# Appendix — Jones v. Georgia Pacific Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1004%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1998 - **Citation:** 525 U.S. 1055 ## Text i, ‘ A) Supreme Court, U.S, FILED 98S COS iury 1% In The Supreme Court of the United” States October Term, 1998 * CLEO JONES, et al., FRANCIS PATRICK NORWOOD, et al., JAY OTIS MeKELLIPS, et al., JERRY PAUL TERRY, et al., Petitioners, VS. GEORGIA PACIFIC CORPORATION, et al., Respondents. [Four Cases] + On Petition For Writ Of Certiorari Or, In The Alternative, Writ Of Mandamus And/Or Prohibition To The United States Court Of Appeals For The Eleventh Circuit + PETITION FOR WRIT OF CERTIORARI, OR, IN THE ALTERNATIVE FOR WRIT OF MANDAMUS AND/OR PROHIBITION, and APPENDIX VOLUME II, PAGES H-1 TO I-61 . ALAN B. Ricu, Esa. (Counsel of Record) BARON & Bubb, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, Texas 75219 (214) 521-3605 Attorneys for the Petitioners COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 H-1 APPENDIX H IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CLEO JONES, Individually and § as Personal Representative of § the Heirs and Estate of ISAIAH § JONES, JR., Deceased, ET AL., § Plaintiffs, : CIVIL ACTION VS. § FILE NO. GEORGIA PACIFIC S CORPORATION (successor to § BESTWALL GYPSUM § COMPANY), ET AL.; ; 98-CV-745 Defendants. ~ MOTION FOR RECONSIDERATION OF ORDER DENYING REMAND, OR, IN THE ALTERNATIVE, FOR CERTIFICATION. UNDER 28 U.S.C. § 1292(B) COME NOW all plaintiffs in the above-styled and numbered case, and respectfully move the Court to reconsider its order denying remand entered April 27, 1998. In the alternative, plaintiffs respectfully urge the Court to certify its order denying remand for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Because a suggestion that these cases should be transferred to the Eastern District of Pennsylvania is pending before the Judicial Panel on Multidistrict Litiga- tion, and because tramsfer [sic] would be improper if this H-2 Court does not have removal jurisdiction over the case, plaintiffs request expedited consideration of this motion. Respectful!y submitted, BARON & BUDD A PROFESSIONAL CORPORATION The Centrum Suite 1100 3102 Oak Lawn Avenue Dallas, Texas 75219 (214) 521-3605 FAX: (214) 520-1181 By: /s/ Brent M. Rosenthal Brent M. Rosenthal Texas State Bar No. 17281075 AND DOFFERMYRE, SHIELDS, CANFIELD, KNOWLES & DEVINE Suite 1600 1355 Peachtree Street Atlanta, Georgia 30309 By: /s/ Kenneth S. Canfield Kenneth S. Canfield Georgia State Bar No. 10774 Attorneys for Plaintiffs H-3 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CLEO JONES, Individually and § as Personal Representative of the Heirs and Estate of ISAIAH JONES, JR., Deceased, ET AL., CIVIL ACTION Plaintiffs, FILE NO. : 98-CV-745 VS. GEORGIA PACIFIC CORPORATION (successor to BESTWALL GYPSUM COMPANY), ET AL.; MMMM MM MM MM GN Ww) Defendants. MEMORANDUM IN SUPPORT OF MOTION FOR RECONSIDERATION OF ORDER DENYING REMAND, OR, IN THE ALTERNATIVE, FOR CERTIFICATION UNDER 28 U.S.C. § 1292(B) On March 9, 1998, Defendant General Motors Corpo- ration (“GMC”) removed this action to this Court on the basis of diversity of citizenship, despite the presence of Georgia-Pacific Corporation as a local defendant, on the theory that plaintiffs’ answers to interrogatories estab- lished that plaintiffs had fraudulently joined Georgia- Pacific and that the case was therefore properly remov- able under 28 U.S.C. § 1441. Plaintiffs filed an emergency motion for remand, pointing out that their interrogatory answers, although arguably uninformative, did not estab- lish that plaintiffs had “no possibility” of recovering from Georgia-Pacific Corporation under their product liability H-4 or civil conspiracy theories. On April 27, 1998, the Court overruled