Trial Materials: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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MCKENNA LONG &
ALDRIDGE LLP
AtvoaNers AT Law
SAN FRANCISCO

LISA L. OBERG (BAR NO. 120139)
DANIEL B. HOYE (BAR NO. 139683)
ALECIA E. COTTON (BAR NO. 252777)
MCKENNA LONG & ALDRIDGE LLP
101 California Street

41st Floor

San Francisco, CA 94111

Telephone: (415) 267-4000

Facsimile: (415) 267-4198

Attorneys for Defendant

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

APR 13 2010

Clerk of the Court
BY: CHRISTLE ARRIOLA
Deputy Clerk

METALCLAD INSULATION CORPORATION

SuPERIOR CourtT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

JOYCE JUELCH and
NORMAN JUELCH, SR.,

Plaintiffs,
v.
ASBESTOS DEFENDANTS, (BP), ef ai.,

Defendants.

CASE No. CGC-09-275212

DECLARATION OF ALECTA E. COTTON IN
Support OF DEFENDANT’S TRIAL BRIEF
REGARDING THE ADMISSIBILITY OF
EVIDENCE RELATED TO THE SOPHISTICATED
USER DOCTRINE [MIL 28]

TRIAL DATE: APRIL 5, 2010
Depr.: 604
JUDGE: HONORABLE MARLA J. MILLER

DECLARATION OF ALECIA E. COTTON IN SUPPORT OF DEFENDANT S TRIAL BRIEF REGARDING THE ADMISSIBILITY OF
EVIDENCE RELATED TO THE SOPHISTICATED USER DOCTRINE [MIL 28}

SF.27459063.1GC ON RA DH Rw Bw

10

28

MCKENNA LONG &
ALDaibcEe LLP
ATTORNEYS AT Law
SAN FRANCISCO

DECLARATION OF ALECIA E. COTTON

T, ALecia E. Corton, declare as follows:

1. Tam an attorncy at law duly licensed to practice before all the Courts of the State
of California and am an associate at the law firm of McKenna Long & Aldridge LLP, attorneys
for Defendant METALCLAD INSULATION CORPORATION in this action. I have personal
knowledge of the following facts and, if called upon to do so, I could and would competently
testify thereto.

2. Attached as Exhibit “A” is a true and correct copy of relevant excerpts from the
deposition of plaintiff Joyce Juelch, Volume 1.

3. Attached as Exhibit “B” is a true and correct copy of Bryant v. Hercules
incorporated 325 F Supp. 241 (W.D.Ky.1970).

4. Attached as Exhibit “C” is a true and correct copy of Jn Re Asbestos Cases 543
F.Supp. 1142 (N.D.Cal. 1982),

5. Attached as Exhibit “D” is a true and correct copy of Lockett v. General Electric
Company 376 F.Supp. 1201 (E.D.Pa.1974),

6. Attached as Exhibit “E” is a true and Correct copy of Martinez v. Dixie Carriers,
ine, 329 F.2d 457 (5 Cir.1976).

7. Attached as Exhibit “F” is a true and correct copy of Strong v. E.L Du Pont de
Nemours Co., Inc. 667 F.2d 682 cs Cir.1981).

I declare under penalty of perjury under the laws of the State of California, that the

foregoing is true and correct and that this Declaration was executed on April 5, 2010, at San
f -

tha S Uh

ALECIA E. COTTON

Francisco, California,

SF:27419603.100001
| IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 IN AND FOR THE COUNTY OF SAN FRANCISCO
3 ~--000-~
4 JOYCE JUELCH and NORMAN JUELCH,

SR.

§
Plaintiffs,
6 No. 275212
vs.
7
ASBESTOS DEFENDANTS,
8
Defendants.

1s DISCOVERY DEPOSITION OF JOYCE JUELCH
16 VOLUME I

17 (Pages 1 to 184, inclusive)
19 Taken before SANDRA M. LEE

20 CSR No. 9971
21 September 16, 2009

Juelch, J - Juelch, J 9-16-09 V1 DIS Page I1 INDEX

bw

PAGE

3 EXAMINATION BY MR. BROWN
144
4
EXAMINATION BY MR. PATTERSON
3 75

6 EXAMINATION BY MS. RICHARDSON
134
7
EXAMINATION BY MS. COWAN
8
EXAMINATION BY MR. HOLMAN
9 134, 135

10 EXAMINATION BY MR. POESCHL
11 EXAMINATION BY MS. BLUMBERG

17 EXHIBITS
18 (No Exhibits Marked)

Jueltch, J - Juelch, J 9-16-09 V1 DIS

7, 75, 3

55, 57, 62

56, 58, 11t

39

60, 73, 94

62
63, 112, 143

Page 200003
| DEPOSITION OF JOYCE JUELCH

3 BE IT REMEMBERED, that pursuant to Notice, and
4 on the 16th day of September 2009, commencing at the

5 hour of 9:06 a.m., at Gaia Anderson, 2900 Alexander

6 Avenue, Anderson, California, before me, SANDRA M. LEE,
7 a Certified Shorthand Reporter, personally appeared

8 JOYCE JUELCH, produced as a witness in said action, and
9 being by me first duly sworn, was thereupon examined as
10 a witness in said cause.

ul ~-o00-—-

12 APPEARANCES:

13. For the Plaintiffs:

14 GARY L. BRAYTON
Brayton Purcell
15 222 Rush Landing Road
Novato, California 94948-6169
16
For the Defendant J.T. Thorpe & Son, Inc.:
17
ALICE K. LOH
18 (via phone)
Bassi, Edlin, Huie & Blum
19 351 California Street, Suite 200
San Francisco, California 94104
20
For the Defendant Redwood Plumbing Company, Inc:
21
MARGARET P. BAKER
22 Bishop, Barry, Howe, Haney & Ryder
2000 Powell Street, Suite 1425
23 Emeryville, California 94608

Juelch, J - Juelch, J 9-16-09 V1 DIS

Page 300004
1 APPEARANCES (Continued):

2 For the Defendant Union Carbide Corporation:

3 GREGORY S. ROSSE
(via phone)
4 Brydon, Hugo & Parker
135 Main Street, 20th Floor
3 San Francisco, California 94105

an

For the Defendant Tosco Refining Company:

~

EUGENE BROWN, JR.
Filice, Brown, Eassa & McLeod
8 1999 Harrison Street, 18th Floor
Oakland, California 94612
9
Specially appeared on behalf of Union Oil Company of
10 California:

i MOMO E. TAKAHASHI
{via phone)
12 Filice, Brown, Eassa & McLeod
1999 Liarrison Street, 18th Floor
13 Oakland, California 94612

14 For the Defendant Garlock Sealing Technologies, LLC:

15 DON H. SCHAEFER

{via phone)
16 Glaspy & Glaspy

100 Pringle Avenue, Suite 750
17 Walnut Creck, California 94596

18 For the Defendant Sequoia Ventures, Inc.:

19 TIMOTHY J. ARNESON
(via phone)
20 Hassard Bonnington LLP
Two Embarcadero Center, Suite 1800

21 San Francisco, California 94111
22
23
24
25
Juelch, J - Juelch, J 9-16-09 VI DIS Page 40000s
1 APPEARANCES (Continued):

2 For the Defendant Allis-Chalmers Corporation Product
Liability Trust:
3
ERYK R. GETTELL
4 (via phone)
Knox Ricksen LLP
5 1300 Clay Street, Suite 500
Oakland, California 94612-1427.

For the Defendant Kaiser Gypsum Company, Inc.:
7
JOHN A. HOLMAN
8 Lewis, Brisbois, Bisgaard & Smith
One Sansome Street, Suite 1400
9 San Francisco, California 94104

10 For the Defendant Metalclad Insulation Corporation:

Wi THOMAS F. POESCHL, JR.
McKenna, Long & Aldridge

12 101 California Street, 41st Floor
San Francisco, California 94111

For the Defendant Santa Fe Braun:
14
MERIDITH A. MILLER
15 {via phone)
Morgan, Lewis & Bockius
16 One Market, Spear Street Tower
San Francisco, California 94105-1596

For the Defendant Consolidated Insulation Company:

JANE S. BLUMBERG

19 Prindle, Amaro, Goctz, Hillyard, Barnes &
Reinholtz LLP

20 369 Pine Street, Suite 800
San Francisco, California 94104

For the Defendant Douglass Insulation Company, Inc.:
22
ELIZA M. RODRIGUES
23 (via phone)
Selman Breitman LLP
24 33 New Montgomery Street, Sixth Floor
San Francisco, California 94105-4537
25

Juelch, J - Juetch, J 9-16-09 V1 DIS Page 500006
1 APPEARANCES (Continued):

2 For the Defendant TIMEC Company, Inc.;

3 KELLY L. COWAN
Sinunu Bruni LLP
4 333 Pine Street, Suite 400
San Francisco, California 94104
5
For the Defendant Pacific Gas & Electric Company:
6
LYNN HOLLENBECK
7 {via phone)
Law Offices of Lucinda Storm
8 610A 3rd Street
San Francisco, California 94107-1218
9
For the Defendants Thomas Dee Engineering Company:
10 Hamilton Materials, Inc.; Oscar E. Erickson, Inc.;
Quintec Industries, Inc.:

PAMELA E, RICHARDSON

12 Walsworth, Franklin, Bevins & McCall, LLP
601 Montgomery Street, 9th Floor

13 San Francisco, California 94111-2534

14 For the Defendant 84 Lumber Company:

15 KEITH E. PATTERSON
Yaron & Associates

16 601 California Street, 21st Floor
San Francisco, California 94108

Juelch, J - Jueleh, J 9-16-09 V1 DIS

Page 600015
1 usherette at the Fox Theater in Stockton.

2 Q. How long did you work at the Foster's Freeze’?
3 A. Justa couple of months.

4 Q. How long did you work at the theater?

5 A. Al the theater, I think it was probably about

6 two or three months also. Then I went to work at the
7 naval depot out there as a janitor.

8 Q. Which naval depot is this?

9 A. It's in Stockton.

10 Q. What's the name of it? If you recall.

11 A. Tjust knew it as the naval depot out there.

12 MS. BAKER: Sharp?

13 BY MR. BROWN:

14 Q. Someone said "Sharp." Is that it?

18 A. [believe so.

16 Q. When did you start working at the naval depot?

17 A. twas in the '60s. My kids were -- '63,'64,

18 I think it was probably in the latter part of '63, 1

'9 believe, first part of '64,

20 Q. How long did you work at the naval depot?
21 A, Probably about a month.

22 Q. Why did vou leave that job?

23° A. [started school to become a nurse,

24 Q._What school did you attend?

25 A. Delta.

Juelch, J - Juelch, J 9-16-09 V1 DIS: 15:16 - 16:200016

1 Q. Delta Junior College?
2 A. Yes, In Stockton,

3 Q, When you worked at the naval depot, you said

4 you were a janitor?

3A. Yes.

6 —Q. What did you do?

7 A. My job was to clean the offices and clean the

8 toilets and see that they were cleaned up for the next

9 day and things was put back in order. Kind of hard to
16 do because it’s kind of a nasty place.

11 Q. Were some of the offices located in warehouses
12 and storage areas?

13° A. Yeah. They were in - I call them almost like
14 modulars. They were very old. You could tell they were
15 very old. They weren't new ones. They had been out
16 there for quite a while. A lot of the ceiling pieces

17 were coming off, and you'd find them just about every
18 morning after the day’s work and everything,

19 Q. You say “the ceiling pieces,"

20 You're referring to the ceiling tiles?

21 A. Yeah. The tiles, They would break off —

22 Q. And fall to the floor?

23 A. - and fall to the floor. They would replace

24 them at intervals. Sometimes they were left there for

25 quite a while.

Juelch, J - Juelch, J00039
1A, About a pack and a half.

2 Q. Did Mr. Chambers smoke in the family home?
3. A. Yes, he did.

4 Q. You told us you went to school to become a

5 nurse; is that correct?
6 A. That's correct.

7 Q. You went to Delta College.
8 Did you complete that program?

A. Yes, I did,

10 Q. Did you receive a degree or certificate?

Il A. Yes. I became an LVN, and I received an AA,

12 Q. What's an LVN?
13° A. Licensed vocational nurse.
14 Q._ What did that allow you to do?

15 A. [was one of the ones that had a little bit of
Stas one of the oncs that had a little bit of
16 extra training, so 1 was allowed to give injections and

17 start IVs at that time. But normally an LYN does not

18 start IVs and give injections. They're allowed to hand

'9 out medications, pills and this, but they weren't

20 allowed to -—- but being that -- the areas I wanted to
2! work in, U had a tittle bit of extra training at the

22 hospital to be able to work in those areas.

