UNITED STATES BANKRUPTCY COURT FOR THE ...7 Excerpts from the Deposition of Simon Greenstone Panatier Bartlett’s 30(b)(6) Designee (Jeffrey Simon), dated Jan. 4, 2013 8 July 28,

DOC# 1214595

UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division

:

In re: : Case No. 10-BK-31607

:

GARLOCK SEALING : Chapter 11

TECHNOLOGIES, LLC, et al., :

: Jointly Administered

Debtors.1 :

:

EXHIBITS TO RESPONSE OF THE OFFICIAL COMMITTEE OF ASBESTOS

PERSONAL INJURY CLAIMANTS TO DEBTORS’ SURREPLY TO THE MOTION OF

THE OFFICIAL COMMITTEE OF ASBESTOS PERSONAL INJURY CLAIMANTS TO

REOPEN THE RECORD OF THE ESTIMATION PROCEEDING

1 The Debtors are Garlock Sealing Technologies LLC, Garrison Litigation Management

Group, Ltd., and The Anchor Packing Company.

Case 10-31607 Doc 4240 Filed 11/24/14 Entered 11/24/14 23:04:43 Desc Main Document Page 1 of 2

- 2 -

Exhibit Description

1 Excerpts from the Deposition of Raymond P. Harris, Jr., Garlock Sealing

Techs. LLC v. Chandler, No. 12-AP-03137 (Bankr. W.D.N.C. May 6, 2013)

2 Order, Little v. Garlock Sealing Techs., LLC, No. CL03-37073V-04 (Va. Cir.

Ct. City of Newport News Aug. 19, 2004)

3 Hearing Transcript, Little v. Dana Corp, No. 37073V-04 (Va. Cir. Ct. City of

Newport News Aug. 20, 2004) (excerpts)

4 Defendant Garlock Sealing Technologies LLC’s Opposition to Plaintiff’s

Motion in Limine to Prohibit the Introduction of the Depositions of Any

Witness Who Testified Where the Plaintiff Was Not a Party or Present at the

Time of the Deposition, Little v. Garlock Sealing Technologies LLC, Case No.

CL-03-37073V-04 (Va. Cir. Ct. City of Newport News Sept. 9, 2004)

5 Pittsburgh Corning Foamglas Brochure (excerpt)

6 Excerpts from the Deposition of Mark H. Iola, dated January 15, 2013

7 Excerpts from the Deposition of Simon Greenstone Panatier Bartlett’s 30(b)(6)

Designee (Jeffrey Simon), dated Jan. 4, 2013

8 July 28, 2008 2:02 PM email from D. Glaspy to R. Eddins

9 Excerpts from the Deposition of David Glaspy, dated Jan. 22, 2013

10 Excerpts from the Deposition of David Glaspy, dated June 25, 2013

11 Excerpts from the Deposition of John Turlik, dated June 26, 2013

Case 10-31607 Doc 4240 Filed 11/24/14 Entered 11/24/14 23:04:43 Desc Main Document Page 2 of 2

Exhibit 1

Case 10-31607 Doc 4240-1 Filed 11/24/14 Entered 11/24/14 23:04:43 Desc Exhibit 1 Page 1 of 4

Page 11 UNITED STATES BANKRUPTCY COURT2 FOR THE WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division3 __________________________________

)4 IN RE: )

)5 GARLOCK SEALING TECHNOLOGIES ) Case No. 10-BC-31607

LLC, et al, )6

)7 Debtors. )

__________________________________)8 GARLOCK SEALING TECHNOLOGIES )

LLC and GARRISON LITIGATION )9 MANAGEMENT GROUP, LTD., )

)10 Plaintiffs, )11 )

vs. ) Adversary Proceeding12 ) No. 12-AP-03137

TROY D. CHANDLER, CHARLES D. )13 FINLEY, SAMANTHA FLORES, and )

WILLIAMS KHERKHER HART )14 BOUNDAS, LLP, )

)15 Defendants, )16 )

and )17 )

OFFICIAL COMMITTEE OF )18 ASBESTOS PERSONAL INJURY )

CLAIMANTS, )19 )

Intervenor. )20

__________________________________)212223 VIDEOTAPED DEPOSITION24 OF25 RAYMOND P. HARRIS, JR.2627 At Charlotte, North Carolina28 May 6, 2013

___________________________________________________________

Page 21 A P P E A R A N C E S2 Counsel for Plaintiffs:3 Mr. Louis A. Bledsoe, III

and4 Mr. Ty E. Shaffer

Robinson Bradshaw & Hinson, P.A.5 101 North Tryon Street

Suite 19006 Charlotte, North Carolina 28246

[email protected]

[email protected]

Counsel for Defendants:9 Mr. Raymond E. Owens, Jr.

and10 Ms. Sara "Sally" W. Higgins

Higgins & Owens, PLLC11 5925 Carnegie Boulevard12 Suite 530

Charlotte, North Carolina 2820913 [email protected]

[email protected]

Counsel for Official Committee of Asbestos Personal Injury15 Claimants:

Mr. Trevor "Ted" W. Swett16 Caplin & Drysdale, Chartered17 One Thomas Circle, N.W.

Suite 110018 Washington, DC 20005

[email protected] and

Mr. Travis "Tom" W. Moon20 Moon Wright & Houston

227 West Trade Street21

Suite 180022 Charlotte, North Carolina 2820223 Videographer:

Mr. Bruce A. Moody, CLVS24 American Production Services, LLC

1763 Earl Drive25 Fort Mill, South Carolina 2971526 [email protected]

* * * * *

Page 31 I N D E X

PAGE23 Examination by Mr. Owens . . . . . . . . . . . . . . . . 64 Examination by Mr. Swett . . . . . . . . . . . . . . . 1635

* * * * *67

E X H I B I T S8

WILLIAMS KHERKHER EXHIBITS:9

10 WK-25 Copy of documents produced by the . . . 16311 witness in response to subpoena duces12 tecum served by defendants13141516 * * * * *171819 R E F E R E N C E D E X H I B I T S2021 WK-3 (Hennessy) . . . . . . . . . . . . . . . . . . . . 19622232425 * * * * *

Page 4

1 This is the Videotaped Deposition of Raymond P.2 Harris, Jr., taken in accordance with the Federal Rules3 of Civil Procedure in connection with the above case.4 Pursuant to Subpoena, Notice and Consent, this5 deposition is being taken at the Law Offices of6 Robinson Bradshaw & Hinson, P.A., 101 North Tryon7 Street, Suite 1900, Charlotte, North Carolina,8 beginning at 1:09 p.m., on May 6, 2013, before Lauren9 E. Noble, Notary Public.

10 It is stipulated and agreed by and between11 counsel for the parties that all objections except as12 to the form of the question and all motions to strike13 are reserved and may be interposed at the time of14 trial.15 * * * * *16 VIDEOGRAPHER: We are going on the record at17 1:09 p.m. This is the Video Deposition of Raymond18 P. Harris, Jr., taken by attorney for Defendants.19 Today is May 6, 2013, and the location is the Law20 Offices of Robinson Bradshaw & Hinson, 101 North21 Tryon Street, Suite 1900, Charlotte, North22 Carolina.23 This is case number 10-BC-31607, and24 Adversary Proceeding Number 12-AP-03137, filed in25 the United States Bankruptcy Court for the Western

Harris, Raymond - 2013.05.06 (WK Adv.) Pages 1 - 4


Page 57

1 Garlock?2 A. Or Johns-Manville?3 Q. Or Johns-Manville?4 MR. BLEDSOE: Object to the form,5 but you can answer.6 A. I don't recall, but I -- the record would speak7 for itself. I don't, but I don't recall, in8 answer to your question.9 Q. Do you recall that Garlock issued subpoenas for

10 documents to third parties, high school, college,11 all of Mr. Phillips' work locations?12 A. I don't specifically, but I wouldn't be surprised.13 Q. Is it standard, in your experience, for Garlock,14 in a mesothelioma case, to issue subpoenas for15 documents to third parties, to high school,16 college and all work locations?17 A. It depends on whether there is adequate discovery18 of alternative exposures.19 Q. In your experience before 2008 or 2009, the20 Phillips case, are you familiar with cases where,21 in fact, subpoenas for documents would have been22 sent to third parties, all of the above, high23 school, college, and all work locations of a24 claimant?25 A. Maybe.

Page 58

1 Q. Maybe?2 A. I just, I have vague recollections, but I can't3 recall anything specific.4 Q. Do you have any recollection of that having been5 done since the Phillips case in terms of third-6 party subpoenas?7 A. I don't. I should note, though, that typically I8 get involved or I have been involved as a case9 approaches trial, and often that work is done,

10 maybe like in this case, where it was done, it was11 not done, and I don't know the, I don't know that12 it's been done.13 Q. So your answer is you don't know?14 A. Right.15 Q. Right. And are you aware, Mr. Harris, of any16 evidence of asbestos exposure being produced by17 any of these third parties, that is, where18 Mr. Phillips went to high school or college or any19 other work location?20 A. Not that I recall.21 Q. Are you aware, in the Phillips case, that22 depositions upon written questions were served23 upon third parties?24 A. No, but I wouldn't be surprised if it was,25 particularly to medical care providers.

Page 59

1 Q. And do you know whether the -- if you don't know,2 that's fine -- do you know, do you recall in the3 Phillips case whether the sending of the4 depositions upon written questions for third5 parties were coordinated with Triplex or not?6 A. No, I don't know.7 Q. Is it typically Garlock's practice to coordinate8 with a co-defendant in serving depositions upon9 written requests for third parties, or does it

10 just depend on the case?11 A. That's a broad question. I don't know how to12 answer that.13 Q. Okay. Well, let me, let me break it down. As of14 2008, based upon your experience in being defense15 counsel for Garlock, is it typical that Garlock16 would coordinate serving depositions upon written17 questions for third parties with counsel for a co-18 defendant?19 A. It would depend on the nature of the third-party20 discovery that's being undertaken whether they21 would do that, and it would also depend upon the22 co-defendants.23 Q. All right. So it's not a standard practice, in24 other words?25 A. Not necessarily, no.

Page 60

1 Q. Very case-specific, if I'm understanding your2 testimony?3 A. It can be.4 Q. Are you aware of any other sources of information5 regarding asbestos product exposures from any6 source during the Phillips case other than what7 you have already testified to today?8 A. We were able to locate certain records from the9 Johns-Manville claims facility.

10 Q. Okay. Tell me about that.11 A. There were some records of showing limited sales12 or showing some sales -- I'm sorry, let me13 rephrase that. There were limited records of14 products that Johns-Manville sold to Triplex in15 the 1960's, late 1960's.16 Q. And how did you go about retrieving that17 information?18 A. Johns-Manville has a facility that is a repository19 for documents that Johns-Manville collected over20 the years. I don't know when it was set up. The21 records are not complete, but there are some22 records. And I believe we located some records23 there that indicated sales of asbestos products to24 the Triplex facility or to Triplex.25 Q. Had you ever taken advantage of that Johns-



Page 61

1 Manville facility in the past for the purpose of2 ascertaining records?3 A. Probably.4 Q. And do you remember what cases in which you had5 used the Johns-Manville facility for that purpose?6 A. Not off the top of my head, no. I knew it7 existed. I don't know that at that point in time8 we had ever been to the Johns- -- anyone from my9 firm had gone up to the Johns-Manville facility.

10 Q. All right. And since the Phillips case, has11 anyone at your firm ever been to the Johns-12 Manville facility attempting to get records for13 the purpose of alternate product exposure?14 A. Well, I think that question is broad and it calls15 for information that would be protected by16 attorney work product, so I won't answer that --17 MR. BLEDSOE: I'll instruct you not18 to answer.19 A. -- whether it's for Garlock or for any of my other20 clients.21 Q. Did you know Barbara Barron in 2008?22 A. I think the first time I may have worked with her23 was in connection with the Phillips case.24 Q. Did you know her law firm?25 A. I knew of her law firm, sure.

Page 62

1 Q. But, to your knowledge, had anybody at Schachter2 Harris had any professional dealings with her or3 with the law firm before the Phillips case?4 A. I don't recall any.5 Q. Did you meet Ms. Barron in connection with your6 defense of Garlock?7 A. I believe so. I understand that she worked quite8 a bit in the silica litigation and had for some9 period of time. We had represented a defendant in

10 the silica litigation in the 1990's and the early11 2000's -- well, and probably all throughout the12 2000's, but we were more active probably in the13 1990's, and I may have crossed paths with her14 then. I just don't recall.15 Q. Did you have a general understanding about her16 reputation or her firm's reputation when you met17 her in 2008 in the Phillips case?18 A. Not really. I knew of --19 Q. No understanding what's- --20 A. -- I knew of the firm. I didn't know her.21 Q. Had you ever heard anything negative about her or22 the firm before that time?23 A. No.24 Q. To your knowledge, had anybody else at the firm25 ever -- when I mean the firm, Schachter Harris --

Page 63

1 ever expressed to you any concern about Ms. Barron2 or the firm's professionalism or ethics?3 MR. BLEDSOE: Well, object to the4 question to the extent it calls for5 work product; but subject to that6 instruction, you can answer.7 A. I just don't recall her being in any of the cases8 that we were actively working on.9 Q. Well, and that's not my question. My question is

10 had anybody at Schachter Harris ever told you in11 any setting whatsoever -- and I don't want to know12 about work product -- but any conversation you13 would have had with any of your partners or14 associates or staff members, anything negative or15 derogatory about Ms. Barron or her law firm at the16 time before the Phillips case in 2008?17 MR. BLEDSOE: Same instruction.18 A. And all I'm saying is I don't recall having any19 dealings with her, and so that just never came up.20 Q. Okay. Well, and whether you had any dealings with21 her, nobody has mentioned it in passing, whether22 you dealt with her or not?23 MR. BLEDSOE: Objection.24 A. No, I can't imagine a set of circumstances where25 that would have come up.

Page 64

1 Q. Okay.2 A. And I certainly don't recall anything.3 Q. Well, what was the occasion that you had to meet4 with her in the Phillips case, if you remember?5 A. I'm thinking that probably the first time I recall6 meeting her would have been at Dr. Lemen's7 deposition, which I believe was one of the first8 expert depositions and probably the first expert9 deposition that I attended in that case.

10 Q. All right. Can you place that somewhere in time11 over the life of the Phillips case?12 A. Only because I was looking through my files to see13 what documents that I had. I think that Dr.14 Lemen's deposition was in December of 2008.15 Q. Now, for the record, she represented Triplex in16 the Phillips action; correct?17 A. That's my understanding.18 Q. Had you or anyone at your firm received any19 comments or negative -- strike that.20 Did you or anyone at your firm receive any21 concerns about Ms. Barron or her firm in the22 defense of the case before December of 2008?23 MR. BLEDSOE: Object to the form.24 A. That question is broad. I don't know what you25 mean by concerns about Ms. Barron or her firm.



Exhibit 2



Exhibit 3






Exhibit 4






ru';-u;:; - :>u Kesuns- <leposition Page 1 of6

Topic: All Topics> CML.e!:~ > ~~.D~~ >Depositions at Trial !II·$ 4th Circuit. Federal & State Cases, Combined fit ·

Terms: ~ (Edit Search) Focus: deposition /s not present (Exit FOCUS m)

~Select for FOCUS TM or Delivery r

432 F. Supp. 795, *; 1977 U.S. Dist. LEX/5 16415, **; 23 Fed. R. Serv. 2d (Callaghan) 1518; 1 Fed. R. Evid. Serv. (Callaghan) 916

Dorothy F. HEWm and AbramS. Hewitt, Plaintiffs, v. Chc;~rles G. HUlTER and Luigi Gentile, Defendants

Clv. A. No. 74-35{H)

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, HARRISONBURG DIVISION

432 F. Supp. 795; 1977 U.S. Dlst. LEXIS 16415; 23 Fed. R. Serv. 2d (Callaghan) 1518; 1 Fed. R. Evld. Serv. (Callaghan) 916

April 13, 1977

CORE TERMS: deposition, farm, farming, net profit, beans, soy, misrepresentation, profitability, cross-examination, credibility, cattle, motive, tenus, chart, ore, purchase price, real estate, present litigation, substantiate, predecessor, selling, bushel, specific performance, prejudgment Interest, farming operation, failed to prove, bona fide, misrepresenting, misrepresented, cross-examine

COUNSEL: [ * * 1]

J. Sloan Kuykendall, Kuykendall, Whiting & Costello, Winchester, VIrginia, and Gilbert McKown, Berryville, Virginia, for plaintiffs.

James E. Farnham, Hunton, Williams, Gay & Gibson, Richmond, VIrginia, for defendants.

JUDGES: Dalton, District Judge.

OPINION BY: DALTON

OPINION: [*796) OPINION and JUDGMENT

DALTON, District Judge.

This Is an action for specific performance of a contract for the sale of VIrginia real estate which Is presently before this court for rendition of findings of fact and conclusions of law pursuant to .B.u le 52 _of .th~L.B..ules of Civil Procedu.re ... In accordance with the provisions of this rule, the court enters the following findings:

(1) By a written opinion and order dated November 17, 1975, this court held that the defendants, Drs. Charles G. Hutter and Luigi Gentile, through their agent, Charles Tijerina, had entered Into a valid and binding contract to purchase "Long Branch", a farm owned by the plaintiffs. H~~er .. ...4Q6.~P.t-9li1W..0..1'.a..19-.Z..SJ~ Thereafter, the defendants were granted leave to file an amended answer wherein they averred that Dorothy F. Hewitt, the plaintiff, committed Independent acts of fraud by misrepresenting the profitability [**2] of the farming operation. In a Supplemental Pre-Trial Order dated July 28, 1976, the court

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defined the remaining Issue In the case as "whether Mrs. Hewitt defrauded the defendants by making material misrepresentations with regard to the earnings, the profitability and/or the general financial status of the farming operation at Long Branch." (Supplemental Pre-Trial Order, Par. 2, Pp. 1-2) In the event that the court should resolve the fraud Issue against the defendants, then the court must also decide whether the plaintiffs are entitled to recover Interest on the purchase price, which [*797] plaintiffs contend Is payable from April 30, 1974, the alleged date on which the parties agreed to close the transaction.

(2) On August 12, 1976, ore tenus testimony was taken from the plaintiff, Dorothy F. Hewitt, and the defendants, Charles G. Hutter and Luigi Gentile. In addition to such testimony, the defendants offered Into evidence several affidavits and depositions relating to matters not covered at the ore tenus hearing, Including the deposition of Charles J. Tijerina taken In the case of Luigi Gentile v. Tijerina, now pending In a court In the state of California. The [**3] defendants rely heavily on the Tljerlna-Callfornla deposition to support their allegations that Mrs. Hewitt perpetrated a fraud by misrepresenting to Tijerina the profitability of the farming operations at Long Branch. They specifically allege that In January, 1974, Mrs. Hewitt showed Tijerina figures relating to farm production that Indicated a net profit of $90,000 for the calendar year 1973 and $70,000 for 1972, when in fact the property sustained operating losses for those two years In question. (Tijerlna-Callfornla Deposition, Pp. 165-168) The plaintiff has strenuously objected to the Introduction of the California deposition on the grounds that the Hewltts were not parties to that action and counsel for the plaintiff was not given notice of the taking of the deposition, nor was counsel present at the taking of the deposition.

(3) At the ore tenus hearing on August 12, 1976, Mrs. Hewitt was called to testify as an adverse witness by counsel for the defendants and she flatly dented that she had made any numerical representations to Tijerina concerning the yearly profitability of the farm. She recalled her conversation with Tijerina In early 1974 as follows:

A . [**4] .. He did ask me If I farmed It, and he asked me how the cattle business was, and I said well it had been very good In 1973, which It had been, and I said, "I figure If I am buying them at that price and selling them at that, I must be making money, but I don't know." And he never asked me anything whatsoever about the production, and if he had, I couldn't have told him. I could have gotten it from the accountant, but I couldn't have told him, because I didn't know.

Q So your testimony would be then that If Mr. Tijerina subsequently represented to the doctors or to accountants In California that your farm in 1973 made a net profit of $90,000, either one, he had Information that you didn't have, or two, he made It up. Is that right?

A That's right.

Mr. Farnham, if my farm had produced anything like that, it would not have been for sale, and If it had been for sale, people would have been lined up out to Route 50 with cash In their hands to buy lt.

Q So you have no idea where that figure came from?

A No, I didn't know. I am absolutely Incapable of fabricating those things. There are no books or anything that I have that could possibly substantiate those figures. [**5] The fact was that the farm, we never ran It to make money on the farm. We never attempted to make money on it. Every time that we thought that we going to have a little something, we put It back Into the farm.

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FOCUS - 50 Results - deposition

Q Was It essentially a tax shelter?

A Yes. Now in 1973, I had fifty acres that I put into soy beans, and the normal yield for soy beans In my part of the world Is forty bushels to the acre, so that would be two thousand bushels of soy beans. Soy beans in 1973 were selling for $12 a bushel. So that Is $24,000 extra I could have made In 1973. Do you know what I did with those soy beans? I plowed them in to make green manure to enrich the earth. (Tr. 18-19, August 12, 1976)

Page 3 of6

(4) As stated above, Mrs. Hewitt not only denied that she had shown Mr. Tijerina figures that Indicated a net profit, respectively, of $70,000 and $90,000 In 1972 and 1973, she stated that she had no knowledge of any books that could possibly substantiate those figures. The only document she ever admitted having sho~n to Tijerina was [*798] a ledger sheet containing statistics on the cost and sale of cattle. (Defendant's Exh. # 5, August 12, 1976) In connection with the statements [**6] therein, Mrs. Hewitt testified that she simply told Tijerina that, "If I am buying them at this price and selling them at that, then I must be making money, but I don't know. That Is all I said to him." {Tr. 26, August 12, 1976).

(5) While Mrs. Hewitt was subjected to lengthy and vigorous cross-examination by counsel for the defendants, she consistently denied the accusations of fraud and her version of events remained virtually Intact. Unlike Mrs. Hewitt, however, Mr. Tijerina has been deposed on two occasions and has rendered conflicting accounts of his meetings with the plaintiff. On October 27, 1974, Mr. Tijerina gave a deposition In connection with the present litigation wherein he stated that during negotiations with Mrs. Hewitt, he had an opportunity to review some charts on cattle and crops, but that Mrs. Hewitt couldn't determine what the net profit was going to be ori her farm. (Tijerina Deposition October 27, 1974) That testimony Is set forth below as follows:

Q Mr. Tijerina, did Drs. Hutter and Gentile ever request that you obtain copies of the books of the Long Branch for them?

A They asked me if I had looked at the books of the Long Branch farm and I [**7] told them that I had gone through the previous year's. Not the books per se, but her charts of cattle and crops and so on. And, what was the gross profits she made. Because she couldn't determine -- due to the fact that she still had slladge {sic) she didn't know what her net would be and so on and so forth. (Pp. 85-86, Tijerina Deposition, October 27, 1974).

