prom your research into the
820
1 company's records, is there ever any suggestion in 2 connection with those dusting complaints, either from 3 the people at National Gypsum or from the people who 4 were making the complaints, that the concern was any
5 kind of a health hazard?
6
A
No. I think people just objected to dust as
7 dust.
8
Q
Mr. Ward, co your knowledge, were any tests
9 ever done by National Gypsum that would relate to the
10 dusting of Sprayolite?
11
A
I have- seen a report of some dusting tests
12 that were made in 1967.
13
Q
In What year, sir?
14
A
1967.
15
Q
And what kind of tests were they? Can you
16 describe them generally?
17
A
There was a job that we were interested in, I
18 think in the Chicago area, we were bidding on, and we
19 had to demonstrate to the owners or the architects that
20
this product would meet what was then either a
21 government standard or a proposed standard.
22
Q
Standard for what, Mr. Ward?
-
23
A For dusting, for acoustical materials. And
24 we sent some test samples out to Boyle Labs to test it.
25 They subjected it to an air stream under controlled
821
1
itions, and determined that it would pass the
2 proposed standard.
3
Q
They subjected it to an air stream under
4 controlled conditions. Would you try that in a little
5 more detail*
6
A
As I recall the report, they had some spans
7 of Sprayolite which were mounted in a tube or tunnel and
8 air under a certain velocity -- I don't recall exactly
9 how many feet per minute -- was sent through that tunnel
10
to simulate the conditions that might be found in an air
11
plenum, or where the material would be subjected to a
12 stream of air from a heating or ventilating air
13
register. That was the purpose of it, to find out if it
14 would degrade under those conditions.
15
q
Now, again, did the purpose of those tests
16 have anything to do with anybody's concern about a
17 health hazard, Mr. Ward?
18
A
No. The specifics of that job proposal, 1
19 think, involved a switch gear room for the telephone
20
company, where, of course, they would be rather
21 sensitive to any dust. They wanted to oe sure it
22
wouldn't emit enough dust that would have any bad effect
23 on their switching for their telephone calls.
24
q
Now, these dusting tests that were done in
25
the *60's, did the company pass, Mr. Ward?
d22
1 Yes, they met the standard or proposed
2
3
Q
They met the standard?
4
A
Yes.
5
q
Now, let's see, today is Friday. On
6 Wednesday, Mr. Ward, we read - I thin* I mentioned this
7 to you yesterday -- a rather long deposition or a Dr.
8 Schepers. Do you remember that?
A
I remember your reading it. I don't recall
9
10 the details of it.
q
do you remember hearing Dr. Schepers say that
11
12
he had written a letter to National Gypsum at some point
13 in time warning them not to put asbestos in gypsum
14 wallboard. Do you remember thattestimonyi
15 A Yes, I rememoer that particularly.
q
Okay. In your review of National Gypsum
16
17 Company's documents, have you ever found a letter
18 anything like that, Mr. Ward?
19
A
No, I never have.
q
Did National Gypsum's flat gypsum wallboard
20
ever contain asbestos?
A
Never.
(Continued without omission.)
q
I would like to show you a letter marked as
Plaintiffs Exhibit 4098. We have seen.this before, Mr.
Ward, but let's take a quick look at it again. Have you |
got it, sir?
A
Yes.
q
It is dated May 30th, 1984, is it not?
A
Right.
q
From an attorney, Mr. Biddle?
A
Right.
q
To NationalGypsum Company, stating that
Athens was going to remove the ceiling from the Junior
High School and possibly file a claim for its
replacement against National Gypsum. Is that the gist
of the letter, sir? A Yes. Healsomentions,the letter
is also
written to U. S. Gypsum Company, and tne same i information is directed to them.
q
And this is a May 30, 1984 letter, correct?
A
That's correct.
q
You have seen this letter before and we have
seen it in this courtroom. Is that correct?
A
Yes, that's right.
q
Now, I think there has been a suggestion made
here that National Gypsum never responded to that
letter. Is that so, Mr. Ward, did the company not
824
1 respond to that letter?
2
A
The company did respond through its
3 attorneys*
4
Q
Okay. Let me show you a letter marked as
5 Defendant's Exhibit 4.245, dated June 14, 1984. Would
6 you take a look at it, Mr. Ward, while Mr. Hopkins is 7 setting up the projector. Do you recognize this letter,
8 sir?
9
A
Yes, I have seen this.
10
q
It's a letter to William Biddle dated June
11 14, 1984, re City'or Athens, Board of Education. Mr. 12 Hopkins, would you show the signature line, and it is 13 signed, Sincerely Yours, Margaret M. Powers for 14 Schnader, Harrison, Segal & Lewis. Mr. Ward, Mrs.
15 Powers is dead, isn't she?
16
A
Yes, I understand.
17
Q
Who was she?
18
A
She was an attorney with the Schnader,
19 Harrison firm who were at that time were representing
20
National Gypsum Company.
21
q
Is this the reply to Mr. Biddles letter?
22
A
Yes, it is.
23
MS. HERSCHEL: Your Honor, I would like
24 to publish this letter to the Jury.
25
THE COURT: All right. Has it been filed
325
X yet?
2
MS. HERSCHEL: It will be as soon as I
3 finish with it.
4
THE COURT: All right.
5 BY MS. HERSCHEL:
6
Q
All right. This is a June 14, 1984 letter to
7 William P. Biddle, III, Esq., Higgins, Biddle & Chester,
3 111 Church Street, Athens, Tennessee, re,the City of
9 Athens Board of Education.
10
"Dear Mr. Biddle:
11
"Your letter of May 30, 1984 to United States
12 Gypsum Company and Gold Bond Building Products, a
13 National Gypsum division, has been referred to me by my
14
client National Gypsum Company. This firm is national
15 counsel for National Gypsum Company in the asbestos
16
litigation. Because your letter refers to a, quote,
17
potential of a claim, quote, against National Gypsum
18 Company, I would like to respond. First, I would like
19 to thank you for providing the opportunity to inspect
20
and take samples prior to the removal. I understand
21 that arrangements to complete this inspection and
22
sampling are under way. The purpose of this letter is
23 to respond to the statement made in the opening
24 paragraph of your letter that the City of Athens Board
25 of Education, quote, have been confronted with a
8 26
1 requirement by the EPA to remove asbestos in its school
2 buildings, close quote. I am puzzled Dy this statement,
3 because although the EPA has required schools to
4 identify the presence of friable asbestos containing
5 materials within their buildings, it has not required
6 the removal of such products. In fact, the EPA
7 suggested that the required notification to parents
8 include the following statement. It is important to
9 note that not all friable asbestos containing material
10
need be removed from schools. Once such material has
11 been identified, a program can be implemented to insure
12
that the material is maintained in good condition, and
I
13
that appropriate precautions are followed wnen the
14 material is disturbed for any reason."
15
The 2nd page. 1
16
"I wanted to bring this to your attention in
17
case the school district was under the erroneous belief
18 that removal of asbestos containing product was required
19 by the EPA or any other federal agency or law. In this
20
regard, you may be interested in the report of the
21
Ontario Royal Commission issued on May 7, 1934, which
22
was based upon extensive hearings over four years at
23 which 53 expert witnesses testified.
24
"In this report the commissioners concluded
25 that in most circumstances, quotation marks, we deemed
32/
1 the risk which asbestos poses to building occupants to
2 be insignificant, and therefore find that asbestos in
3 building air will almost never pose a health hazard to
4 building occupants, close quotation marks. Reported at
5 page 14. As the Royal Commission report found, asbestos
6 levels in public buildings in fact sometimes increased
7 following removal action. Furthermore, such action will
8 inevitably expose workers to asbestos and such exposures
9 could well pose more risk than that posed by leaving the
10 asbestos in place. Thus, the Royal Commission's review
11
of efforts of the United States and Canada to remove
12 asbestos from schools concluded, and I quote, "Asbestos
13
removal projects conducted on a crash basis tnerefore
14
involve some needless expenditure. The crash nature of
15 the removal work probably increased the risk that
16 asbestos removal workers may contract disease. This
17
risk arises from elevated asbestos exposures occasioned
18 by careless work practices frequently associated with
19
inexperienced contractors." End of quoted material. And
20
that is in the report at page 28.
21
"Based on its extensive analysis, the Royal
22
Commission urged action only where, quote, significant
23 quantities of friable insulation have fallen onto
24 building surfaces and are being disturbed." And that is
25
in the report at page 589.
823
1
"I hope this information will be of
2 assistance to you in clarifying the question of removal
3 of asoestos containing products from school buildings.
4 If I can be of additional assistance, please let me
5 know. Sincerely yours, Margaret M. Powers, for
6 Schnader, Harrison, Segal and Lewis.
7
MS. HERSCHEL: Your Honor, I would like
8 to offer that document.
9
THE COURT: All right, let it be filed
10 and passed to the Jury.
11
MSi HERSCHEL: Than* you, Mr. Ward. Mow,
12
you can answer Mr. Speights* questions.
13
14
(Continued without omission)
15
16
17
18
19
20
21
22
23
24
25
329
1
CROSS-EXAMINATION
2 BY MR. SPEIGHTS:
3
Q
Just while that letter is on our mind, before
4 I get to the questions I plan, Mr. Ward, National Gypsum
5 historically advised building owners to follow EPA's
6 guides in a number of letters to building owners around
7 the country?
3
A
I think what they did was to inform the
9 building owner, when asked, that the product inquired
10 about did or did not contain asbestos and referred them
11
to the EPA regional administrator.
12
Q
And thi3 letter, Ms. Powers was Ms.
13 Herschel's law partner, don't you know that?
14
A
I'm sorry.
15
Q
Ms. Powell has practiced law with Ms.
16 Herscnel?
17
A
In another firm, that's correct.
18
Q
They represented National Gypsum andanother
19
firm at the time?
20
A
That's right,
21
Q
And in this letter Ms. Powers advised, the
22
attorney for the Athens School District where
23 significant quantities of friable insulation had fallen
24 on to building surfaces and are being disturbed, that is
25 a distinct situation?
830
1
A
I thinK she was quoting from the report of
2 the Ontario Royal Commission, yes.
3
Q
She quoted that to the attorney for the
4 School District and pointed out tnat is a distinct
5 situation where material is being disturbed or that
6 there are significant quantities which have fallen? that
7 is what the letter says, doesn't it?
8
A
That is what the letter says.
9
Q
All right. Mr. Ward, I understand that you
10 are the Corporate Director of Puolic Affairs, is that
11 your title now, Mr. Ward?
12
A
That`s correct.
13
Q
In that position you give speeches for
14 National Gypsum, presentations?
13
A
No, I have not given speeches on National
16 Gypsum's behalf in that job.
17
Q
Do you appear beforeregulatory bodies,
18 bodies considering what to do about asbestos?
19
A
No, I have not.
20
Q
Is it your job now, one of your primary
21 functions to appear in court on Dehalf of National
22 Gypsum Company?
23
A
If required, I appear in court. I wouldn't
24 call that my primary function.
25
Q
All right, sir. That is a job that you have
331
1 been trained for for some period of time, to appear on
2 behalf of National Gypsum Company as its Corporate
3 Director of Public Affairs?
4
A
Well, I think I explained when Ms. Herschel
5 asked me why I was in the joo, I have had over 30 years
6 of experience, and X have made a study of the company's
7 history, particularly in the last year and a half.
3
Q
And you got involved in that at the request
9 of the attorneys who are involved in this litigation?
10
A
I got involved in this at the request of the
11
Chairman of National Gypsum Company.
12
Q
Yes, sir. And for the last year and a half
13 you have been going through documents and meeting with
14 people concerning National Gypsum's history and
15 historical policies?
16
A
Among other things, that is correct.
17
Q
You understand today and yesterday that you
18 are appearing here as a representative of National
19 Gypsum Company?
20
A
That's true.
21
Q
Okay. I want to make this point up front.
22
If I get a little antagonized with National Gypsum
23 Company, you understand that I am not criticizing Russ 24 Ward as an individual; you understand you are not 25 appearing here today as Mr. Ward, as an individual, but
832
1 as the representative of National Gypsum Company?
2
A
Yes, I understand that.
3
Q
All right, sir. You were not involved
4 historically in these decisions about wnat to do about
5 asbestos-containing products Dack at the time in *49 or
6
`53, `56, *59, `62, et cetera; you were not involved at
7 that time in the decisions of whether to put asbestos in
3 or take asbestos out?
9
A
Can you break that down a bit? That is kind
10 of a long question.
11
Q
All right, sir. You did not make the
12
decision or participate in the decision to put asbestos
13
in any product made by National Gypsum Company, did you?
14
A
No, not directly. I was not involved in the
15 formulation of the products.
16
Q
You did not make the decision or recommend to
17 anyone that asbestos be removed from any product
18 manufactured by the company?
19
A
I wasn't involved in the product formulation,
20
Mr. Speights.
21
Q
You were not involved in the manufacturing
22
side of the company which manufactured Sprayolite?
23
A
Well, I reported directly to the
24 Vice-President of Manufacturing Operations for 12 years 25 or more, so I was involved in the manufacturing side,
333
1 yes.
2
Q
Well, you weren't involved, yourself, in the
3 manufacturing of Sprayolite?
4
A
I did not make Sprayolite, it tnat is wnat
5 you mean, no.
6
Q
You for many years were concerned with
7 whether or not someone could get credit to buy products,
3 including Sprayolite?
9
A
During my early years with the company,
10
that's right.
11
Q
All right, sir. And you were not the field
12
representative at any time that would call on people
13
like Mr. Guthrey and give them advice concerning
14 Sprayolite?
15
A
No, that would normally be the sales
16
representative that would do that.
17
Q
All right, sir. When did you actually go
18 into your new position as the Corporate Director of
19
Public Affairs, Mr. Ward?
20
A
That was in August of 1985.
21
Q
Were you interviewed for the position?
22
A
Yes.
23
Q
Who interviewed you for the position?