23. How long did you work as an LVN?

24 A. Lworked there as an LVN approximately four

25 years. ‘Then I went back to school. i worked and went

Jucich, J - Juelch, J 9-16-09 V1 DIS: 15:16 - 16:200040
1 back to school,

Q. Let's stop right there.
How long was the LVN program?

A. It was 18 months,

2
3
4

wn

. Then after yo

that correct?

A. That's right,

raduated, you went to work; is

Q. You worked for about four years, correct?

A. Yes.

Q._And then you went back to school?
A. Lwent back to school, but I continued to work.

Q. Where did you go back tu school?

A. At Delta,

Q. Why did you retura to Delta?
A. J wanted to become an RN.

Q. How long did you attend Delta on this second

go-round?
A. Two years,
.. Two years?
A. Uh-huh.
QO. "Yes"?

A._Yes,

Q. Did you get a degree or certificate?

A. Yes, I did.

Q. What did you get?

Juelch, J - Juelch, J

9-16-09 V1

DIS: 15:16 ~ 16:0004)

A. I got an AA,
Q. This is a second AA?

A. Uh-huh,
On "Yes"?
. Yes,
Q. What area was this second AA?
A. Science, Associated Arts, they called it.

._ Did you get any other degree or certificat

% other than the AA?

10 A. didn't go any further than that.

Il Q. How Jong did it take you to get the second AA?
12 Two years?

13 A. Two years,

14 Q. Now, at the time that you got your LYN, did you

15 consider yourself to be a health care professional?

16
17
18

A. Yes.

Q. And, again, because you had had this advanced

medical training, you knew and appreciated that smokin:

'9 cigarettes, again, would be detrimental — could be
20 detrimental to your health, correct?

21 AL Yes.

22 Q._And knowing that, you continued to smoke,
23 correct?

24 AL Yes, Ydid.

25 Q. You told us you have two daughters, correct?

Jueich, J - Juelch, J 9-16-09 VI DIS: 15:16 - 16:200144
I identify any of the outside contractors at any time

2 there?

3. A. No.

4 Q. Do you know the repair or maintenance history
5 of that facility before you started working there?

6 A. No. The only thing I do know about it is that

7 during our earthquake they had to go back and repair the
8 bricks on the outside of the walls. That's the only

9 thing I know they had to do, and that was prior to me
10 working there.

11 Q. When you were a home health care worker, did
12 any of your patients smoke?

13, A. No.

14 MS. BLUMBERG: Thank you.

1S MR. BROWN: Anybody on the phone have any
16 questions?

'7 EXAMINATION BY MR. BROWN:

18 Q. After you left San Joaquin, you went to work as

19 an apprentice; is that correct?

20 A, That's correct,

21 Q. Did you join a union at that time?

22 A. Yes, I did.
23 Q. Which union did you join?

24 A. Local 16 out of San Francisco.

25 Q. You told us that you talked with Mr. Juelch

Juelch, J - Juelch, J 9-16-09 V1 DE

S: 15:16 - 16:200145

| about becoming an apprentice and working towards
2 becoming a journcyman, correct?

3. A. Correct,

4 Q. When you talked to Mr. Juelch, did he tell you
5 anything about the work of an ingulator?

6 A. We talked about it. 1 did po out to his job a

7 couple of times to see what he did, His employer
8 allowed me to come to the Site,

9  Q. Now, did he tell you that working as an

10 insulator, you might come into contact with
11 asbestos-containing materials?

12 AL He - no,

13 Q. So in your discussions with him, he never
14 mentioned that as an insulator you might come into
'S contact with in-place asbestos-containing thermal

16 insulation?

17 A. That was later on that we talked about it.
18 Q. Um just talking about at any time,
19 A. Yeah. We talked about it later on.

20 Q._When you say "later on," what do you mean?

21 A. After I started school, L had talked to bim
o.aiter i started school, 1 had talked to him

22 about it, because the school -- the a rentice school
eR en ERS ERE SCHOO! -- the apprentice school,
23 when they gave you Papers and — you know, it had

24 "asbestos" on it.

25 Q._As one of the topics in the paper?

Juelch, J - Juetch, J 9-16-09 V1 DIS: 15:16 - 16:200146

1 A. At was one of the agents that more or less

2 would say that we might run into it ont on the job. It
3 was more at the school, the beginning of school.

4 Q. Alter you heard it at school, then you talked

5 to Mr. Juetch about it, correct?
6 A. Yes,

7 Q. Atthe school, did you learn that Local 16 had
8 actually participated with Dr. Selikoff in studying the
9 effects of asbestos exposure in insulators?

10 MR. BRAYTON: Assumes facts,

it THE WITNESS: I don't recall being told that.
12 BY MR. BROWN:

13° Q. Were you told at the apprentice school that
14 exposure to asbestos could cause lung disease?
15 A. At the school, they talked about what asbestos

16 was used for.

17 Q. Did they tell you it had been used for

18 insulation?

19 A. Yes. It was used for insulation and what type
20 of insulation it was used for.

21 Q. Did they tell you it was used in brakes?
22 A. That was later on.

23 Q. But that was in school?

24 A. Iwas in school,

25 Q. They told you it was used in ceiling tiles and

Juelch, J - Juelch, J 9-16-09 VID

IS: 15:16 - 16:200147

1 floor tiles and other materials, correct?

2. A. Yes,

3 Q. Now, did you learn in school that exposure to
4 asbestos could cause lung disease?
5 A, Yes. Around the third year.

6 Q. Now, as a health care person, did you go and do

7 any research to further your knowled; ¢ concerning the

8 potential for exposure to asbestos to cause lung

9 disease?

10
V1
12
13

A. J did in my third year.

Q. What did you do?

A.A lot of it was done on the computer.
Q. You did research?

A, I done some research on it,
Q. What were you looking for?

