Party Discovery: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                LANKFORD
CRAWFORD
MORENO LLP

ATTORNEYS AT LAW

PAUL V. LANKFORD (State Bar No. 181506)
PAUL LANNUS (State Bar No. 192551)
LANKFORD CRAWFORD MORENO LLP
1850 Mt. Diablo Blvd., Suite 600

Walnut Creek CA 94596

Telephone: 925.300.3520

Facsimile: 925.300.3386

Attorneys for Defendant
FORD MOTOR COMPANY

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JAN 12 2011

Clerk of the Court
BY: ALISON AGBAY
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

SAMUEL LEAL,
*Plaintiff,
Vv.
ASBESTOS DEFENDANTS (B“P),

Defendants.

A

LOUIS CASTAGNA,
Plaintiff,
v.

ASBESTOS DEFENDANTS (BP),

ASBESTOS
BRAYTON GROUP 536

Case No, CGC-08-274807

Case No. CGC-07-274230

DECLARATION OF PAUL LANNUS IN
Support OF DEFENDANT FoRD MOTOR
COMPANY’S MOTION JN LIMINE TO
EXCLUDE AND PREVENT ANY
ARGUMENT OR REFERENCE TO THE

Defendants. DEPOSITION TESTIMONY OF RALPH A.
FROEHLICH [MIL #37]
* The use of the term “plaintiff” as used herein refers to the plaintiff in a personal injury action and the

decedent in a wrongful death action; and the use of “plaintiff” shall refer to both plaintiff in the singular and plural, as

appropriate.

-1-NOD WwW &

LANKFORD
CRAWFORD
MORENO LLP

ATTORNEYS A LAW

GARY COATES,
Plaintiff,
v.
ASBESTOS DEFENDANTS (BP),
Defendants.

CLEM FITZHUGH,
Plaintiff,
v.
ASBESTOS DEFENDANTS (B*P),

Defendants.

Case No. CGC-08-274784

CASE No. CGC-08-274645

DECLARATION OF PAUL LANNUS IN SUPPORT OF DEFENDANT FORD MOTOR COMPANY’S
Motion IN LimMinE YO EXCLUDE AND PREVENT ANY ARGUMENT OR REFERENCE TO THE
DEPOSITION TESTIMONY OF RaLpu A. FROEMLICH [MIL #37]

ADW & Ww

28

MCKENNA LONG é&
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO

J, PAUL LANNUS, declare as follows:

1. Tam a member of the State Bar of California and an attomey with LANKFORD
CRAWFORD MORENO LLP, counsel of record for Defendant in the above action. I have
personal knowledge of the facts set forth in this declaration and, if called as a witness, could and
would testify competently to such facts under oath.

2. Attached hereto as Exhibit A is a true and correct copy of the April 26, 2000,
Agreed Protective Order in Terry v. Conrad, et al. (Court of Common Pleas in Montgomery
County, Ohio, Case No. 98-893) prohibiting all depositions taken in that case-—including the
Froehlich deposition—from being used in any other case.

3. Attached hereto as Exhibit B is a true and correct copy of the July 6, 2000 Order
in Terry v. Conrad, et al. (Court of Common Pleas in Montgomery County, Ohio, Case No. 98-
893), enforcing the order attached as Exhibit A.

4. Attached hereto as Exhibit C is a true and correct copy of relevant excerpts of the
Deposition Testimony/A ffidavit of Ralph Froehlich.

5. Attached hereto as Exhibit D is a true and correct copy of relevant transcript
excerpts from Rump v. Allied Signal, et al., Case No. GD 04-06944, Court of Common Pleas of
Allegheny County, Pennsylvania.

6. Attached hereto as Exhibit E is a true and correct copy of relevant transcript
excerpts from Moore vy. Allied Signal, Case No. GD 05-3941, Court of Common Pleas of
Allegheny County, Pennsylvania.

7. Attached hereto as Exhibit F is a true and correct copy of an Order in Melver vy,
Pneumo Abex Corporation, et al., Case No. A.D, 2004-176, Court of Common Pleas of Crawford
County, Pennsylvania.

8. Attached hereto as Exhibit G is a true and correct copy of relevant transcript
excerpts from Mallia v. Ford Motor Co., et al., Case No. 04-16237 CA 42, Dade County Circuit

Court, State of Florida.