24
A
X spoke with David Bern, who was our
25 Vice-President of Human Resources. I spoke with Jack
334
1 Hays, the Chairman. I spoke with Ed Fordyce, our
2 General Counsel. At one point I talked with Mr. Larry
3 Hoyle of Hoyle, March, and Kerr.
4
Q
That is Ms. Herschel's law partner?
5
A
And I spoke with Ms. Herschel, all of these
6 on different occasions.
7
Q
You knew from very early on that one of your
8 responsibilities would be assisting in the trial of
9 these asbestos cases?
10
A
Yes, to the extent that I could help, I knew
11
that was part of the job.
12
Q
And you interviewed with the Vice-President
13 and President Hays, you interviewed, I assume, with them
14 out in Dallas, Texas, the corporate headquarters?
15
A
Yes. I would say they interviewed me.
16
Q
Okay. And they are what we would call
17 corporate management?
18
A That is correct.
19
Q
You would agree with me that those in
20 corporate management make the decisions for the company?
21
A
I think they make the major decisions for the
22
company, yes. Decisions are made at a numoer of levels.
23
q
And they are there today, as far as you know,
24 both Hays, and the Vice-President for the company, they
25 are there today in Dallas, Texas, working away?
83 5
1
A
I would like to think so, yes,
2
Q
Now, there were other people before you that
3 had some involvement in representing National Gypsum or
4 working with National Gypsum's lawyers on the legal side 5 of this asbestos situation, weren't there?
6
A
I think there have been a number of people
7 who have been involved from time to time, yes.
8
Q
One of those I believe you mentioned in
9 direct was Mr. Oberkircher?
10
A
That's right.
11
Q
Another one was Mr.Eikenberry?
12
A
1 think Mr. Eikenberry had some
13
responsibility for this at one point.
14
Q
How long do you have until retirement, Mr.
15 Ward?
16
A
I'm not sure what you mean. I think
17 mandatory retirement would be at age 70, if the law has
18 not changed by then, so I still have 13 years.
19
Q
And you plan to maintain this position for as
20
long as National Gypsum wants you to maintain this
21
position? that is, being the spokesman for National
22
Gypsum Company?
23
A
I frankly have not given a great deal of
24
thought to what job I might move on to, but I have had a
25 number of assignmewnts over the years, as my record will
836
1 show, and I'm prepared to do whatever is assigned to me
2 in the way of the next job.
3
Q
Mr. Ward, would you agree that one of the
4 best ways to determine a company's concern for health
5 and safety is to see how it treats its own employees'
8 health and safety?
7
A
I think that might be an indicator, yes.
3
Q
Certainly National Gypsum, I believe youhave
9 said in direct examination, I wrote it down, that top
10
management was always concerned with safety?
11
A
Yes, I believe that's true.
12
Q
And it is your testimony that was true in the
13
6Q's, the '70's, and the `80`s?
14
A
It was true, in ray experience, all the years
15
I have been with the company.
16
Q
And they certainly would not have been less
17 concerned in the *60's than they were in the '70's or
18
'80's, would they?
19
A
Well, I think they may have had concerns in
20
different areas, as perceptions changed. Certainly, no
21
less concern.
22
Q
They may have become more concerned in the
23
70s or '80's, as they had maybe more knowledge, but
24 certainly they didn't become less concerned over the
25 years, did they?
837
1
A
I don't believe they did, no.
2
Q
Mr. Ward, for many years when you worked with
3 National Gypsum, while you were an employee in these
4 various positions, you did not know that Sprayolite had
5 asbestos in it, did you?
6
A
I'm not sure when I came into that knowledge,
7 Mr. Speights, but it was commonly known that Sprayolite
8 contained asbestos.
9
Q
Isn't it true that even in the 1970's, you,
10 Mr. Ward, personally, did not even know; you did not
11 even know personally until the 1970's tnat Sprayolite
12 contained asbestos?
13
A
It may have been. I really don't recall
14 exactly when I got that knowledge.
15
Q
There was no way, from looking at the bag
16 that Sprayolite was sold in, that you could tell it
17 contained asbestos, could you?
18
A
No. The ingredients were not listed on the
19 bag.
20
Q
There was no way you could tell oy looking at
21 the brochures supplied to architects, and other
22
advertising brochures, that Sprayolite contained
23 asbestos, was there?
24
A
We didn't publish the product ingredients,
25 Mr. Speights
838
1
Q
There is no way of looking at the material
2 itself and telling that it contained asbestos, is there?
3
A
You would have to analyze it.
4
Q
There is no way of looking at this technical
5 bulletin that you referred to yesterday about mixing
6 lime, there is nothing in there that says anytning about
7 Sprayolite containing asbestos, is there?
8
A
No, I don't believe there is.
9
Q
There is nothing under that section that says
10
"Caution*' about the product containing asoestos or being
11
especially careful in dealing with the product because
12 of a possible health concern; correct?
13
A
I don't think there was any possible health
14
concern in the times when that technical bulletin was
15 published.
16
Q
In 1962, it did not say anything about any
17
health concern in the bulletin. We will talk about what
18 you knew or didn't know in a few minutes, but it didn't
19 say anything in the bulletin about a health concern, did
20
it?
21
A
No, it didn't, because I don't thin* there
22
was any concern.
23
Q
There was no concern. My understanding also,
24 Mr. Ward, you personally saw Sprayolite being applied
25 only on one occasion?
839
1
A
That's true, one that I can recall.
2
Q
You never saw a Sprayolite job being cleaned
3 up?
4
A
No, we didn't stay around until that point,
5 The job was still in progress when I left.
6
Q
You never saw, Mr. Ward, a Thermocoustic job?
7
A
No.
8
Q
There would be people in the company wno
9 would have been on the scene when these jobs took place,
10 when these materials were applied from time to time?
11
A
What materials?
12
Q
Sprayolite and Thermocoustic. Like a field
13
representative mignt have been out tnere on a number of
14 occasions and seen them applied?
15
A
That's possible.
16
Q
But that wasn't yourjoo?
17
A
No.
18
Q
Aren't there people today with National
19 Gypsum Company, Mr. Ward, who had involvement with the
20
formulation of Sprayolite?
21
A
There may be a couple people in research who
22
had some involvement with it.
23
Q
Wouldn't DonPeterson be one of those people?
24
A
Yes.
25
Q
Mr. Peterson is still employed by National
Gypsum?
A
Yes, he's in the research department.
Q
And do you Know whether Mr. Peterson is going
to he testifying at the trial of this case?
A
I don't know, but I don't expect him to he.
Q
And he was involved with the formulation of
Sprayolite?
A
Well, he was working in research when the
product was being formulated. He wasn't the man with
the principal responsibility for it, as I understand it.
Q
You never worked in research on Sprayolite or
other acoustical plasters?
A
No, I didn't.
Q
And research is up in Buffalo, New York?
A
That's right.
(Continued without omission.)
841
1
Q
Mr. Ward, I think we have gotten the
2 preliminaries out of the way. Do you know wnether the
3 question of whetner to put a warning on asbestos
4 products such as Sprayolite ever came up at National
5 Gypsum?
6
A
The question or warnings came up. I don't
7 know if it was ever associated with Sprayolite.
8
Q
All right, sir. Specifically, I'm going to
9 show you what has already been entered into evidence as
10
Exhibit 1754, dated September 10, 1971. That's an
11
internal National Gypsum document, isn't it, Mr. Ward?
12
A
May I see a copy of that? I can't make it
13 out from here very well.
14
Q
Certainly.
15
A
I'm not sure about the date, because somebody
16 has written in the year, but it certainly looks like an
17
interoffice memorandum.
18
Q
Would you look at the second page, Mr. Ward,
19 and see if the date --
20
A
Yes, I see thedate tnere.
21
Q
You would agreewith me it is September 10,
22
1971?
23
A
That's right.
24
Q
You would agree with me that is an internal
25 National Gypsum document?
342
1
A
That's rignt.
2
Q
And a number of people got copies, including
3 Mr. Faye, who was a vice-president, and Mr. Zimmerman?
4
A
That `s right.
3
Q
Mr. Zimmerman was Safety Director of National
6
Gypsum, wasn't he?
7
A
Yes, he was.
3
And Mr. Pollard was the Safety Director
9 before Mr. Zimmerman?
10
A
Yes.
11
Q
Mr. Zimmermanis still alivetoday?
12
A
Yes, he is.
i
13
Q
You were never in tne safety department of
14 National Gypsum Company?
15
A
No, I never had anyassignment to that
16 department.
17
Q
Now, it says here, see if you agree with me,
IB you may read the copy there or here, "At the present
19 time no products containing asbestos fibers which are
20
manufactured by the Gold Bond Building Products division
21 are, to my knowledge, being laoeled with a caution
22
statement. It has not been my intention to take any
23 action in this area until the regulations from the
24
Environmental Protection Agency have been published. **
25 Did I read that correctly, Mr. Ward?
843
1
A
Yes.
2
Q
Does that reflect the National Gypsum policy
3 at that time, that it would not provide any caution on
4 its products, even in 1971, until EPA required it?
5
A
Well, I think he goes on to say that "Upon
6 publication of the regulations, they will oe analyzed
7 and a program presented with appropriate recommendations
3 to effect compliance with the requirements."
9
Q
Yes, sir, but doesn't the memorandum, the
10
effect of this memorandum is that National Gypsum would
11
not put warnings on its asoestos containing products
12 until EPA required it?
13
A
Well, I would say tnat a fair
14 characterization would be that they would put warnings
i
15 on when the requirements became known.
16
Q
Now, are you aware, Mr. Ward, that for years
17 before, other companies had warnings on their products?
18
A
What kind of companies?
19
Q
Spray applied acoustical products?
20
A
No, I'm not.
21
Q
Are you familiar with a company called U. S.
22
Mineral Company?
23
A
Yes, I have heard of that firm.
24
Q
I see. I want to read to you from an answer
25 of an interrogatory of U. S. Mineral in a Wisconsin
844
1 case, and I will hand you a copy. I believe I have one.
2
MS. HERSCHEL: Excuse me, Mr. Speights,
3 has this been marked as an exhibit?
4
MR. SPEIGHTS: No, it has not, and I'm
5 not offering it.
6
MS. HERSCHEL: May I see a copy, then?
7
MR. SPEIGHTS: You and Mr. Ward may share
8 a copy.
9
MS. HERSCHEL: Your Honor, do you mind if
10
I take a look at the document before we proceed?
11
THE COURT: No. You may. Pass it to
12 her.
13
MS. HERSCHEL: Thank you.
14
THE COURT: Okay. Where are we? She has
15
it, he has it, let's go. '
16
BY MR. SPEIGHTS:
17
Q
I want to know if you agree with me this
18 document reflects, reading on 10 C, on the second page,
19
"Beginning in May, 1962, this defendant began including
20
a label on its asbestos containing products wnich saia"
21
A
Where are you, Mr. Speights, please?
22
Q
On the second page, answer 10 C?
23
A
Is thac page eight as this document is
24 labeled, is that what you are talking about?
25
Q
Yes, sir.
345
1
A
This thing goes from no number to page eight
2 to page 34, to no number again. This is not complete,
3 is it?
4
Q
Well, I can give you the whole set. It is
5 about a hundred questions asked to U. S. Mineral, and I
6 only have this case to show you where it came from and
7 the answer to the question concerning warnings, and then
3 the signature page on the last page?
9
A
I have never seen this document before and
10
I'm not acquainted with U. S. Mineral's internal
11 policies.
12
Q
All right. Let me as you to assume,
13 beginning in May 1962, this defendant, U. S. Mineral,
14 began including a warning label on its asbestos
15 containing products which said "Caution, this product
15 contains asbestos. Inhalation of asbestos dust over
17
long periods of time may be harmful. If employees are
18 exposed to dust during use and application, those
19 employees should be equipped with adequate personal
20
protective devices."
21
Now, assuming this sworn answer to
22
interrogatory is correct, you would agree with me tnat
23
this reflects that chis company which you are familiar
24 with, this company was putting a warning on its bag as
25 early as 1962?
846
1
A
In 1962, we took our competing product off
2 the market.
3
Q
Therraocoustic?
4
A
That's right.
5
Q
This was a spray-appliedproduct, U. S.
6 Mineral made spray-applied products?
7
A
That's right, but it was a mineral wool
8 product, very dusty in application, as was
9 Thermocoustic, and our competitive product was taken off
10
the market.
11
Q
Was it taken off the market because it had
12 asbestos in it?
13
A
No. I think the perception wasthat the
14 market had declined to the point wnere it was not
15
effective.
^
16
Q
Are you aware the product was sold to a
17 company called Sealtite Insulation Manufacturing
18 Corporation?
19
A
I have heard that name. I don't know the
20 details of any sale.
21
Q
Are you aware that when you sold the product
22
Sealtite took the asbestos out of the product?
23
A
No, I don't know anything about Sealtite.
24
Q
Let me show you an affidavit of the Sealtite,
25
I believe its president?
347
1
MS. HERSCHEL: I'm sorry to interrupt
2 again. Mr. Speights, have I seen, has our side seen
3 this?
4
MR. SPEIGHTS: I believe you have seen it
5 in the case in which it was filed.
6
THE COURT: Do you want to look, at it?
7
MS, HERSCHEL: Yes, sir, please, Your
8 Honor.
9
THE COURT: Come around and look at it.
10
MS. HERSCHEL: Your Honor, I thin* it is
11
technically objectionable, but let's go anead with it.
12
THE COURT: All right.
13
BY MR. SPEIGHTS:
14
Q
It certainly reflects that Sealtite didn't
i
. .
^
15 ever manufacture a product with asbestos in it. Isn't
16
that correct?
17
A
I didn't have a chance to finish reading it,
18 Mr. Speights. Just give me a moment.
19
Q
I'm sorry.
20
A
It says that Sealtite Insulation
21
Manufacturing Corporation did not sell, manufacture or
22 mine asbestos products at any time.
