Party Discovery: CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al

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MARY ELLEN GAMBINO (State Bar No. 111521)

TANYA XIOMARA JOHNSON (State Bar No. 189811) ELECTRONICALLY
WILSON, ELSER, MOSKOWITZ, FILED
EDELMAN & DICKER LLP ’ Superior Court of Califgrnia,
as Market Street, 17 Floor County of San Francigco
an Francisco, California 94105-2725
Telephone: (415) 433-0990 SEP al 201 P
Facsimile: (415) 434-1370 BY. WIKLUAM TRUDEN
Attorneys for Defendant, Deputy Clerk
‘ASBESTOS CORPORATION LTD.”

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

CHARLES TOBEY, Case No. CGC-07-274226
Plaintiff, DEFENDANT ASBESTOS
CORPORATION LTD.’S MOTION IN
v. LIMINE TO PRECLUDE THE
ADMISSION OF THE DEPOSITION OF
ASBESTOS DEFENDANTS (BYP), ROBERT BOCKSTAHLER

Defendants. Trial: September 21, 2010
Time: 2:30 a.m.

Dept.: 505

Judge: Hon. John K. Stewart

ee

Defendant ASBESTOS CORPORATION LTD. (hereinafter “ACL”) submits the
following Motion in Limine in opposition to the introduction of the depositions of Robert
Bockstahler dated November 2, 1995 and November 2, 1988 on the grounds that the testimony is
based on inadmissible hearsay, interpreting unauthenticated records about matters not within the
personal knowledge of the witness and contrary to prior answers to interrogatories verified by the
same witness. Further, both a Texas court and Federal Court in New York found Mr.
Bockstahler’s testimony unreliable because he participated with Hagle-Picher’s attorneys in
hiding documents and offering perjured testimony. Additionally, ACL reserves its right to object
to the use of further portions of these depositions and other depositions of Mr, Bockstahler and
their associated exhibits not addressed in this motion, if and when such portions or exhibits are

identified for use by counsel for plaintiff.

1

Defendant ACL’s Motion in Limine to Preclude the Admission of the Deposition of Robert Bockstahler
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J. INTRODUCTION

It is anticipated that plaintiff will offer the Bockstabler deposition testimony to prove that]
ACL was the exclusive supplier of chrysotile asbestos to Eagle-Picher from 1935 to 1957. These
depositions are inadmissible for several reasons: :

1. Any information from the period 1935 to 1957 is not relevant because plaintiff
allegedly worked with Eagle Picher products beginning in 1958;

2. The depositions are a multiple hearsay statement of secondary evidence of the
purported contents of a writing in violation of Evidence Code Section 1520, the
secondary evidence mule, and Evidence Code Section 1401(b) dealing with the
authentication of a document before secondary evidence of the document is
admissible; and :

3. The deposition is bearsay, which lacks trustworthiness as it contradicts responses
to discovery by Eagle-Picher, all verified by Robert Bockstahler.

Mr. Bockstahler verified answers to interrogatories on April 3, 1984 stating that from
1935 to 1971 Eagle-Picher purchased its chrysotile asbestos from Philip Carey and GAP,
completely contrary to the deposition testimony offered here. Cagle-Picher Answers to
Plaintiffs’ Interrogatories in Sheppard v. AC&S, New Castle County Superior Court, Delaware,
Action No. 82C-DE-27, verified April 3, 1984, attached hereto as Exhibit A.) In 1986, as agent
for the company, Mr. Bockstahler ‘provided the only existing contracts in Bagle-Picher’s
possession regarding supply of asbestos fiber, which established that starting May 1, 1956, (at
the latest) all of Eagle-Picher’s asbestos needs were provided by Philip Carey, not ACL. -(Eagle-
Picher’s Supplemental Responses to San Francisco General Order 129 Interrogatories and Philip
Carey Agreements, verified by Robert Bockstabler on April 28, 1996, attached hereto as Exhibit
B).

IL BOCKSTAHLER’S PREVIOUS PERJURY MAKES
THE HEARSAY TESTIMONY UNRELIABLE

Robert Bockstahler worked for the industrial cement division of Eagle-Picher Company
from 1971 to 1991. He retired after Eagle-Picher filed for bankruptcy, which was shortly after
Mr. Bockstahler had been found by a Texas judge and a New York federal court to have
participated with Eagle-Picher’s attorneys in hiding documents and offering perjured and

2

Defendant ACL’s Motion in Limine to Preclude the Admission of the Deposition of Robert Bockstahler
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misleading testimony in asbestos cases. (In re: Southern and Eastern District Asbestos
Litigation (8.D.N.¥ 1990) 730 F.Supp. 582, 585, attached hereto as Exhibit C; the New York
decision is unpublished).
i. BOCKSTAHLER’S TESTIMONY LACKS FOUNDATION AND IS
INADMISSIBLE HEARSAY /

Mr. Bockstahler’s deposition is based entirely on a review of documents he made at the
direction of Eagle-Picher’s attorneys. He was not deposed as a person most knowledgeable for
Eagle Picher Industries in either, deposition but as a percipient witness. (11/2/1 995 Bockstahler
deposition, 5:2-9). His deposition testimony is offered to establish that based on his review of
documents, ACL was the sole supplier of chrysotile asbestos fiber to Eagle-Picher from 1935 to
1957, but the testimony lacks foundation. (11/2/1995 Bockstahler deposition, 75:7-11, 76:9-10;
11/2/1988 Bockstabler deposition, 10:2-11, 12:9-20), Mr. Bockstabler readily admits that he has
no personal knowledge of the relationship between ACL and Eagle-Picher and is not familiar
with ACL, nor did he participate in any sales or purchases in the relevant time period.
(11/2/1995 Bockstahler deposition, 46:2-11, 119, 13-18). All of his testimony is based entirely
and exclusively on his interpretation of what he describes as “cost of production records.”
(11/2/1995 Bockstahler deposition, 120:15-24).

‘These “cost of production records” are actually summaries of records of a type not
identified by Mr. Bockstahler, made by an unidentified “plant accountant” and consist of five to
six pages for each year in question. (11/2/1995 Bockstahler deposition, 60:1-7; 11/2/1988 °
Bockstahler deposition, 51:10-52:1). From these records, Mr. Bockstahler created a one-page
summary which Eagle-Picher’s attorneys then misidentified as “purchase records.” (Summary
aitached hereto as Exhibit D). The reliability and admissibility of Mr. Bockstahler’s testimony
and his summary depend upon the reliability and admissibility of the “cost of production
records,” which have not been produced.