-2-

DECLARATION OF PAUL LANNUS IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE AND PREVENT ANY ARGUMENT OR REFERENCE TO.
THE DEPOSITION TESTIMONY OF RALPH A. FROEHLICH
IMIL #37)9. Attached hereto as Exhibit H is a true and correct copy of relevant transcript
excerpts from Holbrook v. Saberhagen Holdings Inc., et al., Case No. 05-2-06952-0 SEA,

Superior Court of King County, Washington.

win

1 declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed on this 2 day of December 2010, at Walnut Creek, California.
7 a

Petdlin

9 PauL LANNUS

28
-3-

Li
Mewenna pone & DECLARATION OF PAUL LANNUS IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE AND PREVENT ANY ARGUMENT OR REFERENCE TO
ATTORNEYS AT LAW THE DEPOSITION TESTIMONY OF RALPH A. FROEHLICH
(MIL #37)

SAN FRANCISCOEXHIBIT A

EXHIBIT AOCS, 26.2002” $: 1PM S4FM $7 THOMPSON & KNTGRT

i¢ we
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY, OHO
CIVIL DIVISION
aN

BETTY L, TERRY, + Case No, 98.893 .

Plaid, + Judge Pamick J. Foley

VE. fy :

CJAMESCONRAD, | + AGREED PROTECTIVE ORDER
ADMINISTRATOR, BUREAU OF
WORKERS’ COMPENSATION AND r
INDUSTRIAL COMMISSION, et al,

Defendants, ‘

Pocsuant to Civil Role 26(C) end stipulation of the parties, the Court heey anders thar
documents and other information exchanged during the course of discovery be Contidential aginst
vamteessary disclosure in the following manner; /

, , 1 This Order shall govern all information and materials produced by ar obtained «
from any witness and party in this accion (including, but not limited tn, information obuined ftom and
Cocuments produced pursuant tp Civil Rules 33, 34 or 45, answers to Fequests for admissicus, answers to
interrogatories, deposition ranscipt: znd interviews of ‘Witnesses, including former employees of GM),
all information contained in those materials, and all copies, excerpts or sumumaries of those materials,
and any notes or related documents containing the infarmstion ("Confidential Matesis!"),

. 2 Confidential Material may be'used solely forthe purpose of this litigation, and
pot for any business ar other Purpose, Confidential Materist may be disclosed only to the following
esons:

Tate Cour and any cours to which en apes a this action might iOCT. 24, 20088 3:11PM" 37 THOMPSON & KNIGHT 214 969175! YO, 7388 6
T4200

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(i) The pares and legnl counsel! for the parties in this action and their

employees and siafS,

Gi) Outside vendors who petform microfiching, photocopying, eormputt
classification or similar clerical functions, but only for so long as necestary to perform

those servicos; and

Gy) Court reporters und other persons engaged in preparing transcripls cf
resimmony or hearings for this ection
1. Way party should conclade that partisular Comfidentia) Material should not be
treated. as confidential thea itmay so notify the producing party in writing and state the basis for that ‘
conclusion. Within seven days of its receipt of tbat notice, the producing party shall notify the other

. party in writing whether it insists on the material being treeted as coofideatial and as specified im this

Order, If the parties are unable to reach agreement regarding the status of that material, then the partica

shall continue to treatit as designated and 1 use itonty in the mamer authorized by this Order unless

and until this Court rules thar it may be treated otherwise,

4 Any deposition tumsccipt, plesding, motion, memorandum of other paper filed

with the Court which includes or discloses any Confidential Material shall be identified with the words, ~

“Confidential — Resisted Access Purmant to Court Order* gad shell be filed md maintained wnder seal

wntll further order of Bais Court Filing the document under seal chall not bar amy of the parties from

unrestricted use or dissemination of those portions of the document which da pot contain Confidential ©
Material. .

. 5, Nothing in this Order shall be deemed in any way to restrict the use of
documents or information which z party lawfully obtains independently, whether or aot the same
materia) is also obtained through formal discovery in the action.

. 6. Nothing in this Order shall constitute a waiver ofa party's right to object to the

production of any Confidential Material or to demand more stringent restrictions upon the treatment and
disclosure of ony Confidential Material on the ground that it conmins pardeulerly sensitive information.