23
Q
All right, sir. You sold the product
24 Thermocoustic to Sealtite and Sealtite continued to make
25
the product and it had no asbestos in it if that
_______________ ____________________________________________ 8 4 6
1 document is correct?
2
A
I have no knowledge of that.
3
Q
All right.
4
A
All this says is they didn't make asbestos
5 products, I don't know what they did with any product
6 they may have bought rom us.
7
Q
Well, you don't know tnat Sealtite
8 manufactured Thermocoustic after you sold it to tnem?
9
A
That's right.
10
Q
All right. I will have to get another
11 document in a while. Let me cut througn some of this.
12 Thermocoustic was a product which was applied on
13 ceilings and on other surfaces in a building; correct?
14
A
Principally ceilings, I believe.
15
Q
And although the material, you called it dry,
16
had a water hose right next to it and as the material
17 came out the hose, there was water applied as it went
18 onto the ceiling?
19
A
That's my understanding, yes.
20
Q
And in 1949 the asoestos floats, the document
21 we discussed, in 1949 the asbestos floats, it was noted
22 they should oe removed as a possible source of
23 asbestosis; correct?
24
A
Tnat's correct, that's in the research
25
report.
349
1
Q
But the other asbestos remained in the
2 product Thermocoustic? correct?
3
A
That's correct.
4
Q
Now, at no time did NationalGypsum Company,
5 from 1949, when it knew that asbestos floats caused
6 asbestosis, until 1962, when it sold the product, or
7 stopped making the product, at no time did National
3 Gypsum Company place a warning on the bag or
9 Thermocoustic saying that under any circumstances it
10 could cause a hazard?
11
A
No, there was no warning on tne bag, but
12 there were application instructions.
13
Q
There was nothing --
14
A
Which if followed would protect the workers
15 who were exposed to the dust.
16
Q
There was nothing on the bag which said this
17 product contains asbestos and it may cause disease?
18
A
No, it was not on the bag.
19
Q
Okay. There was nothing, there was nothing,
20
in fact, National Gypsum Company actually in its
21 brochures snowed Thermocoustic being applied without any
22 respiratory equipment whatsoever; correct?
23
A
I'm not sure whether they did. i don't
24 recall those pictures.
25
Q
Let me back up a little. We have talked
850
X about these exhibits several times during the trial and
2 you talked about them in your examination, and that is
3 the so-called Spoylar letters; correct, there are
4 several of them?
5
A
Okay.
6
Q
Okay. Somebody witnin National Gypsum
7 thought the Safety Director, Nr. Pollard, was making a
3 big mistake by telling the Indiana Board of Health to
9 wear respirator equipment. You would agree with me
10 there?
11
A
The sales manager was concerned about it,
12 yes.
13
Q
Okay. And he wrote "Your letter to Dr.
14 Spoylar is full of dynamite," and this document reflects
15 the letter was pulled. Correct?
16
A
I'm not sure what you mean by pulled.
17
Q
It says "Handy succeeded in stopping letter
18 to Spoylar, will be modified." This document reflects
19 that the letter was pulled?
20
A
Well, you quoted what it says accurately,
21 yes.
22
Q
There is nothing equivocal there, that is
23 what it reflects. If we just had this document here,
24
there would be no question the document didn't go out,
25 is that right?
351
1
A
Apparently that is what happened, he took it
2 out of the out going mail.
3
Q
All right. Now, I understand your position
4 is you weren't involved in any way with any or this back
5 in 1953, were you?
6
A
No, sir, 1 was not.
7
Q
I understand you nave gone back and you have
3 looked at the documents and you believe that the
9 document actually later went out. We nave a
10 disagreement on that, but you oelieve that?
11
A
Yes.
12
Q
All right. In any event, wnetner it went out
13 or not, National Gypsum told somebody, it it did go out
14
in 1953, that respiratory equipment was suggested for
15 Thermocoustic?
!
16
A
That's right. If it was dusty in
17
applications,
13
Q
Now, this is a brochure, Mr. Ward, of
19 spraying Thermocoustic in places that appears in Sweet's 20 catalog, would you agree with me in the advertisements 21 showing Thermocoustic being sprayed, tnese people do not
22 nave any respiratory equipment?
23
A
Can I get a better look at that, Mr.
24 Speights? That's not very understandable here.
25
Q
Here is the whole document.
852
1
THE COURT: I guess the question is, can
2 you tell from that picture whether they were using any
3 equipment?
4
THE WITNESS: I actually can't, Your
5 Honor.
6
THE COURT: He can't say for sure.
7
THE WITNESS* It is pretty
8 indistinguishable in the area of the face.
9 BY MR. SPEIGHTS:
10
Q
In this situation here you can't tell whether
n
they have any respiratory equipment or not?
12
A
It isn't obvious to me from this picture, Mr.
13 Speights.
14
MR. SPEIGHTS: All right, I would like to
15 have that marked as an exhibit, please.
16
THE COURT: All right. That has not been
17 marked.
18
MR. SPEIGHTS: It may have oeen buried in
19 something else, Dut I would like to have it marked and
20 passed to the Jury, if I could, Your Honor.
21
THE COURT: All right, mark it and number
22
it something and send it to the Jury.
23
THE CLERK: TWO.
24
THE COURT: It will be Exhibit 2 of the
25 not premarked exhibits.
853
1 BY MR. SPEIGHTS:
2
Q
Now, you would agree -- do you have the rest
3 of the document in front of you that I just handed you,
4 the other three pages, or did I take it back?
3
A
I'm sorry, I don't have it.
6
Q
Let me hand you a complete part. You would
7 agree with me this is a Sweet's catalog advertisement on
3 Thermocoustic?
.
9
A
Yes, it looks like their numoering system up
10
in the corner of the page, so I would say this probably
11 came out of of Sweet's.
12
Q
All right. Would you review that document
13 and show me where it says tnat Thermocoustic, in
14 applying Thermocoustic you should wear respiratory
15 equipment?
1
16
A
I don't think that information was in
17 Sweet's' catalog, Mr. Speights.
18
Q
It was not, no caution, no warning like Mr.
19 Spoylar may have gotten in '53, seven years earlier, was
20 placed in the brocnure?
21
A
I think that was, I think, the admonition to
22 provide protective equipment to the applicators in the
23 case of dustings was contained in a product supplement
24
issued by research.
25
Q
Nothing in the advertising literature for
354
1 this product suggested that respiratory equipment would
2 be required or suggested for Thermocoustic, was it?
3
A
No. That was information furnished to the
4 applicators.
5
Q
Do you have those documents with you?
A
I think we have those documents here, yes.
7
Q
Let me go anead, I will get bactc to that. I
3 want to look at this Seal Spray document, and ask about
9 the last page, about the products and the manufacturer
10 and read that to us, please, sir?
11
A
On the final page it says, "About the
12 products and the manufacturer. Sealtite Insulation
13 Manufacturing Corporation has been known for many years 14 as a manufacturer of top quality mineral wool and other
15
insulation products. Sealtite and Seal Spray jet
16 applied mineral fiber have now been added to the
17 Sealtite line. Formerly these products were
13 manufactured and sold under the trade name
19 Thermocoustic, and as such, were installed with
20 outstanding success in important projects throughout the 21 USA." The document is dated 1968.
22
Q
That document reflects that wnat Sealtite was
23 making was formerly known as Thermocoustic; correct?
24
A
That's what they say.
25
Q
And the affidavit which I let you read
355
1 reflects# according to the affidavit# tnat Sealtite 2 never put asbestos in its products; correct?
3
A
That's wnat it says.
4
Q
Now# let me show you another document.
3 Doesn't that document# isn't that a brochure or
6 Sprayolite# or a person spraying Sprayolite# in your
7 brochures?
3
9
10
11
(Continued witnout omission)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
856
1
A
This looks line it might be a tear sheet from
2 an advertisement somewhere
3
Q
Yes, sir, that is an exhibit, That snows in
4 your literature, that appeared numerous times in your
5 literature, that type of representation or
6 advertisement, didn't it?
7
A
I think advertising frequently showed job3
8 that were oeing done with our products, yes.
9
Q
And in that picture, clearly the person
10
spraying the Sprayolite in the 1960`s does not have any
11
respiratory equipment; is that correct?
12
A
No, he doesn't. It wouldn't oe needed there.
13
It is not a dusty product in application.
14
Q
You nave seen Sprayolite applied?
15
A
Yes, I have.
16
Q
One time?
17
A
That's right, and Isaw no dust.
18
Q
Can you see the asbestos that causes disease,
19 Mr. Ward?
20
A
It is my understanding you can't see that.
21
Q
Now, I want to move to another suoject with
22 you. It's clear, without going through all the
23 documents -- maybe if it was Tuesday we would go through
24 them all, but on Friday I don't want to go through them 25 all. It is clear that in the '50's, at least, there
85/
1 were a number or problems with bond failures and dusting
2 on the product Sprayolite?
3
A
I have seen some documents that referred to
4 dusting,
3
Q
You have seen documents which referred to
6 bond failure?
7
A Not at that time,
8
Q At anytime?
9
A
Later on, specifically with relation to che
10 Athens Junior High job.
11
Q
Let me take the dusting ones first and I will
12 come back to the others, I have them in different
13 packets. It`s clear tnere are documents in the 1950's,
14 some of which I showed yesteraay, which reflect tnat
15 Sprayolite would dust; correct?
16
A
That's right. After application there were a
17
few instances where some perlite apparently dropped out
18 of the matrix of the product.
19
Q
This is a document, 1956, "In reply to your
20 report of the 20th, a super wnite Sprayolite which was
21 used on the Hollywood Bowling Alley, we don't see how it
22
is at all possible to write a letter to Mr. Anderson and
23 Mr. Eaton that we can guarantee that acoustical plaster
24 will not dust. Sprayolite is a spray textured finisn
25 which has a tendency to dust to a certain extent."
858
1
That is one of those internal documents you
2 found, wasn't it, Mr. Ward?
,,
3
A
That's right. That is the first year that
4 the product was introduced.
5
Q
Ail right, sir. And then on another document
6 there are several of these documents, without putting
7 every one up there -- in the 1950's where Sprayolite
8 dusts? correct?
9
A
Yes. I have already told you I saw some in
10
the *50's.
11
Q
And yet later on you received an inquiry from
12
the LAWCC. Do you know what the LAWCC is?
13
A
I could only speculate. I don't know that.
14
Q
You know that is the plastering industry
15 group, the wall3 and ceilings group. Let me as* you, in
16 1975 ~
17
A
I think that is the IAWCC, isn't it, Mr.
18 Speights?
19
Q
Yes, sir.
20
A
International Association of Walls and
21 Ceilings Contractors.
22
Q
Yes, sir.
23
A
Yes, I'm familiar withthat organization.
24
Q
That is anorganization, an industry
25 organization, isn't it?
____________ ______________ _______________________ ________________859
1 2 3 4 5 6 7 3 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
A
*es, it is.
Q
Okay. They were seeking information on
products manufactured by you, weren't they?
A
Give me a moment to read this and I will
answer you.
Q
All right, sir.
THE COURT; Okay, ne has it about read.
A
I've read it.
Q
You would agree with me in '75 you wrote --
not you, Mr. Ward. Again, I Keep saying you; I mean
National Gypsum Company.
A
I understand.
Q
National Gypsum Company says, "We know of no
reason why asbestos acoustical ceiling material should
crumble into dust, nor have sucn conditions, to our
knowledge, been reported to us." Tnat is wnat that
letter reflects, isn't it?
A products.
He is referring to asbestos cement acoustical
Q
Asbestos acoustical ceiling materials. if
you go on to the next paragrapn, "Dust is created when
material of this type is cut with a power saw. Such
dust should be removed from the face and eyes before the
material is erected. Asbestos cement ceiling boards are often used in clean rooms, clean in quote."
360
1
Asbestos cement ceiling boards are not
2 asbestos material?
3
A
it could be.
4
Q
Are you telling me when he says acoustical
5 materials, that you have never heard that, the person
6 receiving this letter should say that is except for
7 Sprayolite and Thermocoustic and these other products?
3
A
No, I believe this letter addresses a
9 specific question about a specific product, and the
10 answer is correct in the context. Asbestos cement
11 ceiling boards do not ordinarily crumble into dust or
12 flake, and the man clearly says nor nave such conditions
13
ever to our knowledge been reported.
14
Q
He says -- we can go back and forth for 20
15 minutes -- but he says acoustical ceiling materials, to
16 our knowledge, have never been known to dust or flake.
17 That is what the letter says, isn't it?
18
A
The letter, you can't take that out of
19 context. He is referring to asbestos cement ceiling
20 board.
21
Q
All right.
22
A
It wasn't an acoustical material used as
23 asbestos cement ceiling board.
24
Q
The letter will oe to the Jury and speak for
25
itself. Now I want to go back to bond failures. My
861
1 understanding is you didn't recall any bond failures;
2 correct?
3
A
That's right.
4
Q
All right, sir. I'm trying to get it so I
5 can get it on there. I ought to Know after all these
6 days. Do you need a copy or this document?
7
A
I would like to see it, please.
8
THE COURT: Go anead, he will read along
9 with you.
10
BY MR. SPEIGHTS:
11
Q
Does that document reflect, "from samples
12 from jobs in the field, it does not seem our material is
13 as well knit or bonded together as other products of
14 this type?"
15
A
I haven't gotten to that. Where is that?
16
Q
Second paragraph.
17
A
Maybe I'm not looking at the same document.
18
Q
"We believe that when they refer to
19
plaster -- H
20
A
On, third paragraph, okay, I'm sorry.
21
Q
Excuse me.
22
THE COURT: That'swhat it says.
23 BY MR. SPEIGHTS:
24
Q
All right, sir.
25
A
You quoted it accurately, yes, sir.
1
Q
And then in 1969, a document you referred to
2 yesterday, this was written to Mr. Galloway, Mr.
3 Guthrey's partner, concerning the product Sprayolite in
4 the Athens Junior High School. Do you recall that
5 letter?
6
A
Yes.