The production zecords were not maintained in the ordinary course of business.
(11/2/1995 Bockstabler deposition, 62:17-20, 63:14-15, 63:22-24, 64:19-23; 11/2/1988

Bockstabler deposition, 15:1-7, 19:11-14). Under Evidence Code §1271, 1560-1561, business

3

Defendant ACL’s Motion in Limine to Preclude the Admission of the Deposition of Robert Bockstahler
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records ate hearsay unless, among other exceptions, they were maintained in the ordinary course
of business. Mr, Bockstahler twice stated that the records were not 30 maintained and at no point]
in the depositions were these documents authenticated. Evidence Code §1401@) states that
“Authentication of a writing is required before secondary evidence of its contents may be
received into evidence.”

_ Mr. Bockstahler also testified that these records were incomplete and “found rather
accidentally in the attic of the Joplin plant.” (Bockstabler deposition, 63:20-21). While the
records appeared to be prepared on a monthly basis, not all of the monthly records were found,
though apparently all but one of the annual records were found. (@ockstabler deposition, 60:1-
7). In addition to being incomplete, Mr. Bockstahler could not say that the records were -
originals, (Bockstahler deposition, 57:35, 57:22-25).

Uniess the deponent can testify that he has seen and reviewed the original records, his
secondary testimony of the original is inadmissible. The witness must have personal knowledge
of the original, whether he authenticates a copy or gives oral testimony of its contents. (Stenseth
v, Wells Fargo (1995) 41 Cal.App.4” 457, 463).

Finally, in addition to the foundation issues, Mr. Bockstahler’s deposition is inadmissible
because plaintiff has made no effort to obtain the production records — or any other relevant
Eagle-Picher records — despite strong evidence that, in fact, the records can be obtained,
(Bockstahler deposition, 125:19-24). The fact that the records obviously were in the possession
of Bagle-Picher’s attomeys and were not themselves produced leaves open more questions than
are answered by the “summary;” questions such as to what other possible information was
contained in the records they did not elect to reveal.

According to Mr. Bockstahler’s testimony, the production records for the years here in
question sti!l existed. Rather than produce the records themselves, plaintiff offers Mr.
Bockstahler’s deposition testimony, based on a summary of copies of “production records”
malting the testimony now offered triple hearsay. Plaintiff should not be permitted to use the
deposition testimony of a perjurer, based on an incomplete, non-original summary of documents

admittedly not maintained in the ordinary course of business.

4

Defendant ACL’s Motion in Limine to Preclude the Admission of the Deposition of Robert Bockstahler
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IV. BOCKSTAHLER’S DEPOSITIONS
ARE IRRELEVANT AND PREJUDICIAL

Evidence Code §350 provides that no evidence is admissible except relevant evidence.
Evidence of any fiber supplied by ACL to Eagle-Picher prior to 1958 is irrelevant absent some
evidence that plaintiff was exposed to Eagle-Picher products prior or subsequent to his work as
an insulator in 1958.

Evidence Code §352 provides the Court with the discretion to exclude evidence if its
probative value is substantially outweighed by the probability that its admission will necessitate
an undue consumption of time or create a substantial danger of undue prejudice, confuse the
issues or mislead the jury.

Because the veracity of Mr. Bockstahler’s testimony is questionable at best, as outlined
above, its admission. would substantially prejudice ACL and would not assist the Court or the
juy in providing probative value.

Vv. CONCLUSION

For all of the foregoing reasons, ACL respectfully requests that this court find the
November 2, 1995 deposition and November 2, 1988 depositions of Robert Bockstahler
inadmissible. The multiple hearsay testimony regarding the contents of unauthenticated copies
of documents not available for inspection by ACL should be excluded as evidence in this trial.
Additionally, ACL reserves its right to object to the use of further portions of these depositions,
and other depositions of Mr. Bockstahler, and their associated exhibits not addressed in this
motion, if and when such portions or exhibits are identified for intended use by counsel for
plaintiff. :

Dateasiwod {2010 WILSON, ELSER, MOSKOWITZ, EDELMAN &
DICKER LLP.

wy. Ze AP Me
Mary Elfen Gambino
Tanya Xiomara Johnson

Attorneys for Defendant
ASBESTOS CORPORATION LTD.

5

Defendant ACL’s Motion in Limine to Preclude the Admission of the Deposition of Robert Bockstahler
545096.1 ° :EXHIBIT A- )
IN THE SUPERZOR COURT OF THE STATE OF DELAWANE

TN AND FOR NEW CASTLE coumtry

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| {N THE SUPERLOR.COURT OF THE STATE OF DELAWARE :

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E EAGLE-PICEEK INDUSTRIES, INC.'S ANSWERS TO i

PUATNTTERS’ INTERROGATORIES DIRECTED TO ALL ‘DEFENDANTS: :

. ° i

2 Information provided herein, except where indicated i

i for Eagle-Picher, is with respect anly to the Fihers Depexrment’ !

i of the Chemicals Division af.EZagle-Picher Industzies, Inc.,

which deparcment wag sold on December 31, 1ga2, and which is
hereingfter ‘yegerred to as the "Company", since itis the only
{unit of defendant which ever produced or distributed industriel

insulation with which the Plaintifs may have come in contact.7. With cegacd ro each fourm of asbestos fibers
identified in the answer to. Interrogarory No. 4 state:
fa) Where. it was purclased, if it was not pur~
chased, whare it’was obtained;(b) From whon it was purchased;
{5} The mariner in which it was received, stored
and used in the production of the product. .
, ANSTER :
J. According to prasently eveilable information, fo.