plaintiffs’ motion for remand based on its observation that “the plaintiffs have come forward with no specific factual allegations against Georgia-Pacific whatsoever,” Order at 6, and on its determination that “conspiracy itself is not a tort under Georgia law.” Id. at fe The Court should rescind its order, and should remand these cases to Georgia state court immediately, for three reasons. First — although the law regarding removal and “fraudulent joinder” does not require them to do so - plaintiffs have attached to this motion the precise factual basis for their indisputably actionable allegations that they were injured by exposure to Georgia-Pacific asbestos-containing products. This documentation estab- lishes beyond question that the allegations of each plain- tiff’s exposure to Georgia-Pacific products were not only not “fraudulent,” but were viable at the time that they were made. Second, should the Court choose not to consider the evidence submitted with this motion, the Court should reconsider its denial of remand because the Court did not apply the correct burden of proof in accepting GMC’s claim of fraudulent joinder. The law in the Eleventh Cir- cuit, and nationwide, places the burden on defendants to establish fraudulent joinder, not on the plaintiffs to defend the viability of their suit against the local defen- dant. Neither the nonspecific nature of the complaint itself, nor plaintiffs’ method of responding to premature : H-6 overt act by one of the co-conspirators in furtherance of the conspiracy injured the plaintiffs. Plaintiffs clearly made the necessary allegations in their complaints, and these allegations should defeat any contention that Geor- gia-Pacific has been fraudulently joined. Finally, in the event that the Court declines to recon- sider its order denying remand, plaintiffs ask the Court to certify the order for permissive interlocutory appeal! under 28 U.S.C. § 1292(b). I. THE EVIDENCE ATTACHED TO THIS MOTION SHOWS THAT THE COURT ERRED IN CONCLUD- ING THAT PLAINTIFFS “FRAUDULENTLY JOINED” GEORGIA-PACIFIC. As shown below, plaintiffs continue to maintain that GMC did not bear their heavy burden of demonstrating that plaintiffs fraudulently joined Georgia-Pacific in this litigation. Plaintiffs’ product liability allegations, while nonspecific, did not itself indicate that the claim against Georgia-Pacific lacked factual or legal merit, and plain- tiffs’ answers to interrogatories did not estabiish or sug- gest that plaintiffs would be unable, following an adequate time for discovery, to prove that they were exposed to and injured by defective Georgia-Pacific prod- ucts. The Court should have granted plaintiffs’ emer- gency motion to remand on the record before it. Nevertheless, plaintiffs attach documentation of each plaintiff's exposure to Georgia-Pacific products —- in the form of either a complete work history sworn to by the individual plaintiff, or an attorney’s affidavit indicating with specificity the evidence of Georgia-Pacific exposure a ieaenaeiatiiniaitilaeeninneniena iam H-7 that plaintiffs’ counsel expects to develop - to this mem- orandum, along with a chart summarizing the evidence of Georgia-Pacific exposure for each plaintiff. The infor- mation attached to this motion for reconsideration con- firms that the product libility claims asserted against Georgia-Pacific in the original complaint were not fraud- ulent or factually baseless. Plaintiffs reiterate that they should not be required to come forward with such infor- mation to defeat GMC’s allegation that plaintiff fraudu- lently joined Georgia-Pacific in this litigation, but Produce it to demonstrate that-their product liability claims against Georgia-Pacific are clearly viable. The information attached to this memorandum absolutely precludes a finding