7
Q
Would you read tne last paragrapn to me?
3
A
"We have manufactured Sprayolite since 1956,
9 and have never had a bond failure with this product. I
10 am sure that on future jobs you will have no problem,
11 provided the material is mixed with only water." Signed
12 Dy Rober Keeler of Masons Supply, Product Manager.
13
Q
All right, sir. I want to move to anotner
14
subject. Starting in the 1970*3, I believe you said
15 some people started naving inquiries about what to do
16 about asbestos materials; correct?
17
A
I think they were asking whether or not a
18 particular product contained asbestos, yes.
19
Q
Some of them asked more than that? they asked
20
for recommendations, didn't they?
21
A
There may have been some asxed for
22
recommendations, yes.
23
Q
As a result of getting all these inquiries,
24 National Gypsum Company had to devise or come up with a
25 policy about how to respond to those inquiries, didn't
---------------------- --------------------------- ------------- B63
1 they?
2
A
That's right.
j
3
Q
And a meeting was held to try to come up with
4 a -- well, are you familiar with this letter, November
5 29, 1978, Exhibit 7042?
6
A
Could I see it, please?
7
Q
I will get you one in just a minute, Mr.
B Ward. It may be just quicker if you want to come down
9 here and stand and we will go over it together down
10 here, if we can?
11
A
All right.
12
Q
Unfortunately, lawyers have a lot of
13 documents. Do you need to refresh your memory oy
14
looking at that document, Mr. Ward?
15
A
I haven't looked at this for some time. I
16 would like just a moment to review it.
17
Q
Yes, sir.
18
THE COURT: It may not take much. Why
19
t you ask what the question is. He may not have to
20
review it mucn.
21 BY MR. SPEIGHTS:
22
Q
Well, thisdocumentreflects that you were
23 getting numerous inquiries about your Sprayolite
24 acoustical plaster?
25
THE COURT: Second paragraph.
______________ ________________ _____________ ______________________________ 8 6 4
1 BY MR. SPEIGHTS :
2
Q
Second paragraph.
3
A
Yes.
4
Q
It reflects that you have no material data
5 sheet on that particular product?
6
A
That's right.
7
Q
All right, sir. Mow --
3
A
Because the product was no longer produced.
9
Q
That's right. You had no material data
10
sheet?
11
A
Uh-nuh (affirmative).
12
Q
Included in the request for information on
13
Sprayolite are such questions as what percentage of
14 asbestos is present; that is what you said a minute ago,
15 correct?
!
16
A
Yes. They asked if asbestos were in the
17 product, I remember that.
18
Q
Two. Do you consider it harmful. That is
19 what the letter reflects that people were asking,
20 doesn't it?
21
A
Yes.
22
Q
Three, should it be removed. Tnat is wnat
23 people were asKing, weren't they?
24
A
That is what it says.
25
Q
Four, procedure for removing. That is wnat
365
1 it reflects, doesn't it?
2
A
You read it accurately, yes, sir.
3
Q
Five, asbestos du3t is flaking off. These
4 are inquiries concerning Sprayolite, aren't tney?
5
A
Yes, that's the subject of the memorandum.
8
Q
All right, sir. And there are otner
7 inquiries from school districts and other building
8 owners. This document reflects that people weren't just
9 asking does Sprayolite contain asbestos; they were
10 asking a lot more than that, weren't they, Mr. Ward?
11
A
They had questions about it, yes.
12
Q
They were asking for nelp, weren't they, Mr.
13 Ward?
14
A
No, I don't see that related, but --
15
Q
They are saying do you consider it harmful.
16 They are asking the manufacturer, Do you consider the 17 product that is in our schools harmful? They are asking
18 for help, aren't they?
19
THE COURT: Well, I guess the Jury will
20 have to determine what the letter says. It's in.
21 BY MR. SPEIGHTS:
22
Q
Well, sir, let's look at what happened at the
23 meeting. There was a meeting to try to decide what to
24 do about it, about all these inquiries, wasn't there?
25
A
I recall there was a meeting, yes. There is
365
1 a document.
2
Q
All right, sir. I want to go over that
3 memorandum or that meeting, January 4, 1979. Why don't
4 you just come down nere and we will go over it together.
5 Wait a minute, I believe we nave it.
5
THE COURT: Is this it?
7
MR, SPEIGHTS: Yes, sir. If you need to
3 step down nere, we will go over it here, if you would,
9 Mr. Ward.
10
BY MR. SPEIGHTS:
11
Q
You are familiar with this document, aren't
12 you? This is one of the documents you reviewed, i
13
Eikenberry, Poroyce?
14
THE COURT: Are you familiar witn it?
15
THE WITNESS:' Yes, I have seen tnat
16 before.
17
BY RM. SPEIGHTS:
18
Q
This is a meeting, the subject is Sprayolite,
19 January 3, 1979. You agree that is the suDject of that
20 meeting?
21
A
That* s right.
22
Q
And there were a number of people in
23 attendance at that meeting, including Mr. Eikenberry,
24 correct?
25
A
Yes
66 /
1
Q
Mr. Fordyce, who is the corporate counsel/
2 the lawyer tor National Gypsum Company/ was in
3 attendance at that meeting/ correct?
4
A
That's right.
5
Q
Mr. Volk, whowrote thatreporton the lime
6 that you talked about/ spent all those hours/ he was in
7 attendance at that meeting/ wasn't he?
8
A
That's right.
9
Q
Let's see if we can agree onwnat tnis says.
10
"Each of the Sprayolite inquiries -- " let me back up.
11 You were not at that meeting, were you?
12
A
No, I did not attend that meeting.
1
13
Q
You had nothing to do with tnis at that time.
14 did you?
15
A
With
16
Q
Responding to Sprayolite inquiries.
17
A
No, I wasn't involved in tnose responses.
18
Q
"Each of the Sprayolite inquiries were
19
reviewed and discussed, resulting in an agreed format
20
response to answer these as well as future inquiries,
21 Replies will be handled by Mr. Volk and will be of a low
22 profile nature and not an elaborative nature."
23
That is the policy that was adopted oy
24 National Gypsum Company as to how to respond to a school
25 district like Athens if it inquired as to what to do
868
1 about its Sprayolite, isn't that correct?
2
A
Well, that memorializes the meeting. I don't
3 know if you can call that the policy.
4
Q
Well, it says this is a decision, wasn't it?
5 "replies will be handled by Mr. Volk and will be of a
6 low profile nature and not an elaborative nature."
7
A
That is wnat they are recommending, yes.
8
THE COURT: Just have a seat up here.
9 You can see that, can't you, or not?
10
THE WITNESS: Not not very well -- yes, I
11 can see that.
12 BY MR. SPEIGHTS: I
13
Q
The last paragraph, I have it sideways now,
14 because I have to to get it on there, "We will nave to
15 wait and see if our answers satisfy the individuals
16 making inquiries. If they do not and more specific
17
information is requested, most assuredly Mr. Volk will
18 advise everyone concerned on the next course of action
19 to take."
20
In otner words, if you did not satisfy them
21 with tnis nonelaborative answer, then you would have
22 another meeting and decide what to do next, correct?
23
A
Presumaoly, if they needed more information,
24 we would figure out a way to give it to them.
25
Q
The information, though, again they were
38 9
1 requesting, included information as to whether asbestos
2 was harmful, or your product was harmful, correct?
3
A
There were apparently some Inquiries tnat
4 asked that, yes.
5
Q
And you have seen those letters that have
[
6 gone out -- you descrioed them to us earlier -- where
7 you said simply Sprayolite contains asbestos, contact
8 the EPA, correct?
9
A
That was the gist of it. I think we may have j
10
said a little more than tnat.
11
MR. SPEIGHTS: Your Honor, we better
12
approach the bencn on this one.
13
THE COURT: All right.
14
(Bench Conference.)
15
THE COURT: Let's let the Jury go out for
16
ten minutes. We will take a 10-minute break.
17
(Brief recess.)
18
THE COURT: Be seated. All right. Do
19 you want to make your statement on the record, Mr.
20
Speights, so we will have it in here?
21
MR. SPEIGHTS: Yes, sir. At this time I
22
would ask the Court to allow me to cross-examine Mr.
23 Ward on Mr. Eikenberry'g affidavit marked as Exnibit
24 1779.1 wnerein Mr. Eikenberry -- within 30 days --
25
THE COURT: The affidavit is not in
870
1 evidence, right?
2 3 Honor.
MR. SPEIGHTS That's correct, Your
4
THE COURT: But you are wanting to cross
5 examine him about an affidavit that is not in evidence?
6
MR. SPEIGHTS: Yes, sir. Your Honor
7 excluded it from evidence. We wanted to put it in
a evidence. My position is now in light of Mr. Ward's
9 testimony concerning all the great things National
10 Gypsum supposedly did, et cetera, they opened the door
IX
for me to cross-examine him on this affidavit wa3 Mr.
12 Eikenberry right with the idea, "We are going to low
i
-
13 profile these things." Mr. Eikenberry said National
14 Gypsum didn't make any products with asDestos in them.
15
THE COURT: How long did the affidavit
16 stay in publication before it was repudiated by the
17 company?
*
18
MR. SPEIGHTS: Mr. Westbrook knows more
19 about it than I do, Your Honor.
20
MR. WESTBROOK: Your Honor, it was a
21
numoer of years and it is disputed as to wno struck
22
John. It is our position tnat in the Georgia asbestos
23
litigation, co-defendant informed our firm that National
24 Gypsum was not telling the truth, and we began to look 25 around and simultaneously Mr. Larry Hoyle, Ms.
871
1 Herschel's partner in Philadelphia, apparently began to
2 start informing co-counsel around the country that
3 something needed to be done.
4
MS. HERSCHEL: Your Honor, the affidavits
5 of Mr. Eikenberry were filed in personal injury
6
litigation in '79 and *80. In the fall of 1980,
7 National Gypsum* s corporate management instructed my
3 partner, Mr. Hoyle, to review all files of personal
9 injury cases brought against National Gypsum Company;
10 find every place where Mr. Eikenberry's inaccurate
11
information may have been filed verifying
12
interrogatories, motions on summary judgment; in every
13 context, every place it had been filed, to notify
14 Plaintiff's counsel there nad been inaccurate
i
15
information disseminated in the personal injury
16
litigation. We are not talking about Mr. Eikenoerry's
17
responding to product inquiries from building owners
18 about whether or not tnere was asDestos in their
19 ceiling. 20
THE COURT: Yes, but you have gone broad;
21
you have taken a day and a half here, almost, to tell
22
aoout a lot of things tnat weren't even relevant to tnis
23
lawsuit. Of course, no objections were made, so I just
24
let it go. They are suing you for a lot in punitive
25 damages
872
1
MS. HERSCHEL: Your Honor, Mr. Eikenberry
2
isn't here. What Mr. Eikenberry did, Mr. Eikenberry
3 did, however you want to characterize it. The company
4 corrected it. It is very prejudicial, Your Honor.
5
THE COURT: Well, it is prejudicial, but
6
it is a question of wnether it is admissible or not, and
7 there is no question but wnat it is prejudicial. Tnat
8 is the reason they want to put it on.
9
MS. HERSCHEL: Your Honor, Che company,
10
as a company, as soon as it came to their attention,
11 made a rather unusual effort.
12
THE COURT: You can't say it didn't come
13
to their attention, because Mr. Eikenoerry was an agent
14 of the company at all times.
15
MS. HERSCHEL: He filed affidavits in
16 personal injury litigation --
17
THE COURT: What difference would that
18 make?
19
MS. HERSCHEL: Because it didn't affect
20
Athens in any way, or any building owner.
21
THE COURT: I know that, out there is a
22
lot of evidence you put on that didn't affect Atnens
23
either, but it tells what a good company National Gypsum
24 was for any and all purposes, wnich I thought, since
25 there was a punitive damage claim, I will let it in, ana
373
1 there was no objectionr anyway Maybe the reason they
2 didn't want to oojectr they wanted to put the Eikenberry
3 affidavit in.
4
MS. HERSCHEL; Your Honor, if you would
5 like us to resubmit the brier on Mr. Eikenberry -
6
THE COURT: It is not a question -- I
7 know pretty well what it is.
3
MS. HERSCHEL: If Mr. Eikenberry were
9 here to cross-examine, that would be one thing, Your
10
Honor, but he is not here.
11
THE COURT: Is he dead?
12
MS. HERSCHEL: He's retired. Mo, no, he
i
13
is not dead, Your Honor.
14
THE COURT: Well, there is no question
15 but what he made the affidavit, is there?
16
MS. HERSCHEL: Oh, no, sir.
17
THE COURT: There is no question but wnat
18
it was inaccurate?
19
MS. HERSCHEL: That is correct.
20
THE COURT: And there is no question but
21
at some time the company, or somebody in tne company,
22
learned it was inaccurate, and they ordered it
23
repudiated?
24
MS. HERSCHEL: That is correct. All I'm
25 saying -
87 4
1
`THE COURT: You see, the only thing about
2
it is you put the company's reputation on the line for
3 any and all purposes. I mean, we have stayed here since
4 I don't know, about six hours, I guess, going over what
5 the company has done well, not just in the Athens City
S Board of Education suit, in their instance, Dut all
7 over; what their policy was and how they treated their
8 employees and what they did, and now he is coming in and
9 saying yes, you have done that, we have let it in, but
10 we want to say what else you did.
11
I'm aoout inclined to think I may let -- if
12
this man didn't come on to testify, I would be happy
|
13 with my ruling.
14
AS. HERSCHEL: Let me make an objection
15 to Your Honor allowing tne Jury to near aoout the
16 scenario with Mr. Eikenberry, which occurred in the late
17
*70's, 12 or 14 years after the product was sold, in a
18 case in which punitive damages is at issue. The
19
relevance is minimal; tne prejudice is great.
20
THE COURT: You are talking about --
21 well, why is it not pretty relevant as to punitive
22
damages?
23
MS. HERSCHEL: That a company official
24 passed out, one company official passed out inaccurate
25
information that was corrected by tne company?