2OCT. 24 20024 4: 11PHEAEH 37 THOMPSON A KNIGHT 214 9651751 mC. 7888 v2 2
Oe ow w

wf Nollzing in thls Order shall timait or affect the right of party to disclose or to

authorize dieclonae of Confidential Material produced by that porty. Amy pany may apply to the Court
for modification of this Ordcr at eny ime,

8 Restrictions on the use or disclosure of Confidenris! Materia! es specified in this
Order shall continue during any tial or bearing in this care, The use of Confidential Material as -
evidence at ial or hearing in this case shall be subject to such protection ax the Court shall det=ming pt
the time,

% Nolte ny days arb nape er impel al julpnent or
senlement of this action, all Confidcatial Material ‘(including all saris, cxtracts and summsrics) shall be
destroyed by shredding. or buming or be returned to the Producing party. No patty or ita counse! may
retain copies of any Confidentin} Material more than thiny dys after the uneppesied or unappeclable .
final judgment cr setlement of this ection,

: 10. Neither the urination af this actioa nor the texmination of employment of any
person ike bad access to eny Confidential Material shall relieve any person frum the obligation of
maintaining both the confidentiality end the restrictions om use of anything disclosed pursuant to this

, Ue Nothing in this Order shall ber or otherwise restrict eny attorney from rendering
advice to his or her clicat with respect to thia action and, in the couse of giving such advice, fom
referring to or relying generally upon his or her examination of ‘Confidential Material. However, in
tendering any Such advice or in otherwise communicating with his or her client, the attorney shall not
disclose the contents or source of my Confidential Material in ¢ manner contrary tw the tenn of this
Order. ‘OCT. 24. 2002( 3: 11PMR5PM 37 THOMPSON & KNIGHT 214 969:75! fic

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pede wv
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} | IIS sO ORDERED,
Dated hit dry of Apel, 2000.
iy
af .
BP: |
: | Reviewed ond anproved:
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fj Schence (0018867)
! dnt Gee ately
1 Robert A. Molvishan (Ot64139)
i THOMPSGN MINE L LORY ILLF.
I 312 Walma Sues Suite 1400 -
' i, Ghté 45202
| (13) 352-6700
Attomays for DefoulsaVEmplayst
| Geneal Motors Corporation
| .
| : ‘W. Bovan (005d)
7 Bevan & Eeononus
“4 WED Northfield Road
oy Nunthficld, Ohio, 44057
{ } + Altarney for Phintiff
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ay otEXHIBIT B

EXHIBIT BOCT. 24 20026 3: EDAMEDEH 37

THOMPSON & KNIGHT 214 9691751 ° MiG. T8GE F

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IN THE COURT OF COMMON FLEAS

MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
BETTY L. TERRY, Y  CaseNo, 98-893
Plaintff, + Indge Panick J. Foley

YS,

C. JAMES CONRAD, 7
ADMINISTRATOH, BUREAU OF

WORKERS! COMJENSATION AND =: ENTRY ENFORCING AGREED
INDUSTRIAL COMMISSION, et ely PROTECTIVE ORDER
Defeats. :

THIS MATTER COMING before the Court in connection with the Agreed Protective

Order dated Aprit 27] 2600, the Court having conducted a telephone conference with couse! for

Plaintiff, Thomas C.
Jame 28, 2000, and

Cincinnati-Dayton 5!

Bevan, end counsel for Gencra] Matort Corporation, Robert A. McMahon on
ased-on the telephone comference, communications with representatives af

Poographic, Inc. sud the Cowtt’s receipt from Cincinnati-Dayton Stenographic

of certain copies of brder forms for the transcript end videotape of the deposition of Ralph A,
Froehlich, the Coutthereby makes the following findings:

1. Conpfel for Plaintiff Thomas Sevan, advited Citcinnati-Dayton Stenographic on

May 32 that the Agreed Protective Order had beso micdified when, in fact, such order

had nbt been modified.by the Court and the parties had negotiated a settlement on

May,

£2, 2000;OCT. 24. 2002 9:12PHBSPM 37 THOMPSON & KNEGHT 214 969175;

3.

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borized portions of the transcript end videotape. of the deposition ofRalph A.
ch have boon prepared by Cineimati-Dayton Steaographis, Tne. and produced
fons throughout the United States; and

brementioned conduct constivats a vielstion offs the Agreed Protective Order.