that there is “no possibility” that plaintiffs can recover on their product liability theories against Georgia-Pacific. The Court should therefore reconsider and reverse its finding that plaintiffs fraudu- lently joined Georgia-Pacific, and should remand these cases to the circuit court of Fulton County, Georgia for disposition on the merits. Il. THE COURT ERRED IN SHIFTING THE BURDEN TO PLAINTIFFS TO ESTABLISH THAT GEOR- GIA-PACIFIC WAS NOT FRAUDULENTLY JOINED IN THESE CASES. Plaintiffs also urge the Court to reconsider its conclu- sion that remand should be denied because plaintiffs “presented no facts whatsoever to show that they have a cause of action against Georgia-Pacific.” Order at 7. In the Eleventh Circuit, as in every other circuit, the burden is not on plaintiffs to present facts Showing that they have a cause of action, but on defendants to show by “clear and H-8 convincing evidence” that plaintiffs do not have a cause of action. El Chico Restaurants, Inc. v. Aetna Casualty and Surety Co., 980 F. Supp. 1474, 1478 (S.D. Ga. 1997). The Eleventh Circuit has made clear that the focus is on the plaintiffs’ complaint, not on the plaintiffs’ ability to prove the allegations in the complaint: “If there is even a possi- bility that a state court would find that the complaint states a cause of action against any one of the resident defen- dants, the federal court must find that joinder was proper and remand the case to state court.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (emphasis added), quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983). Only after defendants make an initial showing that plaintiffs cannot prevail — such as showing that plaintiffs’ complaint does not allege a viable cause of action! or presenting facts afttirmatively showing that plaintiffs’ allegations could not be true,? - do plaintiffs need to respond with an evidentiary showing supporting their claims. 1 See, e.g., Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561-62 (11th Cir. 1989) (affirming finding that defendant had been fraudulently joined under Florida law, because Florida did not recognize alter ego theory alleged by plaintiffs; reversing, however, because district court did not consider whether Costa Rica law applied and viability of theory under Costa Rica law). 2 See, e.g., El Chico Restaurants, Inc. v. Aetna Casualty and Surety Co., 980 F. Supp. 1474, 1477-81 (S.D. Ga. 1997) (finding fraudulent joinder in case alleging wrongful conduct in Georgia because defendants submitted affirmative, unrebutted proof that non-diverse defendant did not issue any policy covering Georgia risks and did not engage in any conspiracy regarding Georgia rates). arr eeseenieneenenseinaeees Sr ats ct de Ge A 0 H-9 In this case, the defendants did not dispute that plaintiffs’ complaint stated a viable cause of action against Georgia-Pacific. See Notice of Removal at 3 (from the complaint itself, “the case did not appear remov- able”). Indeed, if removal is based to any degree on deficiencies in plaintiffs’ complaint, the removal was untimely, because GMC concededly removed the case more than 30 days after it was served with the complaint. 28 U.S.C. § 1446(b). Thus, the “shotgun approach” and “careless draftsmanship” in the complaint condemned by the Court (Order at 4 & n.2) do not provide a basis for finding that plaintiffs’ cannot recover from, and therefore fraudulently joined, Georgia-Pacific. Defendants’ only showing that plaintiffs fraudulently joined Georgia-Pacific, then, is the plaintiffs’ refusal, or plaintiffs’ interrogatory answers — even if characterized as unresponsive, evasive, or an outright abuse of discov- ery — do not establish that their claims cannot ultimately be proved, particularly in the absence of any order compelling discovery or the