3 /o
1
THE COURTS Yes, why isn't that --
2
MS. HERSCHEL: Number one,, Your Honor,
3 you Know our position is nothing after the plasterer
4 finished installing that ceiling in tne school is
5 relevant to punitive damages, because nothing could have
6 ever cnanged after that. To tar U3
7
THE COURT: Wnen was the affidavit of Mr.
8 EiKenoerry; after the Athens school, you say?
9
MS. HERSCHEL: 12 to 14 years, Your
10 Honor. The Eikenberry affidavits were filed in the late
11
*70's? *78, '79 and '80. We corrected them. The
12 company corrected them across the country in the fall of
13
1980. I was there, Your Honor.
14
THE COURT: I'm sure you were, and I'm
15 sure you had a good bit to do about having it corrected,
16 causing it to be done.
17
MS. HERSCHEL: Your Honor --
18
THE COURT: How long is is it going to
19 taKe to do this, an hour and a half? I guess that is
20
irrelevant.
21
MR. SPEIGHTS: I think if you give me
22
five minutes, if this isn't the total ten minutes, I can
23 probaDly finish with this witness in less than ten
24 minutes. 25
THE COURT: Yes, but she is going to come
1 on and tell about -- she is going to have to come along
2 and tell about how they repudiated it and everything.
3
MR. SPEIGHTS: They have told about
4 everything in the world tor the last ----
5
THE COURT: Here is the thing aoout it*
6 Ms. Herschel. I believe it is admissible. I have let
7 you nave a broad latitude of telling, not only in tnis
8 instance, but many instances going back to this man's
9 total experience with the company he worxs for, and
10 which he is proud of, and he is proud of the joo they
11 have done, and I have let you go into it, noc only on
12 matters that affected this lawsuit, but broadly.
13
Now, they are wanting to go into it broadly
14
to say -- well, they won't say this, but they say you
15 say you are pretty good, we say you are not that good,
16 and here is why, and on punitive damages tnat is --
17 that's the only reason it is relevant.
18
MS. HERSCHEL: Your Honor, you have me at
19 a disadvantage. On my examination I was relying on your
20
ruling the Eikenoerry affidavits wouldn't come in.
21
THE COURT: I'm sorry. I didn't know the
22
plaintiff -- there is a lot of it shouldn't come in, but
23
it's in. I don't mean to have you at a disadvantage,
24 but I have got to kind of take them as they are, and 25 nothing is final until we get there. I'm just inclined
87 /
1 to think it is admissible, and I'm going to admit it.
2
We will take 10 minutes from now for
3 everybody to get organized.
4
MR. SPEIGHTS: Thank you, Your Honor.
5
MS. HERSCHEL: Your Honor, excuse me.
6 May I speak with Mr. Ward on this one subject?
7
THE COURT: Sure.
a
MS. HERSCHEL: Tnank you.
9
THE COURT: Yes, you may.
10
(Brief recess.)
11
(Continued without omission.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
37 3
1 BY MR. SPEIGHTS:
2
Q
Let me see if I can go through something
3 pretty quick with you. If I go too fast, let me know.
4 National Gypsum advertised that it's acoustical plaster
5 Sprayolite could be applied to a lime oase coat;
6 correct?
7
A
Are you reading from an advertisement?
3
Q
Yes, sir* I mean/ if you don't know I will
9 be glad to hand it up?
10
A
I don't remember the wording of it. That is
11
not wording I remember.
12
Q
Okay. It says specifically to properly
13 prepare gypsum base coatf Portland cement, lime base
14 coat, and so forth. That is a National Gypsum
15 advertisement?
16
A
That's right, or maybe technical literature.
17
I'm not sure where it came from.
18
Q
1949 is the document you found concerning
19 asbestosis, or the document you referred to about taking
20
the asbestos floats out of tne product, correct?
21
A
That's right, there was a research report on
22
the development of a new product.
23
Q
Now, actually that document was not produced
24 until very recently, was it?
25
A
I don't know that, Mr. Speights.
__________________ ______________________________ _____________________________________________ 81 y
1
Q
You weren't involved when the Dig dispute was
2 over that particular document?
_
3
MS. HERSCHEL: Objection, Your Honor.
4
MR. SPEIGHTS: If you don't know, I will
5 withdraw it.
6
MS. HERSCHEL: May we approach the bench?
7
THE COURT: Okay.
3
(Bench Conference)
9 BY MR. SPEIGHTS;
10
Q
Then in the 1950's -- well, let's get it in
11 sequence. In 1953 we have got the Spoylar documents 12 that we have discussed about respirators for
13 Therraocoustic. All right, sir. Tnen in the 1950*s, I
14 believe you said around 1956, National Gypsum bougnt an
15 asbestos mine; correct?
16
A
We purchased the property, I think it was
17 completed in 1955, and it took some years to develop the
18 mine. It made its first shipments in 1958.
19
Q
Good, I'm glad you gave me an eight, because
20
I can make that an eight.
21
A
I was glad to help.
22
Q
So, you have an asbestos mine in operation?
23
A
That's rignt.
24
Q
Then after that you started selling asbestos
25 fiber world wide?
1 thin* some or our literature refers to
world wide. I'm not sure how literally correct that
was, out it was available for world wide distribution.
Q
All right, we saw tne chart yesterday of all
those arrows pointing all over the world, didn't we?
A That's true.
Q
Then National Gypsum advertised, without
putting on the board, the Gold aond division, asbestos
floats that are grit free and uniform in tnree ranges of bulking; correct?
A
Yes, asbestos floats were used in a wide
variety of products oy many manufacturers.
Q
Then in 1963, Exhibit 7024 National Gypsum
internally said "Develop saleable fibers or fillers from
Thetford Waste Material." in other words, 63, our
policy, or sometime in there, was "Develop using these fillers or floats?"
A
No, I tnink there is a mistake in your
interpretation, Mr. Speights. Waste material was the
rock that was discarded because it was not feasible to remove further asbestos from it.
Q
And you wanted to use that material rather
tnan disposing of it; correct?
A
Ye3, that rock that was left over after the
25
asbestos extraction took place.
ddJ
1
Q
There was a policy, however, that National
2 Gypsum would try to use its own asbestos fibers. It
3 makes sense to buy it from you rather than somebody
4 else, once you got in the business?
5
A
That was our practice, yes.
6
Q
And you used your own asbestos floats?
7
A
Just as we used gypsum from our own mines to
8 make wallboard and just as we make our own paper for
9 that wallboard, yes.
10
Q
1949 you took floats out of this product
11 because of a risk of asbestosis?
12
A
That is correct, that was a very dusty
13 product in application and there was good reason to
14
remove the floats.
15
Q
After you got your asoestos mines, you
16 started using floats and selling them to otner people?
17
A
Yes, we did.
18
Q
Now, you were here yesterday, two days ago,
19 when some question was raised by Mrs. Herschel, you
20
remember with -- you remember Mr. Hatfield, the
21 microscopist from Atlanta that was talking about all tne
22 dust samples?
23
A
Yes, the man from McCrone.
24
Q
You were here when Mrs. Herschel was cross
25 examining -- it may have been Mr. Henson questioning
882
1 whether or not dust sampling was an accepted way to
2 evaluate a building/ weren't you?
3
A
i recall some discussions about how it was to
4 be done. There was some discussion as to air samples
5 versus so called wipe samples or scrape samples.
6
Q
Exhibit 1719?
7
A
Yes.
3
Q
That is an internal National Gypsum document/
9 isn't it?
10
A
No/ I think that this is a letter from a
11 company that performed services for National Gypsum
12 Company.
13
Q
It is to -
14
A
Addressed to National Gypsum.
15
Q
Attention Mr. Pollard tne safety director?
16
A
That's correct.
17
Q
1959 concerning the New Orleans plant.
18
A
Right.
19
Q
Then on the last page of that letter it
20
reflects, next co tne last paragraph "We took several
21 samples of settled dust for chemical analysis co
22 determine the percentage of free silica." Correct?
23
A
That is what it says, yes, sir.
24
Q
In your own plants in 1959 dust samples were
25 being taken, settled dust samples; correct?
1
A
In 1959, yes.
2
Q
Thank you, sic Now, 1962, have you seen
3 this document of the air hygiene, Exhibit 80, September
4 13, 1962, minutes or the Air Hygiene and Manufacturing
5 Committee meeting?
6
A
i think I have seen it, but not for some
7 time. I'm not familiar with it.
8
Q
All right, sir. You would agree cnat it
9 reflects that in that meeting one member reported a case
10 of cancer where the actual exposure was in fact very
11
slight?
12
A
Is that wnere your tnumb is?
13
Q
Yes, sir.
14
A
in reporting settlement industrial
15 attributing lung cancer to asbestos dust wnere the
16 actual exposure was in fact very slight. There is no
17 mention of what the exposure was or whether it was
18 confirmed that it caused lung cancer.
19
Q
It mentioned that exposure was very slight.
20
It didn't give the specific numoer, but it mentioned it
21
was very slight. Don't you believe, Mr. Ward, when we
22 know something, or even somebody claims that something
23 causes cancer, we should be concerned about it?
24
A
I think it depends on the conditions, Mr.
25 Speights
884
X
Q
Don't you believe# Mr. Ward# that National
2 Gypsum Company# once it knew or should have known that
3 something caused cancer# should at least pause and think
4 about that situation a little bit? You don't ignore
5 that type evidence, do you# Mr. Ward?
6
A
No.
7
A
When you are talking about evidence# no# you
8 don't ignore it. I don't think in 1962 there was
9 adequate evidence.
10
Q
When somebody claims something in National
11 Gypsum's product causes cancer# don't you think that
12
somebody should just pause and say# hey# let's think
13
about that a minute?
14
A
Perhaps# Mr. Speights, but I don'tknow that
15
there was any connection between National Gypsum's
1
16 product and that document you just showed me.
17
Q
National Gypsum Company manufactured a number
18 of products with asbestos?
19
A
Yes, they did.
20
Q
National Gypsum Company had anasbestos mine?
21
A
That# they did.
22
Q
National Gypsum Company ---asbestos was a
23 product# if someoody said it causes cancer# it wasn't
24
like National Gypsum Company didn't have any asoestos
25 around, was it?
386
1 safety director, right?
2
A
That is what it says, hut I don't think that
3 came from our files.
4
Q
You didn't find any --
5
A
I'm not familiar.
6
Q
You didn't find this letter about cancer in
7 your files?
8
A
No, sir, I have not seen that letter in our
9 files.
10
Q
How about these minutes of the Gypsum
11 Association meeting in 1967, did you find those in your
12
files when you went oack years later and started looking
13
at documents? Would you hand me 15? Here is a copy.
14
A
Thank you very much. Yes, I have seen this
15 some time ago, Mr. Speights.
16
Q
Did you find this document in tne National
17 Gypsum files?
18
A
Yes, I oelieve we did.
19
Q
Septeraoer 19, 1967, that reflects that Mr.
20
Zimmerman was chairman of this committee and that Mr.
21
Zimmerman and a Mr. Tolin attended tnis meeting,
22 correct?
23
A
That's correct.
24
Q
Mr. Zimmerman was the safety director for
25 National Gypsum Company?
887
X
A
Yes, he was at that time.
2
Q
Would you read tor me on the second page
3 under air and stream pollution, the second paragraph,
4 piease.
5
A
"One mechanic noted a recent problem
6 involving the asbestos industry wnere a number or lung
7 carcinoma cases had been reported oy inhabitants of the 3 neighborhood surrounding an asbestos plant. It was 9 further noted that clinical tests and investigations had
10
resulted in legal action against tne manufacturer by the
11 claimants."
12
Q
Again, you weren't at that meeting back
13
there, you had nothing to do with the corporate safety
14 policy then?
13
A
I did not attend that meeting and I didn't
16 make the safety policy.
17
Q
If you were told, if National Gypsum was told
18
that there was a contention that asbestos could cause
19 cancer to people living in the neighbornood of an
20 asbestos facility, wouldn't that be something to cause
21
the company to pause and say, hey, let's think about
22
this a little bit"?
23
A
I think that if we were aware that our plant
24 could produce that kind of a condition in the
25 neighborhood, we might pause, out I think we were
8 8 8
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
careful not to produce that condition.
Q
1968, May 17, 1968, the year after that, are
you familiar with that document?
(Continued without omission)
------------------------------------------------------------------------ ------------------------.------------------ ------------------------------ 3 9 0
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Q
Well, we have already had a lot or medical
testimony. My question is, the fact that I'm breathing
the asbestos in the plant, if I'm breathing the same
amount in the neighborhood, or I'm breathing tne same
amount spraying Thermocoustic or dealing witn asbestos
cement products, National Gypsum wouldn't distinguish that, would it?
A
it you are breatning in a large amount of
asbestos dust over a long period of time you are likely
to risk illness, that is correct.
Q
I*m talking about bacK in tne 60's when
National Gypsum was being told in a variety of
situations that asbestos caused cancer. Just because
somebody told you that asbestos could cause cancer in
your asbestos cement products, doesn't mean you wouldn't
consider it might be a problem in another product, would it?
A
I'm sorry, I didn't get that.
Q
If you were told in the `60*s that asbestos
could cause cancer for someone dealing with asoestos
cement products, you wouldn't just ignore or shouldn't
just ignore the fact it could cause cancer dealing with
another type of product, would you?
A
i don't recall being told in the '60`s of any
cancer associated with using asbestos cement products.
691
1
Q
If you were told in the *60's tnac living in
C 2 the neighborhood of a plant, just living in the
3 neighborhood, not working in the plant, could cause
4 cancer, shouldn't National Gypsum consider, well, there
5 are other circumstances outside of our plant that
6 asbestos could cause cancer?
7
A
I think it would depend on what kind or a
8 Plant these reports were coming from, and the conditions
9 that prevailed,
10
^
*110 saying is, shouldn't National Gypsum
11
look into that?