A. They had started basically quite heavily --

17 Local 16 has their own abatement, and we had to have
18 abatement cards. And so 1 just wanted to know more
19 about -- about asbestos, because they were really

20 starting in what I call gung-ho on the type of mask and

21 how the abatement was to be done and this.
Bon Rie abatement was to be done and this,

Q. When you started at the apprentice schoo! -—

23 what year did you start at this school?

A. 1982.

Q. And what part of the year did you start; was it

Juelch, J - Suelch, J 9-16-0'

9 V1 DIS.

15:16 - 16:200148
1 in the winter, spring, fall?

2 A. It was winter.

3. Q. Winter,

4 A, It was September.

5 Q. Towards the end of the year?
6 A. Uh-huh.

7 Q. Correct?

8 A. Yes.

9 Q@ Inyour apprenticeship, did you ever or did
10 they ever show you how to use a dual-canister
11 respirator?

12. A. No.

13 Q. Did they ever talk about the need to use
14 dual-canister respirators?

15 A. No.

16 Q. Did they ever tell you in school in 1982 that
17 exposure to asbestos was potentially hazardous?

18 A. The first year, no.

19 Q. Did they tell you that in the second year?
20 A. The second year, they went into more of the
21 different type of material and which ones had the

22 asbestos in it and what we should be looking for out on
23 a job if we went out on a particular type of job.

24 Q. When is the first time that you ever heard that

25 an insulator was suing Johns-Manville because of

Juelch, J - Juclch, J 9-16-09 V1 DIS: 15:16 - 16:2OOS!
1 When did you first read an article in the paper

2 about Johns-Manville being sued because it exposed
3 workers to asbestos?

4 A. Gosh, [believe it was in the 1960s. ft was

5 after my children was born. It was early ~ late '60s.
6  Q. Did these articles not only talk about exposure
7 to asbestos but talk about asbestos-related disease?
8 A. It just -- it just said they were being sued

9 for asbestos, cancer related from...

10 Q. That's what | mean.

il ‘The articles were talking about people being
12 exposed to asbestos and developing cancer?

13 A. Yes.

14 Q. And exposure to asbestos could cause cancer?
15 A. That's what it said in the paper.

16 Q. You read that in the paper.

1? What was the name of this newspaper again?
18 A. Stockton Record.

19 Q. And you read these in the ~ in the mid- to

20 late '60s, these articles, correct?

21° A. Yes.

22 Q. So when you entered the trade in 1982, you

23 became an apprentice, you knew that exposure to asbestos
24 could cause cancer, correct?

25° A. Thad heard it. Read it in the paper, yes.

Juelch, J - Juelch, J 9-16-09 V1 DIS: 15:16 -

6:290152

1 Q._Then you went to the apprentice school where at
2 some point they said that exposure to asbestos in the
3 workplace could cause cancer, correct?

4 A. Yes.

5 Q. Then as a medical professional, before you went
6 into the apprenticeship, did you ever do any research to
7 find out more about exposure to asbestos and development
8 of disease?

9 MR. BRAYTON: Before she started the

10 apprenticeship?

11 BY MR. BROWN:

12 Q. Before you started the apprenticeship.

13. A. No,

14 Q. Now, you told us --

15 MR. BRAYTON: Excuse me, Counsel. We're at
16 about a break time.

7 MR. BROWN: Sure.

18 (Recess taken.)

i9 BY MR. BROWN:

20 Q. How you feeling?

21 A. I'm beginning to hurt, but that's okay.

22 Q. You tell me when you're ready to stop, and

23 we'll stop for the day.

24 MR. BRAYTON: She thinks she can go another

25 session, and that's it.

Juelch, J - Juelch, J 9-16-09 V1 DIS:

18:16 - 16:200153
| BY MR. BROWN:

2 . The third year of your apprenticeship, you did

3 some Internet research or computer research on asbestos;
4 is that right?

5 A. Yes.

6 Q. Tell us what you did.

7 A, Basically Lwas looking up different things

8 that asbestos -- the material and stuff that asbestos

9 was in going back, you know, through the years of -- [
10 also looked up different companies that produced

11 asbestos. But basically it was what kind of ailments
12 asbestos caused. And it had to do with, you know,

13 asbestosis, and J know a few of our guys that I worked
14 with had asbestosis. ‘They were still working, you know,
15 but they had ashestusis. And so 1 just wanted to learn
16 a little bit more about it and what was going on with

17 them,

18 Q. How extensive was your research?

19 A. Just basically on -- I'm not a real computer

20 whiz when it comes to a computer. [just -- I would
21 just look up different areas, different writeups about
22 asbestos,

23° Q. When you were doing your research, it sounds
24 like you researched some of the medical issues that

25 relate to exposure?

Juelch, J - Juelch, J 9-16-09 V1 DIS: 15:16 - 16:200184
| STATE OF CALIFORNIA }

2 )
3 COUNTY OF ALAMEDA)
4

5 1, SANDRA M. LEE, do hereby certify:

6 That JOYCE JUELCH, in the foregoing deposition

7 named, was present and by me sworn as a witness in the

8 above-entitled action at the time and place therein

% specified;

10 ‘That said deposition was taken before me at said

il time and place, and was taken down in shorthand by me, a
12 Certified Shorthand Reporter of the State of California,

13. and was thereafter transcribed into typewriting, and

14 that the foregoing transcript constitutes a full, true

15_and correct report of said deposition and of the

16 procecdings that took place;

7 IN WITNESS WHEREOF, I have hercunder subscribed
18 my hand this 14th day of October 2009.

19

20

21

22

23

SANDRA M. LEE, CSR No. 9971
24 State of California

25

Juelch, J - Juelch, J 9-16-09 V1 DIS

Page 184. Exhibit BWestlaw.

325 F.Supp. 241
(Cite as: 325 F.Supp. 241)

‘United States District Court, W.D. Kentucky,
Owensboro Division.

Anna Mac BRYANT, Administratrix of the Estate of
James McKinley Bryant, Deceased, et al., Plaintiffs,
ve
HERCULES INCORPORATED and the Old Repub-
lic Insurance Co., Defendants.

Della Sue RICE, Administratrix of the Estate of Will
Rice, Deceased, Plaintiff,

ve
HERCULES INCORPORATED and the Old Repub-
lic Insurance Co., Defendants.
Civ, A, Nos, 2396, 2397.