ACCORDINGLY, IT IS HEREBY ORDERED: -

A

‘The te}

in full]

copied
fire
their

Prior

pins and provisions of the Agreed Protective Order dated April 27, 2000 remain
force and effect; :

Cinclinsti-Dayton Stenographio, Inc. shall not prepare, produce ot distibute any

of the transcript or videotupe of the deposition af Ralph A. Froehlich without
order from this Court snd proper notice heving been served to all parties end

aiomeyet

fo July 10, 2000, Cincinnati-Dayton Stenographic, Inc. shall disclose to the

Courthator produce to the Court all information relating to tho sale and distribution

of the:

name]

dates
Coun!

Enty|

pranseript nd videntape of the deposition of Ralph A. Froehlich, including the
addresses, telephone numbers of ech person receiving the copies and the
pf purchase and shipment;

je} for General Motors shall serve written notice, along with copies of this
jand the Agreed Protective Onder, on each person identified by Cincinnati-

Daytch Steaographie, Inc. as having received « copy of the transcript of videotape
af theldeposition of Ralph A. Froehlich;

With

14 days of writen notice having be=n served by counsel for General Motors,

all pebous who have received a copy ofthe armecript or videouape af the deposition

of Rath A Frochlich, whether from Cincinnati-Dayton Stenographie or olherwisc:OCT. 24. 2002 3: 12PMESeR 37 THOMPSON & KNIGHT 214 969175:

w VY

: a} shall retum the original and ol] duplicate copies of the transccipr and
+] Videotape to counsel fer General Motare Corparatic, Robert A. McMahon,
Thompson Hine & Flory LL?, 312 Walgur Strees, 14% Flocr, Cincinnari, *
Obdo 45202;

b Shall not retain and shall desray soy ond ull documents continiag
information from the transcript or videotape, including but not limited to, any
notes, Summaries, memarsnda and correspondence; end

stall conten in writing to counsel for General Motors that such Person has
coruplied with this court order, hes not retzined or disuibuted any copies of
the wanseript or yideotspe to any perton and, if they have, identity all such
‘petsons by name, address and telephone number and Provide such persops
‘with notice of this court order and the Agreed Protestive Order,

Entered;

mh PARC FOLEY

Prepared by;

Jane £ Garfinke! (0010444)

Robert A. McMahon {0064319}

THOMPSON HINE & FLORY LLP

312 Walnot Street, Sugte 1400

Cincinnati, Obie 45202

(513) 352-8700
~ (513) 261-4771 - fax

Attomeys for Defendant Employer,

General Motors Corpqration | havehy tere isn ba a bn

. and correct cog, , ,
_ ds937 ‘Wiorese ity gand Bt seq) ateEXHIBIT C

EXHIBIT CU1DI- 13-2003 19:25 . os oo se PORTE

* SUPREME COURT OF THE STATE OF NEW YORIC
SEVENTH JUDICIAL DISTRICT .

Tn RE: SEVEN 1-L JUDICIAL DISTRICT ASBESTOS LITIGATION

‘This Document Relates To:

Coustance F, Polito, Individually and ag Excoutrix far
‘The Estate of Selvntore T, Potite, . .
Plaintifé

vs > Index #01/008226
. - Monroe Count},

“Anchor Packing Company,
Borg-Warner Corporation, * .
* Caterpillar, [ne., .
+ + DaimlerChrysler Corporation,
Deere & Co.,
Eastman Kodalc Company,
Federal Mogul Products, inc.,
kdn Felt Praducts Mfg, Co.,
Federal Mogul Products, Inc.,
fk/a Moog Aufomotive, Inc.,
as successor by merger to Wagner Electric Corp,
Ford Motor Company,
Carlock; Ino,
General Motors Corporation, ,
Honeywell Com., iflva Allied Signal, Inc.,
as successor by merger Mergenthaler Linotype Company,
IMO Industries, .
Maok Trucks, Inc.,
Maremonnt Corp.
Motion Contcot industries, inc., as
predecessor in interest to Cutlisle Corporation,
Owens-Illinois, Inc.,
Westinghouse Air Brake Company, a/k/a WABCO, Inc.,

Defendants.NOVHSs3-2003 19135

: APPEARANCES:

James C. Long, Jr: Esq. Of Counsel
Evan M, Janush, Bsq., Of Counsel
Weitz & Luxenberg, B.C.