12
A
we were concerned abouc it, We provided dust
(
13
collection equipment within our plants.
14
Q
Within your plants?
15
A
And protection for our workers and we were
16
careful not to spew dust out from our plants.
17
Q
1968, National Gypsum opposed a booklet to
18 workers with asbestos produces, chat people like
19 Johns-Manville?
20
A
Asbestos cement products.
21
Q
Asbestos cement products?
22
A
Well, there are distinguishingfeatures.
23
Q
Johns-Manville wanted to inform people
C-,
24 working with this product and putting it in buildings
25
and other places of how to effectively and safely work
-- ___ ____________________________ _______________________ ___________ 892
1 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25
with that product. Isn't that correct?
A
X think Johns-Manville wanted to put this out
as an application instruction that would allow people to
follow recommendations which would keep the dust down on the joo.
Q
And National Gypsum opposed chat policy,
quote, the booklet creates rear in the raina or buyers,
users and workers without justification?
A
We opposed it because we didn't believe tnere
was any danger in the use of those products.
Q
Was tnere any harm in telling someoody to be
careful, if the evidence was unknown?
A
No, and we did support the publication of the
book and distributed it.
Q
After it was modified?
A
That's right.
Q
Then I'm back where I was before we took the
break. 1969 rolls around, and you are getting
documentation here on asDestos air pollution in New York
citY* Are you familiar with tnat document?
A
Yes, I believe I nave seen this, out it was
some time ago. I'm not familiar witn all its contents.
Q
It reflects that National Gypsum becameaware
of Dr. Selikoff's presentations and concerns over the
exposure to asbestos from spraying asbestos?
893
1
THE COURT: Where are we?
2
MR. SPEIGHTS: He wanted .to review that a
3 minute, Your Honor. He said ne needed to refresh his
4 memory. Just let me know when you are ready, Mr. Ward.
5
THE WITNESS: I guess I'm ready for your
6 question, I don't want to take the time to read your
7 entire document, unless I find out I can't answer your
8 question without it.
9 BY MR. SPEIGHTS:
10
Q
On page one it says tne material presented by j
11 Dr. Selikoff evokes serious concern about the relevance
12 of asbestos in the ambient air, as a health hazard,
13 correct?
14
A
That is what it says, yes, sir.
13
Q
This is an internal document of National
Id Gypsum Company, and then on the second page, "we wish ,
17 do you see where I am?
18
A
Yes, the second sentence, right.
19
q
"We wish to determine specific information as
20
to the form in wnich asbestos is used, raw material,
21
finisned product, end producer use, and the conditions
22
under which it is being used. This will all be done
23 with specific reference to its potential for community
24 air pollution during and as a result of such use."
25
THE COURT: Is that wnat it says, is what
39 4
1 he wants to know.
2
A
Yes, that is what: it says. _
3
Q
On the next page, on page three, "In
4 addition," do you see where I am, second paragraph?
5
A
Yes, I have it.
5
Q
"In addition, the disintegration o asbestos
7 fibers is" --
3
A
Asoestos materials.
9
Q
"Asoestos materials istangentially
10 associated; demolition problems being a special example.
11 Right?
12
A
That is what it says.
13
Q
1969, Dr. Selikoff is talking about problems
14 witn demolishing buildings with asbestos in them and
15 problems that can occur along with amoient air; correct?
16
A
I don't know what Dr. Selikoff said. I only
17
have this digest of his report.
13
Q
You have here Mr. Zimmerman, your director of
19 safety, attaching the report; correct?
20
A
Yes.
21
Q
Mow, in 1969 Mr. Zimmerman is up here and Dr.
22 Selikoff is talking about cancer from ambient air and
23 demolition, and you have got your head of research, Mr.
24 Volk, down here dealing with Athens Junior High, at the
25
same time, 1969, about whether tnere is any question
395
1 about lime in the product, right?
2
A
Wasn't that a year earlier, V6 8?
3
Q
I believe it is '69?
4
A
That's right. The final answer from Mr.
5 Keeler came out in '69.
6
Q
All right, sir. If I can have that back.
7 Mow, at no time --
8
A
It came out in January, and this meeting was
9 in October.
10
Q
All right, sir. In 1969, wnen ne round out
11
about that, or in '68, '67, '65, *62, at no time did
12 National Gypsum Company mention to Athens Junior Hign or
13
the architect hey, this product has got asbestos in it,
14 and because your ceiling has droppings or dustings, you
15 ought to take some special precautions. Is that
16 correct?
17
A
I think the perception was that there were no
13 special precautions necessary because we are not talking
19 about the kinds or exposures that Dr. Selikoff and
20 others were concerned about.
21
Q
Dr. Selikoff was talking about exposures in
22
the ambient air?
23
A
I think he meant around construction jobs and
24 where materials were being sprayed on.
25
Q
You weren't there at the time dealing with
89
1 this?
2
A
Neither of us were there. .
3
Q
We are just reading documents?
4
A
Tnat's right.
5
Q
Five years before, let's assume that you, the
6 National Gypsum Company had notice or cancer, if not
7 before that. Was there anything wrong with telling
8 Athens Junior High in '69, or '66, hey, tnere, someoody
9 is concerned about asbestos?
10
THE COURT: That is kind of
11 argumentative. We will let you argue. You can ask did
12 you send anything out, and if you didn't, why didn't
13 you.
14 BY MR. SPEIGHTS:
15
Q
You don't know, because you weren't there?
16
A
I think I have already answered that, Mr.
17 Speights.
18
Q
Then right before the oreak, I was asking you
19 about the policies of National Gypsum in responding to
20
inquiries. Starting in at least 1976 National Gypsum
21 got all these inquiries from school districts raising
22 concerns about asbestos in ouildings. Correct?
23
A
I think that's the earliest ones that came
24
in, yes.
25
Q
All right, sir. And of course National
397
1 Gypsum knew that its product was down here in Atnens?
2
A
Knew in what sense, Mr. Speights?
3
Q
Mr. Volk, I think you said, spent hundreds of
4 hours looking at the stuff under the microscope or
5 something. It knew Sprayolite was down here?
6
A
Well, it knew in the sense that tne files
7 were containing that information, but tnac information
3 was pretty old at that time. Those were long since
9 forgotten at that point.
10
Q
You could have very easily pulled --
11
THE COURT: That's also a little
12 argumentative.
13
Q
You nad sales records snowing the sales of
14 Sprayolite?
15
A
Not to Athens Junior High School, it doesn't
16 show up.
17
Q
You had 3ales records showing tne sales of
18 Sprayolite; correct?
19
A
That's right. It went to dealers and no
20
record was necessarily made of what jobs it went to.
21
Q
You had information as to who your field
22 representatives were, didn't you?
23
A
Yes, we did.
24
Q
You had brochures showing spraying of
25 Sprayolite in specific locations, didn't you?
89 3
1
A
Yes, a few.
2
Q
Okay. You had communications witn architects
2 through Sweet's and other publications?
4
A
In what sense?
5
Q
You provided technicalinformation and
advertising literature to arcnitects; correct?
7
A
0hr yes, routinely.
3
Q
You had research files on some joos like the
9 bowling alley we talked about earlier and liKe Athens
10 Junior High?
11
A
Yes, sir, there were a few noted in research
12
files.
13
Q
If National Gypsum had wanted to; it at least
14 could have tried, '69, *76, *80, *82, whenever, it could 15 have tried to go out and contact those people which had l Sprayolite acoustical plaster in the buildings. You 17 could have made a reasonable attempt to get in contact 18 with those people, write them a simple letter, couldn't
19 you?
20
A
I really don't think there was any perception
21
that there was any significant risk to ouiiding
22 occupants --
23
THE COURT: The question is, ir you nad
24 thought it was a risk, could you have done that or could
25 you not have?
899
1
A
2 Honor.
l guess it is theoretically possible, Your
3 BY MR. SPEIGHTS:
4
Q
You had hundreds of inquiries concerning this
5 Sprayolite product, didn't you?
6
A
Yes, sir, and we answered every one of them
7 truthfully.
8
Q
You never went out with any letter saying,
9 hey, you have asbestos in your building and at least
10 upon renovation or demolition, you have to do something
11 about it?
12
A
Are we talking 1966.
13
Q
'77, '78, *80, `81, *82?
14
A
I think the regulations on renovation and
15 demolition came out later than this time period that you
16 are in here.
17
Q
That's the first time you have gotten in ray
18 area and that is a question of law. I*m going to ask
19 you to assume the regulations are already in before the
20
late 1970's and early *80*3. You certainly could have
21 gone out and written these people?
22
THE COURT: He said he could have, and
23
the question is why didn't you; if you have an --
24
Q
Thank you, sir. I want to go back, I think I
25 have three more documents for you, exhioit 7050. This
900
1 is a teletype message. Have you ever seen this
2 document?
3
A
1 would like to look at it.
4
THE COURT: Ask him questions about itr
5 mayoe he won't have to read the whole document.
6 BY MR. SPEIGHTS:
7
Q
This is a document from out in the field, --
a
excuse me, I put the second one up first.I didn't
9 write tne document. Every time I try to go faster, I go
10
slower, Hr. Ward.
11
A
I know the feeling. Okay, I nave it.
12
Q
This reflects a letter to Mr. Eikenberry, it
13 says "architect has existing Sprayolite," thi3 is 1980,
14
right?
15
A
Yes, sir.
16
Q
"Architect has existing Sprayolite acoustical
17 ceiling on concrete. Because of asbestos he has to
13 remove and requests our recommendations. I suggested
19 three possibilities. Remove Sprayolite by scraping,
20 apply bonding agent and sealer, then paint, plaster or 21 apply ceiling spray. Drop suspended lay in ceiling. I
22 would like to now if you concur, and if not what your
23
recommendation as to the architect's requesting letter
24 with our suggestions or specifications." Okay. This is
25 one of your field people that made some suggestions,
________ _____ ___________________ ._______________________9i.
1 right?
2
A
That's right.
3
Q
And wrote Mr. Ei*enberry. Mr. Eikenberry
4 didn't write him back, he sent him a teletype, didn't
5 he?
6
A
Yes, I think the message is in teletype, so
7 he would have replied in kind.
8
Q
Your wire on Sprayolite. "You cannot make
9 recommendation to architect nor can you write letter
10
regarding removal or Sprayolite. For any information
11 architect must write on hi3 stationery requesting
12
information directly to my attention. His letter will
13 be answered by our environmental service department.
14 Through my office is the only source for this
15
information." Right?
.
16
A
That's what it says.
17
Q
And of course, you nad a policy then that we
18 went over earlier where you would not elaborate
19 concerning these requests from architects or building 20 owners?
21
A
Well, the report of the meeting that you
22
showed us said the replies would oe of a low profile and
23 not of any elaborative nature. But it also provided for 24 giving more information if it was necessary.
25
Q
Can you give me a document where National
902
1 Gypsum recommended removal, or gave specifications on
2 how to remove?
_
3
A
No, I can't give you that, Mr. Speights.
4
Q
Now I want to show you an affidavit. The
5 meeting, I believe we established, was in early 1979;
6 correct?
7
A
I think that's right.
8
Q
February, '79, wasn't it, January, *79?
9
A
I'm sorry, I don't recall the exact date, but
10
if you will read it off, I will be willing to trust you.
11
Q
Well, it was January of '79 and I'm going to
12 publish a document in a few minutes, once I locate it.
13
A
Okay.
14
Q
Now, Mr. Eikenberry attended that meeting.
15 Mr. Eikenberry was very involved in this, wasn't he?
16
A
I believe he attended tnat meeting.
17
Q
That was a meeting at which Sprayolite
18 acoustical plaster was discussed?
19
A
That's rignt.
20
Q
Mr. Eikenberry, you areaware, signed an
21 affidavit in the State of Georgia in an asbestos case.
22 Are you aware of that?
23
A
Yes, I'm aware of that.
24
Q
It says personally, this is an affidavit,
25 something under oath, right?
9u3
1
A
That's correct.
2
Q
"Personally appeared, W. S. Eixenoerry before
3 the undersigned officer duly authorized to administer
4 oaths." Okay. "Deponent makes this affidavit of his
5 own personal knowledge and experience. For the past 33
6 years and Director of Marketing Service for Gold Bond
7 Building Products," tnat is Mr. Eikenberry, right?
3
A
That's correct.
9
Q
Would you read paragraph seven to me of that
10 affidavit signed by Mr. Eikenberry?
11
A
Paragraph seven says " National
Gypsum
12
Company has never manufactured a plaster containing
13
asbestos fiber."
14
Q
Now it's 1981. I believe even you would
15 agree with me, Mr. Ward, that by 1981 National Gypsum
16 had a lot of evidence concerning asbestos?
17
A
Evidence of what nature?
18
Q
About asbestos causing disease?
19
A
Well, yes, yes, they had more than they did
20 years before, certainly.
21
Q
And they got out of the asbestos business at
22
some point in time in the '80's, didn't they?
23
A
1981.
24
Q
I want to show you Plaintiff's Exhibit 1836,
25 a letter from Jack Jones. Let me see if I have a copy
904
1 for you. Are you familiar with that document?
2
A
Not offhand# but I may well nave seen it. I
3 have looked at an awful lot of documents. I'm pretty
4 sure I -- anyway, I have read it.
5
Q
January 15, 1981. Would you read chat to us,
6 please, sir?
7
A
This is going to regional managers, from the
8 then commercial sales manager. It says "This is your
9 final region report for 1980. We sold over $12 million
10
in asbestos products during 1980. This includes direct
11
sales and top loaded sales. As of this dace the New
12
Orleans plant is still a Gold Bond facility. We are
13
still in the business of making and selling asoestos
14 products. Please continue to emphasize this point with
15 your salespeople* The sales dollars are good as long as
16 they last" exclamation point.
17
Q
Thank you, sir. Mr. Ward, the oesc people to
18 tell us about the policies and decisions of National
19 Gypsum Company would be the corporate management,
20
wouldn't it, people wno were involved in these
21 decisions?