at Jesst From 1935 to 1971 che "Compény” purchased processed’
\ ashestas from Prilip-Carey Corporation or GAF corporacion, ex~ ©
eept for ane purchase fiom Johns-Menville.. The "Company" also - 1
purchased asbestos from Asbestos Corporation, Lré.,"in prior”

yeers. Additionally, ampsite assestos from Africa was purchased /
through an agent for use in DE Block. Listed below are the
amounts o£ ashestos pexchased from 1935 through 1971, the last

acres ahmuncinsmem isn

year of puxchase: - - -,
1935 7 358,000 Ibs, 179 tons
1937 723,015 ths. 362 tons
1938 . 70 Se . 287, tons,
1939 780,000 Ibs, 390 tons
1940 884,400 Ibs. 442 tons
2941 1,200,000 Tbs, 600 tons
1942 1,902,000 Ibs, 951 tons
1943 2,454,000 Ths 1,227. tons
1944 1,590,000 lbs. 795 tons
igs45 ° 1,436,500 Tbs, 718 tons
1946 1,346,000 Tbs, 472 tons
1947 1,686,000 ths. 842 tons’
1948 2,216,850 ibs, 1,108 tons
1949 1,520,000 Lbs. 760 tons
1950 1;840,429 Tbs. 920 tons
1952 2,233,884 Ibs. 1,117 tons
1952 1,640,000 ibs. 820 tons
i953 . 1,920,000 Ibs, 960 tons
1954 . 1,696,000 Lbs. 848 tons
1955 1,679,900 Ibs. . 840 tons
1956 1,323,200 Lbs. . 662 tons

—14-1937 1,360,500 Ibs. 480 toms

1971 200,000 Ibs. 100 tons
| Ta adddtion,’662 tons of amosite asbestos weve pur-

1958 1,200,400 Ibs, 600 tons
1959 1,040,000 Ibs. $20 tans i
1960 1,300,000 lbs. 650 rons ‘
q -1961 1,119,000 lbs, 560 rons
i. 1962 1,100,000 Ibs. 550 tons}
a 1963 1,105,900 Lbs. 353 toms |. or
- 1964 - 7800,000 Ths, 400 ‘tons re
1965 800,000 ibs. AQO tous i
1966 700,000 ibs, 350 tons i
ig6é7' 600,000 Ths. . 300 tons t
j 1968 424,000 Lbs. 212 cons :
1969 - 424,300 Lbs. Zi2 tons i
1970 : 400,000 Lbs. 200 tons j
i

chased in the seven-yea> period trom 1947 thxough 1953 for use in)
BE Bleck end one-fouxth ton of amugite was purchesed in 1935. |
Defendant objects to further answer of this dnterroge--

ji tary for it is overly breed end unduly burdenscme. . : i(4) Specific earnings attributed to the manu-
Eaeture and/ox distribution of any products containing asbestos.
48. Defendant objects to this interrogatory for it
is overly broad, tudualy burdensome and not caleulated to lead

‘to the discovery of -admissable'evideuce. -
. KOMISSAROFE & \PEAR

e-Ficher Industries,

Dated: Maxtch 29, 1984

-79~AFFIDAVIT

BEFORE "ME, the mdezsigned authority in ahd for the .
State of Delaware, personzily appeared tobert Le Bockstahler,
who, being by mea first duly sworn, deposes and states that be
is anthorizad te execute this affidavit on behalf af the
Fibers Depaxtment, Chemicals Division, Eagle-Picher Industries, |
Inc.) a cozposation, one of the Defendants in this cause, thar
the foregoing Answers made on behali of Defendant, Eagle-Picher
Tndusttes, Inc., a corporation, to Interregarories prbpounded
te it on behalf of the pleintiit are true and correct according
to the best of his knowledge, information and belief.
Swoxa to and subscribed before |
me on this 30% aay of April,
AnB., LO8é, :EXEOBIT Ba
2B

MORGENSTEIN, LADD & JUBELIRER
UEFFREY R. WILDIAMS

Federal Reserve Bank Building |
+101 Market Street, Suite 601
Ban Francisco, California 94105
(415) 896-0666 .

Attorneys for Defendant .
Eagle-Picher Industries, Inc.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCIBCO
DEPARTMENT NUMBER FIVE

IN RB: No. B28-6B4

DEFENDANT EAGLE-PICHER'S
.BUPPLEMENTAL RESPONSES
TO THE SAN FRANCISCO
GENERAL ORDER 29
INTERROGATORIES

COMPLEX ASBESTOS LITIGATION

Information provided herein’, except where indicated

for Eagle-Picher, is with respect only to the Fibers Department ~

o£ thé Chemicals and Fibers Division, o£ Eagle-Picher

Industries, Inc. which department was sold on pesenber 3k,
1982, and which is hereinafter referred to as the "Company,"

since it is the only unit of defendant which ever produced or

distributed industrial insulation with which the Plaintifé may ©

have come in contact.

Eagle-Picher Industries, Inc., objects generally to
Plaintiffs" Interrogatories insofar as they relate to .
unidentified asbestos products and materials. The mineral
asbestos may be found in a countless number of forms and

“1Bosco NO mW A YW ON Oe

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products; s.q., floor tile, wallboard, ceiling tile, gloves,

protective aprons, protective matting, gaskets, brake Linings,

. machine insulation, electrical insulation, and building

materials.

Eagle-Picher Industries, Inc., objects to responding’
as to information or knowledge in “the possession of, or |
obtainable by your attorneys, investigators, adjusters,
representatives, insurance carriers or anyone acting on your
behalf or their behalf" for the reason it is overly broad and
unduly burdensome, since defenflant cannot determine the
knowledge of all its attorneys, investigators, adjusters,

representatives or anyone acting in its behalf.

INTERROGATORY NO. 1:
With respect to the individual verifying these answer

ou your behalf, state the following:

(a) | ‘Theix name;

(b)  - Their present business address;

(e) Theix present job title; _

(a) “a Their date of first employment with you, and

the dates and titles of each joh position they have held while
they were employed by you.
SUPPLEMENTAL, RESPONSE TO INTERROGATORY NO. 1:

(a) Mr. Robert L. Bockstabler
(b) . Eagle-Picher Industries, Inc.
P.O. Box 772
Cincinnati, Ohio 45202
{c) Litigation ‘Assistant

HA +BEB RES &

* 2B

BYR & Ee

(ay we, Bockstahler was employed by Eagle-Picher
Industries,’ Inc., on October 1, 1955. Until 1966 he served in
various administrative and management -capacities with the
Celatom department (now the Minerals Division). He was Sales
Manager of the Fibers Department from December 1, 1966' to
August 3, 1971 and President of the Chemicals and Fibers
Division From August 3, 1971 to November 9, 1981. He is
presently a hitigation Assistant; he assumed the duties of his
present position on November 9, 1981.