(6) Although Tijerina stat ed In his October, 1974 deposition that he eventually saw copies of books of Long Branch, he did not make copies of the records for his principals, Drs. Hutter and Gentile, because "they were so simple and, ... so little." (Pg. 86) While he made some notes for his own reference purposes, he was unable to produce them at the time his deposition was taken. (Pg. 87) When he testified at the October, 1974 hearing, he never once Intimated that Mrs. Hewitt had made any specific representations concerning the value of the farming operations at Long Branch. Mr. Tijerina waited until June 1, 1976 to come forward and testify In his California deposition that Mrs. Hewitt had shown him any figures on net profits for the years in question. Unlike his previous deposition, however, his testimony in [**8] the California case was developed by Dr. Gentile's attorney without the benefit of crossexamination by plaintiffs counsel.

(7) The defendants argue that the testimony of Mr. Tijerina is accurate because he also expressed to two other witnesses besides the doctors that Mrs. Hewitt had, during

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negotlati.ons for the sale of the farm, stated that the farm had resulted In an operating profit In the amounts previously mentioned In this opinion. (Harland Gaynor Deposition, pp. 17-18; Clarence Agress Deposition, Pg. 16) Much of this testimony Is based on hearsay, however, and Its accuracy Is dependent upon the credibility of Mr. Tijerina. In order to prove a case of fraud, the defendants must rest almost exclusively on the testimony of Charles J. Tijerina.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

(8) Because this Is a diversity action concerning a Virginia real estate contract, the court must apply VIrginia law. Stei:~..Blackwelder~_J{l2.£.~RP_. . ..ll2.5...(LQ.~ affd. 11AJ:..2.d 13.6.2_(~l~)A The law of Virginia relatlhg to the elements and proof of fraud has been clearly and forcefully stated In many cases. To secure avoidance and rescission of a contract, It Is [**9] Incumbent on the party asserting fraud to establish by clear, cogent and convincing proof that .he was Induced to enter Into a contract as a result of a misrepresentation or concealment of a material fact, and that, but for such misrepresentation, the defrauded party would not otherwise have agreed to enter into the transaction. [*799] M.a.s.dle v. Njchols~51, 51 S.f._Zd 144 (1~)., &rRL.~~..J..83 Va. 5!49. 32 S_._f2d 687 (1945). After reviewing the evidence material to the fraud Issue herein, the court concludes that the defendants have failed to prove by clear and convincing evidence that Dorothy Hewitt misrepresented to defendants that the farm resulted in net profits of $70,000 and $90,000 during the years 1972 and 19731 respectively. As stated previously, the defendants principally rely on the California deposition testimony of Charles Tijerina to support their allegations that Mrs. Hewitt misrepresented the value of the farming operations. This testimony, however, Is inadmissible under the Federal Rules of Evidence because the plaintiffs were not given notice of such deposition nor were they provided with an opportunity to cross-examine Mr. Tijerina. Rule [**10] 804(b)(l) provides that the following are not excluded by the hearsay rule if the declarant Is unavailable as a witness:

Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken In compliance with law in the course of the same or another proceeding, If the party against whom the testimony Is now offered, or, In a civil action or proceeding, a predecessor in Interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(9) Under the rule set forth above, either the party against whom the testimony is offered or a predecessor In Interest must have had the opportunity and similar motive to develop the testimony by direct or cross-examination. In the California deposition, however, Mr. Tijerina was not questioned on the fraud issue by plaintiff or a predecessor In Interest but was Interrogated by the attorney representing Dr. Gentile, who Is an adverse party to the plaintiff In the present litigation. Thus, the court can hardly conceive of a situation where the motive to develop the testimony would be more dissimilar to the Interests of the plaintiff [**11] herein.

(10) It must also be emphasized that Rule 32 Qlthe...Eaderal Rules of Civil Procedure Impliedly prohibits the use of a deposition against any party who was not present or represented at the taking of such deposition or who had no reasonable notice thereof. The rule Is based on an elementary principle of justice towards the party against whom the deposition Is offered. While It has been repeatedly held that the presence of an adversary with the same motive to cross-examine the deponent, coupled with a substantial Identity of Issues, may suffice to permit the usage of a prior deposition In a subsequent action, Whitten v. State UniversiJ;y_ C!lMtructjoa Fund~ 359 E. Sup~_l_03Z,_l.QJ.9_(.Q...Mass. 1973), It Is clear that these elements

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are not present in the case now pending before this court.

(11) Even If the deposition Is admissible, the court must question the credibility of Mr. Tijerina because of the apparent Inconsistency between his statements In the California deposition and the deposition taken in connection with the proceedings herein. In the California deposition In June, 1976, Tijerina testified to several alleged misrepresentations by Mrs. Hewitt concerning the yearly [**12] net profits of the farming operations. When deposed on October 27, 1974, however, Tijerina stated that Mrs. Hewitt had not yet prepared figures on net profits. The fact that Mr. Tijerina waited until nearly two years later to come forward with detailed allegations of fraud Impinges on his credibility as a witness. Furthermore, although Tijerina later stated that he viewed charts containing figures on net profits and that he made notes therefrom, the defendants have not submitted such written evidence to corroborate his testimony. The court Is unable to determine, from the numerous financial exhibits In the record, the source of Tijerina's alleged Information that the farm made a net profit of $70,000 and $90,000 In the years 1972 and 1973, respectively.

(12) The defendant's theory that the contract should be rescinded for fraud falls far short of clear and convincing proof when one considers the testimony of Mrs. Hewitt at the ore tenus hearing. Unlike Mr. Tijerina, [*800] Mrs. Hewitt remained firm and consistent in her denial that she ever led Charles Tijerina to believe that the farm made a profit of $70,000 and $90,000 during the years In question. She testified [* * 13] that she had no knowledge of any books that could substantiate such figures. Mrs. Hewitt simply stated that, In showing a cattle chart to Mr. Tijerina, she Indicated that If he was buying and selling at these prices, then she must be making money. Mrs. Hewitt added, however, that she wasn't sure whether the farming operations would result In a profit and that she conveyed this fact to Mr. Tijerina.

(13) Because of the conflict between the testimony of Mrs. Hewitt and Mr. Tijerina, the question of whether the plaintiff perpetrated a fraud on the defendants ultimately depends on the credibility of each witness. After reviewing all of the evidence, the court finds that Mrs. Hewitt's testimony was consistent throughout vigorous cross-examination and should be given greater weight than the testimony of Charles Tijerina In the California deposition. Accordingly, the court holds that the defendants have failed to prove fraud by clear, cogent and convincing evidence.

(14) Now that the court has determined that the parties entered into a valid, enforceable contract for the sale of real property, the court must turn to the question of whether the plaintiffs should be awarded Interest on [**14] the purchase price from April 30, 1974. Under Virginia law, the statutory provisions governing Interest awards provide that:

•.• In any suit In equity, or in an action or motion founded on contract, when no jury Is impaneled, decree or judgment may be rendered for interest on the principal sum recovered, until such decree or judgment be paid ... § 8-223, Code ofVa.

(15) The language of this section is permissive, however, and the ultimate question of whether to allow Interest is left to the sound discretion of the trial court. Q.i)yle.JXJ5J.Ls.s.eii,_Inc_ Y.....}Ne/ch Pile Driving CQrp,. 213 Va. 698, 194 S.E.2d 719 (tl1~ In this connection, the court is particularly mindful of the judicial admonition that awards of prejudgment Interest are sometimes inappropriate In cases Involving a bona fide dispute on the merits. Inl.illKt_QJj]Jing_ CfunJ2illlY. v. Davis OU Companr., 183 Neb. 1161 158 N.W.2d 53~1.9.6a}4 181 Neb. 609. 150 N.W.2d 108 (1967), T.extile Workers Union v, Brookside Mtus,..lnc.....20.5...I.e.nn._3_9___4.,_32.6 S. W2d_6.Zl_(1959}.

(16) In the present litigation, the court was required to resolve some difficult Issues regarding

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the validity of a contract for the sale of [**15] a large parcel of real estate. While the court finds that the plaintiffs must prevail on the questions of whether the parties entered Into a valid contract, It should be noted that the arguments advanced by the defendants were not entirely without merit. This action Involved a protracted dispute over a contract Involving a large sum of money. The court does not feel that It would be fair to penalize the defendants for exercising their fight to litigate any bona fide legal questions that arose In connection with the formation of this contract by imposing on them an obligation to pay a large sum of prejudgment interest. Thus, the court must decline to award Interest to the plaintiff.

(17) This position Is further supported by the fact that the plaintiff has been In possession of the valuable farm Long Branch since the contract was made. The court feels that the reasonable rents and profits and possession of such a desirable cattle farm and mansion house should equate with reasonable Interest from the date of April 30, 1974, and the court so finds.

Accordingly, It Is hereby ADJUDGED, ORDERED and DECREED that:

1) specific performance of the contract for the sale of real estate [**16] known as Long Branch be granted, and accordingly that judgment be and hereby Is entered In favor of the plaintiff.

2) that plaintiffs within 30 days execute and proffer for delivery a deed conveying the property to defendants, upon which delivery of the deed the defendants shall pay [*801] the purchase price. Falling to pay the amount of the contract of purchase, the court directs that execution be Issued 15 days after proffer of deed for the amount due, and the court will take such further action and enter such further orders as may be requisite. Each party shall bear their own costs.

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4 F.3d 276, *; 1993 U.S. App. LEXIS 21694, **; CCH Prod. Liab. Rep. P13,625

UNDA P. HORNE, Executrix of the Estate of Benny Gerald Horne, Plaintiff-Appellant, and BENNY GERALD HORNE, Plaintiff, v. OWENS-CORNING FIBERGLAS CORPORATION, a Delaware

Corporation, Defendant-Appellee, and AC&S, INCORPORATED, a Pennsylvania Corporation; AMCHEM PRODUCTS, INCORPORATED; THE CELOTEX CORPORATION, Individually and as Successor Manufacturing Company, Philip Carey Corporation, Panacon Corporation, Glen

Alden Corporation, Rapid American Corporation, Briggs Manufacturing Company, and Smith and Kanzler, a Delaware Corporation; C. E. THURSTON & SONS, a VIrginia Corporation;

COMBUSTION ENGINEERING, INCORPORATED; CROWN CORK & SEAL COMPANY, INCORPORATED, Individually and as ' Successor in Interest to Mundet Cork Corporation, a New

York Corporation; EAGLE-PICHER INDUSTRIES, INCORPORATED, an Ohio Corporation; FUNTKOTE COMPANY, a Massachusetts Corporation; FIREBOARD CORPORATION, PABCO

Industrial Products Division, a Delaware Corporation; GAF CORPORATION, a Delaware Corporation; W. R. GRACE & COMPANY, a Connecticut Corporation; A. P. GREENE

REFRACTORIES COMPANY; KEENE CORPORATION, Individually and as Successor In Interest to Keene Building Products Corporation, Keene Insulation Products Corporation, Ehret-Magnesla

Manufacturing Company, Baldwin-Ehret-Hill, Incorporated, Baldwin-Hill Company, and Mundet Cork Corporation, a New York Corporation; NATIONAL GYPSUM COMPANY, a Delaware Corporation; OWENS-ILUNOIS, INCORPORATED, an Ohio Corporation; PTITSBURGH

CORNING CORPORATION, Individually and as Successor in Interest to Union Asbestos and Rubber Company (UNARCO), a Pennsylvania Corporation; H. K. PORTER COMPANY,

INCORPORATED, Individually and as Successor In Interest to Southern Asbestos, Carolina Asbestos, Thermold and Tullman-McCiuskey, a Delaware Corporation; RAYMARK INDUSTRIES,

INCORPORATED, Successor In Interest to Raybestos-M;;mhattan, Incorporated; ROCK WOOL MANUFACTURING COMPANY, INCORPORATED, an Alabama Corporation; lURNER & NEWALL,

P.L.C., Individually and as alter ego of Keasby & Mattison; UNITED STATES GYPSUM COMPANY, INC.; ARMSTRONG WORLD INDUSTRIES, INCORPORATED, formerly known as

Armstrong Cork Company, a Pennsylvania Corporation, Defendants, GENERAL REFRACTORIES/GREFCO, INCORPORATED, U.S. Refractories Division, Defendant & Third Party Plaintiff, v. MANVILLE CORPORATION ASBESTOS DISEASE COMPENSATION FUND, Third Party

Defendant.

No. 92·2220

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

4 F.3d 276; 1993 U.S. App. LEXIS 21694; CCH Prod. Llab. Rep. P13,625

July 12, 1993, Argued August 25, 1993, Decided

PRIOR HISTORY: [* * 1] Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Malcolm J. Howard, District Judge. (CA-89-121·4-BO)

DISPOSITION: Affirmed by published opinion.

CASE SUMMARY

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PROCEDURAL POSTURE: Appellant, the estate of an individual that succumbed to lung cancer following on-the-job exposure to asbestos, sought review of a judgment of the United States District Court for the Eastern District of North Carolina, which relieved appellee, manufacturer of asbestos Insulation, of liability to appellant in her products liability suit absent a showing that appellee was willfully negligent.

OVERVIEW: Appellant executrix, denied recovery in her products liability suit against appellee insulation maker after her husband succumbed to lung cancer following on-thejob exposure to asbestos, argued that certain evidence was improperly admitted and that the jury verdict form's format was error. The court disagreed, noting that while appellee had been found negligent, and appellant's decedent contributorily negligent due to heavy smoking, state law precluded recovery absent evidence of appellee's willful negligence. Federal regulations postdating the events In question were admissible either as state-ofthe-art evidence or as Industry standards to show appellee's due care at the time of the tortious acts. Appellee's product warnings had preceded the date of required government warnings. Deposition testimony was properly admitted when appellant did not contest the deposed party's presumed death. Further, documents admitted as public records or ancient documents were properly authenticated. Finally, no error occurred In a jury verdict form that omitted gross negligence, as the judge explained this concept, which could be equated to willful negligence, a question that was Included.

OUTCOME: Judgment affirmed relieving appellee, asbestos insulation maker, of liability to appellant, the estate of an Individual that succumbed to lung cancer following on-thejob exposure to asbestos, as federal regulations postdating events in question were admissible to show appellee's due care when tortious acts occurred, as deposition testimony of unavailable witness was admissible, and as verdict form needed not include gross negligence standard.

CORE TERMS: regulation, decedent, gross negligence, deposition, wanton, willful, hazard, asbestos, verdict form, state-of-the-art, abuse of discretion, motive, predecessor, contributory negligence, unavailability, evidentiary, admitting, disc, proximate cause, Insulation, exposure, dust, admissible, gUidelines, products liability, lung cancer, warning, dead, punitive damages, hearsay rule

LexisNexls(R) Headnotes • .l:iid.e.Jie..a.dnutes

Chlll...erru::.edure > Appeals > standards ... oL&eYlew > Ab.us.e_QLQ!scr:etlon t::l HN1.1'.An appellate court reviews evidentiary Issues not Involving mixed questions of law

and fact for an abuse of discretion. MQce...LI.lteJhls liea$10Qte

~ru:e > l:lea!Sa¥ Rule & Exceptions > U.nayallabll~ ~ HN2~Eed. R. Evid. 804(b)(l} provides: Hearsay exceptions. The following are not

excluded by the hearsay rule If the declarant Is unavailable as a witness: Former testimony. Testimony given as a witness In a deposition taken In compliance with law In the course of the same or another proceeding, If the party against whom the testimony Is now offered, or, In a civil action or proceeding, a predecessor in Interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. MQre..Ltk.e....IbJ.s...tl~dw.te

Iorts > Products Uablllt:y > Plaintiff's Conduct~ Iorts > Neglig.eoce > HegUgence Generally, e.J HN31'. In North Carolina a defendant's gross negligence or willful and wanton conduct will

enable the plaintiff to recover despite the plaintiff's own contributory negligence. More...Uke Th is Headnote

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Cl.¥lLErocedur~ > .lury_Irials > lury_Jn.structlons. ~ HN4~It Is settled in the Fourth Circuit that the formulation of Issues and the form of

Interrogatories Is committed to the sound discretion of the trial judge. In considering the adequacy of the verdict form, an appellate court considers several factors, including whether the interrogatories adequately presented the contested Issues to the jury when read as a whole and in conjunction with the general charge, whether submission of the issues to the jury was fair, and whether the ultimate questions of fact were clearly submitted to the jury. Mor.eJ.ike. Th.ls.tleadnot~

COUNSEL: ARGUED: John Alan Jones, MICHAELS &. JONES LAW OFFICES, P.A., Raleigh, North Carolina, for Appellant. Raymond Harry Modesitt, WILKINSON, GOELLER, MODESffi, WILKINSON &. DRUMMY, Terre Haute, Indiana; Alexander McMillan Bullock, HAYNSWORTH, MARION, MCKAY & GUERARD, Greenville, South Carolina, for Appellee. ON BRIEF: James B. Pressly, Jr., HAYNSWORTH, MARION, MCKAY & GUERARD, Greenville, South Carolina, for Appellee.

JUDGES: Before ERVIN, Chief Judge, PHILUPS, Circuit Judge, and BUTZNER, Senior Circuit Judge. Chief Judge Ervin wrote the opinion, In which Judge Phillips and Senior Judge Butzner joined.

OPINIONBY: ERVIN

OPINION:

[*278] OPINION

ERVIN, Chief Judge:

Linda P. Horne, together with her husband Benny Gerald Horne, initiated this products liability action against Owens-Corning Fiberglas Corporation ("Owens-Corning") and numerous other asbestos manufacturers, nl alleging that Benny Horne's exposure to Insulation manufactured by Owens-Coming [*279] and containing asbestos caused him to contract lung cancer. After Benny Horne's death, [**2] Linda Horne ("Horne") proceeded with the action as executrix of his estate. At the close of the trial, the jury returned a verdict form finding Owens-Corning negligent, Benny Horne contributorily negligent, and Owens-Corning not willfully and wantonly negligent. Based on these findings, Horne could not recover. Horne now appeals the district court's admission of various pieces of evidence and the format of the jury verdict form. After reviewing these issues, we find Horne's appeal to be without merit and, accordingly, affirm.

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nl Prior to trial, all defendants other than Owens-Corning settled with the Hornes and were dismissed from the action.

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Benny Gerald Horne ("the decedent") began work as an Itinerant insulator in 1956 and continued In that line of work untll1969, with a two-year hiatus while serving In the armed forces. Over this thirteen-year period, the decedent was exposed to asbestos-containing Insulation products. Horne alleges that much of the decedent's exposure was to an insulation

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product called [**3] Kaylo. The decedent was exposed to asbestos again in 1976 while working at Camp Lejeune, North Carolina. This exposure occurred when the decedent came into contact with asbestos Insulation products that were being removed from various pipes and boller equipment in his work area.

In addition to the decedent's asbestos exposure, testimony showed that the decedent smoked up to two packs of cigarettes a day from 1952 until 1988, when he was diagnosed with lung cancer. The decedent was familiar with research conducted by Dr. Irving Selikoff and distributed by the decedent's union, the International Heat and Frost Insulators, In the late 1960s detailing an Increased risk of lung cancer for persons who smoke and are exposed to asbestos. The decedent also was aware of the Surgeon General's warnings on cigarette packages beginning In the early 1960s explaining the general health hazards cigarette smoking posed. Despite the knowledge of these risks, the decedent continued to smoke until diagnosed with lung cancer.

Owens-Corning was founded In 1938 to manufacture various types of insulation products for commercial and residential applications. In 1953 Owens-Corning entered into an agreement [**4] with Owens-Illinois, Inc. to distribute Kaylo, an Owens-Illinois asbestoscontaining pipe covering and block product. In 1958 Owens-Corning purchased outright the Kaylo division from Owens-Illinois. In 1966 Owens-Corning began labeling its asbestos-based products, cautioning users of the products to avoid breathing asbestos dust. Owens-Corning continued to manufacture and distribute Kaylo until 1972, when it ceased all sales due to the hazards associated with exposure to asbestos. ·

In the district court, this matter was tried to a jury. The jury returned its verdict on a verdict form, answering "yes" to the following three questions: "Was the defendant Owens-Corning Fiberglass [sic] Corporation negligent?"; "Was the defendant's negligence a proximate cause of the decedent's injury?"; and "Did the plaintiff, by his own negligence, contribute to his Injury or damage?" When asked, "Was the negligence of Owens-Corning Fiberglasssic Corporation willful or wanton?", the jury responded, "No." Under applicable North Carolina law, n2 the jury's answers on the verdict form precluded recovery by Horne.

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n2 Subject-matter jurisdiction in this case is premised on diversity of the parties, Horne being an executrix properly appointed and empowered to pursue the claims of a deceased resident of North Carolina, see N.C. Gen. StaL§_28A:.l3::1, -3(15) (1992 & Supp. 1992), and OwensCorning being a company duly incorporated In Delaware and maintaining Its principal place of business in Ohio. 28_U.S.C. § 1332(a)(1), (c)(1) & (2). In this diversity action, North Carolina law controls, fr1e. R.R. v. T.ili!lp.klns.,.-3_04 u.s. 6~ .. 78, 82J.....Ed. 1188, 5.a.S....J:t.JH7_(1938}~ because the decedent's exposure to asbestos occurred in North Carolina. See 6.o.udrea.u_y_ • .Ba.u.ghman, 322 N..c.JJ.L 335, 368 S.E.2d_8..4.2,_8_53-541lru3Ji)..

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Believing that the admission of various pieces of allegedly Inadmissible evidence together with a faulty verdict form gave rise to this unfavorable result, Horne argues that the d.lstrlct court abused Its discretion by: (1) admitting Owens-Corning's state-of-the-art evidence to show the context of Its actions as to Horne's claims of negligence; (2) admitting [*280] the deposition testimony of an unavailable Witness under Rule.Jl04(b)(1) of the Federal Rl.ll.es...Qt Evidence; (3) admitting various other documents as properly authenticated and not In violation of the hearsay rule; and (4) refusing to Include the standard of "gross negligence" on the verdict form as a predicate for compensatory and punitive damages.

II

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HNl ....

We review the evidentiary issues raised by Horne for an abuse of discretion. See Garraghty v. Jordan. 830 F.2d 1295. 1298 (4th Clr. 1987). Horne suggests that our recent holding In Sandberg.J0ll.[glnla Bankshares. Inc., 979 F.2d 332 (4th Cir. 1992), provides for de novo review of evidentiary rulings. Id. at 349. In Sandberg, however, we considered the admissibility of evidence [**6] purportedly covered by the attorney-client privilege. Id. Joining sister circuits, we recognized this analysis as a mixed question of law and fact necessitating de novo review. Id. at 349-50. Horne has not raised a similar evidentiary problem; therefore, the issues she advances on appeal merit reversal only if they demonstrate an abuse of discretion.

A

Horne challenges the admissibility of certain regulations Issued In 1972 pursuant to the Occupational Health and Safety Act ("OSHA regulations"). The OSHA regulations established standards for exposure to asbestos dust and mandated methods of compliance with the exposure requirements, including monitoring work sites, compelling medical examinations, and, for the first time, labelling products with warnings. The warning label required was to include language stating, "Caution. Contains asbestos fibers. Avoid creating dust. Breathing asbestos dust may cause serious bodily harm."