expiration of a discovery deadline. Any inad- equacy in plaintiffs’ discovery responses can be remedied through motions to compel. Careless or inadequate responses to discovery do not confer federal jurisdiction. To be clear, plaintiffs are not taking the position that a plaintiff in an asbestos case could invariably defeat fed- eral jurisdiction by merely alleging exposure to the prod- ucts of the local defendant. Removal might have been appropriate here if GMC had come forward with proof that plaintiffs could not have been exposed to Georgia- H-10 Pacific's product because, for example, Georgia-Pacific’s products were manufactured after the period of plaintiffs’ exposure or Georgia-Pacific’s products could not have reached the locations where plaintiffs were exposed. But GMC has not attempted to make such a showing, because they could not do so. Georgia-Pacific is a routine defen- dant in asbestos litigation across the country, and has sold asbestos products since the mid-1950’s. See Georgia- Pacific’s Answers to Interrogatories attached to Emer- gency Motion for Remand. The Eleventh Circuit has expressly counseled that “{iJn the remand context, the district court’s authority to look into the ultimate merit of the plaintiff’s claims must be limited to checking for obviously fraudulent or frivolous claims.” Crowe, 113 F.3d at 1542 (emphasis added). The very purpose of limiting the trial court’s inquiry in this area is to ensure that the court is “certain of its jurisdic- tion before embarking on a safari in search of a judgment on the merits.” Id. at 1538. But the Court’s demand for specific factual corroboration of plaintiffs’ general allega- tions of exposure to Georgia-Pacific products in this case is inconsistent with this limited role. There are scores of similar asbestos cases pending in Fulton County, with similar claims against Georgia-Pacific. Unless the Court modifies the reasoning expressed in its order denying remand, each of these cases will require the Court to embark on a “safari,” scrutinizing detailed evidence simi- lar to that attached to this motion, to determine whether the plaintiffs have sufficiently documented their allega- tions of exposure to Georgia-Pacific products to avoid a finding that they fraudulently joined Georgia-Pacific as a defendant. This time-consuming exercise is unauthorized SA ei AE hii ti A NEBR LAER Ni RAL RE A NA IAI H-il1 by the federal law governing removal as described by the Eleventh Circuit in Crowe. So long as plaintiffs alleged a viable claim against Georgia-Pacific (here, they indisputa- bly did or else the removal was untimely) and so long as the defendants have not shown that there is no meaning- ful possibility that plaintiffs will be able to recover on that claim (here, the defendants made no such showing), plaintiffs’ choice of a state forum cannot be disturbed. Ill. THE COURT ERRED IN HOLDING THAT PLAIN- TIFFS’ CIVIL CONSPIRACY ALLEGATIONS AGAINST GEORGIA-PACIFIC ARE SO LACK- ING IN FACTUAL OR LEGAL BASIS AS TO REN- DER JOINDER OF GEORGIA-PACIFIC “FRAUDULENT.” The Court rejected plaintiffs’ alternative coritention that their allegations that Georgia-Pacific is liable under the theory of civil conspiracy precluded a finding of fraudulent joinder, reasoning that “conspiracy itself is not a tort under Georgia law.” Order at 7. While plaintiffs do not dispute the Court’s statement in isolation, it is an incomplete statement of Georgia’s law of conspiracy. Although a conspiracy standing alone does not give rise to a cause of action, a conspiracy, coupled with an overt tortious act in furtherance of the conspiracy, does furnish a cause of action against all co-conspirators; “the fact of conspiracy, if proved, makes any actionable deed by one of the conspirators chargeable to all.” Cook v. Robinson, 116 