Attomeys for Plaintiff

Bruce §, Huttuer, Esq., Of Counsel

Donohue, Sabo, Varley & Armatrong, P.C.

Attomeys for Defendant, Burns International Services
Corporation Ova Borg-Wamer Corporation,

“Terrance P, Flynn, Esq., Of Counsel
_ Gibson, MeAskill de Crosby LLP

Attorneys for Defendants, DainilerChrysler Corporation,
Ford Motor Company, and General Motors Corporation

Christine O. Boyd, Esq., Of Counsel
Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray
Attomeys for General Motors Corporation

DECISION_ AND ORDER

RAYMOND E. CORNELIUS, J.

‘The Plaintiff, Constance F. Polito, was the spouse of Salvatore T. Polito, who died

Bo3/aa

from mesothelioma, n disease commonly associated with exposure to asbestos. Mir. Polita

hos been described as a former auto mechanic, who allegedly was exposed to asbestos from

friction products, over a number of yerrs, during which time {ic installed and/or repaired

brakes. The remaining Defendants in the case, Burns International Services Corporation

(ida Borg - Warner Corporation, DaimlerChrysler Corporation, Ford Motor Company, and

General Motors Corporation, were all involved in the manufacturing and/or distribution of

brake products,90-13-2603 . 19:25

POGUE

This action is presently scheduied to proceed fo trlal, and the Defendants have made
a number of inotlons int lintiag ‘o exclude cerinin evidence, which is anticipated to he offered
by Plaintiff. Some of these motions were resolved. 1 by egreement ‘between the parties, and
others were decided by the Court at motion ferm. However, the Court reserved decision c on
fliree of the motions tn lintine, which are decided as hereinafter set forth.

Workers! Compengation Claims.end Plant Conditions

The Defendants acknoveledge that one of the component parts of ‘the finished brake.
products, which were allegedly worked on by Mr. Polito, was asbestos, bonded in rosin and
fully encapsulated within brake casiigs. ‘The motion in limine sceks to preclude Plaindff

* from attempting to offer into evidence, at trial, working conditions at some of the
Defendants’ manufacturing plants, where raw asbestos fibers were inixed, processed and
Incorporated into the brake product, as well ag Worlters! Conzpensation claims muande by
employees of these plants. In essence, the Defendants contend. that such evidence would be
irrelevant to (he question of whether or nol they had or should have bad Inowledge
concerning the adverse health effects associated with end-product users of | asbestos
containing, finished brake products,

In support of the motion in danine, Defendants rely upon the decision In. re: Related
Asbestos Cases, 543 PSupp 1152 (ND CA 1982}, in which the Court excluded documents
pertaining to Warkers' Compensation claims, pursuant to Rule 403 of the Federal Rules of
Evidence. The Court conceded that Workers! Compensation documents are Benerally

relevant to the question of notice, but decided to exclude them from evidence in this case,

3HOU-T3-2003 19:25

, because of the volume of documents, which would present many collateral issues; the :
remoteness In titne of many of the actions; the maltipfictty of [nrisdictionss and a failure to
show whether or not eacl action was settled or adjudleated, and if settled, whether the ease
was settled for anisanee value, However, tu the Stnte of New Yosic, "Evidence of successful
workers! compensation cintms... as well as evidence of ~willseases among asbestos plant
workers" is ndratsefble, at trial, on the issue of a.diefendant's “ulnowledge af thee risks of
asbestos exposare and the reasonableness of its failure to warn the end-nsers of its product

. ofthose risks." (In re: Eighth Judicial District Asbestos Litigution, 190 AD2d | 008 (ak Dept.

1994}.)

As nforcracntioned, Defendunts contend that Workers! Compensation claims made
by plant workers and/or plant conditions, which may evidence health risks nssociated with
raw asbestos, fs irrelevant to the question of thoir respective Icnowledge of dangers
associated wit the Gnishetl byake product, wiiieh contained asbestos, bonded in reste aud
fully eneapsilated within the bral Ie cusing. An analogous argument was made in Mandowite
¥% Xerox Corp. (169 AD2nd 300 [£" Dept. 1991]), wherein the Defendant unsuccessfully
sought « protective order from a notice of discovery, vequesting claims and Inwsuits
previously led for lujuries ns u result of asbestos exposure to copying equipment, but which
were not limfted fo the particular madels of copiers allegedly operated by Oe decedent. The
Court agreed with the Plaintiffs position ".... he is not qualified to give. For the jury to hear
24 this, they will take it for the truth of the.
25 Matter asserted, and-it's hearsay, and he is not
LRT EDO 5a RET*. Page 113