INTERROGATORY NO. 2:
Please state whether or not you are a coxpoxation, and

if so, state:

(a) Your correct corporate name;
. (b) Your state o£ incorporation;

(ce) The date o£ your incorporation;

(a) | The address of your principal place of
business;

(8) Whether or not you have ever held a

certificate of authority to do business in. this state, and if.
so, the inclusive dates o£ any certificate; :

(#) Whethex or not you have a registered agent for
the purpose of accepting service or process in this state, and
ZE so, theiz name and present address;

(g) ‘Te you are wholly owned ox the majority
‘anterest of your company is owned by another business entity,
state that entity's name and principal place of business.
ott
“ft

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{e) For the Eagle "20" or “7M", temperature
limite: 1000 degree F. Also, see response to Interrogatory

O(a).

(£) fee subparagraph (e) above.
(9) No.
(h) With respect to Eagle 20 ox 7-M: yes, see

response to Interrogatory 10(3)-

qi) Eagle-Picher has some sales invoices for
products including Eagle 20 dating back to 1965, and including
1961 as well. The custodian of these documents is, the .
corporate legal department. Eagle-Picher Industries, Inc., 580
Walnut Street, Cincinnati, Ohio. :
INTERRO! nO. 10:

. TE your answer ‘to Interrogatory No. 8 regarding
“asbestos-containg products" is in the affimative, please state
the €oLlowing: . x

(a) The trade, brand name, and/or generic name of
each such asbestos~containing product sold, supplied,
distributed, processed, imported, labelled, manufactured,
and/or marketed in any form or quantity Between 1930 and 1965;

(b) The date(s) each such asbestos-containing ©
product was Eixst placed on the market, including the date(s)
each such asbestos-containing product was first marketed: .
on an experimental basis?

on a test basis; ox

for sale.

{c) The date(s} each such asbestos—containing

product:
-10-oe ON ® OW ew oN

Ww . ceased to be produced: or
ii) was recalled from the market, if
ever.
. (da). A description of the chemical composition of
each such asbestos-containing product, including the type
and/or, grade of asbestos and/or asbestos fiber contained in

each such profluct and the quantitative percentage of asbestos

or asbestos fiber in each such product;

: _ «) A description of the physical appearaiice and
the nature of each such zsbestos-containing product, including
any color coding, distinctive marking and/or logo; ,

(£) A detailed aeseription of the intended use of
each such asbestos-containing product, including any
temperature limits for each such use;

(a> Whether any such asbestos-containing produce
was on the U.S, Government's Qualified Products hist," and if
so, the inclusive dates it was on such list; :

(hy The name and address of the supplier of tha
raw asbestos fiber used in each such product and the time
period of such supply; . :

@) Whether any of this defendant's
“asbestos-containing products" have, at any time, been sold to
any companies (including power ‘companies or utilities},
shipyards, distributors, refineries, suppliers and/or
Manufacturers in the defined gerographic area. , Tf so, please
state:

i} The names of each such company,
shipyard, distributer, supplier, manufacturer or refinery?

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company.

(hi) The inclusive dates of each such
sale, the amount (volume) and the trade or brand name of each
such asbestos-containing product sold;

. : (444) Whether you have any records
indicating any such sale and, if so, the name, address and job
classification of sach individual who currently has possession
of such records.

Gy Dereribe the types of records sufficiently to.
identify them for discovery purposes which set forth any ‘of the
foregoing ‘information and the custodian thereof (giving name

and address} of each such records.

(a) See Exhibit I for products manufactured by the
Company and Exhibit II for products manufactured ‘by others.
The’ products on Exhibit I and Exhibit II were sold by this

market immediately follow the first manufacture dates shown on

Exhibit I.
(e) See Exhibits I and 5I, .
(a) See Exhibits I, II and VIt.
(e) Cements were in a dry, granulated form. © For

use, they were mixed with water and trowetled on or applied by
. hand. . .

insulstic was a wet sodium-silicate solution,
Inculseal, Spray-Mastic, Stalastic, Stamastic,’ and swetohok
were wet asphaltic solutions. These were trowelled or brushed
Lhe :
~12—

(b> See Exhibits I and ET, Dates of placement on ©we oN nme & BH

28

on with the exception of Spray-Mastic which was sprayed on.
They ware dalivered an pails or acts.

Blocks and pipe covering were in dry, selid form.
Normally, they were held in place by impaling or banding.
Sometimes, they were cut and/or drilled to fit specific
applications. They were delivered in cardborad cartons sized
to £Lt the products.

The products 601d by the Company contained chrysotile

asbestos, except: Hybo Boock and Pipe Covering which was

_ produced by Owens~-Comning Fiberglas, and which contained “both

chrysotile and amosite asbestos.’ The Company is uncertain what
type of asbestos 85% Magnesia Pipe Covering and Insulation,
contained.

Supar "66" Insulating Cement was gray and One-Cote
Finishing Cement was off-white to white, Research is
continuing on other products. ‘

No loges or other markings were placed on the products.

. Cements were packaged in 100-Ib., 50—1b., ox 25-lb.
open mouth multi-wall kraft paper bags, except Eagle "20"
Cement, a product sold, but not manufactured by the Company,
which also was packaged in 100-1b. burlap bags, and "39" :
vinishing Comant and "111" Insulating Cement, which at some
unknown time prior to 1943 were in .100-1b. burlap bags.
Mastics and other wet solutions were packaged in 55-gallon open
head steel drums and 5—qallon open head steel pails. Pipe
covering and blocks were packaged in cartons. Additionally for
the time periods indicated "se" Cement was packaged as
follows: 1949 through 1965,.50-1b., 25-lb. and 8-lb. open

-13~oe FF BOB

Bee N a HW kh BON Oe

fe
&

os

mouth multi-wall-keaft peper bags; 1953 and 1954 only, 50-ib.,
95-1b., 8-lb. and 2-lb, bags; 1966 through 1971, 50~1b. and -
2-18. bags.

Defendants does not have complete information on past
packaging, but all the Company's products, except private label
products, had on the package the name of the product;
Ragle-Picher's name; its address; mixing and/or application
ingtrnetions, where applicable; anfi statement of net contents.

Bee answer to number 15 re: caution.

| (£) the products were intended to be used and
handled by the insulation workers in the manner in which was
standard to their trade.