S.E.2d 742, 745 (Ga. 1960). As plaintiffs pointed out in their reply in support of remand, the “actionable deed” supporting liability under the conspiracy theory was the tortious marketing of unreasonably dangerous asbestos H-12 products by all of the co-conspirators. Reply at 5; see complaint at ¥67(d) (alleging that defendants intended “to induce the Plaintiffs to rely upon said false and fraud- ulent representations, omissions, and concealments, to continue to expose themselves to the dangers inherent in the use of and exposure to Defendants’ asbestos-contain- ing products”). The court “must evaluate these factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff.” Crowe, 113 F.3d at 1538. The Court erred in finding that plaintiffs’ allegations did not state a claim for conspiracy against Georgia-Pacific under Georgia law. Moreover, it is far from certain that Georgia law would govern plaintiffs’ conspiracy claims. Plaintiffs are citizens of Alabama, and it is possible that Alabama sub- stantive law will apply in these cases. Under Alabama law, a defendant that is part of a conspiracy is liable for torts committed by its co-conspirators in furtherance of the conspiracy. Jones v. BP Oil Co., 632 So.2d 435, 439 (Ala. 1993). Plaintiffs’ original complaint clearly alleges facts that would impose liability on Georgia-Pacific under Ala- bama conspiracy law. See Original Complaint at [J 65-70 (alleging that all defendants, including Georgia-Pacific, concealed and misrepresented medical information con- cerning the hazards of asbestos, and that these acts prox- imately caused plaintiffs’ injuries). Other jurisdictions, applying the same law of conspiracy, have found that asbestos companies (including, in one case, Georgia- Pacific itself) were potentially liable to injured plaintiffs under the conspiracy theory. See Central Wesleyan College v. W.R. Grace & Co., 6 F.3d 177, 183, 187 (4th Cir. 1993) H-13 (finding plaintiff’s conspiracy allegations against Geor- gia-Pacific and other members of the asbestos industry “non-frivolous” and holding that Georgia-Pacific and other defendants were potentially liable based on plain- tiff’s allegation that the defendants “cooperated and assisted each other in the suppression and active conceal- ment and misrepresentation of the relationship between asbestos and various diseases as early as the 1930's”); see also Adcock v. Brakegate, Inc., 645 N.E.2d 888, 891 (Ill. 1994) (complaint alleging that asbestos manufacturer engaged in a conspiracy “to suppress information about the haz- ards of asbestos exposure and to assert positively claims that the conspirators knew were false” stated “a legally recognized cause of action”), and Nicolet, Inc. v. Nutt, 525 A.2d 146, 147 (Del. 1987) (holding that “a cause of action exists against a party whose asbestos products did not cause the purported injury, but who allegedly conspired with other manufacturers to actively suppress and inten- tionally misrepresent medical evidence warning of the health hazards of asbestos”). In light of this precedent, plaintiffs’ conspiracy allegations against Georgia-Pacific cannot be characterized as “obviously fraudulent or friv- olous,” Crowe, 113 F.3d at 1542, and require the Court to remand the case to state court for resolution of these legally viable claims against Georgia-Pacific on the merits. —_— IV. IN THE ALTERNATIVE, THE COURT SHOULD CERTIFY ITS ORDER DENYING REMAND FOR IMMEDIATE INTERLOCUTORY APPEAL. Should the Court decline to reconsider its order denying remand, plaintiffs respectfully urge the Court to H-14 certify its order for immediate interlocutory appeal pur- suant to 28 U.S.C. § 1292(b). That statute permits the prosecution of an appeal of an interlocutory order if the order “involves a controlling question of law as to which