1 . qualified to offer those scientific opinions that:
2 _ he gives in that deposition.
3 , THE COURT: TI know he is not a medical
4 doctor or epidemiologist oxr anything like that.
5 But if it were to be admitted, it would only be
6 admitted. for a limited purpose, I would presume,
7 and that's that there was knowledge in the
‘8 industry that ~~ or at least among this particular
9 organization that asbestos was potentially harmful
10° ,; to workers who respirated- fibers.
ll MS. LEEPER: The problem with ‘that
+12 , knowledge is because most of the documents that
13 that deposition was intended for him to try and
14 authenticate, what's your inadmissible hearsay,
15 those documents regard the Asbestos Study
16 Committee. — :
17 Geheral Motors was not a member of the
18 Asbestos Study Committee. They had no notice.
19 There ‘is ne evidence ‘that they had notice of the
20 workings or documents within the.asbestos study -
21 group at the FMSI.
22 .THE COURT: Okay. Then Anderson?
23 , MS. LEEPER: ‘That is our motion to allow
24 the Arnie Anderson pérpetuation deposition to be
25 shown to the ‘jury.

“ea TE PTT SE TS A TR RE: Page 114 4
Mr. Anderson was a Ford brake engineer z

for like 20 or 30 years. He is now old. He lives
back in Michigan. His. doctors have written a note
that he can't travel anymore. That deposition was

taken in 2001.

Plaintiffs' interests were definitely

“represented there because Mr. George took the

© Ot nO wR wD Ee

cross~examination in that ‘deposition of

Mr. ‘Anderson.

KB
oO

This is information that really can't be
11 gotten anywhere because Mr. Anderson was one of

‘12 the people at Ford that did some of the testing

13. with the brakes.
14° ‘tt was testing regarding the conversion f
15 to forsterite. He has a good history about the . i
16 type. of asbestos that was used in Ford brakes when
17 they were testing them. He has a lot of knowledge . :
18. about what the company knew, what they ads and
19 how brakes worked.

20 That's an important point because he
21 will be able to tell that you couldn't substitute

22 asbestos right away, or you couldn't get brakes to

23 work the way they should and the way they need to we i

24 in order to stop a car....

25 "THE Court: Mr. Holbrook wasn't a party

SRR SS RET ST SSS RED EEOo FT ma mH mB WHY BE

10°

25

in that case, right?
MS. LEEPER: No, it was a plaintif¢ in_
Texas.

THE COURT: Isn't the rule basically -

with regard to the admissibility of depositions

from other cases, that a party has’ to be the one
that's there, rather ‘than the identity of the
lawyer? .
uo MS. LEEPER: It's somébody with a_
similar interest, because plaintiffs have many

depositions that they are trying to get admitted

‘to say that somebody was there with a similar

interest.

The plaintiff there has an exact
identical interest. that Mr. Holbrook would have in
this case, as far as on cross-examination;, it was
a mesothelioma case.

THE COURT: Why can't Ford produce this
testimony in any other way, other than through
this one deposition?

MS. LEEPER: Mr. Anderson, as I said, is

elderly. He cannot travel.. He doesn't want to

-keep giving depositions over and over again.

He had that knowledge for’ how long he

worked there, what his role was as a brake

Page 115

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to

engineer for Ford, and it's very important for the
jury to be able to hear that testimony.
THE COURT: Thank you,

MR. BLOCK: Your Honor, ifr could

quickly join with Ms: Leeper on all those

arguments.

With regard to Froehlich, if the Court
allows that testimony to come in over the Ohio
court's protective order, we would like some kind
of limiting instruction that it does not: pertain’
to BorgWarner.

: " There could be inferences, based on the
testimony that he gave, that those points also
apply to any friction product. We had nothing to
do -~ BorgWarnex: had nothing to do with
Mr. Froehlich and shouldn't be subject to that
testimony.

THE COURT: Thank you. Anybody else?

MR. MARKS: Your Honor, real briefly.

We have a motion in limine, number 15,
which we didn't put on the chart, but it deals

with this exclusion of witnesses, depositions we

were not parties to.

THE COURT: Yes.