22
A
The people who are actually there when tne
23 music was played, as it were.
24
Q
People who have been in management and are
25
familiar with management decisions, are people who know
9 05
1 how National Gypsum makes decisions?
2
A
As I 3aid earlier, decisions in the company
3 are made at several levels, Mr. Speights.
4
Q
Major decisions are made at high levels?
5
A
Yes.
6
MR. SPEIGHTS: Thank you, sir.
7
MS. HERSCHEL: Your Honor, may we take a
8 short break so I can organize some or these exhibits
9 that Mr. Speights has been using?
10
THE COURT: How long?
11
MS. HERSCHEL: Can I have ten minutes? I
12
nave to pull them, Your Honor.
13
THE COURT: I guess so. We will take a
14
ten minute recess, Ladies and Gentlemen.
15
16
(Brier' recess.)
17
18
19
20
21
22
23
24
25
906
1 2 Honor.
MR. SPEIGHTS: Just tor the record, Your
3
THE COURT: I haven't got you again, have
4 I?
5
MR. SPEIGHTS: No, sir.
6
THE COURT: Are we ever going to get
7 done? Every time we have a oreax, you all get stronger.
8 Okay, what else have you got?
9
MR. SPEIGHTS: I wanted to say for the
XO
record, when I was cross-examining on Exhibit 1770, that
11
has been renumoered as Exhibit 7045, which is in
12 evidence.
13
THE COURT: All right, tine. Proceed.
14
MS. HERSCHEL: Thank you, Your Honor.
15 3Y MS. HERSCHEL:
16
Q
Okay, Mr. Ward. Who is Mr. Eikenberry?
17
A
Mr. Eikenberry was the Director of Market
18 Services at the time he retired about a year ago.
19
Q
What was his position, if you know, in the
20
*79-80 time period?
21
A
I thin* he had essentially the same joo. I*m
22
not exactly certain the title was the same,
23
Q
That position that you have described to us,
24 was he a member of corporate management?
25
A
Well, he reported -- he was in the Gold Bond
9 i
X Building Products Division, and he reported to
2 manufacturing management.
-
3
Q
Was he a top-level decision-maker at National
4 Gypsum?
5
A
No. I think it is fair to say he was a
6 middle manager.
7
Q
Now, is he still with the company?
8
A
No. He retired, it was either at tne end of
9
*85 or the beginning of *86, but right in there.
10
Q
Now, as part of his duties in tne *79-80 time
11
period, did he provide information on products to
12
attorneys in what we call products liability litigation?
13
A
Yes, he did.
14
Q
And in fact, he provided some information in
15 lawsuits that had been brought by people who thought
16
they were harmed from being occupationally exposed to
17 asbestos, isn't that correct?
18
A
Yes, some of those were involved.
19
Q
Okay. And in fact, he even signed affidavits
20
on oenalf of the company, did he not, explaining what
21
ingredients were in products? is that correct?
22
A
Yes, he did.
23
Q
Were a number of his affidavits -- do you
24 need a drink of water?
25
A
I`m okay. I just nave something in my
908
1 throat, I'm sorry.
2
Q
Were a number of the affidavits that he
3 signed in the '79-80 time frame inaccurate? Did they
4 contain inaccurate information?
5
A
Yes, I'm aware that they did.
6
Q
Have you ever spoken with Mr. Eikenoerry
7 about that?
3
A
Mo, I haven't.
9
Q
Now, among the inaccurate information that
10
Mr. Eikenberry executed an affidavit to was the
11 statement that Mr. Speights showed you tnat National
12
Gypsum's plasters never contained asbestos? is that
13 correct?
14
A
Yes.
15
Q
Okay.Did that misstatement come to the
16 attention of the major decision makers in the company at
17
any time?
18
A
Yes. I think it did. I'm not sure exactly
19 how long after, but somewhere within about a year or
20
something like that they did become aware of it.
21
Q
Okay. And who are we talking aoout now and
22
where are those folks?
23
A
These would be the top people inthe
24 corporation at the Dallas headquarters.
25
Q
The top brass?
909
1
A
Yes.
2
Q
Okay. Did they do anything wnen they found
3 out that Mr. Eikenberry had disseminated inaccurate
4 information about the plasters?
5
A
It is my understanding that they asked their
6 counsel to carefully go over the records of the company
7 and correct any errors that they found in his
3 affidavits.
9
Q
Was that done, Mr. Ward?
10
A
Yes, it was.
11
Q
You mean the lawyers went out and corrected
12
the record around the country?
13
A
That's my understanding, yes.
14
Q
I think that something Mr. Speights said
15 suggested that the '49 document having to do with
'
16
Thermocaustic in which one of the employees recommended
17 that they not use a specific fiber in there, he
18 suggested that it was very difficult for him to get that
19 document. Is that document in the records warehouse in
20
Charlotte, of which you are custodian?
21
A
Oh, yes, it*s there.
22
Q
Was it there when his people came on several
23 occasions to look?
24
A
It had to be there; it couldn't be anywhere
25 else
1
Q
All right. Let's try another subject, now,
2 that you have discussed with Mr. Speights. He showed 3 you, l think, a couple documents and discussed with you 4 the topic of a booklet directed to people who apply 5 asbestos cement produces that was under consideration in
6 the late '60's Do you remember that?
7
A
Yes.
8
Q
Now let's talk a little bit about asbestos
9 cement products first. Are they quite different from
10
Sprayolite?
11
A
I would say they are about as different as
12
they can get and still oe a building product, yes.
13
Q
All right. Would you tell the Jury what
14 asbestos cement building products consist of, what the
15 line is?
16
A
Yes. Probably the one most of us would be
17 familiar with was a product called asbestos cement
18 siding, which was an exterior residential siding, coming
19
in various textured finisnes and colors. We made
20
asbestos flat sheets, made essentially out of tne same
21 material, but these were typically four feet by eight
22
feet and were used for utility rooms and mecnanical
23
rooms, that sort of thing.
24
Q
Now, what generally are the ingredients in
25 that line of products, Mr. Ward?
911
1
A
Principally cement and sand, and they nave
2 some other fillers and hinders, and they do contain
3 asbestos fibers.
4
Q
Can you give me a range of asbestos content
5 for that line of products?
6
A
l*m not really familiar with those formulas,
7 but I believe it's 10 to 15 percent, something like
8 that.
9
Q
Werethose products generally dusty in
10
application, Mr. Ward?
11
A
No, they were fully finished and you simply
12
nailed them in place. The dust -- there could be some
13 dust, if they were sawed or drilled, but ordinarily you
14 wouldn't call them a dusty product.
15
Q
Now, when the people at J-M raised the issue
16 of a booKlet directed to applicators of asbestos cement
17 products, National Gypsum had some reservations at
18 first, did they not?
19
A
Yes, they did.
20
Q
What were their reservations?
21
A
l believe that they felt that thiswas not a
22 dusty product and chat therefore the booklet was really
23 not necessary and that the way it was originally written
24 was perhaps inflammatory.
25
MS. HERSCHELj I'm trying to borrow a
912
1 transparency, Your Honor.
2
MS. HERSCHEL: Your Honor, would you bear
3 with me tor a moment.
4
THE COURT: All right.
5
MS. HERSCHEL: I apologize, Your Honor.
6 I was going to borrow Mr. Speights' document.
7
MR. SPEIGHTS: I will oe glad to give it
8 to her, but I got more documents than Piggly Wiggly's
9 got loaves of bread, Your Honor. I can't rind it,
10 either, right now.
11 BY MS. HERSCHEL:
12
Q
All right, Mr. Ward, let' cry it this way.
13 Mr. Ward, from your investigation into the company
14 history, are you aware whether or not in connection witn
15 this asbestos, this proposed asbestos cement practices
16 booklet, National Gypsum consulted with any outside
17 consultant?
18
A
I don't recall seeing that. I'm sorry.
19
Q
All right. Mr. Ward, let me show you --
20
MR. SPEIGHTS: If you give me a number, I
21
will try to find it.
22
MS. HERSCHEL: Don't worry about it.
23 BY MS. HERSCHEL:
24
Q
I would like to show Mr. Ward a document that
25 has been marked as Defendant's Exhioit 2.021. Would you
913
1 take a quick look at that/ rfr. Ward, and then I will ask
2 you a cew quescions.
..
3
(Continued without omission.)
4
5
6
7
3
9
10
11
12
13
14
15
16
17
18
19
20 21
22
23
24
25
1
A
I`m vaguely familiar with this.
2
Q
Was there some discussion in the company as
3 to what an asoestos practices booklet should contain?
4
A
Yes.
5
Q
Did the company eventually support the
6 publication of a booklet recommending practices for
7 handling asbestos cement products?
8
A
5fes, they did,
9
Q
10
A
11
Q
12
it to?
Did they distribute it to their customers? It's my understanding they did. Do you know what customers they distributed
13
A
I believe it was intended for and went to
14 asbestos cement applicators.
15
Q
Why would you pick chera out as a group?
16
A
Well, they would oe the people most likely to
17
use the products.
18
Q
i'he document that I have just handed you, Mr.
19 Ward, is a copy of a booklet which is entitled
20 Recommended Practices for Faoricating, Handling and
21 Applying Asbestos Cement Products in the Building and
22 Construction Industries?
23
A
That's right.
24
Q
It is prepared by the Health and Safety
25 Council of the Asbestos Cement Products Association, 521
915
1 Fifth Avenue, 20th Floor, New York, New York. Was
2 National Gypsum, in the `68-70 time period, a member of
3 the Asoestos Cement Products Association?
4
A
Yes, we were.
5
Q
Mr. Ward, is this a copy of the booklet that
6 was eventually put together, published and distributed
7 by National Gypsum to its customers?
8
A
Yes, it is.
9
Q
Mr. Ward, wouldyou look at the first -- turn
IQ over the cover page.
11
MS. HERSCHEL: And if Your Honor will
12 bear with me, I would like Mr. Ward to read the
13
right-hand column on the cover page, and the little
14 squib on one of the last pages there.
15
THE COURTs All right.
16
BY MS. HERSCHEL:
17
Q
Would you readtheintroduction to that
18 booklet into the record, please, Mr. Ward?
19
A
That's the right-hand side of this sheet?
20
Q
Beginning with "Discovery and production."
21
A
Okay. "The discovery and production of
22 hundreds or natural and synthetic materials, including
23
asbestos cement products, has in some instances prompted
24
the need for special protective equipment and practices
25 that should be employed by all in the industry where
916
/ 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
dust is created. Manufacturers of asoestos cement
products have for years Seen taking protective measures to eliminate exposure of their workers to the inhalation of dust. The fabricating, handling and applying of asoestos cement products are diverse and range from tne
installation of a single piece, to extensive operations involving cutting and machining by mechanical equipment.
While care should always be exercised, special precautions are necessary wnen dusts in excess or federal, state or provincial allowable tnresnold limits are generated as a result of sawing, drilling or ocher operations. Respirators snould De worn.
The following practices are recommended for fabricating, handling and applying asbestos cement
products in the building and construction industries. Contractors and applicators are urged to study these recommended practices carefully to see that they are observed by all workers, it is in the best interest or
both employer and employee to see that these recommended prac .ices are strictly ooserved."
0
And would you turn to page seven wnere there
is a little summary down at the bottom of tne right-
land column there. Do you have that, Mr. Ward?
A
Yea, I nave it.
Q
Would you just read that little summary
91/
1 there?
2
A
"Three major points to keep in mind in the
3 fabricating, handling and applying of asoestos cement
4 products. Keep dust to a minimum. Wear U. S. Bureau of
5 Hines approved respirators when exposed to dusts above
6 federal, state or provincial allowable threshold limits,
7 and maintain good housekeeping at all times."
3
Q
Mr. Ward, did National Gypsum Company support
9 the publication of this booklet?
10
A
Yes, we did.
11
Q
Did you distribute itto your customers?
12
A
We did.
13
Q
Mr. Ward, Mr. Speights asked you about
14 whether or not the company listed the ingredients in
13 Sprayolite on its bags in the '50's and '60's. Do you
16 remember that?
17
A
Yes.
18
Q
You said, no, theydidnot?
19
A
That's right.
20
Q
Do you know from your experience in the
21 company whether there would have been any particular
22
reason why they didn't list tne ingredients in the `50`s
23 and '60's?
24
A
Well, it was a proprietary product.
25
Q
What do you mean by a proprietary product?
918
1
A
it was our own. We developed itr we
2 orignated the formula, and I guess to protect it from
3 competitors, we did not reveal what the ingredients
4 were.
5
Q
Have you found anything in your research
6 anywhere that would suggest tnat the reason that
7 ingredients were not listed on that bag was to conceal
8 from anybody that there was asbestos in tnat product?
9
A
No, definitely not.
10
Q
Nothing?
11
A
No.
12
Q
Mr. Ward, I would like to show you another
13 document.
14
MS. HERSCHEL: Your Honor, this document
15
is a rebuttal document that! has not been marked.
16
THE COURT: All right, it will be Number
17
3 of the unpremarked exhibits.
18
MR. SPEIGHTS: I would like to see it,
19 Your Honor.
20
THE COURT: I will De glad to show it to
21 you. Let's see, are we ready?
22
MR. SPEIGHTS: Judge, it's about a
23
12-page document -- it has never been provided to us --
24
that I am just reading for the first time.
25
THE COURT: Well, let's go to luncn.
1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
24
Ladisa and Gentleman, you all ace excused until 1:00 o'clocK. same admonition. Every time e give tnem a little opportunity to get more prepared, it aeems like it gets longer and longer. We`11 aee wnat nappens. You're excused until 1.-00 o'clock.
(Continued without omission.}
920
1
2
AFTERNOON SESSION
3
JANUARY 23, 1987
4
THE COURT: All right.
5
MR. SPEIGHTS: Excuse me, Your Honor. I
6 located the transparency Ms. Herschel wanted.
7
THE COURT: Let's see, who was up? Ms.
8 Herschel?
9
MS. HERSCHEL: I'm sorry.