there is a substantial ground for difference of opinion” and if “an immediate appeal from the order may mate- rially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). The order denying remand satisfies both of these prerequisites. Plaintiffs respectfully submit that there is a “substantial ground for difference of opin- ion” on the “controlling question of law” of whether a defendant may satisfy its heavy burden of proving fraud- ulent joinder by alleging general deficiencies or omis- sions in plaintiffs’ pleadings and discovery responses without making an affirmative showing by “clear and convincing evidence” that plaintiffs have “no possibility” of prevailing on their claims against the local defendant. And immediate review of an order denying remand “may materially advance the ultimate termination of the litiga- tion,” because reversal of an erroneous denial of remand will terminate the case in federal court. The Eleventh Circuit, as well as the other federal courts of appeals, have routinely reviewed orders denying remand by per- missive interlocutory appeal. Michetti Pipe Stringing, Inc. v. Murphy Bros., Inc., 125 F.3d 1396, 1397 (11th Cir. 1997) (accepting interlocutory appeal from order denying remand); see also Carpenters Health and Welfare Trust Fund for California v. Tri Capital Corp., 25 F.3d 849, 852 (“Where a motion to remand is denied, the propriety of removal is reviewable [(i)] on appeal from the final judgment or [(ii)] by interlocutory appeal if the refusal to remand is certi- fied.”). Plaintiffs urge the Court to permit interlocutory H-15 review of its order accepting federal jurisdiction over this case. Respectfully submitted, BARON & BUDD A PROFESSIONAL CORPORATION The Centrum Suite 1100 3102 Oak Lawn Avenue Dallas, Texas 75219 (214) 521-3605 FAX: (214) 520-1181 By: /s/ Brent M. Rosenthal Brent M. Rosenthal Texas State Bar No. 17281075 AND DOFFERMYRE, SHIELDS, CANFIELD, KNOWLES & DEVINE Suite 1600 1355 Peachtree Street Atlanta, Georgia 30309 By: /s/ Kenneth S. Canfield Kenneth S. Canfield Georgia State Bar No. 10774 Attorneys for Plaintiffs H-16 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CLEO JONES, Individually and as Personal Representative of the Heirs and Estate of ISAIAH JONES, JR., Deceased, ET AL., Plaintiffs, CIVIL ACTION FILE NO. ie 98-CV-745 GEORGIA PACIFIC CORPORATION (successor to BESTWALL GYPSUM COMPANY), ET AL.; Defendants. MMMMMMMMmM Mm MM MN AFFIDAVIT OF BRENT M. ROSENTHAL STATE OF TEXAS § § COUNTY OF DALLAS § BEFORE ME, the undersigned notary public in and for the aforesaid county and state, personally appeared BRENT M. ROSENTHAL, who, after being duly sworn by me, on oath states: “My name is BRENT M. ROSENTHAL. I am over 18 years of age and being of sound mind, am competent to make this affidavit. I am an attorney with the firm of Baron & Budd, P.C., counsel for plaintiffs. Along with other counsel in the firm, I am participating in the litiga- tion of the above-entitled and numbered proceeding. I H-17 have personal knowledge of the facts stated herein, all of which are true and correct. "The attached chart reflects detailed information compiled by the firm of Baron & Budd, P.C. supporting each plaintiff’s allegation of exposure to asbestos-con- taining products made and sold by Georgia-Pacific Cor- poration. For most plaintiffs, the information on the chart is corroborated by work history forms, based on the plaintiffs’ own personal knowledge, verified by the plain- tiff and attached to this affidavit, listing the jobsite, dates, and asbestos products (including Georgia-Pacific prod- ucts) to which the plaintiff was exposed. Where the chart lists a co-worker, the plaintiff expects to demonstrate exposure to Georgia-Pacific products at the specified place and time through the testimony of the