MR. MARKS: I wanted to remind the ‘Court

Page 116

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thank you, Your Honor, for that’ clarification.

_ trade association had knowledge and was acting

Page 117 |

_ that we are requesting a ruling on that, even

though we didn't ask for oral argument .
. But I would like to add, in light of the
ruling that we can't talk about the employer's

conduct and the union's conduct, our position now

‘being that we are having to defend the

conduct -- or answer to the conduct of others who
the plaintiffs are going to say acted ina good ©
manner, and we can' t point to ‘people that were
supposedly acting in bad manners. And here, they

want to put this’on against us.

RTI

‘THE COURT: TI£ plaintiffs introduce
testimony that .Alcoa acted in a. good manner, , E
that's going to open up the whole issue.

MR. MARKS: My point, Your Honor -—- . fi

My point is that if they say Genuine
Parts was not a member of this trade association,

but had they been, they would have known, and this

responsibly, we have to answer to.that. - |
Yet, we can't force them to answer to

the fact that other people were acting in ways

that were similar or dissimijar during the same

time period.

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. Page 118 f
So we weren't a party to these E

depositions. We don't think, they sheuld come in.

But to the extent that they are, it puts, us ata

THE COURT: Thank you. .

MR. GEORGE: Your Honor, IE thought I
already made clear -- :

THE COURT: Georgia-Pacific is not
involved in this, right?
‘ MS. KAROS: No, Your Honor.

THE COURT: Yes.

MR. GEORGE: The only deposition that

would even remotely. reference what counsel is

talking about is the FMSI. I thought I made it
clear that it only applies to General Motors. Tt
has nothing to do with NAPA. I don't know what
his objection is.
, But having said that, let me run | through .

these real quick.

THE COURT: Yes.

MR. GEORGE: Drislane, he is the
executive director of ‘the FMSI. Essentially all

he does is authenticate all their records.

Now, I would be happy with not playing

his deposition if I could get a concession £romGeneral Motors that the records that £ intend to
offer are, in fact, genuine records from their
organization.

The only other thing that Drislane

actually adds is he talks about distribution. One

of the issues.is, the Asbestos Study Committee.

: You will see that there is minutes there
where General Motors is present and they talk
about. the formation of the committee. so they
certainly knew an Asbestos Study Committee
existed.

, Now, this is not an organization where
they took the asbestos study commission and hid
them in secret. and didn't let anything out.

‘In fact, in the general meeting, they
would report what happened in the Asbestos Study
Committee. So I think that's a red herring.

Basically, Drislane is there just to.
say, I'm the executive director of the
organization, I have all the minutes. Those
minutes that you are offering me are authentic.

Froehlich, Froehlich is really there

. because there was a fraud’ perpetuated here. They

brought an expert in when it was in General

Motors' best interest.

Page 119 foO AO &® wD

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Theix position in this case, and every
case is, exposure to brakes cannot cause disease, |
not just meso, lung cancer, asbestosis never. can
happen. :

Yet, in a workers" comp case; when they
‘are defending the case. because he had exposure in
the plant and then later went to a gas station
where he did brakes, they. hire an expert to come
in and say, you know what, that exposure in ‘the,
gas station is worse than the exposure he had
being on the line at General Motors making brakes;
and that, in fact, was the case of his disease,
not what happened in the plant. “ .

‘We think that is a fraudulent position,

and it shows the duplicity that this company -.

exercises when they come into court. They adopt a
position which stits their bést interests, and wot :
they don't have the: interests of science. That's
why we would like to play the Froehlich
deposition.

I'm going to let Mr. Couture talk about
Rocker.

Let me talk about Anderson.

To me, that deposition was pretty much a

sandbag effort. I was the counsel that

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cross-examined Mr. Anderson, although I didn't

know at the time I showed up it was going to be a

videotape.

I think Your Honor is correct, the

Washington law on this issue. is, if you want to

use a deposition against me, I should be there.

And I don't mean me, the lawyer; I mean me, the:

‘client.

‘This deposition occurred four years
before -- five years, it occurred in 2001. Tt was
before there was. even a diagnosis in the ‘case.

They don't have similar issues. Nobody
even knew at the time that: the deposition’ was
being taken that Mr. Holbrook was sick, don't know
what Mr. Holbrook's issues are. But I did not
have a similar motive to cross-examine,

The other thing is, Arnie Anderson is
still being proffered to this day as an expert

witness for Ford in the sense ‘of a corporate

‘situation.