Owens-Corning offered the evidence to counter Horne's testimony that Owens-Corning did not warn its employees of the dangers of working with asbestos. Owens-Corning offered the OSHA regulations for two purposes: to [**7] show that the duty to warn was not compelled until 1972 and to show that Its warnings, stamped on Kayle and other asbestos products beginning in 1966, preceded the regulatory requirement to warn and contained more comprehensive warning language. Owens-Corning's labels stated,

This product contains asbestos fiber. If dust Is created when this product Is used, avoid breathing the dust. If adequate ventilation control Is not possible, wear a respirator approved by U.S. Bureau of Mines.

Horne objected to the Introduction of the OSHA regulations because she claimed they represented Impermissible state-of-the-art evidence. Horne contends that, In a products liability suit, evidence as to the available state of the art should be limited to the time of the alleged product defect. n3 Horne suggests that the relevant time period Is the years In which the decedent worked with Kaylo, or 1956 to 1962 and 1965 to 1969i therefore, the 1972 OSHA regulations should not be admitted.

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n3 In this case, the alleged product defect was Owens-Corning's failure to warn the decedent adequately of the hazards associated with working with asbestos.

-- ------- - -- End Footnotes--- --- ---- ---- [**8]

We first must determine whether North Carolina accepts state-of-the-art testimony in products liability cases to show the standard of care applicable. Because state-of-the-art evidence helps shape the duty owed by the alleged tortfeasor, Its admissibility is not purely an evidentiary matter. Therefore, we must Insure not only that the Federal Rules of Evidence permit, but also that North Carolina law would allow, such testimony to establish a duty In an action alleging products liability. The North Carolina Court of Appeals had Indicated that such

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evidence is admissible. See, e.g., B.owarLC.o.u.nty_ed .• _o.tEduc. v. United States..G.y_ps.unLC.o...... o.J..H..C_,_App...._288.,_3_Q8.,_~Ql.S.E.2d B.Q..Q,_82l_(.l9.91.)_. disc. rev. denied, n4 3.3.2...l':t.C._1, 41_8

S . E. 2d . .648 .{ 19..9.2 )..

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n4 The Supreme Court concluded that review of this Issue had been granted improvidently and declined to discuss It, giving the effect of denying discretionary review altogether. &o.w~ c~_unty....8.d_._of_Educ ited.st.a.tes.Ji~RS.UllLC-o ... ,.3.3.2..N..C .• ..l,_.U,_4.11L<;;...E_.2_~_a, _ _Q_Q2 (1992).,.

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[*281] State of the art represents

all of the available knowledge on a subject at a given time, and this Includes scientific, medical, engineering, and any other knowledge that may be available. State of the art Includes the element of time: What Is known and when was this knowledge available .

.Lo.brmann v, Pittsburgh Corning Corp., 782 E.2d 1156. 1164 (~h Cir. 1985.)..._ The need to maintain a sensitivity to the element of time recognized In Lohrmann does not foreclose the Introduction of state-ofthe-art evidence that postdates the events in question. In addition, as a complement to state-of-the-art evidence, Industry standards nS may be Introduced. Industry standards outline the practices common to a given industry. They are often set forth In some type of code, such as a building code or electrical code, or they may be adopted by the trade organization of a given Industry.

I d.

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nS North Carolina appellate courts have approved of the use of Industry standards In products liability cases. See, e.g., .M.ordSQIDI:. Sears, Roebuck & Co,,_31.9 N.C. 298 .. ...3.02.,..3.5.4 S.E.2d ~.9.5,_498_{19..87.).; Smith v. Selco Prods.,Jnc,, 96 N.C, App, 151, 160 .• 385 S.E.2d 173, 177-78 .(lifi91 disc. rev. denied, 3..2.2...N.C. 598, 393_S._E.2~.)....

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [ * * 10] In this case the district court properly admitted the OSHA regulations for two reasons. First, If viewed as state-of-the-art evidence, the regulations were relevant, see ~x1d...AQ2., ~J, although promulgated after the decedent's alleged exposure to Kaylo. Owens-Corning introduced the OSHA regulations to establish that It was manufacturing and labelling asbestos-containing products under its own safety guidelines well before the OSHA-mandated guidelines became effective. In addition, Owens-Corning's guidelines outlined a more detailed label than that called for by the OSHA r:egulatlons.

Had Owens-Corning sought to introduce regulations post-dating the relevant conduct to establish the impossibility of something deemed possible at the time of the relevant conduct, It would have been engaging In an Inappropriate use of state-of-the-art evidence. State-of-

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the-art evidence, because It often Is scientific In nature and results from a cumulative review of a field over time, should not be applied retroactively to discredit conduct at a given time prior to the culmination of the relevant research. Instead, Owens-Corning was using subsequent findings and standards to credit [**11] prior conduct. This use of state-of-theart evidence does not represent an abuse of discretion.

The evidence is admissible for a second reason. When viewed as an industry standard rather than state of the art, the OSHA regulations are admissible with less concern for the time frame of their promulgation. The safety requirements found in the OSHA regulations seem more analogous to building codes and other Industry-specific safety guidelines than to technical or scientific developments representing the cutting edge of asbestos handling.

Accepting the OSHA regulations as close cousins to building codes and therefore more like industry standards, we find that our decision In StonebQ.c~r_y_,__G.eneraLMoto.rs ___ c_orp •. 1 _.5_8l f.._2d_l5L(~Cir_..__l97_B_} controls the outcome on this point. In Stonehocker we faced the issue whether to admit federal regulations post-dating the relevant conduct as evidence of the defendant's due care at the time of the alleged tortious acts. We held:

There are many reasons why, If the vehicle manufactured In 1967 did not comply with a regulation later promulgated, as here finally in 1973, that the fact of noncompliance might as [**12] here finally in 1973, that the fact of noncompliance might be Inadmissible. In the first place, the time frame of the standard of care must be 1967, not 1973. Further, perfectly valid policy reasons may dictate that such regulations not be made retroactive, and It Is well known that retroactive application of statutes in generalis not favored. No reason seems apparent to distinguish regulations.

But here General Motors takes the position that in 1967 It, ahead of its time, manufactured a vehicle which complied with safety requirements promulgated from 1971 through 1973. Conceding, as we must, that the statute, _lS...U...S....C. [*282] §_..13.9..Z(c), n6 would prevent evidence of compliance with the standard

from exempting General Motors from negligence for a vehicle subject to the terms of the regulation, nevertheless we believe that a compliance with the standard should have been admitted into evidence as evidence of due care In have been admitted into evidence as evidence of due care In the design of the vehicle to be considered by the jury with the other evidence In the case.

Id.._ at 156:_5__7.~ The Stonehocker court admitted [**13] the 1973 vehicle safety regulations as industry standards evidencing General Motors' due care.

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n6 Section 1397(c) of the Federal Motor Vehicle Safety Standards Act provides that "compliance with any Federal motor vehicle safety standard Issued under this subchapter does not exempt any person from any liability under common law." 1.5_1l..S..C._§__l_3_9_Z(c).

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case, Owens-Corning sought to Introduce the OSHA regulations as evidence of Its due care. By treating the regulations as Industry standards, we would be hard pressed to find an abuse of district court discretion under the precedent of Stonehocker. Under either the state-of-the-art or the Industry standard analysis, therefore, the evidence was properly admitted.

B

Owens-Corning Introduced, and the district court admitted, portions of the February 11, 1981, and March 27, 1981 depositions of Mr. W.G. Hazard, a former Industrial hygienist for the Owens-Illinois Company, Owens-Corning's [**14] predecessor In ownership of Kaylo. The district court admitted the Hazard depositions pursuant to &.u.l.e...8D_4.(l>JC1)_oJ_tbe.£e.d.e.raLB..ule.s of Eyld~ HN2+Rule 804(b)(l) provides:

(b) Hearsay exceptions. The following are not excluded by the hearsay rule If the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness ... In a deposition taken In compliance with law In the course of the same or another proceeding, If the party against whom the testimony Is now offered, or, In a civil action or proceeding, a predecessor in Interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Fed. R. Evld. 804(b)(1). The Notes of the Advisory Committee following the rule raise the question "whether strict Identity, or privity, should continue as a requirement with respect to the party against whom offered." Id. advisory committee notes. The notes suggest that "the rule departs to the extent of allowing substitution of one with the right and opportunity to develop the testimony with similar motive and Interest.'' Id.

When reviewing the admissibility of evidence pursuant to Rule 804(b)(1), [**15] we have focused on the similarity of motives between the predecessor In Interest and the one against whom the deposition Is now offered to determine the scope of Rule 804(b)(1). In a situation in which the motives differ, the testimony may not be Introduced. Our decision In Lohrmann v. Pittsburgh Corning Corp. demonstrates this limit to admissibility. See Lohrmann, 782 E.2d at 1160-61, In Lohrmann the prior action from which the deposition derived Involved claims based on the hazardous effects upon the health of plant workers exposed to raw asbestos. I.d... at 1161. The Lohrmann plaintiff sought to Introduce the deposition against Pittsburgh Corning Corp., a manufacturer of asbestos not Involved In the earlier litigation. Id. at 1160. The Lohrmann plaintiff was not a plant worker, but a plpefltter, who from time to time worked In close proximity to insulators and others using products containing processed asbestos. ld... at 1161. Cross-examination In the deposition would not have brought out the distinction between employees exposed to raw asbestos [**16] and those exposed to asbestos byproducts and dust. Id. Therefore, we affirmed the district court's determination that the deposition did not present a similar opportunity and motive to develop testimony and should not be admitted against Pittsburgh Corning Corp. In the subsequent litigation. Id.

Horne challenges the admission of the Hazard depositions on two grounds. First, she claims that the court failed to determine the witness's unavailability. Second, she [*283] claims that the participants In the deposition did not share similar motives to develop testimony as she, preventing the testimony from being Introduced against her now.

In this case the district court made the following findings regarding witness availability:

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FOCUS - 50 Results - deposition

THE COURT: Is he dead now?

MR. MODESITI: I am under the belief that he is dead. He Is unavailable at any rate, but I think he's dead.

THE COURT: How do you know he Is unavailable? Well,

Page 9 of 14

I will be here about 8:15 and we will take this and anything else up that you have at that time.

RECESS.

Upon resuming proceedings the next day, neither party nor the court revisited the availability issue, and Horne did not renew her objection. [**17] Despite the absence of a finding as to availability, we see no mertt in Horne's challenge on this basis. The record indicates that Owens-Corning represented that Hazard was dead, and Horne did not, n7 nor does she now, contest that fact. Without some evidence of Hazard's availability, we cannot conclude that the district court's failure to make findings specifically as to unavailability represents an abuse of discretion. The court's admission of the Hazard deposition pursuant to Rule 804{b)(l) Implicitly Incorporates a finding of unavailability absent the Introduction of evidence to the contrary. n8

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n7 Indeed, at trial Horne objected to the admission of the Hazard depositions on two grounds unrelated to availability: (1) the existence of a court order from a prior proceeding In West Virginia prohibiting the deposition of Hazard unless Horne's attorneys were first accorded the opportunity to depose Hazard; and (2) the absence of Horne or her attorneys from the Hazard depositions. The district court ruled the West Virginia court order inapplicable because It bound a different jurisdiction and pertained to a different lawsuit In which Horne was not Involved. Home's absence at the depositions Is discussed Infra In the context of whether Horne was represented by a predecessor in Interest. [**18]

n8 To support her argument, Horne relies on the Tenth Circuit Court of Appeals' decision In ~Lon v. Owens-Cornlng .. Elb.erglas Corp., 968 E.2d 1011,_1014-15 (lillh Clr. 1992)... The O'Banlon court did hold that "the [district] court abused Its discretion in admitting this former testimony Into evidence under Rule 804(b)(1) without a finding of unavailability." Id.__at...l.QH. We distinguish O'Banton on the basis that "nowhere In [Its] record [did] there appear to be consideration of the unavailability of the declarant expert witness." Id. In this case, unavailability was asserted and remains uncontroverted; therefore, the district court had a basis on which to conclude that the depositions were admissible under Rule 804(b)(1).

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- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -As a second ground for challenging the Hazard depositions, Horne suggests that the claimants In the other asbestos lltJgatlon for which Hazard gave his depositions were not predecessors In Interest to Horne. Horne's contention Is based on a misapprehension of the law, not on valid distinctions between [**19] the litigants. Rather than pointjng to factual and legal differences In the proceedings, such as those detailed In Lohrmann, Horne contends that the other claimants are not predecessors in Interest because they have no relationship to Horne. Horne's argument relies on the need for some showing of privity. The Lohrmann holding makes clear that privity Is not the gravamen of the analysis. Instead, the party against whom the deposition is offered must point up distinctions In her case not evident in the earlier litigation that would preclude similar motives of witness examination.

Horne offers no such distinctions; therefore, the district court's introduction of the deposition excerpts does not represent an abuse of discretion.

c

Horne raises several miscellaneous objections to the Introduction of six documents--a United States Treasury Department Publication Introduced under EederaLRules of EvidenceJ3.Q_3_(.6.)_ and (8) as business and public records; a 1955 American Medical Association article Introduced under Eederal &ule of Evidence 803(.6). as a business record; Interoffice memoranda from Owens-Corning files dated December 9, 1952, April 22, 1964, and October 26, 1964, Introduced [**20] under Ee.d.eral...B.ule.s of Evidence 8Q3(~) and .9Jll.(.b.)_(_8_} as ancient documents; and excerpts from National Insulation Manufacturers Association brochures, also Introduced under E.ed.er.aLl.!.211.4L.Ru.le.s_otEY.lden.<:.e_.8.Q3U6) and 9.0l(b)(.8) as ancient documents.

We flnd that her challenges to mechanical compliance with hearsay exceptions and authentication requirements are without merit. The district court carefully reviewed each piece of evidence to establish Its conformity with the appropriate rules of evidence before admitting the document. Each document was excepted from the hearsay rule and authenticated In a fashion that surmounts challenge as an abuse of discretion.

III

Horne's final contention Is that the district court erred by not Including an inquiry about Owens-Corning's gross negligence on the verdict form. The form asked the jury to determine the negligence of Owens-Corning and then to answer whether that negligence was the proximate cause of the decedent's Injuries. Upon answering both of these questions in the affirmative, the jury was asked whether the decedent's own negligence contributed to his Injury. The jury found contributory negligence; therefore, the form asked the jury [**21] . whether the negligence of Owens-Corning was willful or wanton, thus negating the decedent's contributory negligence and permitting a recovery. n9

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n9 HN~n North Carolina a defendant's gross negligence or willful and wanton conduct will enable the plaintiff to recover despite the plaintiff's own contributory negligence. See, e.g., Sorrells y, M.Y.B, Hospitality Ventures, lQS N.C, App, 7QS, 606, 414 S,E.2d 372. 373-74, rev'd on other grounds, 332 N,C, 645. 423 S.E.2d 72 (1992}; Wilson y. Bellamy, 105 N,C. App, 446, 469, 414 S.E.2d 347~_3_6_0.,. disc. rev. dented, 331 N,C. 558, 418 S.E.2d 668 (1992).

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- - - ~ - - - - - - - - End Footnotes- " - - " - - - - - - - - -The jury answered this question "No." Horne claims that the jury should have been given the opportunity to determine whether Owens-Corning had been grossly negligent, arguing that gross negligence requires a lesser showing than willful and [* * 22] wanton conduct.

In Kle.in_y, __ s~arsJ~oe.buc.lc&.C.o.,_ZZ.3_f. •. 2._d .1~2L(4th_Cir~ .. J98.5), we laid out a standard for reviewing verdict forms and jury charges. In Klein, Sears argued that the verdict form used by the district court erroneously omitted the element of proximate cause and that this error was compounded by the court's inadequate jury instructions on the Issue. ld .... at.H2.6t We stated:

HN4":;

It is settled In this jurisdiction that the formulation of Issues and the form of Interrogatories Is committed to the sound discretion of the trial judge. In considering the adequacy of the verdict form, we consider several factors, including whether the Interrogatories adequately presented the contested Issues to the jury when read as a whole and in conjunction with the general charge, whether submission of the Issues to the jury was fair, and whether the ultimate questions of fact were clearly submitted to the jury.

Id, at 1426:.2.Z (citations omitted). We then held that the Instructions given by the district court were sufficient to apprise the jury of the need for a finding of proximate cause. [* *23] ld._a.Ll.42Z.

The district court's decision to omit "gross negligence" from the verdict form In this case will not represent an abuse of discretion If, when viewed In the context of controlling North Carolina law, the verdict form and charge to the jury adequately Informed the jury of the Issues before it. North Carolina has construed "gross negligence" as requiring conduct the same as that needed for a showing of willful and wanton conduct, nlO e.g., SQ.r:rells.___y.J1.X.B.... _f:iQsRi.tality Ventures. 105 N.C. App, 7Q5, 7_01.,_414 S,E,2d 372~H.4~ rev'd on other grounds, 332 N.c.._64_5. 423 S,E.2d 72 (1.9.92-h and something less than that needed for proof of willful and wanton conduct, e.g., .Co~.Power Co., 81 N.C. App, 213,_2.1B_~~ ~d__U_Q,_l.J.3..,. disc. rev. denied, ~.~L..S....E..2d 462 (1.9B.fi).;. Becky, Carolina E.m'i.er & Light Co'l . .5.7 N.C. ApQ..._._3.Z3.~.8.4, 291 S.E,2.d.__8.9_l, 90304, affd, JQ2.N..C_.__2_61_,..2.9.Z S,E,2d 397 (19_82.) ... [**24]

Cases recognizing "gross negligence" as something less than willful and [*285] wanton conduct are limited to two situations. First, courts have so construed section 28A-18-2(b)(5) of the North Carolina Wrongful Death Act, which states that and wanton conduct, nlO e.g., S.o.rr.e.lt.s._y, M.Y.B. Hospltality.Yen~..l.O.~ARP... 705. 707, 414 S..E...Zd 372. 3.D_~ rev'd on other grounds, .3.3.2....N.C. 645~ 423 S.E,2d 72 (1.9}12)... and something less than that needed for proof of willful and wanton conduct, e.g., C..ol.e.__y.___D_uke_P...ow~_co...,JU.lL.C.._Ap_p. 2.1.3.,. 218. 34~ S.E.2d_130,_1.3J.. disc. rev. denied, .1la..NL281~ 347 S.E.2d 462 (19MU;. B.e.ck y, Carolina Pow.eL8U..I.g.hLCo .. sz N • .c...App_._3Z3, 384,_291 S.E,2d 89Z._9.~, aff'd, 3.0.Z.N£. 26.7~_291._5._E .. 2d .. 3.9-Zl.l.9.82) ..

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

nlO In a 1956 opinion, the Supreme Court of North Carolina stated that "an analysis of our decisions Impels the conclusion that this Court, In references to gross negligence, has used the term In the sense of wanton conduct." .l:::llns.on_Y....O.aYiSQ.O., 244 N.C. 23, 28, 92 S.E.2d 3.93, .3.9.£ _(llli.)_.

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. ' FOCUS - 50 Results - deposition Page 12 of 14

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [ * * 25]

damages recoverable for death by wrongful act Include: .... such punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful [sic] or wanton Injury, or gross negligence ....

N._c._G_e.nL£ta.t.__§_2BA::l8:.2(_b){5.) (Supp. 1992); see, e.g., Crue~.JiLN .. C RP· at 218. 344 ~ .• .2d_a_tJ.3.3 ("To treat the G.S. 28A-182(b)(S) phrases 'wilful [sic] or wanton Injury' and 'gross negligence' as synonymous ... effectively renders one or the other mere surplusage, contrary to the ..• foregoing rule of construction.") (Internal quotation marks and alterations omitted). Second, the North Carolina appellate courts have recognized this distinction In bailment cases. When a bailment Is gratuitous, the bailee is held liable only for gross negligence, being something less than willful and wanton conduct. See _CJ..QtLv~r_e_oy.b®nd l.lnes.,~.....2.1:1L..Ap.p_._.fiQA,_5_09, 177 S~1L-4..41j,l91..0.), rev'd on other grounds, 2.Z8 N.C. 3 7 8,_l_8JLS ... E .• 2.d .. l.O.L(.l921.)... [**26]

Neither the North Carolina Wrongful Death Act nor the laws of bailment apply In this case. Therefore, the North Carolina courts' general equation of gross negligence and willful and wanton conduct In their discussion of common-law torts Is applicable. In addition, the district court thoroughly and carefully Instructed the jury of the possibility that gross negligence or willful and wanton conduct could provide Horne with the opportunity for recovery, as follows:

If the plaintiff's negligence, Mr. Horne's negligence, was a proximate cause of and therefore contributed to his own personal Injury, he could not recover unless Owens-Corning Fiberglas' own negligence was willful or wanton.

Ordinarily, such an answer on the contributory negligence Issue, I.e., one who Is ordinarily contributorily negligent, that would be a complete defense.

However, there is an exception to this so-called contributory negligence defense and it Is called gross negligence, and that is what Paragraph B. of the second issue is about.

Gross negligence occurs when the defendant's conduct goes beyond ordinary negligence and demonstrates conscious or reckless disregard for the rights [**27] and safety of others.

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The test for negligence and contributory negligence, which I have defined and explained for you previously in connection with the first Issue, Is not the same test you will apply when considering Paragraph B. test of negligence, that is, willful and wanton or gross negligence.

Gross negligence occurs when the defendant acts with conscious or reckless disregard for the rights and safety of others.

This charge fairly details North Carolina's definitions of gross negligence nll and willful and wanton conduct. n12 If anything, the district court's charge favors the definition of gross negligence. Because Horne received a charge Indicating more than once that Owens-Corning's gross negligence could entitle her to a recovery, the absence of the words "gross negligence" from the jury verdict form Is Inconsequential. The jury was Instructed In a manner sufficient to withstand reversal under the standard formulated in KleJ..n.-'l ._Se.a~.buck & Co., 773 E.2d .aL1.4~Z .. Therefore, we hold that the district court did not abuse its discretion In declining to modify the fourth question on the verdict form [* *28] to encompass the concept of gross negligence.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n11 "Gross negligence" Is "wanton conduct done with conscious or reckless disregard for the rights and safety of others." B~.Y ... _~ao, 583, 3.69_S.E.2d 601. 603 .(19_881.

n12 "Willful and wanton negligence" Involves the act of one who knows or reasonably should be expected to know that his conduct will bring harm to another. The actor Is recklessly indifferent to the results of his conduct. See :ti.agon.eL'L....Mor.tiLC.aml.l.ruL.B.....R....C0 ..... ,...2.3JLN....C. 1.64-l~].Z .S..f.2d_7..QL 20.6 . .{19.53.1

- - - - - - - - - - - - End Footnotes-- - - - - - - - - - - - - [*286] IV

Because Horne does not challenge the jury's substantive findings of negligence, and because her assignments of error as to the district court's exercises of discretion In the admission of evidence n13 and the content of the verdict form are without merit, we affirm the jury's verdict.