According to presently available product brochures,
which were used as sales aids and were supplied £rom time to

time, the following were the service temperatures for’ the

various insulation products for which information 4s available: -

Product Service Temperature
Super "66" Insulating Cement to 100°
°43" Finishing Cement +o 1000?
Fireproofing Cement to 20007
One-Cote Finishing Cement to 1200°
Hylo Finishing Cement to. 1200°
Hi-stick Insulating Cement to z200°
"33" Insulating Cement to 1600°
"99" Finishing Cement to loon?
"106" Finishing Cement to 1900°
"111" Finishing Cement to 2300°
Insulseal : to 450°

yanBoo oN nom oe we oN oe

‘B BOE

Spray-Mastic to 250°

Stalastic (Standard) to 400°
(#i-Temp) to 700°
Bylo Block & Pipe Covering to 1200°
Eagle "20" Cement _ . to 1000°
Stamastic to 500°
85% Magnesia Pipe Covering to 600?
Swetohek to 150°
Vercel Block to 140°
Bupertemp Block to 1900°
“DE 85" Block “to 1300°
"DE 95" Block to 2000°
(a) Yes. The following products were on the

Qualified Products List beginning in the years “lasted until
.sometime in the 1960's when the qualified prduct system was no

longer utilized by the Government.

Super "66" (1933)

One’Cote (1960)
Defendant does not know whether other products vere on the "OPh"
fe : (a) According to presently available information,
at least from 1956 to 1971 the last year of purchase, the
Company purchased processed asbestos from Philip Carey
Cofporation and GAF, except for one purchase from
Johns-Manville in 1064. The Company also purchased processed
asbestos From Asbestos Corporation, Ltd., in prior and possible
later years. pdditionally, amosite from Africa was purchased
through an agent, the Union Asbestos and Rubber Company, for —
the use in DE Block. GAF Corporaétion, Industrial Products

-15-& & EF BB ES

NR RR EB EB & ER

yy
&

wow uN Oe wR

Division, 140 West S5lst Street, New York, New York. Philip
Carey Corporation, Carey Canadian Mines, Lid,, 320 South Wayne
Avenue, Lockland, Ohio. Asbestos Corporation, Ltd., 835 Rue

Mooney, Thetford Mines, Quebec, Canada. Jobns-Manville

‘Ashestos, Ltd., 3102 Eudlid Avenue, Cleveland, Ohio.

Gi) Yes.

(i) Unknown, save to the extent
Wesotibed below.
° (hi) Unknown, save to the extent
described below.

(ia) The Company formerly sold
abestos—containing insulation products to distributors, and/or
contractors, ox to companies which purchased them from their
own use or for resale under their own name ox trade mame, The
Company has no knowledge of resales of its products, except in
instances where the invoice shows shipments to other than
purchasers. .

The Company vio longer manufactures asbestos-containing
insulation products. The Company has no sales invoices prior
to 1965 except ‘gor some invoices for 1962 and a few : .
miscellaneous invoices received through Litigation. sales data
are based on the Company's fiscal year, which is December 2
through November 30.

These documents are in the possession of the Corporate
Legal Department, Eagle-Picher Industries, Inc., .580 Walout
Street, Cincinnati, Ohio.
fet -
ttf

~16-e

oe NN A oR Ww oN

18
vp

28

products for reasale by the purchaser under the purchaser's
private label designations.

0 N A32

T£ this defendant entered into any agreements for the
cebranding of asbestos—containing products and/or materials
mined, imported, wannfactured, sold, distributed, and/or
supplied by another company for resale or distibution by your

any, describe each of the agreements md the parties to
said agreement, the terms, the duration, and the names of each
product(s) and/or material(s) covered by each puch agreement.
SUPPL) "0 TN OGATORY WO. 13:

See Exhibit IL. The Company has only copies of the
agreements that it had with the Philip Carey” Company attached
as Exhibit V. Each of the purchases was. made pursuant to an
agreement by which Eagle-Picher agreed to purchase, and another
party agreefl to sell, the products in question for rebranding
and sale by Eagle-Picher.

INTERROGATORY WO. 15:
Ag to each such asbestos-containing product listed in

defendant's preceding answers ‘to interrogatories, did defendant -

put on such products or their containers, ang warning of their
hazards to health by virtue of the asbestos content of such
products? If so, state for each such warning:

(a) Fach such warning with particularity, with
regard to size, colar, and location; whether the warning was
contained on the material or on the container; whether ‘ghe
warning was printed, stamped, antifor placed on a tag; and
shi

~18—woe NM Om he eo Ne

i
=

BF G BOE

BY OR

to
—==

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 26:
See Exhibit VI. .

Dated: duly /£, 1986 MORGENSTEIN, LADD & JUBETIRER

JEFFREY R. WILLIAMS

By
JE: R. WELDIAMS
Attorneys for Defendant
Eagle-Picher, Industries, Inc.

00425

_is-STATE OF OHIO : >
: - 5 8s.
COUNTY OF HAKILTON: )

AFFIDAVIT

Before me, the undersigned authority in and for the Btate of

Ohio, personally appeared Robert L. Bockstabler, who, being by me

first duly sworn, deposes and states that he is authorized to

execute this affidavit; thet the foregoing Answers to Interroga—

tories relate to the Fibers Department, which was formerly a part,

o£ the Chemicals and Fibers Division of Eagle-Pichér Industries,
Inc., and that the foregoing 4nswers to Interrogatories are true
and correct according to the best of his knowledge, information and

belief.

Robert LY Boeckstabler

Sworn to and subseribed before :
me on this day of C » 1986.

nl ry Public in “and for,
B8tate of Ohio.