July 13, 1970.

Action against manufacturer of dynamite by personal
representatives of eight coal minezs who were fatally
irgured in an explosion in a mine. On motion of de-
fendant for summary judgment, the District Court,
James F. Gordon, Chief Judge, held that even if
manufacturer of dynamite failed to warn effectively
that dynamite was impact sensitive and should be
removed before shooting at face of a mine, negli-
pence per se in viclation of safety statute and regula
tion requiring that dynamite not be kept anywhere in
line of blast in a coal mine constituted a new, inde-
pendent and efficient cause which severed whatever
connection there might have been between any omis-
sion by manufacturer and the deaths.

Motion granted and complaints dismissed.
See also, 43] F.2d 1385.
West Headnotes
11] Explosives 164 €>12
164 Explosives

164k(2 k Injuries from Blasting. Most Cited

Cases

Page |

Manufacturer of dynamite did not have duty to go
beyond its write: warnings and personally warn
every miner not to tolerate stacking of dynamite near
4 point of blast when it was something that supervi-
sion was already aware of, something that was cov-
ered by state and federal law and something that fed-
eral inspectors specifically called to attention of those
in direct supervisory contro! at the mine.

[2] Explosives 164 €>12

154 Explosives

164k 12 k. Injuries from Blasting. Most Cited
Cases.
Manufacturer of dynamite, sued for deaths of miners
resulting from explosion, was entitled to assume that
ts warning that user should not fire a blast until «
competent person in charge “has made certain that all
surplus explosives are in a safe place” would be read
and heeded and thus was not subject to strict liability.

[3] Explosives 164 €— 12

154 Explosives

164ki2 k. Injuries from Blasting. Most Cited
Cases
‘Under law of negligence, manufacturer of dynamite
was not liable for deaths of miners resulting from
explosion on allegation of ineffective warning, where
manufacturer had reason to believe that coal com-
pany, to which it had sold substantial quantities of
dynamite for 37 years without any report of injuries
attributable to use of explosives, was observing re-
quirement that explosives not be stacked in line of
blast.

[4] Explosives 164 712

164 Explosives
164k12 k. Injuries from Blasting. Most Cited

Cases

Even if manufacturer of dynamite failed to warn ef-

fectively that dynamite was impact sensitive and

should be removed before shooting at face of a mine,

negligence per se in violation of safety statute and

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.325 F.Supp. 241
{Cite as: 325 F.Supp. 241)

regulation requiting that dynamite not be kept any-
where in line of blast in a coal mine constituted a
new, iadependent and efficient cause which severed
whatever connection there might have been between
any omission by manufacturer and the deaths result-
ing from explosion in mine.

#241 Charles A. Williams, Clifford L. Walters, Padu-
cah, Ky., William 5. Rummage, Beard, Rummage &
Kamuf, Owensboro, Ky., for plaintiffs.

#242 James M. Graves, Edward H. Stopher, Boehl,
Stopher, Graves & Deindoerfer, Louisville, Ky., for
defendant, Cld Republic Ins. Co.

Edgar A. Zingman, Wyatt, Grafton & Sloss, Louis-
ville, Ky., for defendant, Hercules inc.

ORDER .
JAMES F. GORDON, Chief Judge.

‘This matter comes on on the motion of the defendant
Hercules under Rule f ivi =
dure, for summary judgment apainst the plaintiffs,
and the Court has decided to grant the motion.

‘The complaints herein were filed by plaintiffs as the
personal representatives of eight employees of Pea-
body Coal Company who were fatally injured in an
explosion on August 7, 1968 in the company's River
Queen Underground Mine No. 1 near Greenville,
Kentucky. The complaints allege that the deaths re-
sulted from the manufacture, packaging and selling
by Hercules of explosives to Peabody, which explo-
sives allegedly were being used at the time and place
of an explosion in which the explosives allegedly
contributed to the unplanned explosion. Plaintiffs
maintain that Hercules is fiable in tort for (1) failing
to make known inherent dangers in handling of its
product; (2) failure to make known impact sensitivity
thereof; (3) failure to instruct in safe use; and (4)
general negligence in manufacture and distribution.

After consideration of the evidence introduced on
behalf of the parties, it is the Court's opinion that it is
perfectly clear that no issue of fact is involved and
that inquiry into the facts at trial will add nothing to a
correct application of the law. There does not appear

Page 2

to be any dispute as to the evidentiary facts in this
case or the conclusions to be drawn therefrom.

The defendant Hercules relies in support of its mo-
tion for summary judgment on the ‘Final Report of
Major Mine Explosion Disaster River Queen Under-
ground Mine No, 1, Peabody Coal Company,
Muhlenberg County, Kentucky, August 7, 1968”
(herein called the ‘Federal Report”) prepared by the
United States Bureau of Mines. Plaintiffs have stated
in answers to interrogatories that they have no infor-
mation contradicting the facts or conclusions con-
tained in the Federal Report. The defendant Hercules
also tendered with its motion and relies on the practi-
cally identical report prepared by the Kentucky De-
partment of Mines ard Minerals entitled ‘Report of
Multiple Fatal Explosives Accident River Queen Un-
derground Mine No. 1 Peabody Coal Company,
Greenville, Muhlenberg County, Kentucky, August 7,
1968" (herein called the ‘Kentucky Report’).

The defendant Hercules further relies on the ‘Tran-
script of Testimony At Hearing Concerning Disaster
At River Queen Mine Muhlenberg County, Ken-
tacky, August 7, [968° (herein called the “Traa-
script’) which underlies the Federal Report and the
Kentucky Report. It contains the sworn testimony
taken immediately after the mine explosion by an
official investigation team. The investigation was
made pursuant to the provisions of the Federal Coal
Mine Safety Act, 30 USC §§ 451-483. Again plain-
tiffs have answered interrogatories to the effect that
they do not contest the facts or conclusions contained
in the Transcript.