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Get a Document- by Citation- 782 F.2d 1156

Service: Get by LEXSEE® Citation: 782 F.2d 1156,at 1160

782 F.2d 1156, *; 1986 U.S. App. LEXIS 21261, **; CCH Prod. Liab. Rep. P10,928

Page 1 ofll

Frederick 0. Lohrmann, Appellant v. Pittsburgh Corning Corp., a Pennsylvania Corporation; Celotex Corporation, a Delaware Corporation; Keene Corporation; G.A.F. Corporation, a Delaware Corporation; Eagle-Picher Industries, Inc., an Ohio Corporation; RaybestosManhattan, Inc., a New Jersey Corporation and A.C. and 5., Inc., formerly known as

Armstrong Contracting and Supply Corporation, a Delaware Corporation, Appellees, and Johns·Manvllle Corporation, a New York Corporation; Johns-Manville Sales Corporation, a

Delaware Corporation; Unarco Industries, Inc., formerly known as Union Asbestos & Rubber Company, an Illinois Corporation; Owens-Corning Fiberglass Corporation, a Delaware

Corporation; Owens-Illinois, Inc., an Ohio Corporation; Owens-Illinois Glass Company, an Ohio Corporation; Forty-Eight Insulation, Inc., an Illinois Corporation; Amchem Products, Inc.,

a Pennsylvania Corporation; Nicolet Industries, Inc., a Pennsylvania Corporation; Southern Textile Corporation, formerly known as Southern Asbestos Corporation, a Delaware

Corporation; H. K. Porter Company, Inc., a Delaware Corporation; Amatex Corporation, formerly known as American Asbestos Textile Corporation, a Pennsylvania Corporation;

Armstrong Cork Company, a Delaware Corporation, Defendants

No. 84-1323

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

782 F.2d 1156; 1986 U.S. App. LEXIS 21261; CCH Prod. Llab. Rep. P10,928

PRIOR HISTORY: [**1]

October 9, 1985, Argued January 30, 1986

Appeal from the United States District Court for the District of Maryland, at Baltimore. Joseph H. Young, District Judge. (C/A 79-2203).

CASE SUMMARY

PROCEDURAL POSTURE: Appellant pipefltter sought review of the decision from the United States District Court for the District of Maryland, which directed a verdict In favor of three appellees, asbestos companies, and of the jury's verdict in favor of the remaining four appellees.

OVERVIEW: Appellant plpefltter sought review of the district court's directed verdict In favor of three appellees, asbestos companies, and the jury's verdict In favor of the remaining four appellees. Appellant claimed that he had asbestosis resulting from exposure to various asbestos-containing products of appellees. At the conclusion of appellant's case, the trial judge directed verdicts in favor of appellees. On appeal, the court found that a proper weighing of the cancer evidence on the Issue of liability had been made, and justified the exclusion under .Ee.d_.__R.._E'lld • .-5_Q3_, Further, the court found that state law was clear that such evidence was not admissible to prove damages where there was less than a reasonable probability that the cancer would develop. The court concluded that the trial judge was correct in ruling, and his use of the frequency, regularity and proximity test was appropriate In determining whether the inferences raised by the testimony were within the range of reasonable probability so as to connect appellees' product to appellant's disease process. The court affirmed the district court's

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.. Get ·a Docwnent- by Citation -782 F.2d 1156 Page 2 ofll

decision.

OUTCOME: The court affirmed the district court's grant of a directed verdict and the jury's verdict In favor of appellee asbestos companies because state law was clear that such evidence was not admissible to prove damages where there was less than a reasonable probability that the cancer would develop.

CORE TERMS: asbestos, cancer, asbestosis, asbestos-containing, exposure, exposed, manufacturer, disease, Insulators, seller, strict liability, causation, shipyard, plant, reasonable probability, present action, notice, circumstantial evidence, deposition, reasonableness, manufactured, warning, scientific, raw, exposed to asbestos, summary judgment, manufacturing, pipefitter, workplace, proximity

LexlsNexls(R) Headnotes + t:UdeJ:ieadno .. te.s

Iorts > Damages > Damages Generally ~ HNJ;J:. Recovery of damages based on future consequences of an injury may be had only if

such consequences are reasonably probable or reasonably certain. Such damages cannot be recovered if future consequences are "mere possibilities." Probability exists when there Is more evidence in favor of a proposition than against it or a greater than SO percent chance that a future consequence will occur. Mere possibility exists when the evidence is anything less. More Like This Headnote

~en.ce > Hear.say__Rule & ExceptLon.s > f..ormer.Iestlm.an¥---Of_UnaY.allableJle:cl.aJ:ant ~ HN2±Ee!L.R.~....B.0.4.{.b.)..(l). provides that the following are not excluded by the hearsay

rule If the declarant Is unavailable as a witness: testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken In compliance with the law In the course of the same or another proceeding, If the party against whom the testimony Is now offered, or, In a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Mme..l.ik~L1b.isJ:le.ado9.te

Iorts >Causation> Proximate~~ HN3±To establish proximate causation in Maryland, plaintiff must introduce evidence that

allows the jury to reasonably conclude that It is more likely than not that the conduct of defendant was a substantial factor In bringing about the result. MQ.re .. U~ IblsJ:ieadn.ote

:r..or:ts > Ca~.~sation > £rmd.mate....Ca.us.e ~ HN4.±,The actor's negligent conduct Is a legal cause of harm to another If (a) his conduct

Is a substantial factor in bringing about the harm, and (b) there Is no rule of law relieving the actor from liability because of the manner In which his negligence has resulted in the harm. M.Qr..fL.Lik.fLThls..J:lea.dn.ote

IQrts > Causation > Proximate Cause {;! HNS~ To support a reasonable Inference of substantial causation from circumstantial

evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time In proximity to where the plaintiff actually worked. More Uke Ibis Headnote

.EYJ.d.ence > er.oced1.1raL.Coosldera.tl.ons > lllfere.nces....&..£resump1lon.s (';) HN6;!.Permisslble inferences must still be within the range of reasonable probability,

however, and it Is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and conjecture. MQre_Llke_Ib..ls_ Headnote

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Get' a Document - by Citation - 782 F.2d 1156

EmtlronmentaLLaw > Utl~atlon&AdministratJY.eJ~roceedlngs. > Damag_es ~ Workers~.Compensation.&..SSOJ > Camp_ensabJlity > Iniurtes > O.ccupa.tionaLDJsease.s ~

Page~ ofll

HN7~ The "frequency, regularity and proximity test" Is an application of the principle that permissible inferences must be within the range of reasonable probability In an asbestosis setting. Mo.r.e .. Llk~_.Tbls Hea.dno.te

Civil Procedure > Jury Trials > Jury Instructions f;~ HNBj;.A district judge has broad discretion in framing his jury instructions. If the

instructions correctly state the law and adequately cover the issues In the case, the charge is sufficient. More Like This Headnote

fn'i.lr.orunentalJ.aw > Utlgatlon.&...Ad.mlntstmttY..e. Eroce.edlng.s > Ioxlc.IOJiS ~ Io.ds > P.r:oducts.J.Iabllity > Strlct.Ua.blllty t:;J HN9~Despite the use of the term "strict liability" a seller Is not an Insurer, as absolute

liability is not Imposed on the seller for any Injury resulting from the use of his product. M~Ke . .Llke...Ibls.J:ie.adrulte

COUNSEL: Donald I. Marlin (Stanley J. Levy; Levy, Phillips & Konigsberg; Carl E. Tuerk, Jr., Cooper, Beckman & Tuerk; Harry Goldman, Jr.; Goldman & Skeen on brief) for Appellant.

F. Ford Loker (Niles, Barton & Wilmer on brief); Stephen J. Sfekas (Ruth Newman Fahrmeier; Tydings & Rosenberg; E. Dale Adkins, III; M. Bradley Hallwlg; Anderson, Coe & King; William R. Spellbring, Jr.; Samuel J. DeBiasls, II; O'Malley, Miles, McCarthy & Harrell; Michael B. Mann; Dennis C. Whelley; Merriman & Mann, P.A.; Richard R. Jackson; Jr.; Robert L. Ehrlich, Jr.; Ober, Kaler, Grimes & Shriver on brief) for Appellees.

JUDGES: Hall and Chapman, Circuit Judges and Haynsworth, Senior Circuit Judge.

OPINIONBY:CHAPMAN

OPINION: [*1158] CHAPMAN, Circuit Judge:

Appellant was a plpefitter from 1940 to 1979 at Bethlehem Steel Corporation's Key Highway shipyard in Baltimore. He claims that he now has asbestosis resulting from exposure to various asbestos-containing products of nineteen named defendants. Prior to trial, three of the defendants were severed due to being [**2] under the jurisdiction of United States bankruptcy courts. Other defendants either settled or made successful motions for summary judgment until only seven remained: Raymark Industries, Inc., Celotex Corporation, Pittsburgh Corning Corp., Keene Corporation, Eagle-Picher Industries, Inc., G.A.F. Corporation and A.C. & S., Inc. At the conclusion of plaintiffs case in chief, the trial judge directed verdicts In favor of Raymark, Celotex and Pittsburgh Corning. At the conclusion of the trial, the jury found In favor of the remaining four defendants. Appellant now claims error of the district court In certain evidentiary rulings, in certain of Its jury Instructions, and In the standard used by the court In granting verdicts to the three defendants. We affirm.

Lohrmann was born In 1919 and worked as a pipefltter at Key Highway Ship Yard for thirtynine years. He claims that he was exposed to asbestos dust from Insulating materials throughout his employment. He admitted that he had smoked and Inhaled unfiltered cigarettes since 1940 and was still doing so against the advice of his physician. He retired In 1979, and at that time his personal physician found that he was disabled as a [**3] result of chronic obstructive pulmonary disease, but this physician did not diagnose asbestosis. Later, another doctor gave the diagnosis of asbestosis, and this diagnosis was an Issue of dispute

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Ger a Document- by Citation- 782 F.2d 1156 Page 4 of 11

between the experts at trial.

Plaintiff pursued two theories of liability: negligence and strict liability In tort. He contended that the product was defective and unreasonably dangerous because of the absence of adequate warnings that exposure to asbestos dust was dangerous and could produce asbestosis and other related diseases. ln the negligence claim he asserted that In addition to the failure to warn, the defendants failed to test the product and failed to develop a safe substitute for asbestos.

The trta·J followed the usual course of the plaintiff attempting to prove contact with asbestoscontaining products of all defendants. There were the medical witnesses, those who had actually examined and treated Lohrmann and those who testified as to the state of the art -what and when doctors, [*1159] mine owners, and manufacturers knew or should have known about the dangers of asbestos, not only to persons working In mines and manufacturing plants, but also to those coming in contact [**4] with the product, such as insulators, pipefltters, and others working in close proximity to the Installation or removal of asbestos-containing products. At the conclusion of the plaintiff's case, the trial judge directed verdicts In favor of Raymark Industries, Inc., Celotex Corporation, and Pittsburgh Corning Corp. This left Keene Corporation, Eagle-Picher Industries, Inc., G.A.F. Corporation, and A.C. & S., Inc., as the four defendants remaining of the original nineteen. These four defendants contended that Lohrmann did not have asbestosis, but had emphysema, chronic bronchitis, and shortness of breath due to cigarette smoking. They also presented witnesses on the state of the art and on when manufacturers first became aware of the potential harm to men working In trades outside the mining and manufacturing of asbestos products.

SUMNER SIMPSON PAPERS

Sumner Simpson was President of Raybestos Manhattan from 1929 to 1948 and was Chairman of the Board of that corporation from 1945 until his death In 1953. Raybestos Manhattan has since become Raymark. During his years as President and later as Chairman of the Board of Raybestos Manhattan, Mr. Simpson kept various letters, newspaper [**5] clippings, articles from publications, correspondence, and other documents relating to the health hazards of asbestos to workers in the mining and manufacture of asbestos products. These documents were found In a box In a storage area at Raybestos Manhattan in the early 1970s, and an additional group of papers, consisting of approximately 600 documents, were found in an old safe at the Raybestos Manhattan plant In North Charleston, South Carolina, In 1979. There are approximately 6,000 documents Included in the Sumner Simpson papers. The papers were produced through discovery proceedings In an early asbestosis case, and since then the admissibility of various documents included In the Sumner Simpson papers has become an Issue In the continuing asbestosis litigation.

In the present action the plaintiff offered a number of Sumner Simpson documents against defendant Raymark and on the Issues of Raymark's knowledge of asbestos hazards and the proper standard of care to be exercised by Raymark in view of its knowledge. The documents were not Introduced against the other six defendants. The trial judge excluded these documents as being Irrelevant. Appellant claims error In this ruling [**6] and relies primarily upon .l.a.cks_on__y_,_}_o_ans-ManvilliLS.al.es...Corp.~ 25.0 __ E.2d.U~4 _ _(3tb__Gir...._l9_85). (en bane.) In Jackson the trial judge had admitted three of the Sumner Simpson papers against the defendants Johns-Manville and Raybestos Manhattan to show that they knew or should have known of the dangers of asbestos products to shipyard workers during the time covered by the letters and the time during which the plaintiff Jackson was employed. The Fifth Circuit found that the trial judge had not abused his discretion In admitting the three letters under the facts In that case. However, we are faced with a different factual picture. Johns-Manville Is not a party in the present action, and the trial judge granted a directed verdict to Raymark because the plaintiff failed to prove contact with Raymark products. What Raymark's predecessor (Raybestos Manhattan) knew or should have known about the dangers of asbestos to workers other than asbestos mining and manufacturing employees Is Irrelevant If

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the plaintiff did not come in contact with Raymark asbestos products, and the trial judge did not err In excluding the proffered documents from the Sumner Simpson papers. The [**7] question of what the asbestos manufacturers knew and when they knew it was presented In great detail by experts produced by all parties on the issue of the development of scientific and medical knowledge concerning asbestos hazards to workers outside the asbestos industry, so this evidence [ * 1160] was extensively developed without the use of the Sumner Simpson papers.

REFERENCES TO CANCER

Appellant contends that the trial judge erred In limiting the references that could be made to the risk of cancer sustained by workers exposed to asbestos and to the various forms of cancer that have been linked to asbestos exposure. Lohrmann claims that references to and evidence of cancer risks were admissible to measure the reasonableness of the defendants' conduct given the increased risk, to measure the defendant's duty to warn, and to determine the duty to test. He also asserts that the cancer evidence was admissible on the issue of damages under Maryland law.

It Is obvious from the record In this case that the plaintiff attempted at every opportunity with almost every witness to Interject cancer Into the case, even though Lohrmann did not have cancer and plaintiffs medical expert [**8] Indicated that he could not testify with a reasonable degree of medical certainty that Lohrmann was likely to develop cancer from his exposure to asbestos. The district judge did a commendable job In preventing this asbestos case from being overshadowed by the dread specter of cancer. Lohrmann was allowed to testify that he was afraid that he might develop cancer, and cancer was mentioned by other witnesses, but it was not allowed to become a prominent Issue.

Appellant again relies upon ]_iKkS!llJ~_]o.tw~.::.MilaYJl£_5~ Corp .. _ _51.Lpi~ but the Jackson facts are different. In Jackson three of the expert witnesses testified that based upon his medical records and history of asbestos exposure, Jackson had a greater than fifty-percent chance of contracting asbestos related cancer In the future. The experts In the present case have placed the risk of Lohrmann developing such asbestos-related cancer at below fifty percent. This Issue has recently been conslderE!d in ei_erm_y_.__lo..hns_ManY.i.Lle__Sales CD.rp..,...2~ Md.._.6.5.6,~4_A._2_d__l.Q2_Q{19.Ill)_, In which the court stated:

In Maryland, HNl+recovery of damages based on future consequences of an Injury [**9] may be had only If such consequences are reasonably probable or reasonably certain. Such damages cannot be recovered if future consequences are "mere possibilities." Probability exists when there Is more evidence In favor of a proposition than against it (a greater than 50% chance that a future consequence will occur). Mere possibility exists when the evidence Is anything less. D..iVlidSQfl...YL Mil~, __ l.I6_ _Md_._~,__62~~4_A.2.dA22, __ 42Z=2..6 __ ( 19.25.) ..

Id. at 666, 464 A.2d at 1026.

In Jackson v. ]Ohns-ManvWe Sales Carp .. suora, the court admitted the cancer evidence on the issue of damages, but found that If the cancer evidence had been admitted only on the Issue of liability, the danger of unfair prejudice outweighed Its probative value, and it should have been excluded under Federal Rule of Evidence 403_. We find that a proper weighing of the cancer evidence on the Issue of liability was made in the present case, and this justified the exclusion under Rule 403. Maryland law Is clear that such evidence Is not admissible to prove damages where there Is Jess than a reasonable probability that the cancer will develop .

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GAZE DEPOSITION

Richard [**10] Gaze was deposed In 1975 In two actions brought by former Pittsburgh Corning employees who had worked at Its Tyler, Texas, plant. These actions were against Gaze's employer Cape Asbestos Company and Involved the claim that Cape Asbestos had failed to protect the two employees of Pittsburgh Corning from the hazardous effects of raw asbestos sold by Cape Asbestos to Pittsburgh Corning. Gaze Is deceased and was, therefore, unavailable to testify at the trial of the present action. The deposition was offered against Pittsburgh Corning only, but the trial judge granted a motion in limine and the deposition was not ad mltted.

HN2+Federal Rule of Evidence 804(b)(l) provides:

[*1161] (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant Is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken In compliance with the law in the course of the same or another proceeding, if the party against whom the testimony Is now offered, or, in a civil action or proceeding, a predecessor In interest, had an opportunity and similar motive to [**11] develop the testimony by direct, cross, or redirect examination.

At the time Gaze was deposed, Pittsburgh Corning did not have the same motive to develop the testimony on cross examination as It had In the present action, and therefore the deposition was property excluded. In the prior action there was a claim of the hazardous effects of raw asbestos upon the health of plant workers exposed to the raw asbestos In a manufacturing environment. In the present case, the plaintiff Is not a plant worker, but a plpefitter, who from time to time worked In close proximity to Insulators and others using products containing asbestos after It had been processed. The state of the art as It relates to the health of persons exposed to asbestos products differs considerably for asbestos plant workers dealing with raw asbestos and for persons working In the vicinity of asbestos products. The cross examination of Gaze did not develop this distinction because such distinction was not relevant to the Tyler, Texas, cases, and the district judge was correct In refusing to admit the deposition.

WORKMEN'S COMPENSATION FILES

On the Issue of notice to the defendants that Insulators were at risk [** 12] of contracting asbestosis from their contact with defendants' asbestos-containing products, appellant sought to Introduce various workmen's compensation files covering claims by contract unit insulation workers who had worked for different defendants. This evidence was rejected by the court, which found persuasive the reasoning of the court In In Re Related Asbestos Cases, 543 F, Supp. 1152 (N.D. Cal. 1982), which stated:

Although the workers' compensation documents are relevant to the question of notice, It is decided to exclude them, as well as any summaries of them, from the plaintiffs' cases in chief. It Is not clear whether each action was settled or adjudicated, and whether, if settled, an action was merely settled for Its nuisance value. These questions suggest that admitting the records may pose serious policy

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· · Get ·a Document- by Citation- 782 F.2d 1156 Page 7 ofll

concerns. Moreover, the voluminous documents present innumerable collateral issues. The defendants would undoubtedly pursue such Issues In detail on crossexamination. The remoteness in time of many of the actions, as well as the multiplicity of jurisdictions In which the actions occurred, Insure that such an exercise would not serve to enlighten [**13] the jury as to the central issues of the case, but, Instead, would cause unne,cessary confusion and undue delay.

The trial judge In the present case allowed testimony of workmen's compensation claims filed by insulators and the defendants' knowledge that such claims were being flied. The judge also allowed letters Indicating that claims were being flied by Insulators claiming asbestosis, stating that such evidence was relevant on the Issue of notice. What the judge refused to admit were the workmen's compensation files themselves to prove notice to the manufacturer. It was not necessary to Introduce the Individual files of the workers claiming asbestosis; It was sufficient to prove that the manufacturers knew of these claims. It was no abuse of discretion for the trial court to exclude the files of the Individual claims, since they would have added little on the issue of notice.

DIRECTED VERDICTS AS TO RAYMARK, PffiSBURGH CORNING, AND CELOTEX

At the close of appellant's case, the district court directed a verdict In favor of Raymark, Pittsburgh Corning, and Celotex, [*1162] and ruled as a matter of law that there was Insufficient [**14] evidence to show the necessary element of causation between use of their products and Lohrmann's claim of asbestosis.

HN3'Tro establish proximate causation In Maryland, the plaintiff must Introduce evidence which allows the jury to reasonably conclude that It Is more likely than not that the conduct of the defendant was a substantial factor In bringing about the result. B.ollio_.Expr~s..s T..rnmrer, Ioc..._ti,_Can.t.atLR.B., 26 Md. App. 321, 338 A.2d.J.Js.,_Jg.3_(19?_5)..._ This Is the standard set forth In the Rastat.eme.nUS.ec.ond~.of_Io.r:ts_§_.43l, which provides:

Section 431. What constitutes legal Cause.

HN4+rhe actor's negligent conduct Is a legal cause of harm to another if (a) his conduct Is a substantial factor In bringing about the harm, and (b) there Is no rule of law relieving the actor from liability because of the manner In which his negligence has resulted In the harm.

Comment (a) to § 431 provides:

The word "substantial" Is used to denote the fact that the defendant's conduct has such an effect In producing the harm as to lead reasonable men to regard It as a cause, using that word In a popular sense, In which there always lurks the Idea of responsibility, [**15] rather than In the so-called "philosophic sense" which Includes everyone of the great number of events without which any happening would not have occurred •

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As asbestosis litigation has developed over the past decade, most plaintiffs sue every known manufacturer of asbestos products, and during the course of discovery some of the defendants are dismissed on motions for summary judgment because there has been no evidence of any contact with any of such defendants' asbestos-containing products. Other defendants may be required to go to trial but succeed at the directed verdict stage. Some defendants settle prior to trial, and these are usually the defendants whose products have been most frequently identified by the plaintiff and his witnesses as having been used by the plaintiff or by others in his presence or working near him.

The present case Is typical of this pattern. There were originally nineteen defendants: three are In bankruptcy, nine either settled or were successful with a summary judgment motion, and seven went to trial. Three of this group made successful motions for summary judgment, leaving four defendants to await the jury verdict.

Appellants would have [**16] us adopt a rule that If the plaintiff can present any evidence that a company's asbestos-containing product was at the workplace while the plaintiff was at the workplace, a jury question has been established as to whether that product contributed as a proximate cause to the plaintiff's disease. Such a rule would be contrary to the Maryland law of substantial causation. In dealing with a workplace as large as a shipyard, certain of the district judges In Maryland have adopted a standard for evaluating the sufficiency of the evidence of exposure. This rule was employed by the district judge and provides: "Whether a plaintiff could successfully get to the jury or defeat a motion for summary judgment under such a theory would depend upon the frequency of the use of the product and the regularity or extent of the plaintiffs employment in proximity thereto." In effect, this Is a de minimis rule since a plaintiff must prove more than a casual or minimum contact with the product. This is a reasonable rule when one considers the Maryland law of substantial causation and the unusual nature of the asbestosis disease process, which can take years of exposure to produce the disease. Also, (* *17] when one considers the size of a workplace such as Key Highway Shipyard, the mere proof that the plaintiff and a certain asbestos product are at the shipyard at the same time, without more, does not prove exposure to that product.