My commission expires:

MARSHA WN. HAND
Notary Public, State of Ofte
Miy Gotventssion Exaites Nov. Je 2980SEIS AGHEDIRNT made 29 of Ostabor 1, 1960, between THE
FHIGIP CAREY WANOPAOTORING COMPANY, hereinafter celled “deroy",
ag Ohio corperetion, and THE FASTE-FICHER OOMPAN, hevainafter
called “Ggio-Pichsr", an Ohic corporetlons

WITNESSETA:

what the parties hereto agree ac folLount
2. ZEBIOD OF AGREEMENT

whe term of this agtochont shell be from Oatober Ls |
1960, bo end Sucluding September 30, 1968. After September 30,
1962, either perty to this agreement my terminate the agreement
vy giving ninsiy (90) days wnitton notice to tha obher, purty.
2, RoouoRS

(A) -Englo-Pichar egracs to, paschaac from Garey exd
‘Garey agynes to sell to Ragle~Picher to tho extent pf its menun
fecturing eepnoity all of Eagle-Picherts requirements tm emess
of similar proiuets manufactmied by Zagle-Pioher, if any, of tho
folowing Veted prodnota pvodnosd by Garey for vesele by Eazle—
Picher, #12 upou the terme ond cond/tiens hereinatber provided.
892 Maguonda Pipa Covering and Block Have
Tharmotex-B Weathexprosfiog Gomnt YES COPY
Tneietion Seek HO tesa page 5
Fixeeind Taokabing YE (24t Aacas ree
Flragnurd, Jacketing
Aubestes Papor and RolTbeard

Asbostes Miibpard «+
KOE Aabsatos Base Shest - =
99f Wiberock Base Sheet © +f
‘ISH Piberock, Asphelt Seturated, Plain ~ +
gg Fiberock, Asphalt Saturated *-+

+ 35¢ Fipercok Asbestos Felt, Asphalt Saturated
Gork-Cote +

Fibtons  ftebie heh fer rains sere}(B) Carey agrees to purchaue from Hegie-Picher end
Engle-Picher agress to coll to Carey to the extewt of its rienn-
footuring capacity all of Bareyts requiveneibs Jn exoass of similar
products wanufactured by Carey, if any, of the following Listed
profants produesd by Eagle-Plehor for resele by Tarey, 21 upon
the Yerms end conditions haveinefter provideds” Sacre Fam

Minerel Wool Blankets Heeo 196F
. Fata ne DFS

PV Supartomp Block

Super "66" Gement yes New. ree
Spray-Hostic ae
+ Biveprocfing Cement

"33" Comme
Qne-febe Geman’

MOE

Stelastic
‘TnsvlsenL Pe THR stom
Mineral Wook Spun Fels ye | es
Unbeok Pipe Govring Yet 70%
3. SiZi, PACHAGTIE, AUD TARBLING
ADL of tha ebovo produete sola by either of the parties
to tho other panty chal] 63 in sizes sod peokeged in accordence
with existing industry practices end sbell be Isbsled under the
private ‘brand Jabels solested by the purchaser, suth inbels,
stoselis, ani desiga to be prepared by the prmchaser and provided
‘to-the seller at the point of shipment.
Qe me
{A) "he purchase price of materials herewiler shall
‘bo the seller's manifacturing price P.0.B. sollerta or nam
faoturents manufacturing plant, ex cot forth in tha peice liste
attuched bersto as the parties! Exhibits. .
(8) Im the event the seller reduces tha price of any

‘at Weer

of the products Listed, mfilied orders previously accepted ty ib
IDL be Invofood-at tho yrtce effective at the date of shipamt. ,

{8) In the event the seller inoneasas the prdee of any
of the woanets Hated, no new quotktjoan or sales my bo nedo ab

prices in effect prior ta the advance.(B) On Applied dontract Beles, tha purchaser will bs
probected for a period of six months to cover contract coxmlt-
wants of dts sootracters at prices in effect prior to the price
gdvenes provided orders ave placed with the seller, within 30 deys
attor the price advance, Shipmant of material must “be taken
within six monthe from the data of tho price advance,

(2) on Material Sales only the’ purchuser may order
eutfdetent mberisls to cover qutctuaaing commitments ‘of its
@ntributora ond dewlers, az svidensa by bone fide ovdera, Bb
p1d pricon pravilied orders are placed within 30 deye, snd ghip~

| mont stade within 60 deye of the prize advanse, but in no event:
‘wiLL protection bo extended bayond the 60 day perind afer. the
ante of tho price adymce. tha pumhener also my order meberial

for atosk wi old prices at “tha gute of ona carload per purchaser's

disteituber or deales proviaes onder 19, placed vithin 30 aeye end
shipment made within 60 days of the price advance, bub inno
event vi motection ba extended beyond the 60 day perind after
ths dute of tha price advance.,
(Bs MERHON AND WERNS OF PART
(a) Shipsiots sholl be F.0.b. fhe seller or mami
Gabtmrerta menafeckiting plant.
(8) A232 shipments shall be mide on the purchsserts
_bEMe of Jading or sbipping manifests furaished uy the purchaver.
(G) the seLler shel Anvoioe the purchaser ab the tino
of shipment, end the teras of payment sbali bo each terns of one
per cent (36) 10th prox,, eb 30th prox.y nplesy olfierwisa spscified
on the soltor's Exhibit,
6.» QUANEINY AND ORDERS
Neither party shail be reqnived to purchase any mindoen
amount of any products from the sther party, but esch party shall
advies the other not Jess tin Zittean (15) days prior to the bo—
ginning of ench celondar quarter of ihe oxpentad requirements ofeach product listed for the following calendar quitter. Such
advice shall not constitute en order and individual orders

plaeea by the purcheser shell be teken in reatler onier without
preference, Tf, because ‘of previous orders, the seller camot
mech delivery within gifty (50) days, the purchaser shali bave
“the optdin of securing profucts from thar sourssa am the saws
manner ‘pregoribed in Beation 7 hereot.

7. BOHOE MAIER

Nolther party shell bs responsible to the other for

dojnys in f42ling onders for ony cause ‘beyond the seller's con-
vtyol, inclniing but not vesteleted to eubergoes and other trans~
portation acieys, Inebl1tty of the Boller without ita fai to
obtain moberiat, equinmnt, fuel, or powor in qrenbitdes suffi~
tlent to mest its roguienents, atlocaitend by the setlerte
suppliers, delays ‘caused by the puvohnsae, strikes end otber

Johor troubles, acts of Govemment, dnoleiing bub at rasteleted
to my preference, priority, conservation, Limitation, or allo-
cation onder, war and acts of public encay, epldenins, querontthoa,
fiot, explouions, or otuer acetdents, Cocds or other acts of
Goa, end the’ seer shall not be Mabie to the purchaser for ny
expenses, bus or dimge resulting fron suy such delay or failure.
Ya the event of a fétinre to deliver or of un imrenscualile ‘aelny
im delivery for any of the causes Lntod above, ¢he purchasor —

shall ‘anve the whut, notilthetanding any provision of tata ageie-
mont to the couteary, to purchase the products Jisted ow sulla

products fram other sprees untll such time as the ge22or ts agein
"sn position to make delivery.