10
THE COURT: Are you at oat? Proceed.
11
FURTHER REDIRECT EXAMINATION
12
BY MS. HERSCHEL:
13
Q
Mr. Ward, I just want to snow you again a
14 transparency that Mr. Speignts showed you having to do
15 with the question of possible dangers associated with
16 asbestos cement products in application so we can read
17
in one sentence that you and Mr. Speights didn't read in
18 when you were on cross-examination. Mr. Ward, do you
19 remember seeing this document this morning when you were
20
talxing with Mr. Speights?
21
A
Yes.
22
Q
Can you see it?
23
A
Yes. I can't see it very well.
24
Q
Would you --
25
THE WITNESS: May I go around, Your
921
1 Honor?
2
THE COURT: We will turn the lights off,
3 and he will be able to see it well.
4
MS. HERSCHEL: This is going to be real
5 quick.
6
THE COURT: Okay, does that help you?
7
THE WITNESS: I think I can read it.
8 Right on the fringes.
9
THE COURT: You can go on down there.
10
THE WITNESS: It will help, sir.
11
THE COURT: Okay.
12 BY MS. HERSCHEL:
13
Q
Now let's look at the conclusion again. It
14
reads, "Asbestos cement is not, at this time, proven to
15 be a culprit." I don't think we read that this morning.
16
"National Gypsum should continue to oppose distribution
17
to the public, any literature damaging to these
18 products. The handling of fibers may cause asbestosis.
19 Protection should be provided employees."
20
Was this the thinking of the company? Does
21
this express the thinking of the company based on your
22
research on the subject of possiole hazards to
23 applicators from asbestos cement products?
24
A
Yes, I believe it does.
25
Q
Mr. Ward, I would like to hand up to you a
922
1 document and ask if you will take a look at it and
2 identify it for me, if you can.
3
THE COURT: Have you shown it to him?
4
MS. HERSCHEL: I'm sorry.
5
THE COURT: You have seen it, haven't
6 you?
7
THE WITNESS: Yes, I'm familiar with tnis
3 document. This is a March lOtn, 1952 product supplement
9 issued oy the research division.
IO
BY MS. HERSCHEL:
11
0
Mr. Ward, would you explain a little furtner
12 what that document is, what tne function of that kind of
13 document is, where it ends up, that kind of scuff?
14
A
Well, it was the practice of the research
15 department to publish technical information on products
16 which would specifically give designers or architects,
17 the types that would be interested in the technical
18 performance of the product, data about fire ratings or
19 sound absorotion, those type characteristics. And when
20 appropriate, it might also include detailed application
21
instructions, as it does in this document relating to
22 Thermocoustic.
23
Q
And that is a document about Thermocoustic,
24
is that correct?
25
A
Yes, that's the subject.
923
1
Q
And it would be used where?
2
A
This would be published by research to the -~
3 well, people in marketing, out also to the district
4 sales offices where it would be channeled to sales
5 representatives who handled these products for use in
6 their own training and being sure that the people using
7 the products were properly instructed.
8
Q
Is there any instruction in tnat document --
9 I know it is a several-page document, Mr. Ward -- having
10
to do with possible dust problems on the job?
11
A
Well, there is a note on page seven referring
12
to protective equipment.
13
Q
Would you read that into the record, please?
14
A
Yes. This is Section 5, Capital I,
15 Protective Equipment. "The workmen should be provided
16 with goggles and dust masks.
17
Q
And that instruction would be provided to
18 your sales people for their use in discussing the
19 product with the customer, is that correct?
20
A
Yes, that's right.
21
Q
What is the date on that document, Mr. Ward?
22
A
March 10th of 1952.
23
Q
Okay. Mr. Ward, did you locate that document
24 personally in the company's files?
25
A
As it happens, I did, yes.
924
1
Q
Where --
2
A
I was reviewing researchdocuments on
3 microfilm that had been in the riles tor some years,
4 simply because I was trying to acquaint myself with the
5 history on the product Thermocoustic, and 1 found this
6 one.
7
Q
That microfilm you are talking about that you
8 reviewed and on which you found that document, is that
9 also among the documents that are available to
10 plaintiff's counsel in this litigation?
11
A
Oh, yes, certainly.
12
Q
And is it among thedocuments that have been
13 available and have been reviewed at least in part by
14
lawyers for the Athens Board of Education?
15
A
It is in the same place where all the
16 documents they have reviewed are, but I have no way of
17
knowing whether they actually saw that role of microfilm
18 or not.
19
Q
They would have had access to it?
20
A
Oh, absolutely. It has been there all along.
21
Mr. Ward, one last question. One more time,
22
in your research have you found any evidence from any
23
source, whether it is documents, people, or anywhere
24 else, that anyone at National Gypsum was aware of
25 possible hazards to building occupants from in-place
925
1 asbestos-containing products in 1966 when the Athens
2 Junior High was built?
..
3
A
I found nothing whatever.
4
MS. HERSCHEL: Thank you.
5
THE COURT: All rignt. Is that it? I'll
6 give you 10 minutes, 5 for rebuttal.
7
RECROSS-EXAMINATION
8 BY MR. SPEIGHTS:
9
Q
Were the Spoylar documents -- you know what I
10 mean by the Spoylar documents?
11
A
1953, sir.
12
Q
Were they there availaole to plaintiff's
13
lawyers?
14
A
I believe they were.
15
MS. HERSCHEL: Your Honor, may we
16 approach the bench on tnat one?
17
THE COURT: Yes.
18
MR. SPEIGHTS: Does this count toward my
19 10 minutes, Your Honor?
20
(Bench confrence.)
21
THE COURT: All right. Back on the
22 clock.
23
BY MR. SPEIGHTS:
24
Q
Did you not know that these documents were
25 withheld by the attorneys based on some claim of
_________________________________________ _______________________ 32o
X privilege?
2
A
I'm not aware of that, Mr. Speights.
3
MS. HERSCHEL: Your Honor, might we
4 define that claim of privilege?
5
THE COURT: There is a doctrine of
6 attorney-client privilege, and the doctrine is if some
7 client tells a lawyer something in confidence, that tne 8 attorney cannot tell that, if there is a certain test
9 met; it was told by the client with the idea in mind it
10 would be a privileged communication, and all the other
11
necessary things. And this is what we are talking
12 about. That is the reason it wasn't released, because
13 of an attorney-client privilege. That is what is meant
14 by that, as opposed to somebody withholding it for other
15
reasons. Okay.
16
BY MR. SPEIGHTS:
17
Q
I believe I heard you, in redirect, but
18 asbestos cement products are hard products, aren't they?
19
A
Yes, typically they are very hard.
20
Q
You have to cut into tnera for them to release
21 asbestos fibers?
22
A
That's my belief, yes, sir.
23
Q
That's the oooklet you went out with -- you
24 went out with a booklet concerning these products.
25 Finally after some initial objections, you finally
joined the other companies and went out w i m a booklet providing some cautions or warnings on these hard products?
A
That's correct.
Q
Okay. You never went out with a booklet
concerning the spraying or any or the spray-applied
products, Sprayolite or FireShield or perlite, correct?
A 1972.
I think those products were ofr the market in
Q
Yes, sir, but at no time, at anytime did you
go out with any booklet on those products, correct?
A
There was a lot or literature published on
those products. I'm not sure wnat you mean oy a
booklet.
Q
There was nothing, no caution or warning
concerning asbestos in those products?
A
No, none that I'm aware of.
Q
Thank you, sir.
A
I don't believe that anyone thought that one
was required.
Q
I understand that is your position, or the
company's position. document?
Are you familiar with that
A
No, I'm not.
Q
You would agree with me it reflects in 1970
928
1 2 3 4 S 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
that National Gypsum is trying to --
MS. HERSCHEL: Excuse me, Mr. Speight3. May I know what we are talking about?
THE COURT: that at the top there?
What is tne the number of
THE WITNESS: 174/. MS. HERSCHEL: 1/47? BY MR. SPEIGHTS:
Q
You would agree with me it reflects in 1/4/
that the company decided to try to get asoestos out of
one of its ceilings products for a sales advantage?
A
Yes. It is talking about searching for a new
spray texture formula that does not contain asbestos.
Q
For a sales advantage?
A
Yes. that's the final comment. "Maybe we can
use this as a sales advantage."
THE COURT: introduced, right?
That has already been
MR. SPEIGHTS: 174/, I believe,
THE COURT: Did you want to introduce this other document you handed him?
MS. HERSCHEL: Thank you, Your Honor. THE COURT: It wasn't prefiled, right? MS. HERSCHEL: That's correct. THE COURT: What is the next number? I*m
929
1 not charging you for this, either. I'm just trying to
2 get the housekeeping.
3
MR. SPEIGHTS: I was going to say for the
4 record that document was not listed or provided, but I
5 understand it is on rebuttal and for that reason I'm not
6 objecting to it.
7
THE COURT: All right, fine. It will be
8 Exhibit Number 4 to the documents that weren't prefiled,
9 premarked.
10 BY MR. SPEIGHTS:
11
Q
Was it your testimony on redirect tnat the
12 New Orleans plant was clean?
13
A
I'm not sure what you mean oy that.
14
Q
Well, was the New Orleans plant a clean plant
15
insofar as asbestos was concerned?
16
A
All I can tell you is that the company made
17
every effort to make it so.
18
Q
All right, sir.
19
A
It may not have always been characterized
20
that way by everyone who saw it.
21
Q
When Ms, Herschel was asking you about Mr.
22
Eikenberry, I wrote down several times, taking notes
23 back there, my understanding is that it was later
24 changed?
25
A
Yes, sir
930
1
Q
You weren't directly involved in tnat, were
2 you?
-
3
A
No, I was not.
4
Q
Who told you all aoout this?
5
A
I think initially I heard that from Bob
6 Oberkircher.
7
Q
Okay. Who else have you discussed that with?
8
A
From time to time I have discussed it with
9 attorneys.
10
Q
Like Ms. Herschel?
11
A
Yes.
12
Q
I believe you said tnat you are National
13 Gypsum's representative on the National Institute or
14 Building Sciences?
15
A
That's correct.
16
Q
Are you familiar with this publication,
17 July 2, 1984, Asoestos in Schools and Puolic Buildings?
18
A
I'm aware of it. I wouldn't say that I'm
19 familiar with it.
20
Q
All right, sir. Would you read to the Jury
21
the part that I have yellowed there?
22
A
"The NIBS task force agrees that the case in
23 which asbestos material is progressively delaminating
24 from the building components, resulting in visible
25 deposits of asbestos on horizontal surfaces within
931
1 occupied spaces# is a situation appropriately requiring
2 immediate containment or removal."
_
3
Q
Than you# sir. Now# that is an industry
4 organization which National Gypsum is a memoer or and
\
5 you are the representative# correct?
6
A
It's an organization. I don't know that I
7 would call it an industry organization. It is partly
8 funded by industry and partly funded by the government.
9
Q
But National Gypsum is represented by you?
10
A
And others# yes.
11
MR. SPEIGHTS; Thank you# sir.
12
THE COURT: Is that it?
13
MS. HERSCHEL: Just a few follow up on
14 just what Mr. Speights asked.
15
MR. SPEIGHTS: I beat my time limit.
16
THE COURT: Yes# you did. Cut yours down
17 to three.
18
FURTHER REDIRECT EXAMINATION
19 BY MS. HERSCHEL:
20
Q
Mr. Ward# you and Mr. Speights talked a
21
little bit about warnings on products. Did National
22 Gypsum at some point in time put any warnings on any
23 asbestos-containing products?
24
A
Yes. They put warnings on asbestos fiber.
25
Q
When was that?
__________________ ____________________________________________________________________
532
1
A
About 1968 or '69. In about 1972 warnings
2 went on other asbestos-containing products.
3
Q
Okay. Can you tell me what
4 asbestos-containing products warnings went on in about
5 1972?
6
A
Joint cement, many of the asbestos cement
7 products, I believe spray textures.
3
Q
And in 1972, where were we with respect to
9 our Sprayolite business?
10
A
We had taken Sprayolite off the market in
11 1972.
12
Q
Did the company also -- does the company
13
still sell joint treatment and textures?
14
A
Yes, they do.
13
Q
And you said at some point we had warnings on
16
them because of tne asbestos in them, is chat correct?
17
A
That's correct.
18
Q
Very briefly would you tell the Jury wnat
19 joint treatment and texture is?
20
A
Joint treatment is the substance that is used
21
to finish the place where two pieces or gypsum wallboard
22
would be put together. Ordinarily, you would see a
23 crack there, so that crack is filled witn joint cement
24 so that the finished wall will be smooth and show no 25 seams. The spray texture is typically used on ceilings
933
1 to give it a finished appearance with the least labor 2 cost.
3
Q
Now, you have told us that you had warnings
4 on them in the early '70*3 because they contained
5 asbestos?
6
A
Yes.
7
Q
Do you still make joint treatment and
3 textures today?
9
A
Yes, we do.
10
Q
Okay. You have told us that National Gypsum
11 doesn't make any other asbestos-containing produces
12
today, is that correct?
13
A
That's correct. We don't make any asbestos-
14 containing products.
15
Q
All right. Then! what happened to the joint
16 treatment and the texture?
17
A
in `74 and *75thoseproducts were
18 reformulated and were then oxtered without asbestos.
19
Q
Mr. Ward, is there any doubt in your mind
20
that when corporate management realized that Mr.
21
Eikenberry had disseminated inaccurate information, they
22 ordered it retrieved and corrected; is there any douot
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in your mind?
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A
None whatever.
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MS. HERSCHEL: Thank you, Mr. Ward.
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THE COURT; All right* you're excused.
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(Witness excused.)
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THE COURT; Call your next witness.
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HR. HENSON; Dr. Morton Corn* if the
5 Court please.
o
THE COURT; All right.
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MR, HENSON: While he is oeing called,
3 may I ask the Court officer to take nis CV. That may
9 speed the dates.
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(Continued witnout omission.)
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