HN5+fo support a reasonable Inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis [*1163] over some extended period of time in proximity to where the plaintiff actually worked. Such a rule Is In keeping with the opinion of the plaintiffs medical expert who testified that even thirty days exposure, more or less, was Insignificant as a causal factor In producing the plaintiff's disease.

Plaintiff relies upon iJ~.a:.LY_._Ejj;}_CJWJJMif_p_aper Products Corp •. ,..A9_3....E..2..dJ076 (5.th...Clr....l313.).~ cert. denied, 41.9__ll.S_,~_95 S. Ct._.l24...1.2....L._f_d.....2sL.l.QL(~_,. to support his claim that If a victim was exposed to the products of more than one manufacturer, each manufacturer was jointly and severally liable. However, In Borel the court found that the plaintiff was exposed to the products of all of the defendants on many occasions. We have spoken [**18] to the question of the sufficiency of circumstantial evidence required to support a finding of causal connection and have concluded that there must be evidence of a reasonable and rational nature upon which a jury can make the necessary Inference that there Is a causal connection between a defendant's action and a plaintiff's Injury. In 8m:l.Motor Co, v. McD.illd.d,_259 E.2d 261 {4th Clr.l.958}, cert. denied, 35!LU..S..~0.8,]9...S._Ct~_ll. Ed, 2d 229JJ,.9..58.).,. the court, In vacating a jury verdict based upon circumstantial evidence of causation, stated:

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The old notion that a jury should not be allowed to draw any inference from circumstantial evidence, If the one is as probable as the other, has fallen into discard and has been replaced by the more sensible rule that It is the province of the jury to resolve conflicting inferences from circumstantial evidence. HN6

+Permissible Inferences must still be within the range of reasonable probability, however, and it is the duty of the court to withdraw the case from the jury when the necessary inference Is so tenuous that It rests merely upon speculation and conjecture.

2.5.9..f .... 2.cLa.t.2.62. [ * * 19] In the present action the trial court found that the plaintiff had not proved a reasonable probability of causation between the plaintiffs disease and the products manufactured by Raymark, Celotex, and Pittsburgh Corning. We conclude that the trial judge was correct in this ruling, and his use of the "frequency, regularity and proximity test" was appropriate in determining whether the Inferences raised by the testimony were within the range of reasonable probability so as to connect a defendant's product to the plaintiffs disease process.

In Lo.Yelace_Y .... _Sb_erw.fn._-_WiJ/jams~_61U.£ .. 2d 23.0 . .{4tb .. .Clr. •. l9.82), we discussed the quantum of circumstantial evidence necessary to allow a finding of causal connection and held that permissible Inferences must be within the range of reasonable probability. See .6...8l_f..2.Q . .at 2:4.1 ... HN~e "frequency, regularity and proximity test" used by the district court is an application of this principle in an asbestosis setting.

There was no testimony that Lohrmann had been exposed to any Raymark products. There were four Invoices In evidence showing that Bethlehem Steel had purchased certain Raymark products, but there was no [* * 20] evidence to show when or where these products were used. Raymark manufactured asbestos cloth, and the plaintiff testified that the asbestos cloth to which he was exposed was manufactured by Armstrong and Johns-Manville.

The plaintiff worked for thirty-nine years at the Key Highway Shipyard and testified that he was exposed on an almost dally basis to asbestos products. However, he testified that he was exposed to an asbestos-containing pipe covering called Unibestos on ten to fifteen occasions of between one and eight hours duration during the term of his employment. Prior to July 1, 1962, Unibestos was manufactured by Unarco Industries, which Is now in federal bankruptcy under Chapter 11. From July 1, 1962, to February 1, 1972, Pittsburgh Corning manufactured Unlbestos. The trial court correctly ruled that, viewing the evidence in the light most favorable to the plaintiff, his exposure to Unlbestos was not sufficient to raise a permissible inference that such exposure was a substantial factor in the development of his asbestosis .

[ * 1164] Celotex was the successor to Philip Carey Corporation. There was evidence that Carey or Celotex products were at the shipyard between 1960 [**21] and 1970, but there was no testimony as to the nature of these products or the times they were on the shipyard or their locations, and there was no testimony that the plaintiff was exposed to any of these products. Lohrmann, who testified as to his personal knowledge, identified various asbestoscontaining products and his exposure to them, but he did not claim any exposure to Carey or Celotex products. The evidence presented as to Celotex was not sufficient to show any contact or to raise any Inference that the plaintiff was ever exposed to a Celotex product.

JURY CHARGE

Appellant claims error In the jury charge because (1) the charge on strict liability in tort included a charge on state of the art, (2) the charge included language as to the actual

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knowledge possessed by the defendant or discoverablllty, (3) the charge on strict liability Included references to the defendant's reasonableness, and (4) the court refused thirty-seven of the plaintiff's requests to charge.

On review we must consider the charge as a whole. HNIJ+A district judge has broad discretion in framing his jury Instructions. If the Instructions correctly state the law and adequately cover the Issues In the case, [**22] the charge Is sufficient. Chavis v. Elnnlines. Ltd.. OJY. 576 F.2d 1072 (4th Clr. 1978). In reviewing the entire charge, we find that it correctly Instructed the jury on the Maryland law applicable to this case.

Appellant contends that state of the art is Irrelevant In a strict liability case and cites Banks v. Iron Hustler Corp., 59 Md. App. 408. 475 A.2d 1243 (1984). The statement in Banks refers to Industry standards and compliance with Industry standards. See 475 A.2d at 1253. Industry standards and state of the art are not synonymous. State of the art Includes all of the available knowledge on a subject at a given time, and this includes scientific, medical, engineering, and any other knowledge that may be available. State of the art Includes the element of time: What Is known and when was this knowledge available.

Industry standards are the practices common to a given industry. They are often set forth In some type of code, such as a building code or electrical code, or they may be adopted by the trade organization of a given industry. State of the art Is a higher standard because scientific knowledge expands much [**23] more rapidly than Industry can assimilate the knowledge and adopt It as a standard.

State of the art In the present case would determine the manufacturer's duty to warn of the danger of asbestos to persons such as Lohrmann, who did not work directly with asbestos, but worked In close proximity to Insulators using asbestos-containing products. The question was when the state of the art Included knowledge that people such as Lohrmann were at risk because they were working near Insulators and other using asbestos-containing products. There were many state-of-the-art witnesses called, and each tried to answer the question of what was known and when was it known.

It appears that In Maryland, state of the art can be considered In a strict liability tort case where the claimed defect Is a failure to warn. In Pbipos v. General Motors Corporation, 278 Md. 337. 363 A.2d 955 (1976), the court adopted strict liability In tort as expressed In § 402A .otihe Restatement (Second) of Torts, but the court stated: nHN~Despite the use of the term 'strict liability' the seller Is not an Insurer, as absolute liability is not Imposed on the seller for any Injury resulting from the use [**24] of his product." 363 A.2d__at_9.6.l.

Official Comment 0) to § 402A provides:

Direction or Warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to Its use. The seller may reasonably assume that those with common allergies, as for example to eggs [* 1165] or strawberries, will be aware of them, and he Is not required to warn against them. Where, however, the product contains an Ingredient to which a substantial number of the population are allergic, and the ingredient Is one whose danger Is not generally known, or If known is one which the consumer would reasonably not expect to find In the product, the seller Is required to give warning against it, If he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the Ingredient and the danger .

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This comment Is particularly pertinent to asbestosis, since some people exposed to asbestos dust develop the disease and others similarly exposed do not. The language of Comment U) is state-of-the-art language because It requires the seller [**25] to give a warning if he has knowledge, "or by the application of reasonable, developed human skill and foresight should have knowledge" of the danger. The charge advlsc~d the jury to measure the defendant's conduct In the light of scientific and medical knowledge existing at the time the product was manufactured. The defendants were also charged with responsibility for what they should have known about asbestos and what was foreseeable.

Appellant contends that the trial judge should have charged on the flexible nature of the duty to exercise due care, and contends that whether conduct is unreasonable turns principally upon the nature and seriousness of the Injury that Is foreseeable and the likelihood that injury will result. He cites ~-Qe.r~~...1::1d..__5.lB., 332 A.2d 11 .(1.925)-1 for the proposition that the degree of vigilance required increases with the degree of danger. Considering the charge as a whole, we find that the judge properly instructed on the degree of care required In this case and that his refusal to charge the plaintiff's request on a varying standard comparing the risk with the possible danger was not error.

Appellant also contends It [**26] was error not to charge that the defendants were under a duty to test their products. This Is adequately covered by the instruction explaining "an unreasonably dangerous product".

Appellant also faults the charge for references to reasonableness during the charge of strict liability. In Traja v. Black &~cker Mfg. CQ._, _.Q2J1d,___AJlp.__l.Q.11_4.B..B..A2d___5.1_6_(~9.85_)4 the Maryland court used reasonableness at the time of manufacture as the test In a strict liability case brought under§ 402A of Restatement.(Second) of Torts (1965). Reasonableness Is also used in certain of the official comments to § 402A. We have considered the charge as a whole and find no error In it.

AFFIRMED.

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Gefa Document- by Citation- 1 Va. Cir. 118

Service: Get by LEXSEE® Citation: 1 va. clr.118

1 Va. Cir. 118, *; 1972 Va. Cir. LEXIS 3, **

Joseph H. Green v. John Doe

[NO NUMBER IN ORIGINAL]

LAW AND EQUITY COURT OF THE CITY OF RICHMOND, VIRGINIA

1 Va. Clr. 118; 1972 Va. Clr. LEXIS 3

May 10, 1972, Decided

CASE SUMMARY

Page 1 of5

PROCEDURAL POSTURE: Plaintiff motorist brought an action against defendant an unknown driver following an automobile accident. The motorist alleged that the unknown driver forced the motorist's vehicle Into a light pole. The court found In favor of the unknown driver. The motorist brought a motion to set aside the verdict.

OVERVIEW: The court noted that a passenger in the motorist's car brought an earlier action against the motorist and the unknown driver. In that prior action, a discovery deposition of the passenger was taken. Just prior to trial In the Instant matter, the unknown motorist brought a motion for a continuance on the ground that the passenger was not available for trial. The court refused to grant the continuance but, over the motorist's objection, permitted the passenger's discovery deposition, taken In connection with the prior case, to be read at trial. The motorist contended that the court erred in permitting the deposition. The court held that Va. Sup. Ct. R. 4:7(a)(3), which allowed the reading of such depositions in the absence of a witness, was retroactively applicable because the admission of the deposition In question was feasible and would not have worked an injustice. The court rejected the motorist's contention that the court erred In admitting certain testimony from a pollee officer that he detected the odor of alcohol on the motorist's breath Immediately after the accident. The court held that the evidence was admissible with regard to the Issue of the motorist's own negligence.

OUTCOME: The court overruled the motorist's motion to set aside the verdict. The court entered judgment upon the verdict In favor of the unknown driver.

CORE TERMS: deposition, intoxication, motive, odor of alcohol, cross-examination, breath, prtor case, continuance, discovery, unknown, scene, pole, evidence of intoxication, partyopponent, collision, Injustice, admitting, passenger, feasible, offering

LexlsNexls(R) Headnotes • tilde Headnotes

CMI Procedure > Disclosure & Discovery > Depositions at Trial ~ Governments > Courts > &ule..AAPIJcatl.on...SLinter_pretatlon ~

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HNl~Va. Sup. Ct. R. 4:7(a)(3)(B),(D) reads: The deposition of a witness, whether or not a party, may be used by any party for any purpose in any action at law, issue out of chancery, or hearing ore tenus in equity if the court finds: that the witness Is at a greater distance than 100 miles from the place of trial or hearing, or is out of Virginia, unless It appears that the absence of the witness was procured by the party offering the deposition, or, that the party offering the deposition has been unable to procure the attendance of the witness by subpoena. The discovery procedures govern proceedings in suits and actions pending at the time of the effective date of the Virginia Rules of Evidence, except to the extent that in the opinion of the court the application would not be feasible or would work injustice. MQr..e_Li~.ItllslieaWJ.ote

.cllll.Leroced.ur.e > DJsctos.w:e...&...Qls.c.o~ > .O.eJJosJttons..at.Id.al ~ HN2~In determining whether the deposition of an unavailable witness Is admissible, It is

sufficient to Inquire whether the former testimony was given upon such an Issue that the party-opponent In that case had the same Interest and motive In his crossexamination that the present opponent has . .MQ.t:e...Uke..Ihl.s..He.a.dnote

Torts > .H.eg~ > .O.ef.enses >.Comparative .&....contdhutru:y...Ne.gllgence tJ Torts > Transportation Torts > Motor Vetlides ~ HN3~ VIrginia courts consistently hold that the odor of alcohol upon one's breath is not of

itself sufficient to establish Intoxication nor Is it sufficient to even raise the question of Intoxication or to Inject the Issue Into a case. While such testimony does not justify the submission of the Issue of intoxication to the jury, however, It Is proper evidence that could be considered by the jury in determining whether or not any alcoholic consumption on the part of the party in question, no matter how slight, might have affected his operation of his vehicle In connection with proper lookout, proper control, etc. More Like This Headnote

JUDGES:

JUDGE ALEX H. SANDS, JR.

OPINIONBY: SANDS

OPINION: [*118]

This case arises out of an automobile collision occurring on January 27, 1970, between a vehicle operated by the plaintiff travelling west on East Main Street in the City of Richmond and a light pole located on the north side of East Main Street, east of 15th Street. Plaintiff alleges that he was forced into the pole by the operation of an unknown vehicle by an unknown operator. James Faison, a passenger In the Green vehicle, brought suit against Green and John Doe, and a discovery deposition of James Faison was taken in that proceeding.

The Instant case was set down for trial, and just prior to trial, counsel for the defendant John Doe moved for a continuance upon the ground that James Faison, the passenger In [**2] the plaintiff's vehicle and the plaintiff in the suit above mentioned, could not be reached and was not available for trial. It appearing to the court that there was doubt as to whether or not, even though the continuance were granted, Faison could be located and brought to testify [* 119] at the trial at the time that the case was again set for trial, and the motion for

continuance being opposed, the court refused to grant the continuance but, over the objection of the plaintiff, permitted Faison's discovery deposition, taken in connection with the prior

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case, to be read at trial. Plaintiff's counsel objected to this on the ground that while the plaintiff had been present at the taking of the prior deposition, he was represented by different counsel at that time and that counsel In the instant case had not had an opportunity to cross- examine Faison at the time his deposition was taken.

The case went to trial at the scheduled time and resulted in a verdict for the defendant.

During the course of the trial, police officer R. A. Litton, who investigated the accident, was permitted, over the objection of counsel for plaintiff, to testify that the plaintiff, Joseph H. Green, had a strong odor [**3) of alcohol on his breath when he, Litton, arrived at the scene of the accident.

While the plaintiff assigns seven grounds for his motion to set aside the verdict, the court feels that the above two grounds are the only ones which merit consideration and these will be discussed In the order above named.

Admission of Prior Deposition

Present Rule 4:7(a)(3)(B) reads:

HNl+fhe deposition of a witness, whether or not a party, may be used by any party for any purpose In any action at law, issue out of chancery or hearing ore tenus In equity if the court finds: ... that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of the witness was procured by the party offering the deposition. [*120)

(D) ... that the party offering the deposition has been unable to procure the attendance of the witness by subpoena.

Counsel for plaintiff takes the position that this Rule Is not applicable because the action in question was instituted prior to the time that this Rule took effect. In a footnote found at page 27 of the new Rules, however, it provides that Part 4 (the discovery procedures) also govern proceedings [**4] In suits and actions pending at the time of the effective date of the Rules, except to the extent that in the opinion of the court the application would not be feasible or would work Injustice. The court found in this case that the admission Into evidence of the deposition In question was feasible and would not work an Injustice.

Plaintiff's attorney next takes the position that the Interest and motive of the attorney representing plaintiff In the prior action when he cross-examined Faison was not the same interest and motive as would be motivating counsel for Plaintiff at the case at bar. Counsel relies upon this statement of Professor Wigmore approved by the court In the case of Hertz v. Graham, 23 F.R.D. 17 at page 20. which reads as follows:

HN~It ought, then, to be sufficient to Inquire whether the former testimony was given upon such an issue that the party~opponent in that case had the same interest and motive in his cross-examination that the present opponent has.

In Hertz, the court, after reviewing several cases Involving similar facts, Riy_er_a_.vLAmerlcan ~JLO rt Li neW.3_F_.R..Q._2.1.; .Scottl.Jl~NatiooaLAlLUne.s.~ _ _.l.5.£..B...D......._5.Q2_;. Insu 1-Woo I Insulation Corp.

v . .Home Insulation. [**5] Inc .. 176 E.2d 50~ held that not only were the issues the same In the former case (the Brite v. Graham case) but In each case counsel for the plaintiff In Hertz had the same Interest and motive In his cross-examination as plaintiff's counsel had In Brite. [* 121]

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The court feels this to be particularly true in the case at bar. Mr. Michael Moncure, who represented the present plaintiff who was the defendant In the prior case, had the identical motive prompting his cross-examination as would the plaintiffs counsel in the case at bar were Faison present; I.e., the establls!l.lng of the fact that there was, in fact, a John Doe car at the scene of the accident. This, In the last analysis, Is what both of the cases were all about. The fact that counsel In the present case may have approached the pursuit of this motive from a different angle is not the test. It may well be that he may have subjected Faison to perhaps a more rigorous cross-examination than did plaintiff's counsel In the prior case, although this is doubtful, but even assuming this to be a fact, It is apparent from a reading of the crossexamination In the deposition In the prior case that counsel did In fact make every effort to [**6) establish that there was a John Doe car present at the scene since this would have supported his client's testimony to the effect that he, Green, had been run off the road and Into the pole by this unknown vehicle. For the e~bove reasons, It Is felt that the court did not err in permitting the use of this deposition at trial.

Effect of Odor of Alcohol

This brings us to the next question as to whether or not the court erred In admitting In evidence over objection of plaintiffs counsel the testimony of the Pollee officer that he detected the odor of alcohol on the plaintiff's breath immediately after the accident. The way In which this first came up was that plaintiffs counsel made a motion prior to embarking upon the trial that the defendant be instructed against the Introduction of this evidence. The court refused to so Instruct defendant's counsel upon the grounds that It would be Impossible to determine until all the evidence was In whether there were other facts which might be bearing upon the question of intoxication. The evidence was accordingly admitted over counsel for plaintiffs objection. No instruction was asked by [*122] defendant, nor was any given, relating to the Issue [**7] of Intoxication. The question presented, therefore, is whether or not the mere admission Into evidence of the odor of alcohol, while Insufficient without more, to constitute evidence of Intoxication, constitutes error on the part of the court in so admitting it.

The law in Virginia upon this question appears to be fairly clear. HN3+rhe Virginia court has consistently held that the odor of alcohol upon one's breath is not of Itself sufficient to establish Intoxication nor Is It sufficient to even raise the question of Intoxication or to inject this Issue Into the case. See Hill y. Lee, 209 va. 569, 166 S,E.2d 274 and authorities cited and reviewed.

While such testimony does not justify the submission of the issue of Intoxication to the jury, however, it is proper evidence that could be considered by the jury In determining whether or not any alcoholic consumption on the part of the party In question, no matter how slight, might have affected his operation of his vehicle in connection with proper lookout, proper control, etc. Thus, In the case of Davis v. Sykes. 202 Va. 952, 121 S,E.2d 513. where there was evidence of the odor of alcohol on defendant's breath at the time of the collision, [**8] the defendant asked for an Instruction to the effect that the mere odor of alcohol on his breath was not sufficient proof of Intoxication. The court rejected this Instruction upon the basis that Intoxication was not an Issue in the case. The Supreme Court affirmed the action of the trial court and held that there was no duty on the court to give an Instruction upon an Issue that was not in the case. The court went on, however, to hold that this evidence, which was In the case, could properly have been considered by the jury as having something to do with the defendant's having gone to sleep at the wheel.

It is, therefore, felt that the admission of this testimony in the case at bar did not constitute error although to have Instructed that this could have been considered by the jury as evidence of intoxication might well have been error on tht~ part of the court. [*123]

For the above reasons, the plaintiff's motion to set aside the verdict is overruled. Judgment

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· ·· • Giet a Document- by Citation- 1 Va. Cir. 118

will be entered upon the verdict.