B. QUALITY

Hach party warrants to the other thet naterlal sold md

delivered by i to o> upon the ordor of the other party hereunder

shail et ell times be of 2 marchenteble quality and equal or

superior +o, similar meterfal boing delivered by the seller to

other customers, Tech party'a lability herewider 4 limited to

replacing any riateriel, whish falls be meeb tha forcgoing warranty

and payment of all transportation charges, Af eny, on defective
material.9. ENDER

‘The seller will indemifty and bold harmloas the pur~
‘haser against ony and nl) claims fox damages on accom of
violetions of any rights cleined by others under patents or
patent applicstions, provided that the sey is notified by
the paréhuser of such claims, and tha seller is authorized by
the purchaser to defend any eetion brought on any cletm and to
meke any sebblenent without expense to the purchaser that In
the seller's opinion 1a propor,

20. ‘C@IRRION OF ORDERS oy wamerAeTON

Spe termination ef this agreement ac provided hh.
Section 1; aither by expiration ef the agreement or by 90 days
written notice of termination, the saTer shall nevertheless ba
Cbligated to £121 odes received by St from the prechnsex for
eny products 201d é quoted by the seer prior to the expiretion
of this sgreenent oz prior to the effective dete of such termin~
ation end the purchaser shall nevertheless be obligated to socepi
shipment from thé cellér of all ordors which it hes placed with -
the seller pridr to the expiration of this ngreement or pribr to
tha effective date of termination.

UL. ASSIGMMENE ,

Neither party shall hava any wight to meviga this
agreement or eny interest herein without the prior uritten eon—
sont of the other party.

22. HOBIORS

ALL notices, consents, and other communications bere=
mado shall be in welting and shel be deliverod, telegraphed,
or mailed first class, postege proprdis .
(4) Ee to Carey, né 320 South Wayne Avanus, Lockland,
_Ginoinneti 18, olrio, and .o
(B) Ef to Wagie-Picher, ‘ab 900 American Building, Cin~
oimnatt. 1,. ohio, .

tor at such other address es shell nereattor be fornishead by
either party to the other. ‘

. TN WOINESS WERFEOF, the partics hereto have exaoubed
‘this egrement tn duplicate by_shelr officer theremto ey

authorized es of the dey and year first above written. .
° MSE PHIETP GAREY MAWUPACYORING COMPANECAREY
EXHIBIG ~

Qeroy Products
‘Restrlated Prine Tis

The Eagle-Ficher Company — Cineinustl, Ohio

Gaey Eepizot,

BES Memnesie pe covering
ang Block

EaemoterB Wentherproating

it ap a. dymj por ton
dru} per ton
WS Re peil, per ton

Miswlation Seat
a gel, am per gl.
gal. pail, por gel, .
i Ba: fener ee

Fizegind Tapketing
‘08 me fb. par: poll

OP age, fee per Sold

Asbestos HA1Tbosrd.
Asbestos Paper end Holboard

45e Aoveston Fuse Sheet
B sq. fb. per volt

85! Fiberock Bese Sheet
208 so. ft. per raid

UH Fiberock, Asphatt sat~
vrated, Fedn
32h sqe fb. per wol2

207 Fiberock, Asphelb Satureted
sqe fk. per roll

” 39% Fiberocke Asbestos Feit,
Kophalt Saturated
216 su. £%, per roll

Setatny 2.
Current "A" price (Coon-
trantoredistribntor cost) ne
dass Bai, £ fio.b, Plymouth
Meeting, Ya. us

.

72228 L.0.b. Lockland, ohin
Ge iS: Perth Auboy, WJ. *{
1200

Ohio

& lO f.06b,
a.

Fovkland,
48 or Perth avboy,

Curent "Al price Jess 1k, 0%
Seokghb- sagueltne ait Hane
“ilds~or Watkepem. Ge 2 orcratire

Gurrent "A" ayise less 128g,

freight equalized with Man- f
vilis or Waukegan, /
Curent "A" prices iess,10%,, |,
fredsht o ed with jo

ducing points, *

Surrenb "A" prices less 10%, .
freight ee with, Bro .
ducing po:

Gurrent, List pricos Jess 1214
eases, feo.b. Looiciend, Chto

Proight on. carlood vedi ahip-
ment will be equalized with | -

of Sole from time to tine in
effect,. Garey Pooduct

-Gork-Gote

+ 5k gal. drun, per gel:
5 gal, peil, per gel.

Selling Price

aqualiced with Bl Dorado,
Aplensan.

STerms ~ 2% 10th prox., nob 30th prox, for these products. A1L
ethers ou terms of 2% 10th prox., net 30th proxEAGIE-PICHER
EXHIBET”

Eagle-Picher Products
Restricted Hine Listy

Tae Fhilip Garey Menefesturing, dempony
Cinoinnsti, Ohio"

Dor
or PRIDE
Mineral Wool Blenkets f vice.
FV Supertemp Block Hust: & Gemnda Bd: Ft.
i ALL Other Ba. Fb.
Super "66" Gemenb Hest & anada Ne Ts
411 other a. Ty
Spray-Haatic 5 Gel.
5h, Gel,
Fireproofing Cemant
"33" Gement

Qne-Gota Genent Bast & Canada,
ALL oth:

cz
Stalestic a ee pet
Zz :

Tnsulsend.

Hse 306 Giovalanas"
20W.06 Matrwom, Neto
% Gonyurs, Ga,

ei, poll; approx: 200,

Summer 92 gal! dem, approx: soue AES i

we BS gal, dom, appron, Book wee A

“'S gal. pati, approx, * Of tarag 2

Wiiter 32 gal avin, approx. 30 2

“$5 gal, drum, approx. S003 87, 2 1

Mineral, Yoo), Spun. Fekt map 510) (200 pico
- onehrss O£8 pee attached)

Tab-Lok Pipa Covering rr ToL, +152 (see price
Bags ‘a thached)

4Gnat - Frica in area Nast of and inelniing Tenusylvanie, West Virginie,

= Yirginis, north Caroling, South Gngodina Gomes, ek "Ploridt.