Both the Federal and Kentucky Reports state that
samples of explosives, identified by the manufac-
turer's markings as being from the same batches as
explosives in use at the time of the accidental explo-
sion, were tested at the Bureau of Mines Explosives
Research Center in Pittsburgh after the mine disaster.
The tests showed that the explosives met all of the
standards of pesmissibility established by the Bureau
of Mines for such explosives. The Research Center
also concluded that the tested explosives were not
abnormally impact-sensitive for permissible explo-
sives. There is no *243 evidence in the record before
the Court that the explosives sold by the defendant
Hercules for use in the River Queen Underground

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.325 #.Supp. 241
(Cite as: 325 F.Supp. 241)

Mine No. | were defective or that the fatalities which
occurted there were due to negligence in the manu-
facture or packaging of the dynamite.

With respect to the cause of the fatal explosion,
which occurred in a batch of explosives left on top of
a coal drill, the Federal Report sets out on page 17
the following determinations:

“11. The nature of the damage to the coal drill clearly
indicated intense, concentrated, disintegrating force,
radiating from the midsection of the machine, en-
tirely unlike the sort of damage seen when forces of
an explosion thrast against equipment,

“14, The coal drill was left parked in the line of blast
in No. 5 entry, approximately 45 feet outby the face
while a round of four holes was fired simultaneously
with instantaneous detonators.

‘1S. A fragment thrown off the face by blasting
could, without question, have struck any explosives
or detonators on the drill with forceful impact.’

Based on the statutory investigation, the Federal Re-
port concludes, in language which is substantially
identical to the language used in the Kentucky Re-
port, as follows:

‘Cause of Explosion

‘It was the consensus of the investigating committee:
‘That the explosion was initiated by a fragment of
material, which was projected from the face of No. 5
entry by blasting, and which struck and detonated an
unknown, but appreciable, quantity of permissible
explosive on the coal drill parked a short distance
from the face in direct line of blast; and “That coal
dust in the face areas was ignited by the detonation of
the anconfined explosives, but propagation did not
extend far from the working area. ‘Failure to store
and transport explosives in an approved manner was
a primary factor in this disaster.* Federal Report, p.
18,

Also offered in support of the motion for summary
judgment are copies of the Coal Mine Inspection Re-
ports for five inspections conducted by the Bureau of

Page 3

Mines at the mine in question, prior to the date of the
explosion. These inspection reports show that viola-
tions of the Federal Mine Safety Code had been ob-
served by federal inspectors and the supervisory per-
sonnel at the mine had been called on to correct such
violations before mining could proceed. Inspection
reports mailed to various officials of the Peabody
Coal Company, described the violations and ex-
Pressly refer to Article IV, Section 4c of the Mine
Safety Code, which sets 50 feet as the necessary dis-
tance from the face for storage of dynamite and
which requires that, without limitation as to distance,
dynamite be located out of the line of blast. This pro-
vision of the Mine Safety Code was thereby brought
fo the attention of both the general superintendent
and the mine superintendent in charge of the particu-
lar mine in which the explosion occurred on repeated
occasions prior to the explosion in issue here.

Plaintiffs in no way contradict the facts and conclu-
sions contained in the various documents discussed
above. In the single affidavit opposing the motion for
summary judgment, a registered engineer states that
“it is not considered normal in the handling of explo-
sives that they would be detonated by impact from
debris’. The engineer, however, does not say he has
Studied the circumstances surrounding the explosion
which occurred on August 7, 1968 at first hand or
ever the facts as determined by the official investi-
gating team and set forth in the Federal and Kentucky
Reports. The basic*244 conclusion of both reports
was that the fatal explosion was initiated by a frag-
ment which was shot off the fact by a planued explo-
sion and which traveled approximately 45 feet into an
unshielded pile of dynamite. The engineer's affidavit
does not purport to dispute that conclusion other than
possibly suggesting that such initiation is not consid-
ered ‘normal’.

Since the plaintiffs have no information contradicting
the facts and conclusions contained in the various
official documents discussed above, they are conclu-
sive herein. Regarding their admissibility into evi-
dence see Anderson v. Swift & Co., 380 F.2d 988,
992 (6th Cit, 1967); Moran v. Pittsburgh-Des Moines

F.2d 467. 473 (3rd Cir, 1950); Federal
Officials Records Statute, 28 USC § 1733.

The law of Kentucky respecting the duty of a manu-

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.325 F.Supp. 241
(Cite as: 325 F.Supp. 241)

facturer of dynamite has been recently discussed and
applied in Hercules Powder Co. v. Hicks, Ky., 453
$.W.2d S83 (opinion rendered February 27, 1970,
petition for rehearing denied June 5, 1970). Gn that
case Hercules was supplying dynamite through a
distributor for use by Wabassco, the employer of the
plaintiffs Hicks and Cox. Wabassco was developing a
subdivision and for several months had used dyna-
mite to cut ditches in which sewer lines were placed,
‘On the day of the accident a shot was fired in rocky
terrain. After lunch the men began cleaning out the
bottom of the trench where they encountered a high
place. The substitute foreman on the day of the acci-
dent and other supervisory personnel of Wabassco
knew that a high place can occur when part of the
charge does not fire. The substitute foreman never-
theless directed Hicks to knock off the high spot with
a pneumatic hammer. Cox and Hicks first probed a
litte in the broken surface of the rock with .a screw-
driver and then used the hammer on it. An explosion
resulted as soon as it was used.

It was claimed that the manufacturer Hercules was in
some way derelict in failing to warn the user against
this improper procedure for clearing an area where
unfired dynamite was suspected. It was also clairaed
that the distributor for Hercules, one Herbert, knew
the user was incompetent and owed a duty to the
plaintiffs io warn and instruct against the hazard of
using manual or powered tools on a high spot. The
Court of Appeals of Kentucky reversed judgments
entered on a verdict apainst both Hercules and Her-
bert and directed entry of judgments n.o.v. dismissing
the complaints. The Court held that Hability of a
manufacturer could not be rested on the alieged fail-
ure to warn of a hazard that was either already known
to the plaintiff or was known to the supervisory per-
sonnel of the plaintiffs’ employer.