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Exhibit 5




Exhibit 6


· · · · · IN THE UNITED STATES BANKRUPTCY COURT

· · · ·FOR THE WESTERN DISTRICT OF NORTH CAROLINA

· · · · · · · · · · Charlotte Division

IN RE:· · · · · · · · · · · ·:Case No. 10-BK-31607

GARLOCK SEALING TECHNOLOGIES :Chapter 11

LLC, et al.,· · · · · · · · ·:Jointly Administered

· · · · · Debtors.· · · · · ·:

- - - - - - - - - - - - - - -X

· · · · · · · · ·CONFIDENTIAL

· · · ·Video deposition of MARK H. IOLA

· · · · · · ·(Taken by the Debtors)

· · · · · ·Charlotte, North Carolina

· · · · · · · ·January 15, 2013

Reported by:· · Andrea Nobrega

· · · · · · · · Court Reporter

· · · · · · · · Notary Public


http://www.huseby.com

Page 42·1· ·typically identify what that problem was, and we·2· ·would have an open discussion about it.·3· · · · · · ·They would come up with some ideas and·4· ·they would ask us about those ideas.· But beyond·5· ·that very general sense, I don't have a sense.·6· · · · Q.· ·So you never become involved in·7· ·considering the settlement criteria that the NGC·8· ·Bodily Injury Trust applies in determining whether·9· ·or not to compensate a claim?10· · · · A.· ·I don't know what you mean by settlement11· ·criteria in the manner in which you asked your12· ·question.· Can you help me?13· · · · Q.· ·Sure.· I'm talking about medical14· ·criteria and exposure criteria.15· · · · A.· ·Okay, I have participated in discussions16· ·about medical and exposure criteria at the NGC17· ·Trust in my role as TAC advisor.18· · · · Q.· ·Okay.· And those are criteria that19· ·are -- that influence at least in part the trust's20· ·ability to pay the highest possible percentage to21· ·claimants, aren't they?22· · · · A.· ·That's a complicated question because23· ·not everything that we discuss nor every change24· ·they make makes a material difference to the25· ·payment percentage or whether or not there will be

Page 43·1· ·money in the future for mesothelioma victims.·2· · · · · · ·I would hope that the things that we·3· ·discussed help maintain the highest possible·4· ·payment percentage so that future victims would·5· ·have something meaningful to get from the trust.·6· · · · Q.· ·So let's go back to your work in the·7· ·tort system then.· When you do represent clients,·8· ·you represent them only on their tort claim?·9· · · · A.· ·Yes, sir.10· · · · Q.· ·Is there a downside to claimants in11· ·filing trust claims?12· · · · · · ·MR. ESSERMAN:· Objection to the form.13· · · · · · ·THE WITNESS:· I have no way to answer14· ·the question that you posed to me.· I don't know15· ·what you mean.16· · · · · · ·BY MR. CASSADA:17· · · · Q.· ·Is there a -- does filing a trust claim18· ·in your experience affect the value of your19· ·client's claim in the tort system?20· · · · A.· ·I don't think the filing of a trust21· ·claim has anything to do with what happens in the22· ·tort system.23· · · · Q.· ·You heard testimony yesterday about the24· ·practice of delaying trust claims in certain25· ·circumstances when it would benefit a client?· Did

Page 44·1· ·you hear that testimony?·2· · · · · · ·MR. ESSERMAN:· Objection to the form,·3· ·mischaracterizes the testimony.·4· · · · · · ·THE WITNESS:· That's not what Mr. Kraus·5· ·said.· I was here.·6· · · · · · ·BY MR. CASSADA:·7· · · · Q.· ·What was your understanding of what he·8· ·said?·9· · · · · · ·MR. ESSERMAN:· Objection to the form.10· · · · · · ·THE WITNESS:· I think you can read it.11· ·He was very clear and very articulate.· Sometimes12· ·he files claims during the pendency of an action,13· ·sometimes he doesn't.14· · · · · · ·I don't know anything more than that,15· ·but from my perspective, whether they file a16· ·claim, it doesn't matter at all.17· · · · · · ·BY MR. CASSADA:18· · · · Q.· ·And why doesn't it matter?19· · · · A.· ·Because I'm evaluating the evidence, the20· ·exposure evidence and its impact upon what's21· ·happening in the tort system, and its impact on22· ·the settlements or the trial opportunity against a23· ·specific defendant or group of defendants, and24· ·that doesn't change no matter whether they file a25· ·claim or not the.· ID is there.· I have got to

Page 45·1· ·deal with it.·2· · · · Q.· ·When you say the ID is there, what are·3· ·you referring to, the ID of what?·4· · · · A.· ·In every case I have, Mr. Cassada, there·5· ·is a considerable amount of bankrupt product that·6· ·is articulated and put into the record, and I have·7· ·to deal with that in determining what's the·8· ·appropriate price for all of the viable defendants·9· ·in the case, whether it's a joint and several10· ·jurisdiction or whether it's a several11· ·jurisdiction.12· · · · · · ·So the fact that they file a claim or13· ·they don't file a claim doesn't change the reality14· ·of the picture.· The picture contains the product15· ·identification as to bankrupt defendants.16· · · · · · ·It always has and it always will, and17· ·that's a factor in the determination in individual18· ·cases as to how to price the viable defendants.19· ·That's what I'm dealing with.20· · · · Q.· ·So the existence of product ID for21· ·bankrupt companies is a factor in the outcome of a22· ·case?23· · · · A.· ·No question.24· · · · Q.· ·Did you -- when you were involved in25· ·settlement discussions with Garlock, who did you



Page 46·1· ·deal with?·2· · · · A.· ·When?·3· · · · Q.· ·Let's just talk about during the whole·4· ·time period you engaged in these discussions, can·5· ·you tell me all of the people you dealt with?·6· · · · A.· ·No, I cannot tell you all the people I·7· ·dealt with.· I can give you the list that I can·8· ·recall.·9· · · · Q.· ·Okay, that's all I expect.10· · · · A.· ·Originally in Oklahoma I dealt with11· ·Steven Boaz, B-o-a-z, who was local counsel for12· ·Garlock, and from time to time because I got to13· ·know Dave Glaspy as a result of trying the Albert14· ·Bigpond case, and I knew that David played a15· ·broader role than just local counsel on individual16· ·cases, I might call him during the 1980s and17· ·discuss with him either a discovery issue or a18· ·particular problem we were having on a given case.19· · · · · · ·I principally dealt with in the later20· ·years, with Segal McCambridge lawyers, that I21· ·think was -- Melissa Farrell for a period of time,22· ·Tim Krippner for a period of time Bill Mahoney for23· ·a period of time, Steven Hart for a period of time24· ·and then at a certain point in time Garlock25· ·decided that the Siegel McCambridge people weren't

Page 47·1· ·who they wanted to negotiate with me, and I got·2· ·the pleasure of dealing with David Glaspy, who I·3· ·find to be a very excellent lawyer and a very·4· ·honest and straightforward man, and I really·5· ·appreciated them letting me deal with him.·6· · · · Q.· ·So there was -- there came a day when·7· ·almost all of your discussions were with Mr.·8· ·Glaspy?·9· · · · A.· ·In the later years here prior to the run10· ·up to bankruptcy, I believe that to be the case.11· · · · Q.· ·Do you recall about when that started?12· · · · A.· ·I think that David came back into my13· ·practice as it pertained to Waters & Kraus in late14· ·2005 around the time that Garlock took verdict in15· ·the Treggett matter.16· · · · Q.· ·So was it after that period when your17· ·negotiations were almost exclusively with Mr.18· ·Glaspy?19· · · · A.· ·I believe that to be the case.20· · · · Q.· ·Did you ever have discussions with21· ·anyone at Garrison about settlement?22· · · · A.· ·I have known Paul Grant over the years,23· ·and I believe Tim Hennessy is also with them and I24· ·have known Tim for many, many years.25· · · · · · ·I have had over the course of the 30

Page 48·1· ·plus years in the business, had I'm sure,·2· ·conversations with both of those individuals about·3· ·resolution of a particular case, but not on a·4· ·regular basis and perhaps because someone was on·5· ·vacation and they asked Tim or Paul to call me or·6· ·whatever.· But I don't really remember any details·7· ·of it.·8· · · · Q.· ·So when you were negotiating with Mr.·9· ·Glaspy from late 2005 forward, were you talking10· ·about specific individual cases?11· · · · A.· ·Always.12· · · · Q.· ·Was the practice to settle cases that13· ·were on a trial calendar?14· · · · A.· ·Yes, sir.15· · · · Q.· ·And did you discuss the circumstances of16· ·individual cases?17· · · · A.· ·We did.18· · · · Q.· ·Do you recall a discussion or a meeting19· ·in which Mr. Hennessy was involved in some time20· ·period shortly before the bankruptcy case?21· · · · A.· ·As you have asked your question, I'm not22· ·sure.· I know that after David Glaspy got involved23· ·in our practice in late 2005, around the time of24· ·the Treggett verdict, up until the time that they25· ·filed for bankruptcy, there was an occasion --

Page 49·1· ·perhaps even more than one occasion, although I·2· ·don't recall.·3· · · · · · ·From the beginning, David came to me·4· ·after the Treggett matter and wanted to talk with·5· ·me about global problems that Garlock was having·6· ·in the marketplace, wanted to discuss their·7· ·declining insurance piece and the cash flow·8· ·problems that Garlock saw themselves coming in·9· ·contact with in the future.10· · · · · · ·And he was having those discussions with11· ·me because he wanted me to work with him to put12· ·together a process that would work for him and13· ·would work for my clients, and I engaged in that14· ·discussion with Mr. Glaspy.15· · · · · · ·In the process of that we asked for16· ·appropriate due diligence material so that I could17· ·evaluate fairly what the position of Garlock was,18· ·the nature of their claim history, the nature of19· ·their claim payments, so that I could accurately20· ·and fairly advice Waters & Kraus and my individual21· ·clients as to what I thought was appropriate under22· ·the conditions that I understood them.· And23· ·because I trusted Mr. Glaspy, we didn't do it in a24· ·formal way.25· · · · · · ·We did it in a way that's consistent



Page 50·1· ·with the relationship I had with David, which is·2· ·very trusting.· If he told me something, I·3· ·believed him.· And he shared with me a lot of·4· ·financial information about the company and the·5· ·nature of their claim practice.·6· · · · · · ·I believe Mr. Hennessy was at one of·7· ·those meetings to provide some background and due·8· ·diligence information, if you will, and it's in·9· ·the context of that that we negotiated a number of10· ·continuing deals up until the time of the11· ·bankruptcy.12· · · · Q.· ·So you do recall then at least one13· ·meeting with Mr. Hennessy?14· · · · A.· ·Oh, I have had a number of meetings with15· ·Tim over the years.· I do have a recollection that16· ·he did come during one of those meetings with17· ·David to help explain what was going on with the18· ·company.· I can't give you any more detail than19· ·that, sorry.20· · · · Q.· ·Do you recall in the course of those21· ·discussions, that a controversy arose regarding22· ·Garlock's attempt to get Rule 2019 statements in23· ·the Pittsburgh Corning case?24· · · · A.· ·No, sir.· Until I sat here yesterday, to25· ·be quite candid with you, I would have been hard

Page 51·1· ·pressed to give you a correct answer as to what a·2· ·2019 was.·3· · · · Q.· ·Do you recall that Garlock filed a·4· ·motion to gain access to Rule 2019 statements in·5· ·the Pittsburgh Corning case?·6· · · · A.· ·I don't have any recollection of that,·7· ·but it wouldn't surprise me that Garlock did that,·8· ·but that would not have been part of my·9· ·discussions with Mr. Glaspy or Mr. Hennessy.10· · · · Q.· ·So you deny that you had any discussions11· ·regarding the Pittsburgh Corning case and Rule12· ·2019 statements with Mr. Glaspy?13· · · · · · ·MR. ESSERMAN:· Objection to the form of14· ·the question.15· · · · · · ·THE WITNESS:· I'm not denying anything.16· ·I'm telling you I don't have a recollection of17· ·ever discussing 2019s regarding Pittsburgh Corning18· ·or anyone else with Garlock.19· · · · · · ·During the period of time that Mr.20· ·Glaspy came back to negotiate resolution of the21· ·Waters & Kraus cases on behalf of Garlock with me,22· ·which was from the end of 2005 forward, I don't23· ·have any specific recollection of discussing24· ·anything other than Garlock's unique problems, and25· ·me trying to fit my interest of my clients into

Page 52·1· ·something that worked for both Garlock and my·2· ·clients.·3· · · · · · ·And I don't remember ever discussing·4· ·2019s for Pittsburgh Corning or anyone else during·5· ·that period of time.·6· · · · · · ·BY MR. CASSADA:·7· · · · Q.· ·Do you recall speaking -- during your·8· ·meeting with Mr. Hennessy, do you recall talking·9· ·about Waters & Kraus' practices as it related to10· ·filing trust claims?11· · · · A.· ·No, not as I sit here today, no.12· · · · Q.· ·Do you recall that the topic of trust13· ·claims came up during your conversations with Mr.14· ·Glaspy and Mr. Hennessy?15· · · · A.· ·I don't have a recollection of it coming16· ·up.· I would be very surprised if it came up in17· ·discussions with me, because it would have nothing18· ·to do with what I and David Glaspy and Tim19· ·Hennessy were trying to do.· I was trying to20· ·accommodate Garlock's very unique and difficult21· ·problem of keeping them afloat and in the tort22· ·system and also maintaining the integrity of doing23· ·the right thing for my clients.24· · · · · · ·In essence, Garlock was coming to me and25· ·asking me to help them with their problem.

Page 53·1· · · · Q.· ·What specifically did -- when you say·2· ·Garlock, you're talking about Mr. Glaspy?·3· · · · A.· ·Yes, sir.·4· · · · Q.· ·And you're saying he asked you to help·5· ·him with his problem?·6· · · · A.· ·Yes, sir.·7· · · · Q.· ·And what specifically did he say in that·8· ·context?·9· · · · A.· ·He was running out of money.10· · · · Q.· ·You said he was running out of money?11· · · · A.· ·The company.12· · · · Q.· ·What was your response to that13· ·statement?14· · · · A.· ·That's a problem.15· · · · Q.· ·And what action did you take in response16· ·to that?17· · · · A.· ·Well, we took a lot of action, Garland.18· ·I mean we exchanged a tremendous amount of19· ·information about the inventory of cases that I20· ·had at the time.21· · · · · · ·They provided me a lot of information22· ·for me to better understand the nature of what23· ·insurance they had in place, and what the24· ·declining revenue stream from that insurance would25· ·be, and information about the underlying company



Page 54·1· ·and what monies that it was throwing off that it·2· ·could push towards this problem, and an·3· ·understanding of what they were paying in the·4· ·marketplace to everyone, including my firm so that·5· ·I could understand the scope of his problem.·6· · · · · · ·And it's in those context that we came·7· ·up with a three year agreement that I think you·8· ·have seen and we negotiated.·9· · · · Q.· ·Let me back you up to earlier in the10· ·2000s when you were -- when you had your11· ·relationship with Waters & Kraus.12· · · · · · ·Do you recall that there were cases from13· ·time to time where controversies arose regarding14· ·the failure to produce trust claims that had been15· ·filed on behalf of Waters & Kraus clients?16· · · · A.· ·Never.17· · · · Q.· ·So you're not familiar with the18· ·Brassfield case?19· · · · A.· ·You asked me about in my conversations20· ·with Garlock, and the issue of filing bankruptcy21· ·claims never came up.22· · · · · · ·This is a fiction that you created for23· ·the purposes of the bankruptcy.· It had nothing to24· ·do with the negotiation of cases in the25· ·marketplace, at least in my practice.

Page 55·1· · · · Q.· ·Okay.· But I asked you --·2· · · · A.· ·The ID is already in the case, Garland.·3· ·I have to deal with the reality of what the facts·4· ·and circumstances of the tort case facts are.·5· · · · · · ·So the fact of the filing of the trust·6· ·claim would be irrelevant, completely irrelevant·7· ·to either Mr. Glaspy or myself in the evaluation·8· ·of an individual case and the role that Garlock·9· ·would play in the case.10· · · · Q.· ·I asked you an entirely different11· ·question, Mr. Iola.12· · · · A.· ·I tried to answer your question.· I'm13· ·sorry if I didn't.14· · · · Q.· ·I'm asking you whether you are aware15· ·that in cases in which Waters & Kraus represented16· ·its clients, that controversies arose regarding17· ·the failure to produce copies of trust claims?18· · · · · · ·MR. ESSERMAN:· Objection to the form of19· ·the question, assumes facts not in evidence.20· · · · · · ·THE WITNESS:· I think I already answered21· ·that I don't know anything about that controversy22· ·or otherwise.23· · · · · · ·BY MR. CASSADA:24· · · · Q.· ·So you don't know anything about the25· ·Brassfield case?

Page 56·1· · · · A.· ·I know about the Brassfield case because·2· ·I settled the Brassfield case, yes, but no, not as·3· ·to what you're talking about.·4· · · · · · ·You guys filed lots of motions in lots·5· ·of cases as part of your litigation strategy.· I·6· ·didn't care about any of that, okay.·7· · · · · · ·Those aren't pricing issues for me.· I·8· ·am evaluating the facts and evidence that can be·9· ·admitted at trial as to the exposure to asbestos,10· ·and trying to determine what's the appropriate11· ·place for Garlock in the overall scheme of the12· ·evaluation of that case.13· · · · · · ·That's my role, and the filing of trust14· ·claims would bear no, repeat, no relevance to that15· ·whatsoever.16· · · · Q.· ·Okay, so focusing on the Brassfield17· ·case, you were involved in the Brassfield case in18· ·negotiating settlements?19· · · · A.· ·Yes, sir.20· · · · Q.· ·But you are unaware that on the eve of21· ·trial in that case, the defendants discovered that22· ·Mr. Brassfield or his family had not produced23· ·copies of trust claims that had been filed on his24· ·behalf?25· · · · · · ·MR. ESSERMAN:· Objection to the form of

Page 57·1· ·the question.·2· · · · · · ·THE WITNESS:· I have no idea whether I·3· ·was aware of it or not, and it would have made·4· ·absolutely no material difference to me whatsoever·5· ·because the facts of evidence of exposure is what·6· ·I am settling.·7· · · · · · ·BY MR. CASSADA:·8· · · · Q.· ·Were you involved in the case in which·9· ·Waters & Kraus represented Mr. Steckler, Chris10· ·Steckler?11· · · · A.· ·Yes, sir.12· · · · Q.· ·And are you aware that in that case13· ·during the trial, the fact became known that there14· ·had been trust claims filed that had not been15· ·produced?16· · · · A.· ·I don't know whether aware of it or not,17· ·it would have made no difference to me because,18· ·again, I'm dealing with the facts of exposure and19· ·their impact on verdict and settlement for20· ·Garlock, and all the other companies in the case21· ·under whatever state law governs the case.· The22· ·filing of a trust claim is irrelevant.23· · · · Q.· ·Have you seen trust claims used during24· ·asbestos cases by defendants to establish the25· ·plaintiff's exposure to the products of trusts?



Page 70·1· ·there?·2· · · · A.· ·I watched the openings, and I may have·3· ·watched the presentation of our first witness.·4· ·I'm not sure who that was.·5· · · · Q.· ·Did you watch the closing?·6· · · · A.· ·I did not watch the closing.·7· · · · Q.· ·Are you thoroughly familiar with the·8· ·discovery record in that case?·9· · · · A.· ·I am not --10· · · · · · ·MR. ESSERMAN:· Objection to the form.11· · · · · · ·THE WITNESS:· I am not thoroughly12· ·familiar with the discovery record, but I can13· ·certainly tell you about my conversations prior to14· ·the verdict and after the verdict with Garlock and15· ·in both of those times we discussed the other ID.16· · · · · · ·BY MR. CASSADA:17· · · · Q.· ·Did Mr. Treggett have -- was there18· ·evidence that he had substantial exposure to19· ·amphibole asbestos products?20· · · · A.· ·Yes.21· · · · Q.· ·There was that evidence?22· · · · A.· ·Yes.23· · · · Q.· ·Was there evidence that he had exposure24· ·to Unibestos, which appears on ships?25· · · · A.· ·No.· Your expert came to the courtroom

Page 71·1· ·and opined an opinion in the Treggett case that·2· ·the thermal insulation that Mr. Treggett came in·3· ·contact with in his work in the nuclear Navy was,·4· ·in fact, Unibestos.·5· · · · · · ·On cross, he was asked whether he had·6· ·any real evidence that it was Unibestos as opposed·7· ·to any other thermal insulation product that·8· ·contained asbestos, Kaylo, Phillip Carey,·9· ·Thermobestos, whatever, and your expert was unable10· ·to say that he could prove that Unibestos was in11· ·any of the ships that Mr. Treggett was, other than12· ·in a general sense that it was his belief that13· ·Unibestos was widely used in the Navy.14· · · · · · ·Ultimately the court gave the defendant,15· ·Garlock, a choice as to whether they wanted a16· ·blank for the Navy and refused to put Unibestos on17· ·there because Garlock had not carried their burden18· ·of demonstrating under the law in California, that19· ·he was actually exposed to Unibestos.20· · · · · · ·It didn't matter.· The argument from21· ·Garlock in the Treggett matter was that Mr.22· ·Treggett's disease came solely, completely,23· ·exclusively.24· · · · · · ·The sole proximate cause of his disease25· ·was his exposure to thermal insulation products

Page 72·1· ·that contained asbestos while he served in the·2· ·nuclear Navy.·3· · · · · · ·That evidence was in the record.· You·4· ·argued it.· You argued it really, really hard, and·5· ·the jury found 40 percent for the Navy and found·6· ·39 percent for Garlock.· What more do you want?·7· · · · Q.· ·What thermal insulation defendants were·8· ·on the verdict?·9· · · · A.· ·None, because Garlock didn't carry their10· ·burden of demonstrating any specific thermal11· ·insulation product manufactured by any given12· ·defendant.13· · · · Q.· ·What evidence of a specific thermal14· ·insulation product manufactured by a specific15· ·defendant was there --16· · · · A.· ·None.17· · · · Q.· ·None?18· · · · A.· ·Mr. Treggett did not know that material.19· ·The co-workers did not know them by name.· Garlock20· ·had the right to go find co-workers of Mr.21· ·Treggett.22· · · · · · ·I don't know what investigation they23· ·did, but at trial they didn't present any24· ·co-workers who took a contrary position to either25· ·Mr. Treggett or the other co-workers.

Page 73·1· · · · · · ·They tried to develop, as I explained,·2· ·the ability to put Unibestos on the verdict form,·3· ·but your own witness admitted that he couldn't·4· ·actually say that it was onboard ship.·5· · · · · · ·He could just generally discuss it being·6· ·used in the Navy, and as a result, that doesn't·7· ·under the law in California carry your burden.·8· · · · · · ·But you did get the Navy on there, and·9· ·you argued that Navy was sole proximate cause and10· ·the jury didn't believe your argument and found 4011· ·percent for the Navy and 39 percent for Garlock.12· · · · · · ·But Garlock in that case got the benefit13· ·of all of the ID.· They argued it vigorously.14· ·They litigated it vigorously, and they came out15· ·where they came out.16· · · · Q.· ·You were talking about all the evidence17· ·that existed in Mr. Treggett's exposure to thermal18· ·insulation, and where did he suffer that exposure?19· · · · A.· ·In the Navy.20· · · · Q.· ·Anywhere else?21· · · · A.· ·I don't remember whether there were22· ·other component parts after he left the Navy of23· ·exposure.24· · · · Q.· ·Did he suffer at all on a ship or did he25· ·suffer it some in a shipyard?



Page 74·1· · · · A.· ·I don't remember the specifics as to·2· ·whether he spent time in a shipyard, but if he·3· ·spent time in a shipyard performing maintenance·4· ·and repair, he likely came in contact with it·5· ·there, too.·6· · · · · · ·We weren't denying in the case that he·7· ·was exposed to the thermal insulation products of·8· ·others or that they played a significant·9· ·contributing role in the development of his10· ·mesothelioma.11· · · · · · ·This was an argument in front of the12· ·jury for the jury to decide as to the appropriate13· ·percentages to be applied to the Garlock exposure,14· ·versus all the other exposure that Garlock15· ·believed was the sole proximate cause, and the16· ·jury rejected your argument.17· · · · Q.· ·Did Mr. Treggett eventually file claims18· ·against thermal insulation companies?19· · · · A.· ·I have no idea.20· · · · Q.· ·You saw the evidence yesterday.21· · · · A.· ·I saw your exchange with Mr. Kraus, but22· ·I don't know anything about that.· I accept Mr.23· ·Kraus' representation, but I don't know anything24· ·about that.25· · · · Q.· ·Did Mr. Treggett pursue those claims

Page 75·1· ·before the trial of his case?·2· · · · A.· ·I have no idea.·3· · · · Q.· ·And you're saying you never recall·4· ·telling Mr. Glaspy and Mr. Hennessy that Waters &·5· ·Kraus doesn't pursue trust claims before a case is·6· ·resolved?·7· · · · A.· ·I would have never discussed with Mr.·8· ·Hennessy or Mr. Glaspy when Waters & Kraus·9· ·actually files trust claims because they would not10· ·be relevant in any way to the discussion that I11· ·was having with representatives of Garlock as to12· ·settlement.13· · · · Q.· ·I understand --14· · · · A.· ·I am focused -- my entire job and their15· ·job was to evaluate where Garlock's exposure fit16· ·into the picture of total exposure under the17· ·existing state law.· That's what we were doing.18· · · · Q.· ·I understand what you believe is19· ·relevant and not relevant.20· · · · A.· ·Well, no, it's not just what I believe,21· ·Mr. Cassada.· It's also what Garlock's counsel22· ·believe is relevant.23· · · · · · ·Look, I have been doing this for 3224· ·years.· I don't believe for a minute that there is25· ·any magic to what I do.· The same factors that I

Page 76·1· ·am using and evaluating Garlock's participation in·2· ·a given claim are the exact factors that Garlock·3· ·is using.·4· · · · Q.· ·Yet in the Brassfield case, Judge·5· ·Davidson found that it was relevant that Waters &·6· ·Kraus nor its client had produced trust claims and·7· ·continued the trial of the case.·8· · · · A.· ·Well, the fact that they continued the·9· ·trial because you asked them to continue the trial10· ·doesn't mean that the judge in the Brassfield case11· ·found them to be relevant.12· · · · · · ·He was allowing you to do discovery on13· ·them.· All I can tell you is that if you tried the14· ·case, it would have made no difference to your15· ·defense or our ability to prosecute the case16· ·whether a claim is filed or not.17· · · · · · ·I will give you an example.· If a guy18· ·describes that he came in contact with Manville19· ·thermal insulation that contains asbestos, you20· ·would not have needed the plaintiff to have filed21· ·a trust claim in order to assert that that22· ·Manville exposure was either the sole proximate23· ·cause or was in your mind the majority of his24· ·exposure.25· · · · · · ·The filing of the trust claim would be

Page 77·1· ·irrelevant.· That's what I'm trying to have the·2· ·discussion with you about.· What we are trying to·3· ·settle is the evidence presented at trial and the·4· ·evidence is of exposure.·5· · · · · · ·It doesn't matter whether a claim is·6· ·filed or not.· The plaintiff is not even required·7· ·to file a claim, even if he has exposure to·8· ·Manville.·9· · · · · · ·So obviously the filing of the claim is10· ·not what you're looking for.· What you're looking11· ·for is the exposure evidence, so you can talk12· ·about it as sole proximate cause or to diminish13· ·your share.14· · · · · · ·And you have that in all these cases,15· ·fully developed, and you had the right under the16· ·law to develop it in any way you choose fit.17· · · · · · ·You have the burden.· Go out and find18· ·whatever you want to find, and Garlock had19· ·terrific lawyers, okay, and they defended20· ·themselves vigorously.21· · · · · · ·So to suggest that somehow you were22· ·hoodwinked in the tort system, in my negotiations23· ·with Garlock, I never got from them that they felt24· ·hoodwinked and I never considered it as part of25· ·our discussion.