Soma prite enpliss in states of Cnlifoimia, Oetepn an and Washington,

kextiu Ghargea - On JOT, or TRL shtpnints, thers shell be o handling charge
-of $2.50 par order,
F.0.B. Points ~ (Wo svedgnt ltowed) ~ 1, Jopliny ¥Wazsvari
Jollab,. Tidneda
3) Cyril, OabensGerload Hininon Weights - Bone ibs. ~ Felt; ob-Lioky Block, Blankets
iiG,o0n Yaa. ~ A121 Getwenta, Swaymetley Ih
lsead

Mixod cars cerry the miniwum weight of the highest product
dneluded, Terms ~ 1% 10th prox,, not 30th prox

i
'
|i AGREEBMENS

t RIS AGREEMENT mode es off Hey 2p 1956, botjuen THE
PETETP CAREY HARVEMOFURING COMPARE, hovoinétbew onliea "Corey",
eat Oho ponporxbfion, snd TSE GAGIE-ICHER OOWPAI, hevetnafter
called Mmaglo-Pichet", mm Obie cerperahions

WEENESHTY .

hut tha parblés hereto sgres es foLlowsr
L- EGLO OF spuRE .

ime term of this agreement shell de from May Ly LOG, ©
to ani dnsiuding Apri? 30, 1964. After ApH 30, 1958, ofther
puvly to this gresment may terninate the syrecment by giving,
+] saety (90) ange virkbion mobic to ths other party. .
2. FRODIOIB *

{A), Engie-Picher sgrecn to purchase from Oprey, and
Garey egrses ta doll tp, Eagle-Picher to the extent of tts
mannfacturing capantiy ali of Eaglo-Ploken's requirenents in
oxneas of eimtlar products menufacturoll Uy Eagle-Picher, if any,"
of the following isied products predusad by Garny for roonle
by Foglo-Picher, 632 opon the terms anf conditions hersinafter
! ‘providsas

Gof Masnonde. ond ADLteup pipe covering
. ra lécks, and Hi~femp ee 9 ‘blocks,

Theractox-D Veathexproofing Ceunty

t Tnsvieblon Beal,

i Asbestos ahosts and £1brey

Lotpressurs coverings;

Martine Fanol,

Firefoll Board.

+ (8), Garey agrees to purohase fxtm Bugle-Picher end
‘Eagle-Picher agrees to sel to Garey to the extent of Lis mann

| enctuping uapnaity all of Gareyte vequizenmnts in oxtess ofpinfiae produsts manufactured by Cavey, if any, of tho following
| Lanted prodnots produced by Eagle-Picher Tor resale by Cereys
PUL upon the tenaa end condittons Merefaafter provided
|} 0 Bagte-Fichor Buyer "66" Topulating Udment
E Eogle-Pichor Ons-Cote Fisdshing Cenent
Bnglle~Picher Elreprooring Comnb
. Eagle-Picher Yamrlsonl .
RaglocPicher Stelastic
EaglowPicher Spray-Hasbio
Eoglo-Pichar Miners Wool Wotel-Ciad Blankets
+ Heple-Picher Mineral. Wool, "77" Pips-oovering
Raglo-Pisher Industrie}, Hinde Wool Velts
Begle-Dohss FY Supertomp Block,
Be Ui PAGTABING, AND EARELTHE

I. B22 of the above produsts wold by either of the parktep
to fhe deol | purty pba2 be in atzen pnd pockaged “in uecordanre
went, existing dndestry prneiicos and shel be Jnbeled unier the
private: ‘bonnd Jabels selected by the pirchasery such, Jabelse
stenctis, und destga to be proporodl by the prnchaser end pravidod

| to the soller eb the point of silpaenk.

le. eae ,

* . ‘phe purchase peice of matevinia erenniow shall be the
aedor’s manufacture price F,0.B. seliorts manefantmring plant,

f ax set forth Sn the price itats attachell herebu as Exbibity 1A)

through 1(Z}. Eha. pres of any of tho products Listed, when

changed by either parby, will bo probastad on exdera placed for

such products qu provided fn the sald price ists. .

8. BETHOD uD. sons OF ‘Pais

_ (A) AYR sbtpmente shel be F000. the seller's amn-
fasturlog plenh with abl transportation obarges to be prepaid
by node» and slowed by pursheser, and title to ell shipments

fo paon to purchapor upon delivery +0 the carrier.

-2e(a) ALL shipments thal be mais on purchaser's bills
of lading ov shipping maniforta Purnichad by porthpsor.

(c) Solter shalt dnvolow purchaser sb the timo of
shipumnt, and she Gerais of Payuent oho}? ba easts toms of

! ons per eon’ a on (20) args, not thinvty (30) days, provailings

6. SuANIEEY' AND ONDE
_JUWatther pay GheT1 be roqntred to porsbage pny mint
auomb of any producta from'tha oor perky, bat cach party
shall advise thé other nob Jess than fiftess (15) deyn prior
to the beghmdag of aach calendar quarter of Ltn expected
rogpixenonts of each profenk abe for the foliewing calendar
quartor, “Sushi adwice shell. not constitute an oxder anf inilviine?
orders pleosd by tho purshonor cheli bo taken ta voguler order
wWithonk proference.’ If, bethnas of previous orders, seller
comet moot daviveny within £erty (S0} days parohaver hel.
have “the eptiion, of securing proandta fom other sources in tus
same: "mane prinonited. m Sootion'7 “hereof.
Te ronoe Wasaim,
Neither party shalk ba responsive to the other for
Goleys in 24i14ng omiera Por cause beyond the setierte control,
Inelndtng but not vestrdited $0 guibargoes end other ‘trarsporba-
: tion Aelers + soatbitty of aelier without tks’ fontt to obtain |

‘| patorialy ogpipacnt, ful, of gover in quantities sufficient to

Luepb ts vequvemonte, eLioortions by seller's suppliers, delays
| Caused by purchonar, abriles and ether Ishor troubled, acts of
Doyarment, incinding but nob restricted to any preference, |
puiority, conservation, iattation, oy alicontion ordar, war aud
| actin of public enemy, epidemics, quammnbines," Pires, explosions,
| o other eceddents, floods or other acts of Gnd, and se2Jer

* pall not be Jisble to purchaser for any expenses, Lesa or deuens

vomiting from sny such deley or fatime. th the event of a
fatlure te deliver or of an tnrensonable delay in delivery for

-3-zuy of the ca