Tf he really has failing health

‘ problems, the proper thing to do is notice him in

for deposition in all cases, give proper notice,

and let everybody preserve his testimony. That's

not what occurred in this Texas case they are ~aA Os wn pe

trying to use against me in 2001:
. I would proffer to the Court that that! s
not a proper way to use a deposition. We weren't

there. It's hearsay against us, and ‘can't be

used.

They have other witnesses that will-say
the same thing that Mr. Anderson does. They have
a whole cadre of people that were there at the
time and will make the: same statements that he
made. , :

THE COURT: Thank you. Mr. ‘Couture.

MR. COUTURE: Your Honor, very briefly
with respect to the Rocker: deposition.

: THE COURT: Yes.

MR. COUTURE: TI won't belabor the point,
but this objection by- Ford is clearly untimely
under the Court's. scheduling order for this case.

The deadline for filing pretrial motions
in limine and objections to deposition
designations was September 11th. Ford admits that
it had the Rocker deposition, received it from us
approximately a week before that deadline.

| The first 1 ever heard about a concern
or a problem with it ‘was on September 13th. Then

Ford waits until October 5th to move to exclude

t
ree yo = ee nace

Page.122- Ethe deposition’ in its entirety.

So on that ground alone, I think that
this motion is untimely, That being said,
Mr. Rocker was deposed as Ford's corporate

representative, and [ don't know how better you,

‘can have an admission by a party opponent.

The training videos referenced in chis
deposition have been adopted by Ford.

‘He discusses how, as the field
operations Manager in charge of determining the
content of the training for Ford brake.
technicians, they wanted to move away from a
distance jearning program and adopt a web-based
training program. They specifically decided to
adopt thesé web training videos.

I've cited the relevant testimony in my
briefing, so T won't reiterate it here. But’ this
clearly is an admission by a Party opponent. -

THE COURT: Thank you. Ms. Leeper.

MS.- LEEPER: Very briefly, Your Honor,

Mr. Drislane: General Motors was not a

member of the Asbestas Study ‘Group and.there is no..

evidence that they saw the documents that were
Asbestos Study Group’ documents that plaintiff is

trying to admit,T

‘Froehlich: The Froehlich deposition is

still hearsay, no matter what else Plaintif£ wants
to argue, whether they believe it's against the

defense we are going to. be arguing in this case or

- not, it's still hearsay and it should not come in.

Again, there is the protective order.
He was not a speaking agent for Ford ~~ excuse me,

for General Motors. He was hired by an attorney,

‘not! by Géneral Motors.

Regarding the Anderson dép, it was an-

‘hour and a-half Gross, as long as the direct was

in that dep. Mr. George did a very good job, was
very well” prepared for that ‘dep.

The interests were the same, It had to
do with Ford brakes. ‘That's the same ‘issue in
this case.

Regarding the Rocker deposition,

Plaintiff also did not comply with the case |

- schedule, . as far as they didn't file their jury

instructions on time or their trial brief on time.
What's more important, though, the only
admission by Mr. Rocker was that they recommended
the See~ ~Car (phonetically spelled) and sp-2
program to be used by dealerships.- They had

nothing to do with the videos which, we assume, is

Page 124

SET. . Page 125
what plaintiff really wants to use. - #

1 :
2 They did not control them, they did not)
3 make them. Those should not be allowed to come in
4. or be considered as adoptive admissions because

“5 they had no control over them. They were made by
6 ‘third parties. Thank you,

1 THE COURT: © Thank you.

8 Let me summarize just what my rulings
-9 are .with regard to these four depositions. .
10 “The Froehlich deposition is: vout.

41 The Anderson deposition is out.

12 Rocker and Drislane may be utilized.

13 There will have to be a limiting

14- instruction with regard to any parties who are not

15 . represented at those particular depositions.

16. “And Rocker,. as I understand it, does
17 have. -- he refers to various videos. TI haven't -
18 seen the videos, of- course.

19 But the fact that Ford was utilizing an
20 instructional program for individuals working with
21 Ford products, that can be.admitted as to what
22 kind of notice they had and what they were doing.
23 Drislane, again, as I said, would be in.
24 But Anderson and Froehlich are out.

25 MS. LEEPER: Your Honor, just a