Page 78·1· · · · Q.· ·Okay.· So under your hypothetical the·2· ·filing of a trust claim is irrelevant when the·3· ·plaintiff admits in discovery that the plaintiff·4· ·was exposed to Manville?·5· · · · A.· ·Not just plaintiff, any evidence in the·6· ·case.· You could develop it from a co-worker.· You·7· ·could develop it from documentary evidence from·8· ·the Navy that demonstrates that on the specific·9· ·overhaul, for example, that the guy testified he10· ·worked on, that they used Manville pipe covering11· ·and block, 85 percent Mag that contained asbestos.12· · · · · · ·There is a number of ways that Garlock13· ·could have carried their burden, but it is your14· ·burden, Mr. Cassada.· You have the same burden to15· ·get people on the verdict form that I have in the16· ·presentation of my case against you.17· · · · · · ·And the same evidence rules that apply18· ·to my case apply to your defense, and you have all19· ·the tools in the marketplace, more tools than we20· ·have to develop that.21· · · · · · ·It always -- it was always curious to me22· ·that Garlock had a database of tens of thousands23· ·of cases, tens of thousands of depositions of24· ·plaintiffs, tens of thousands of depositions of25· ·co-workers.· You knew more about where your

Page 79·1· ·products had been identified than anyone on earth,·2· ·much more than we did, because we only have our·3· ·cases.·4· · · · · · ·You could have combed through your·5· ·database and found other evidence potentially to·6· ·put into the record to demonstrate what you want·7· ·to try to prove is your alternative cause.· That's·8· ·your burden, and you took advantage of it in the·9· ·best way I guess you felt you could in the tort10· ·system, but you weren't impaired in any way in11· ·doing so.12· · · · Q.· ·So positive hypothetical that a13· ·plaintiff had identified exposure to Manville and14· ·you said that case the fact the plaintiff filed a15· ·Manville trust claim was irrelevant?16· · · · A.· ·Correct.17· · · · Q.· ·Would you also take the position that it18· ·would be irrelevant in a case where a claimant19· ·files a Manville claim and yet denies in the tort20· ·case that he has any knowledge about whether he21· ·was exposed to Manville?22· · · · A.· ·Mr. Cassada, to the extent that you're23· ·implying that we were not truthful in our answers24· ·to interrogatories, I take great offense to it.25· · · · Q.· ·I'm not implying anything.· I asked you

Page 80·1· ·a question.·2· · · · A.· ·We are pretty good lawyers, okay.· I can·3· ·deal with whatever the real facts are in the·4· ·marketplace, okay.·5· · · · · · ·If the guy has exposure to thermal·6· ·insulation products and he also has exposure to·7· ·gaskets that are manufactured by Garlock, I can·8· ·deal with that in the marketplace.·9· · · · · · ·We never ever hid ID as to any bankrupt10· ·defendant ever.· We let the ID develop as it11· ·naturally should based upon what people can12· ·remember, and then you chose to carry your burden13· ·in the way that you did.14· · · · · · ·Really what you're suggesting in all of15· ·these questions is that somehow your lawyers16· ·didn't do their job, and I don't agree with that.17· ·I think your lawyers did an excellent job.18· · · · · · ·They were experienced lawyers, well19· ·qualified.· They knew what they were doing, and I20· ·think they took advantage of everything that was21· ·available to them in the marketplace to defend22· ·themselves.23· · · · Q.· ·When you say "we," who are you referring24· ·to?25· · · · A.· ·Garlock and all of its lawyers.

Page 81·1· · · · Q.· ·No, you said we.· You said we engaged in·2· ·discovery, and we did that.·3· · · · A.· ·Waters & Kraus.· You are asking me about·4· ·my relationship with Waters & Kraus.·5· · · · Q.· ·But you didn't answer my question.· I·6· ·asked you --·7· · · · A.· ·I think I did.·8· · · · Q.· ·If Garlock was involved in a case where·9· ·the plaintiff either denies or fails to remember10· ·any Manville exposure, and the claimant previously11· ·filed a trust claim against Manville, wouldn't you12· ·agree that it would be relevant?13· · · · · · ·MR. ESSERMAN:· Objection to the form of14· ·the question.15· · · · · · ·THE WITNESS:· I don't know how I can16· ·answer that, because I don't know of that17· ·circumstance ever in my practice.18· · · · · · ·If my guy is going to file a claim and19· ·says he was exposed to Manville, he is going to20· ·testify to it in the tort system, period.21· · · · · · ·BY MR. CASSADA:22· · · · Q.· ·So I take it from that, that you agree23· ·that it would be relevant?24· · · · A.· ·No, the filing of the trust claim is not25· ·relevant in any way in any case.



Page 82·1· · · · Q.· ·Why is it not relevant?·2· · · · A.· ·The development -- the development of·3· ·the evidence of exposure to the bankrupt product·4· ·or generically to products that contain thermal·5· ·insulation not manufactured by Garlock, is what is·6· ·relevant.· The claim is irrelevant.·7· · · · · · ·Are you telling me and suggesting to me·8· ·that if a guy described that he had Manville·9· ·thermal insulation exposure, and didn't file a10· ·claim, that you would be prohibited from putting11· ·it in front of a jury because he didn't file a12· ·Manville trust claim?· That's preposterously13· ·stupid and not true.· That's what I don't get14· ·about the questioning.15· · · · Q.· ·Let me give you another hypothetical.16· ·Suppose a claimant testified that the claimant did17· ·not have exposure to asbestos at a work site and18· ·yet the claimant had filed a trust claim19· ·certifying that he had exposure at the same work20· ·site that he testified he did not have exposure to21· ·in an underlying tort case, would the trust claim22· ·be relevant in that circumstance?23· · · · · · ·MR. ESSERMAN:· Objection to the form of24· ·the question.25· · · · · · ·THE WITNESS:· I don't know how I could

Page 83·1· ·answer that.· I learned yesterday for the first·2· ·time which I didn't really know, that some of the·3· ·trusts are site ID oriented and some of the trusts·4· ·are specific product oriented.·5· · · · · · ·So I don't know what representation the·6· ·trust claim actually represents.· I don't know·7· ·whether it represents an admission.· So I can't·8· ·answer that because I don't do that, okay.·9· · · · · · ·But I can tell you that you had10· ·excellent lawyers that developed alternative11· ·exposures in every case.· They were a relevant12· ·part of my discussions with Garlock in terms of13· ·trying to fairly price Garlock's place within the14· ·context of the total exposure of a given case.15· · · · · · ·BY MR. CASSADA:16· · · · Q.· ·So you would agree then that the value17· ·of a case depends on -- against Garlock depended18· ·on the existence of evidence of alternative19· ·exposures?20· · · · A.· ·Not the way you have put the question,21· ·no.22· · · · Q.· ·Okay, well, why don't you describe for23· ·me how the existence of evidence of alternative24· ·exposures affected the value of a case against25· ·Garlock?

Page 84·1· · · · A.· ·I will give you a perfect example.· If I·2· ·had a case of a guy who worked for a city water·3· ·department and his job for, say, ten years was to·4· ·cut asbestos cement pipe that was used in the·5· ·water sewer lines, the cement pipe, let's say it's·6· ·manufactured by Johns-Manville, and it contains·7· ·crocidolite, okay.·8· · · · · · ·In addition, he had a job for three·9· ·months where he did small appliances repair where10· ·he came in contact with Garlock five or six11· ·gaskets over the course of his career.12· · · · · · ·Obviously his exposure to the13· ·crocidolite pipe would play a massive role in14· ·diminishing the amount of money that Garlock would15· ·pay, and in that case Garlock and I would have a16· ·different kind of discussion than we would in the17· ·following case.18· · · · · · ·Let's say a guy is a pipe fitter and he19· ·works in a shop that breaks apart compressors and20· ·rebuilds them, no exposure to any other thermal21· ·insulation product of any kind.22· · · · · · ·All he has is gasket and packing23· ·exposure, and let's for the purposes of my24· ·discussion say it's all Garlock, okay.25· · · · · · ·Obviously in that case he doesn't have

Page 85·1· ·any alternative exposures, and so the role that·2· ·Garlock would play in his case would be·3· ·dramatically different.·4· · · · · · ·So in every case, both myself, David·5· ·Glaspy, the people from Segal McCambridge, we were·6· ·all evaluating the same facts.· Where does Garlock·7· ·fit into the total picture and how do we price·8· ·that?·9· · · · · · ·Now, we might disagree from time to time10· ·over the price, but we found a way over the course11· ·of 30 something years to settle most of our cases,12· ·come to a resolution, a meeting of the minds.13· · · · · · ·But in all instances, the total exposure14· ·picture is a meaningful part of the evaluation15· ·that I am doing and I believe you're doing on the16· ·role that Garlock should play.17· · · · Q.· ·Do you recall providing an affidavit in18· ·a case filed by -- a malpractice case of a19· ·plaintiff named Charlotte Hearn?20· · · · A.· ·Yes.21· · · · Q.· ·And in the affidavit you were describing22· ·whether her former lawyer had met a particular23· ·standard of care and whether she had suffered24· ·damages from that lawyer's malpractice, is that25· ·correct?



Page 86·1· · · · A.· ·Correct.·2· · · · Q.· ·Did you take the position that her tort·3· ·claims had lost value as a result of the·4· ·malpractice of the lawyer?·5· · · · A.· ·I believe that's the case.· You would·6· ·have to refresh my recollection with the·7· ·affidavit, but generally, I believe that's true.·8· · · · Q.· ·Do you recall essentially why you·9· ·believed that to be the case?10· · · · · · ·MR. ESSERMAN:· Objection to the form.11· · · · · · ·THE WITNESS:· Well, my recollection is12· ·that I didn't think the lawyers did a very good13· ·job on many fronts.14· · · · · · ·BY MR. CASSADA:15· · · · Q.· ·Do you recall whether the affidavit you16· ·submitted in that case was truthful?17· · · · A.· ·I don't believe I would have submitted18· ·an affidavit that wasn't truthful, Mr. Cassada.19· · · · Q.· ·Did it fairly reflect your views and20· ·opinions?21· · · · A.· ·I believe that it probably did.22· · · · Q.· ·Okay.· In a discussion of your23· ·settlements with defendants, including Garlock,24· ·you said you negotiated settlements on a one-off25· ·basis or on a case by case basis?

Page 87·1· · · · A.· ·That's correct.·2· · · · Q.· ·And I believe you testified that the·3· ·identification of the defendant's product was a·4· ·factor in the settlement discussions?·5· · · · A.· ·Absolutely.· Not only the·6· ·identification, but the proximity of the exposure·7· ·to the plaintiff and the duration of the exposure,·8· ·a lot of other factors.·9· · · · Q.· ·Okay.· Is that the way you approached10· ·settlement of all claims for Waters & Kraus?11· · · · A.· ·Yes.12· · · · Q.· ·In the typical Waters & Kraus case, do13· ·you recall the number of defendants from whom you14· ·would obtain a settlement?15· · · · A.· ·There is no typical.· I cannot answer16· ·your question.17· · · · Q.· ·Can you give me a range?18· · · · A.· ·I cannot.19· · · · Q.· ·Wouldn't it be true that settlement of a20· ·case would revolve -- involve a large number of21· ·defendants?22· · · · A.· ·That is not correct, not typically.23· · · · Q.· ·How did the bankruptcies of24· ·co-defendants affect the value of the claims held25· ·by Waters & Kraus' clients?

Page 88·1· · · · A.· ·Plaintiffs lost money.·2· · · · Q.· ·How so?·3· · · · A.· ·Well, like, for example, in a several·4· ·liability jurisdiction, take California for·5· ·example.· If I have got a lifetime drywaller and·6· ·he is exposed to USG, National Gypsum, Georgia·7· ·Pacific and Kaiser gypsum products, and those are·8· ·the only four asbestos products that he was ever·9· ·exposed to, because National Gypsum is bankrupt10· ·and because USG is bankrupt, 50 percent of the11· ·value of his case I can never get.12· · · · · · ·The jury is going to assess shares.13· ·Let's say they are equal participants in this14· ·example.· The jury is going to assess equal shares15· ·to those people, and that money I have lost16· ·forever.17· · · · · · ·So all that the bankruptcies did is it18· ·diminished the amount of money that the plaintiffs19· ·got.20· · · · · · ·In my view it never had any effect on21· ·the remaining defendants in the tort system22· ·because of the nature of the state laws and what23· ·they allow us to try in the manner in which it can24· ·be tried.25· · · · Q.· ·So would it follow from your testimony

Page 89·1· ·then that the aggregate settlements that·2· ·plaintiffs could obtain in the tort system·3· ·decreased following the bankruptcies of top tier·4· ·defendants in 2000 and 2001?·5· · · · · · ·MR. ESSERMAN:· Objection to the form of·6· ·the question.·7· · · · · · ·THE WITNESS:· Generally that would be·8· ·true.·9· · · · · · ·BY MR. CASSADA:10· · · · Q.· ·So the aggregate tort values of claims11· ·went down during the 2000s?12· · · · A.· ·That's particularly true in several13· ·liability jurisdictions because those bankrupt14· ·defendants, if there is ID in the case, get15· ·reflected on the jury form and the jury assesses16· ·percentages against them and those percentages I17· ·have lost forever.18· · · · · · ·In a joint and several jurisdiction, it19· ·could be different, but generally in terms of20· ·settlement, the impact of bankruptcy filings was21· ·to diminish the value of a case, not to increase22· ·any individual defendant's responsibility in the23· ·case, but ultimately the burden fell on the24· ·plaintiffs.25· · · · · · ·And that's why we were working so hard,



Exhibit 7


·1· · · · · · IN THE UNITED STATES BANKRUPTCY COURT· · · · · ·FOR THE WESTERN DISTRICT OF NORTH CAROLINA·2· · · · · · · · · · ·CHARLOTTE DIVISION

·3· · IN RE:· · · · · · · · · · ·) Case No. 1-BK-31607· · · · · · · · · · · · · · · · ·)·4· · GARLOCK SEALING· · · · · · ) Chapter 11· · · TECHNOLOGIES, LLC, et· · · )·5· · al.,· · · · · · · · · · · ·) Jointly Administered· · · · · · · · · · · · · · · · ·)·6· · · · · · Debtors.· · · · · ·)

·7

·8

·9· ********************************************************

10· · · · · · · · · · · ·CONFIDENTIAL

11· · · · · · · ORAL AND VIDEOTAPED DEPOSITION OF

12· · · · · · · · · · · JEFFREY B. SIMON

13· · · · · · · · · · · ·JANUARY 4, 2013

14· *******************************************************

15· · · ·ORAL AND VIDEOTAPED DEPOSITION OF JEFFREY B. SIMON,

16· produced as a witness at the instance of the Debtors,

17· and duly sworn, was taken in the above-styled and

18· numbered cause on the 4th day of January, 2013, from

19· 9:19 a.m. to 4:19 p.m., before Susan Eddins Brown, CSR

20· in and for the State of Texas, reported by machine

21· shorthand, at the law offices of Schachter Harris, LLP,

22· 400 E. Las Colinas Boulevard, 220 Canal Centre, Irving,

23· Texas 75039, pursuant to the Federal Rules of Civil

24· Procedure and the provisions stated on the record or

25· attached hereto.



Page 142·1· · · ·Q.· ·What does "upon information and belief, no,"·2· mean?·3· · · · · · · · ·MR. ESSERMAN:· Objection to the form of·4· the question.·5· · · ·A.· ·Well, at this time of the state of discovery·6· at this point, the existing understanding was of the·7· plaintiff, that he or she, he in this case, had·8· identified the asbestos products that he believed he had·9· worked with.10· BY MR. CASSADA:11· · · ·Q.· ·Okay.· And then Interrogatory No. 28 states12· that, "If you believe you were ever exposed to asbestos13· other than at the time or locations identified in your14· responses to Interrogatories Nos. 27 and 28, state a)15· the date, the dates and places of such exposure; b) the16· circumstances surrounding such exposure; c) the nature17· of the asbestos, the trade name of the asbestos product,18· if any, and the name and address of their manufacturer;19· and d) describe what precautions you took, if any, to20· avoid exposure."21· · · ·A.· ·Okay.22· · · ·Q.· ·And the response from Mr. Ornstein was, "Upon23· information and belief, not applicable.· Plaintiff's24· investigation and discovery are continuing and plaintiff25· reserves the right to amend this response at any time."

Page 143·1· · · · · · So between those two interrogatory answers, if·2· the plaintiff had knowledge of having been exposed to·3· the product of a bankrupt company, they would have been·4· identified in one of these two responses, correct?·5· · · ·A.· ·Oh, gosh.· They would have been identified·6· somewhere in the discovery responses.· I don't want to·7· get into a form of substance kind of question and answer·8· in the sense that if the plaintiff was aware of an·9· asbestos exposure, irrespective of whether or not that10· exposure was to a -- the product made by a solvent11· company or by a now bankrupt company, then in some form12· of verified discovery, whether it's this, whether it's a13· deposition or some other question and answer, it would14· likely have been disclosed.· That was certainly firm15· policy, setting aside the facts that I don't know the16· specifics of the Ornstein case.17· · · ·Q.· ·Were work history sheets used in California?18· · · ·A.· ·I don't remember if they were used in '08.19· · · ·Q.· ·Do you know whether a work history sheet was20· used in connection with this particular case?21· · · ·A.· ·Looks like so.· I see one.22· · · ·Q.· ·Okay.· And that appears as Exhibit A?23· · · ·A.· ·Yes, sir.24· · · ·Q.· ·To the interrogatory answers?25· · · ·A.· ·Yes, sir.

Page 144·1· · · ·Q.· ·Did Mr. Ornstein identify on his work history·2· sheet the products of any bankrupt company?·3· · · ·A.· ·I don't know.· Chrysler went through·4· bankruptcy.· I don't know if it was by then.· General·5· Motors went through bankruptcy.· I don't know if it was·6· by then.· I just don't know the answer to that.·7· · · ·Q.· ·Do you know whether these answers -- do you·8· know whether an obligation exists under California law·9· to supplement interrogatory answers?10· · · · · · · · ·MR. ESSERMAN:· Objection to the form of11· the question.12· · · ·A.· ·I don't recall the rule off the top of my head13· for supplementation through every form of discovery14· responses.· What I -- what I'm trying to say, again, is15· that just as we ask for certain information from16· defendants as part and parcel, as different questions in17· the discovery process, the taking of their deposition,18· interrogatory answers, requests for production, requests19· for admissions.· There are often circumstances, even20· typical, where we get the answer, but they don't go back21· and amend every -- or supplement every form of discovery22· for which that answer would be responsive and supplement23· it, as long as we get the answer.24· · · · · · The same exists here, that as long as the25· defendant gets the answer, presuming they ask the

Page 145·1· question and it's not privileged, I don't know that we·2· feel obligated to go supplement every area in written·3· discovery for which supplementing that answer might in a·4· vacuum be appropriate, and I know that we're not·5· typically compelled to do so.·6· BY MR. CASSADA:·7· · · ·Q.· ·So does that mean to say that your firm is not·8· engaged in a practice of supplementing interrogatory·9· answers?10· · · · · · · · ·MR. ESSERMAN:· Objection, form of the11· question.12· · · ·A.· ·No.· It was that our firm is engaged in the13· practice of disclosing information that we are required14· to disclose in discovery responses but that we don't15· always go back and fill every spot in discovery16· responses where that answer might be responsive, but we17· would do so if asked.18· BY MR. CASSADA:19· · · ·Q.· ·Okay.· So in respect of those interrogatories20· that require the identity of products containing21· asbestos that the plaintiff worked in or around, it is22· not a practice necessarily to go back and to amend the23· interrogatory -- answers --24· · · · · · · · ·MR. INSELBUCH:· Objection.25· · · · · · · · ·MR. ESSERMAN:· Objection.



Page 146·1· BY MR. CASSADA:·2· · · ·Q.· ·-- to interrogatories?·3· · · · · · · · ·MR. INSELBUCH:· Misstates the testimony·4· of the witness.·5· · · · · · · · ·MR. CASSADA:· That's what I'm asking.·6· · · ·A.· ·It is a practice to do so if it is necessary.·7· BY MR. CASSADA:·8· · · ·Q.· ·Do you know whether this was another case that·9· where that theme that you described earlier existed10· where the defendant, chrysotile defendants, were11· searching for evidence of plaintiff's exposure to12· amphibole asbestos products?13· · · ·A.· ·I bet not.· I bet there was plenty of thermal14· insulation exposure that was at the ready in this case,15· given the fact that he was in the U.S. Navy, alleged16· that the diesel engines were, in fact, insulated;17· that -- we certainly alleged that various equipment18· manufacturers were liable for thermal insulation on19· their valves based on the specification and the20· foreseeable standard.21· · · · · · There was an evolution in law over time in22· California.· But at this point in time I would bet23· everybody agreed he had thermal insulation exposure and24· everybody thought that was not only the truth but part25· of their case.