In this regard, the Court stated:

“On the basic argument that the principles claimed in
the Restatement of Torts 2d furnished ground for
fastening liability on Hercules, the appelices lay
heavy stress upon Eck v, E. |. DuPont DeNemours &
Company, 393 F.2d 197 (CAT) (1968), and Posty.
Ameri in ui ition, Ky.. 437
S.W2d 516. an examination of those decisions
reveals that cach of them was rested upon a duty to

Page 4

warn of a danger known to the supplier but unknown
to the person whom the supplier reasonably could
anticipate would be affected by the use and unknown.
danger. The danger was personally known to
Hicks. Cox's foreman also knew the danger, and the
defendants had no reason to know that he would not
warn Cox. Hicks and Cox needed no additional
warning of it, Hence, the rationale of Eck and Post
affords no basis for imposing upon Hercules a duty to
warn in the present case. We conclude that the trial
court erred in failing to direct a verdict in behalf of
Hezcules and again in denying Hercules' motion for
judgment n.o.v. *245 ‘We think the same reasoning
applies as to Herbert's (the immediate seller's) liabil-
ity.

“[Ilt was shown that other incidents of extricating
unexploded dynamite from such ‘high spots‘ had oc-
curred during the work's progress. The responsible
and supervisory employees of Wabassco knew of the
problem and the danger. We do not perceive that
Herbert's duty to warn, as urged by appellees, could
extend to a requirement that he see to it that each and
every employee of Wabassco should have individual
warning and instruction. If Eck v. E. I. DuPont
DeNemours & Company, 393 P.2d_ 197 (CA?) may
be read as supporting a contrary view, we are unwill-
ing to follow it. To impose such an all-encompassing
duty on the supplier of a chattel woutd transcend the
bounds of reason and practicality.’ 453 $.W.2d 590.

The Hicks case runs on all fours with this case. The
Supervision in the River Queen Underground Mine
No. | knew it was dangerous to leave explosives ex-
posed only 45 feet from a prepared blast. The com-
pany work rules were designed to assure removal of
surplus explosives before blasting the face. The shot
firers knew it was dangerous to leave a drill machine
in the line of blast and the explosives should not be
brought up to the face and left in the line of blast.
There was also an awareness that a blast will shoot
off fragments of the face with sufficient force to
detonate dynamite. The shot firer Boyken testified,
Transcript 49-50:

23, Have you ever observed ot helped shoot a place
when the machine was in direct line?

A. No, Sir. It will bust out the lens on the lights on

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.325 F.Supp. 241
{Cite as: 325 F.Supp. 241)

the machine,

24. Say you had explosives on the machines or in the
area, this would be more of a concern to you, parking
the machine out of the way, or the lens?

A. If the explosives were on there- there wouldn't be
any explosives on there to begin with, and that would
very definitely come to my attention, I will tell you.

Purther, the defendant Hercules expressly covered the
hazard presented by leaving surplus explosives near
the point of blast in the ‘Do's and Don't's', which are
promulgated by the Institute of Makers of Explosives
and are distributed by manufacturers of explosives in
the United States. A copy was filed with the answers
of Hercules to plaintiffs’ interrogatories. The legend
‘on the front page states ‘For consumers in transport-
ing, storing, handling and using high explosives and
permissible explosives’ and the ‘Do's and Don'ts’
contain the following pertinent matter:

“IN UNDERGROUND WORK

*67. DO use permissible explosives only in the man-
ner specified by the United States Bureau of Mines,

‘BEFORE AND AFTER FIRING

‘70. DON'T fire a blast without a positive signal from
the one in charge, who has made certain that ail sur-
plus explosives are in a safe place, all persons and
vehicles are at a safe distance or under sufficient
cover, and that adequate warming has been given.”

And under the heading WHEN USING EXPLO-
SIVES:

“22. DON'T place explosives where they may be ex-
posed to flame, excessive heat, sparks, or impact."

It makes no sense to contend that the foregoing warn-
ings given by the defendant are defective because
they ate beyond the literacy level of each miner. The
task of adequate warning is one of #246 communica-
tion to the men in charge at the point of blasting not
to illiterate miners and other employees not con-
cerned with or responsible for the firing. Warnings

Page 5

with respect to industrial techniques are for supervi-
sion, those in control. The testimony taken by the
mine investigators shows that all the supervisory per-
sonnel were aware of the requirement of removing
surplus explosives before shooting. In addition this
had been called to the attention of supervision during
inspections of the mine. Federal inspectors had
caused the supervisory personnel to correct violations
of Article IV, Section 4c of the Federal Mine Safety
Code which sets 50 feet as the necessary distance for
explosives to be kept from the face and requires that
tegardless of the distance they be kept out of the line
of blast. A violation of this regulation was corrected
during the inspection made on February 26-29, 1968,
and written notice thereof was contained in the Fed-
eral Mine Inspection Report sent to both the general
superiatendent and the mine superintendent, who was
still in charge of that mine and present on August 7,
1968.

The applicable Kentucky statute also requires that
surplus dynamite be protected from an intended blast:

“Explosives kept near the working faces in individual
containers shall be kept * * * in a location out of line
of blast where they will not likely be subjected to
shock.” KRS 352.2407).

IL The Transcript shows that supervisory personnel
and miners alike knew that it was dangerous to keep
a substantial quantity of surplus explosives at the face
at the time of a blast. Tt would be a fantastic stretch of
the law to require the manufacturer of explosives to
go beyond its written warnings and personally warn
every miner not to tolerate the stacking of dynamite
near a point of blast when it is something that super-
vision is already aware of, something that is covered
by state and federal law and something that federal
inspectors specifically call fo the attention of those in
direct supervisory contro! at the mine.

12] The Court of Appeals of Kentucky in the Hicks
case indicate that no such extension of the law can be
found in the Restatement (Second), Torts, and no
precedent for it is know to this Court. Hercules Pow-
der Co. v. Hicks, supra, 453 5.W.2d 583. A new sec-

tion in the od}. ion
402A, imposes strict liability upon ‘oue who sells any
Product in a defective condition unreasonably dan-

© 2009 Thomson Reuters. No Ctaim to Orig. US Gov. Works.425 F.Supp. 241
{Cite as: 325 F.Supp. 241)

gevous to the user or consumer or to his property’. it
was first applied by the Kentucky Court of Appeals

in Dealers ‘Transp. Co. v. Battery Distrib, Co. Ky.
409 S.W.28 A41. 446-447 (1966), The evidence in
this case, however, is that nothing was wrong with
the dynamite furnished by Hercules. Explosives from
the batch in use at the mine on August 7, 1968 con-
formed to the specifications set by the Bureau of
Mines for permissible explosives. Their sensitivity to
impact was aot markedly different from that of other
permissible explosives sold in the United States. Nor
can strict lability be imposed here on the basis of
failure to warn of an inherently dangerous condition.
Comment j under Section 402A says that ‘where
warning is given, the seller may reasonably assume
that it will be read and heeded; and a product bearing
such a warning, which is safe for use if it is followed,
is not in defective condition, nor is it unreasonably
dangerous’. Immediately after the bold-type heading
‘Before and After Firing’ in the Do's and Don't's is
item 70 which specifically warns the user not to fire a
blast until a competent person in charge ‘has made
certain that ail surplus explosives are in a safe place’.
The Jocation of dynamite and detonators on a drilling
rig within 45 feet of and in line with a blast in the
face is obviously not a ‘safe place’. Hercules was
entitled to assume that the warning would be read and
#247 heeded and thus is not subject to strict liability.

{3] Similarly the law of negligence will not permit
recovery on the allegation of ineffective warming.
The Kentucky Court of Appeals stressed clause (b) of
{388 of the Restatement (Second), Torts, in the
Hicks. case (453 S.W.2d al 58D. It also places the
supplier in this case beyond the ambit of liability.
Section 388 provides:

‘Chattel Known to be Dangerous for Intended Use.

‘One who supplies directly or through a third person
a chattel for another to use is subject to liability to
those whom the supplier should expect to use the
chattel with the consent of the other or to be endan-
gered by its probable use, for physical harm caused
by the use of the chattel in the manner for which and
by a person for whose use it is supplied, if the sup-
plier

*(a) knows or has reason to know that the chattel is or

Page 6

is likely to be dangerous for the use for which it is
supplied, and

“(b) has no reason to believe that those for whose use
the chattel is supplied will realize its dangerous con-
dition, and

*(c) fails to exercise reasonable care to inform them
of its dangerous condition or of the facts which make
it likely to be dangerous.’ (Emphasis supplied.)

Comment k referring to clause (b} says ‘one who
supplies 4 chattel to others to use for any purpose is
under a duty to exercise reasonable care to inform
them * * * of facts which to his knowledge make it
likely to be dangerous, if, but only if, be has no rea-
son to expect that those for whose use the chattel is
supplied will discover its condition and realize the
danger involved."

Hercules had reason to believe that Peabody had all
the special knowledge necessaty to use permissible
explosives because it is one of the largest users of
such explosives in the United States. Moreover, the
River Queen Mine and all of its mines are subject to
periodic inspections by the United States Bureau of
Mines whieh is charged with secing that the mine
operators apply the special knowledge needed to
mine coal safely and competently with permissible
explosives. Hercules further had reason to believe
that Peabody was observing the requirement that ex-
Plosives not be stacked in the line of blast because its
salesman had been in the River Queen Mine and
there witnessed a shot firer carefully check to see that
everything was moved out of the line of blast before
detonating 4 shot. Hercules has been selling dynamite
10 Peabody in substantial quantities for 37 years and
over that period had ao report of any injuries attribut-
able to the use of explosives by Peabody or any other
information reflecting adversely on the competence
of Peabody to store, transport and use explosives in
mines, Affidavit of R. D. Boddorff, p. 2. Accord-

ingly, Hercules is not subject to lability under
Section 388 because it had ‘reason to believe that
those for whose use the chattel is supplied’ would
realize that it is dangerous to leave explosives
stacked in the Hine of blast at the face of a mine.

Hacobson v. Colorade Fuel & ean_Corp...402 F.2d

1263, 127}-1272 (Sth Cir, 1969); Posey vy. Clark

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.325 F.Supp. 241
(Cite as: 325 F.Supp. 241)

Bouin, Co. $09 F.2d 560, 563-564 (7th Cir) cert
denied, 396 U.S, 940, 90 S.Ct, 374, 24 L.Ed.2d 242
11969).

A further defense available under Kentucky law bars
recovery under any of the negligence theories ad-
vanced by the plaintiffs; it is the defense of supersed-
ing cause.

isville Gas_& Electric Co. Ky. 307 'S.W2d 5
(1957). The principle was applied in the Hicks case
where the Kentucky Court said:

“We need not consider in detail the numerous conten-
tions advanced by appellees on cross-appeal as alter-
nate grounds for recovery. The contributory fault of
Hicks would foreclose this *248 recovery under any
theory advanced. If it be assumed that Cox had no
personal knowledge of the danger in probing the high
spot, the failure of Wabassco's foreman and other
supervisory employees to apprise Cox of that fact
(which they did know) was such an intervening and
unforeseeable act as t0 insulate Herbert as well as
Hercules from liability to Cox.’ 453 $.W.2d at 591.

‘The undisputed fact of knowledge by the supervisory
personnel in the instant case regarding the danger of
leaving explosives at the face during a shot compels
entry of summary judgment in favor of the defendant
Hercules of the claim of negligence with respect to
the duty to warn of such danger. The failure of the
Peabody supervision strictly to enforce the safety
roles pertaining to handling of explosives at the face
and the apparent efforts of persons in the mine to
prevent ‘strangers’ including state and federal inspec-
tors from seeing certain dangerous practices (Tran-
script 70-71, 80-81) are intervening forces which
constitute superseding cause. The user of Hercules’
explosives in this case violated a safety statute which
requires that dynamite not be kept anywhere in the
ine of blast m a coal mine. KRS 352.240(7). The
violation of the state statute and of the federal regula-
tions proximately caused the deaths of the plaintiffs
decedents. Plaintiffs herein acknowledge (1) the ap-
plicability of the statute and the federal regulations to
the conduct at the face (2) the violation of the statutes
and regulations and (3) that violation thereof directly
and proximately caused the deaths sued on. Plaintiffs’
Answers to Interrogatories Nos. 18 & 19. Therefore,
the misconduct of someone in the mine is negligence

Page7

as a matter of law in this case. The violation of a
safety statute or safety regulations in Kentucky con-
stitutes ‘negligence per se’, that is, the court takes
over the standard of care fixed by the legislature and
will find that its violation is negligence. It is not
known who violated the statute. Although nine men
were killed on August 7, 1968, the estates of only
eight are represented in this action. The ninth man
may have misplaced the dynamite, or it may have
been the negligence of one of the plaintiffs’ decedents
which caused this accident. It makes no difference
which it