Page 147·1· · · ·Q.· ·That's a bet you're making, not personal·2· knowledge?·3· · · ·A.· ·I plainly don't have any personal knowledge·4· about the Ornstein case.·5· · · ·Q.· ·Okay.· And so you don't know whether·6· Mr. Ornstein or your firm actually identified any·7· specific amphibole asbestos products to which he was·8· exposed?·9· · · · · · · · ·MR. ESSERMAN:· Objection, misstates10· testimony.11· · · · · · · · ·MR. CASSADA:· I asked him whether he knew12· that.13· · · · · · · · ·MR. ESSERMAN:· I think he referred you to14· the work history.15· · · ·A.· ·Well, the question is whether -- do I16· specifically recall it or does my education and17· experience in representing these people tell me it's18· likely.· Which frame of reference are you looking for19· and I'll give you an answer.20· BY MR. CASSADA:21· · · ·Q.· ·I asked you whether you know.22· · · ·A.· ·Of my own personal knowledge, based on work23· done in the Ornstein case, I do not know.· I think it24· very likely that we were describing thermal insulation25· exposures as part of the exposure history on evidence

Page 148·1· proffered by us, not just conceding the point by way of·2· cross-examination and discovery responses, based on what·3· appears to be on this work history sheet.·4· · · ·Q.· ·So you made the comment earlier that you would·5· bet not.· So it would be a surprise to you if·6· Mr. Ornstein or anyone in your firm was contesting·7· exposure to any amphibole products?·8· · · · · · · · ·MR. ESSERMAN:· Objection to the form of·9· the question.10· · · ·A.· ·I don't know if I would say it was a surprise.11· I'm saying that -- it says that the insulated -- the12· Cleveland diesel mufflers were insulated.· Maybe they13· were insulated with just chrysotile.· Maybe they14· weren't.· I don't really know.15· BY MR. CASSADA:16· · · ·Q.· ·Okay.· So if you look at the index for the17· trust claims --18· · · ·A.· ·Okay.19· · · ·Q.· ·-- Mr. Ornstein would go on to file 11 trust20· claims.21· · · ·A.· ·Okay.22· · · ·Q.· ·Ten?· Ten trust claims.· Maybe two different23· ones for Owens Corning, maybe one for Owens Corning and24· one for Fibreboard.· That would make it 10 -- or 11 and25· all filed by your firm.

Page 149·1· · · ·A.· ·Okay.·2· · · ·Q.· ·None of these exposures that we could find·3· were identified during discovery in the underlying case.·4· · · ·A.· ·What do you mean by "identified"?·5· · · ·Q.· ·Mr. Ornstein's exposure to specific products·6· for which these trusts are responsible were not·7· disclosed in discovery.·8· · · ·A.· ·What do you mean by that?·9· · · ·Q.· ·Well, let me turn it on you then.· Can you10· show me anywhere in the file where Mr. Ornstein or your11· firm disclosed exposure to specific products of these 1112· trusts?· And let me -- the 11 trusts are AC&S, Amatex,13· Armstrong World Industries, Combustion Engineering, DII,14· Eagle Picher, H.K. Porter, Keene, two different Owens15· Corning trust claims, and Thorpe.16· · · ·A.· ·All right.· Let me ask you this, since I bet17· you have read it and I haven't.· Is there a discussion18· in his testimony about having been exposed to pipe19· insulation on the ship or in the shipyard?20· · · ·Q.· ·I actually thought you would come prepared to21· address that.· So are you saying that you don't know?22· · · ·A.· ·I'm saying that what you're calling disclosure23· and I'm calling disclosure, we could be talking past24· each other and neither of us is wrong.· If the man has25· thermal insulation exposure, for example, on the USS



Exhibit 8


( -

(

From: To: Subject: D11te: Atta~hments:

Dayld Glaspy [email protected] FW: Any news? Monday, July 28, 2008 4:07:41 PM SEG Trial Cases- revised 7 -23-0B.doc

Son·y forgot the attachment.

-····Original Message--··· From: David Glaspy Sent: Monday, July 28, 2008 2:02 PM To: '[email protected]' Subject: RE; Any news?

Dea1· Ron: I left you a voice mail message, I am still working on persuading my client to go up. I have attached your chart with some minor changes, One is that I have separated the unfilled cases from the ones with trial dates, The reason is I have to treat them differently for my client's internal pu1·poses. 1 have plugged in what I believe is doable fo1· those unfilled cases based on what I have been able to get for others at the early stage. As you know some of the untilled cases will not get paid anytime soon do to such things as death, motion to transfer, lack of product id., etc. Since we would be paying virtually every case, and much earlier than usual there has to be some discount.

Anyhow, I will Cllll you again tomorrow and hopefully with word from my ollent. 1 understand that St. John is up for p1·e trial Weds, Dave G.

-----Original Message-----From: Ron Eddins [mai!to;reddins@seBlaw,com] Sent: Monday, July 28, 2008 8:16AM To: David Glaspy Subject: Any news?

Sent via BlackBerry by AT&T

SGPB -0000026


Exhibit 9





Exhibit 10


Capital Reporting CompanyGlaspy, David M, 06-25-2013 (Confidential)

(866) 448 - DEPOwww.CapitalReportingCompany.com © 2013

1



-----------------------------:

IN RE: : :GARLOCK SEALING : Cause No.: 10-31607TECHNOLOGIES, L.L.C., : : Debtor. : :-----------------------------:

CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER

Charlotte, North Carolina

Tuesday, June 25, 2013

Videotaped Deposition of:

DAVID M. GLASPY

called for oral examination by counsel for Official

Committee of Asbestos Personal Injury Claimants,

pursuant to notice, at the Law Offices of Robinson,

Bradshaw & Hinson, 101 North Tryon Street, Suite 1900,

Charlotte, North Carolina, before Nancy J. Martin,

RPR/CSR, of Capital Reporting Company, beginning at

9:06 a.m., when were present on behalf of the

respective parties:




202

1 Q. Okay. As an electrician in the navy who

2 worked at Long Beach Naval Shipyard, several ships,

3 what exposures would you expect that Mr. Ornstein had?

4 A. Well, as an electrician, he would have

5 exposures to all of the amphibole insulation all over

6 the ship. He's crawling up and around all the pipes

7 and the spaces and what have you. Everything on a

8 ship is covered, a navy ship, even the cold water

9 lines, in asbestos insulation. So he would have

10 significant exposures.

11 Q. Can you at any point in the case -- strike

12 that.

13 What product names would you expect

14 Mr. Ornstein was exposed to, what products, given his

15 occupation and industry?

16 A. Pittsburgh Corning, Unibestos, Owens Corning,

17 Fibreglass, Johns-Manville, Eagle Picher, Keene.

18 Q. And you know that just off the top of your

19 head?

20 A. Yeah. Those are the suppliers of

21 asbestos-containing insulation to naval ships.

22 Q. Did you, at any point in the case, analyze in

23 written form or communicate in any way to Garlock what

24 non-Garlock exposures Mr. Ornstein had?

25 A. No, I didn't communicate on any issue with

204

1 to discover alternative exposures in the Ornstein

2 case?

3 A. I do not, and it's an L.A. case. So I don't

4 know if that would have been initiated by myself or

5 Mr. Baronian. I took the business over from him at

6 some point, and I don't know if it was pre this case

7 or after this case.

8 Q. Did Mr. Ornstein misrepresent or conceal any

9 information about exposures to you?

10 A. From what I've reviewed of the materials,

11 yes.

12 Q. How did Mr. Ornstein misrepresent or conceal

13 exposures?

14 A. By forgetting to mention or downplaying his

15 exposure to the amphibole insulation-containing

16 products for which he had already or subsequently

17 thereto the settlement submitted claim forms claiming

18 he was exposed.

19 Q. Did you know at the time that Mr. Ornstein

20 was misrepresenting or concealing exposures, in your

21 opinion?

22 A. I did not.

23 Q. Did that impact your evaluation of the case?

24 A. Yes.

25 Q. How did it impact your evaluation of the

203

1 Garrison in writing on the Ornstein case.

2 Q. How about over the phone or in person about

3 what non-Garlock exposures Mr. Ornstein had?

4 A. I'm sure it was discussed.

5 Q. Did you discuss what non-Garlock exposures

6 you could prove?

7 A. Yes. That was discussed quite often.

8 Q. And what bankrupt exposure Mr. Ornstein had?

9 A. Yeah. Again, that discussion is -- had

10 repeated itself to the point of, again, being fairly

11 useless. Chris Drake knew the situation as well as I

12 did. It was the universe we lived in at the time, in

13 2008. The evidence wasn't available to us, and we

14 moved on and had to deal with it.

15 Q. And did you discuss what trust claims the

16 plaintiff would or could file?

17 A. No, I doubt I did because it had no use to us

18 at that moment.

19 Q. Okay. So what did you say to Garrison about

20 non-Garlock exposures?

21 A. I have no recollection specifically to any

22 specific case from five years ago. I settled and had

23 discussions with Chris Drake hundreds and hundreds of

24 cases since this one. I have no idea.

25 Q. Do you recall what affirmative steps you took

205

1 case?

2 A. I overvalued the case by a factor of whatever

3 the settlement value was. If it settled for 200,000,

4 then that's the number. If it settled for 400,000,

5 that's the number. I know there's a difference

6 between the allocations between myself and Ron Eddins

7 if I remember it correctly. But whatever the number

8 was, it was too much.

9 Q. With respect to Mr. Reed, as part of your

10 recommendation or evaluation to Mr. Drake, did you

11 talk about the strength of Garlock ID in the case?

12 A. I'm sure we did.

13 Q. Why do you say, "I'm sure we did"?

14 A. Because that's a major factor. It's as

15 simple as is Garlock identified, and if the plaintiff

16 didn't, is there anybody that's going to, to how

17 strongly, how often did he work with it. Did he grind

18 them off? Did he see somebody do the work? I mean

19 these are all factors that go to the strength of the

20 exposure.

21 Q. As part of your recommendation or evaluation

22 did you discuss economic damages?

23 A. Yes. As I said, I believe I told you in

24 every California case, I know I covered that issue.

25 Q. And what would you have said?




206

1 A. Whatever I believe the economic damages were.

2 You don't always have a specific -- especially if

3 you're settling earlier -- as to what the number is.

4 I would have to estimate medical expenses and estimate

5 his lost future pension, or whatever it be that his

6 economic damages were.

7 Q. Okay.

8 A. And that was my job to figure that out as

9 best I could so that we could evaluate the case.

10 Q. Do you have any specific recollections of

11 conversations you had about any of these plaintiffs?

12 A. No.

13 Q. When I say, "these plaintiffs," I'm talking

14 about the plaintiffs you have identified as designated

15 claimants that you had settlement or trial experience

16 with.

17 A. Yeah. I assumed it was this list, Exhibit 5.

18 I assumed that was part of your question, and the

19 answer to your question is no, I don't really have any

20 specifics of exactly what I told Chris Drake or what

21 he told me on any of these cases.

22 Q. As an electrician working at Moore Dry Dock,

23 what types of exposures would you expect Mr. Reed to

24 have had?

25 A. The same or very similar to what I described

208

1 exposures would you expect?

2 A. Even worse. He's down in the bowels of the

3 ship, in the fire room and the boiler room and the

4 engine rooms that are covered in asbestos insulation,

5 extreme vibration. So if he's on board when the

6 thing's moving, it's even worse. If they're doing any

7 work, it becomes a snow storm.

8 Q. Would you expect he was exposed to refractory

9 products?

10 A. If he was inside working during a shutdown of

11 the boilers, yes. You can't get near it when the

12 boilers are on fire. But once they let it cool down

13 and turn it off and come back a few days later, yes,

14 they can get inside and be part of the crew that

15 cleans out that area. Then he would have had exposure

16 to the refractory.

17 Q. Mr. Treggett, as a machinist mate in the

18 navy, what types of exposures would you expect he had?

19 A. Again, he would have exposure to all the

20 thermal system insulation products, the cements, the

21 pipe covering the block, gaskets and valve packing.

22 Q. How about Mr. White, a machine shop helper at

23 a Norfolk well and dry dock. What type of exposures

24 would you expect for Mr. White?

25 A. I wouldn't. Machine shop person usually is

207

1 for Mr. Ornstein. He's an electrician. They're

2 building the ships. He's climbing through them,

3 running cable and wire around, through, next to, on

4 top of asbestos amphibole-containing insulation.

5 Q. So what bankrupt products?

6 A. I'm sorry?

7 Q. What bankrupt products?

8 A. Pittsburgh Corning, Unibestos, Unarco, Owens

9 Corning, Johns-Manville, Keene, Eagle Picher.

10 Q. For Mr. Steckler, as a sheet metalsmith pipe

11 fitter, ship fitter in the navy in a variety of ships,

12 San Diego Shipyard, Hunter's Point Naval Shipyard,

13 what types of exposures would you expect Mr. Steckler

14 to have had?

15 A. I'm sorry. I'm turning to see if I can

16 recall Mr. Steckler. What did you describe his trade

17 as?

18 Q. Sheet metalsmith, pipe fitter, ship fitter.

19 A. As a ship fitter, he's all over the ship too.

20 He's going to be exposed to all the

21 amphibole-containing asbestos products on board ship.

22 He's also going to, as a pipe fitter, probably use

23 some gaskets.

24 Q. Mr. Taylor is a fireman apprentice, fireman

25 and machinist mate in the navy. What types of

209

1 grinding metal on lathes and making parts. Now, if he

2 went on board ship, he'd have it. If he was doing

3 something else, he'd have it. But a machine shop

4 person, generally his job was to take a hunk of metal

5 and turn it into a part.

6 Q. How about Mr. Williams, boiler maker,

7 chipper, caulker, tool operator, ship fitter in the

8 navy, naval shipyards, steel shipyards. What kind of

9 exposures would you expect Mr. Williams to have?

10 A. The same. In the capacity of boiler maker,

11 all the insulation refractory and what have you. As a

12 ship fitter, generally very little. Ship fitters were

13 basically metal carpenters. They built the bulkheads

14 and things like that that were there before they put

15 the pipes and insulation in. So... But he had other

16 occupations that he probably had some very severe

17 exposures to insulation.

18 Q. So what product names would Mr. Williams have

19 been exposed to?

20 A. The same array I mentioned. The

21 Johns-Manville, the Owens Corning fiberglass.

22 Pittsburgh Corning, Keene, Unarco, Celotex. I mean

23 all of them supplied to the navy.

24 Q. How about Mr. White?

25 A. What about Mr. White?


Exhibit 11


Capital Reporting CompanyTurlik, John 06-26-2013 -- CONFIDENTIAL

(866) 448 - DEPO www.CapitalReportingCompany.com © 2013

1



------------------------------:IN RE: : :GARLOCK SEALING TECHNOLOGIES, : : Cause No.: 10-31607L.L.C., : : Debtor. :------------------------------:

Charlotte, North Carolina Wednesday, June 26, 2013

CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER

Videotaped Deposition of:

JOHN TURLIK, ATTORNEY AT LAW,

called for oral examination by counsel for Official

Committee of Asbestos Personal Injury Claimants,

pursuant to notice, at the Law Offices of Robinson,

Bradshaw & Hinson, 101 North Tryon Street, Suite 1

900, Charlotte, North Carolina, before Nancy J.

Martin, RPR/CSR, of Capital Reporting Company,

beginning at 9:04 a.m., when were present on behalf

of the respective parties:




186

1 case?

2 A. Yeah. Whether I communicated it to -- it was

3 known between us that it was a Belluck & Fox case.

4 Q. Do you remember that communication?

5 A. No. And the initial communication may not

6 have come from me. It might have actually come from

7 Belluck & Fox.

8 Q. Did you communicate, as part of your

9 evaluation, with anyone from Garrison about how good

10 the plaintiff's attorney was in the Beltrami case?

11 A. I don't know one way or another.

12 Q. How about did you -- how about if the

13 plaintiff was a smoker?

14 A. I don't know if I did one way or the other.

15 Q. Did you communicate who you thought the

16 plaintiff's expert would be?

17 A. I did not make that communication.

18 Q. Did you communicate with Garrison about who

19 the co-defendants were?

20 A. Again, I may -- I -- that wasn't something

21 that I did.

22 Q. In looking at this list of designated

23 claimants that you've identified --

24 A. Let me step back. That is one of the trial

25 evaluation forms. I did not create it. I did not

188

1 Q. Are you aware of any communications of any

2 kind regarding the resolution of the cases on this

3 list, Exhibit 16, that you had with Garrison?

4 A. Leading up to the resolution? I don't

5 remember any written communications leading up to it.

6 Once an agreement was reached, I may have seen -- I

7 may have gotten from either the local or from Garrison

8 the settlement agreement, if there was a written

9 settlement agreement, but anything leading up to it,

10 that wasn't the way we -- that really, really wasn't

11 the way we operated. It was we talked.

12 Q. Do you recall any oral communication

13 regarding the resolution of any of these cases that

14 you had with someone at Garrison?

15 A. I know that there was. I can't tell you any

16 specifics of any of those communications. I would

17 communicate what the demand was. I would get an

18 authority. What that was, I don't know.

19 Q. In looking at Exhibit 16 and the plaintiffs

20 that you've identified, do you recall any specific

21 communications of any kind that you had with someone

22 at Garrison about resolving that case?

23 A. As I sit here, I don't remember any specific

24 conversations. It was a long time. All of these were

25 numerous years ago. And remember, there's a lot of

187

1 send it to them, but I was likely copied on it. So

2 the answer to those questions is they were -- it was

3 made known to them but not by me personally.

4 Q. Looking at this document, Exhibit 16, and the

5 designated claimants that you've identified, do you

6 recall any specific communications or conversations

7 where you evaluated any of those cases, evaluated any

8 of those cases to someone at Garrison?

9 A. I don't -- let me just make sure.

10 (The witness reviewed Exhibit 16.)

11 THE WITNESS: Could you read back the

12 question.

13 MR. PHILLIPS: Why don't I ask you again

14 because maybe it wasn't clear.

15 Q. Do you recall any specific conversation or

16 communication where you evaluated any of these

17 designated claimants to someone at Garrison?

18 A. Okay. That's much easier. Without even

19 looking at the list, no. I don't remember any

20 specific conversations.

21 Q. Do you remember any specific written

22 communication that you made to someone at Garrison

23 where you evaluated one of these cases?

24 A. I don't know that there was any. So the

25 answer is no.

189

1 cases. I remember having conversations. I don't

2 remember the specifics of the conversations.

3 Q. You identified Mr. Beltrami as someone that

4 you had participated in their case.

5 A. Well, I was not the trial attorney. I was --

6 it was part of my region. So I was aware of it. It

7 was coming from my office. So I was aware of it, and

8 I participated nominally in negotiating. I remember

9 having a conversation with Joe Belluck on that group.

10 I don't remember anything of that conversation.

11 Q. On any of these claimants, do you recall the

12 details of any communications you had with Garrison

13 concerning the resolution of their cases?

14 A. No. No, you've asked that. I'm not trying

15 to be difficult. I just don't.

16 Q. As a gunner's mate in the navy, in the navy

17 and working on naval ships and broken naval yard, what

18 types of exposures would you expect Mr. Beltrami to

19 have?

20 A. I'm sorry. Say that again.

21 Q. As a gunner's mate in the Navy, what kind of

22 exposures would you expect Mr. Beltrami to have?

23 A. As a gunner's mate I think he would have been

24 exposed to some thermal insulation products.

25 Q. Do you know what names of those products




190

1 might be?

2 A. It depends on the name of the ship.

3 Q. As a steam fitter in the plumbing and heating

4 industry --

5 A. Okay.

6 Q. -- what exposures would you expect

7 Mr. Blanford to have?

8 A. Thermal insulation products, sealing

9 products.

10 Q. Do you know any of the product names for

11 those?

12 A. What I would expect them to have?

13 Q. Uh-huh.

14 A. It depends on where he worked, whose product

15 were there.

16 Q. As a grinder and welder at Bethlehem Steel,

17 Bethlehem Corporation, what kind of exposures would

18 you expect Mr. Dougherty to have?

19 A. Thermal insulation products, welding rods,

20 machinery.

21 Q. Working as an instructor on steam turbines,

22 engineering officer in nuclear power work, what kind

23 of exposures would you expect Mr. Early to have?

24 A. Thermal insulation products, component parts

25 of machinery.

192

1 A. He may or may not have had exposures from his

2 father. If he had exposures from his father, it could

3 be welding rods. It could be thermal insulation

4 products.

5 Q. As a steam fitter, what type of exposures

6 would you expect Mr. Messinger to have?

7 A. Sealing products, thermal insulation

8 products, component parts to machinery and equipment.

9 Q. As a boiler technician in the Navy, what kind

10 of exposures would you expect Mr. Puller to have?

11 A. I'm sorry. I --

12 Q. As a boiler technician in the Navy and on

13 ships --

14 A. Component parts to boilers, thermal

15 insulation products, potentially sealing products.

16 Q. As a machinist and an insulator helper

17 working for Mack Truck, what kind of exposures would

18 you expect Mr. Snyder to have had?

19 A. What was his trade again?

20 Q. Insulator helper and machinist.

21 A. Definitely thermal insulation products.

22 Q. Exhibit 12 has been identified as "trial

23 evaluation forms and major expense project approvals."

24 A. Yes.

25 Q. The pages kind of jump around. Did you put

191

1 Q. As a boiler maker in the navy working in both

2 the naval yard and on ships, what kind of exposures

3 would you expect Mr. Flynn to have?

4 A. Boilers and thermal insulation products.

5 Maybe some sealing products.

6 Q. As a pipe fitter and laborer working for

7 naval shipyards, what kind of exposures would you

8 expect Mr. Golini to have?

9 A. Sealing products, thermal insulation

10 products, all component parts to equipment.

11 Q. As a fireman apprentice, fireman boiler

12 technician in the Navy and on ships, what kind of

13 exposures would you expect Mr. Homa to have?

14 A. Thermal insulation products. You know, the

15 wide range of thermal insulation products. Possibly

16 sealing products.

17 Q. Any product names you're familiar with?

18 A. Depends on the ships.

19 Q. Okay.

20 A. That's why we would ask the discovery

21 questions. That's why we would want the trust

22 information.

23 Q. As someone whose father worked as a welder in

24 the shipping industries, what kind of exposures would

25 you expect Mr. Massinger to have had?

193

1 this together yourself?

2 A. Actually, yes, I did.

3 Q. Are these -- is this a subset of a larger set

4 of documents?

5 A. My understanding is this is -- these are the

6 documents that were presented to you guys based on the

7 court's recent ruling, and these are just the ones

8 that were from my jurisdictions.

9 Q. Okay. Let's start with the first one.

10 GSTEST 0556249.

11 A. I'm out of order already. What's the

12 plaintiff's name?

13 Q. Homa.

14 A. And this is a trial --

15 Q. Trial evaluation form.

16 (Pause in proceedings.)

17 THE WITNESS: I have it now. I'm sorry for

18 the delay.

19 BY MR. PHILLIPS:

20 Q. Have you ever seen this document before?

21 A. Yes.

22 Q. When did you see it before?

23 A. I was the one that gave it to Garland -- or

24 to Garrison to give to Garland or to John or whoever.

25 Q. So it's your practice to maintain trial


Documents

UNITED STATES BANKRUPTCY COURT FOR THE ...7 Excerpts from the Deposition of Simon Greenstone Panatier Bartlett’s 30(b)(6) Designee (Jeffrey Simon), dated Jan. 4, 2013 8 July 28,