co-worker. The information for each Plaintift from which the chart is compiled is also attached to this affidavit. This prelimi- nary exposure information indicates beyond question that plaintiffs did not fraudulently join Georgia-Pacific Corporation as a defendant in this litigation.” ee ee Further affiant sayeth naught. By: /s/ Brent M. Rosenthal BRENT M. ROSENTHAL H-18 SWORN TO AND SUBSCRIBED before me, on this the 7th day of May, 1998, to certify which witness my hand and seal of office. (SEAL) /s/ Phyllis G. Grauke Notary Public in and for the State of Texas /s/ Phyllis G. Grauke (Printed Name of Notary) My Commission Expires: 12/31/98 _H-19 Jones.1 Group Plaintiff Co-Worker Jobsite Common Years Georgia Pacific Product Identified by euher the Plainuff or Co-Worker Annie Patton, dec’d William Mathers Brookley Field 1968-1973 All Purpose Joint Compound Mobile, Alabama Garland Woods Phillip Kelley Oak Grove Mines 1969-1977 Jout Compound Re. Oak Grove, Alabama Isiah Jones, dec'd Dannie Kennedy U.S. Steel 1941-1983 Jount Compound Fairfield, Alabama Claude M. Pike, dec'd | Guy Needham Anniston Army Depot 1962-1975 All Purpose Joint Compound Sims Coats Richard Jackson Alabama State Docks 1953-1959 Jot Compound Mobile, Alabama Ruben Robinson Richard Jackson Alabama State Docks 1953-1962 Joint Compound Mobile, Alabama Nebraska Greer various sites for Tennesse Valicy 1960-1975 Jomt Compound Authority see work history Clayton L. Hall Redstone Arsenal 1965-1980 Jount Compound Huntsville, Alabama Barbara Hoffman personal residence 1961-1964 Jomnt Compound through her father, James Edwards, dec’d, 1964-1967 at US. Steel in Fairfield, Alabama George W. Raye James River Paper Mill 1960-1990 Jount Compound Pennington, Alabama Ray H. Hollingsworth various see attached work history 1963-1975 Jot Compound mie Ju ~~ e. » - “~@ oe Ae 1 4 Y 4 ; , , 7 Pex: § = é bed > : A _ a Pd S| ¥ * » P| ¥ : ; | : ° ‘ ‘ } t | é ‘ ; he Ps ; - : : r 3 % ; LA 4 re a we “" 4 5 i : ; ’ i p * é rs ‘ ; ‘ > 1 1 i A, Ae i ee ee ——— me 4 7 ee rare: Ne ny lt > i ot ait mt Ek ha bg - ee ko ae ee a ee > . ey 7 ee ee ee ger Simei eee = = Se ee ee a ed 6 ane ete ey Ey os ah I er A hg = —— — : pe em a ew Pe wn at Wa ne = ? 2 aces eae i, a H-20 Annie Patton, Dec’d VERIFICATION STATE OF Alabama COUNTY OF Mobile I, the undersigned, state under oath that I am the Plaintiff in the above-entitled and numbered cause and that the Supplemental Answers to Master Discovery Requests (Work History) are within my personal knowl- edge, and are true and correct to the best of my knowl- edge. /s/ EVELYN V. PATTON Personal Representative of the Heirs and Estate of ANNIE KIRKSEY PATTON, Deceased SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority on the 5th day of May, 1998, to which witness my official hand and seal of office. My Commission expires: /s/ Mary Middleton Notary Public in and for td the State of Alabama H-21 NAME: ANNIE PATTON, DECEASED NICKNAME: GROUP NAME: JONES. I WORK HISTORY SHEET EMPLOYER: Lear Siegler, Inc. JOB SITE: Brookley Field CITY, STATE: Mobile, Alabama DATE OF JOB: 1968-1973 EXPOSURE TO ASBESTOS PRODUCTS: LENGTH OF JOB: _ 5 years MY DUTIES AT THIS JOB SITE: Stripper, Sprayer WAS JOB NEW CONSTRUCTION ; REPAIR ; or BOTH WAS JOB INDOORS? . OUTDOORS? ; or BOTH REASON FOR LEAVING: WAGE RATE/HOUR: AVERAGE HOURS WORKED/WEEK: PERCENTAGE OF TIME EXPOSED TO ASBESTOS PRODUCTS: ot ee H-22 SUPERVISOR: NAMES OF COWORKERS & JOB TITLEs: ON THIS JOB SITE WERE YOU EXPOSED ANY OF THE FOLLOWING: CHEMICALS YES NO FUMES YES NO GASES YES NO CHROMIUM YES NO CADMIUM YES NO ANY OTHER PRODUCT YES LIST: NO DID YOU WEAR A RESPIRATOR, MASK OR OTHER PROTECTIVE DEVICE ON THIS JOB TO AVOID INHA- LATION OF ANY DUST OR FUMES INCLUDING ASBESTOS DUST? YES: Nu: See eee ASBESTOS MATERIALS USED WORKED ON THIS JOB: WITH AROUND SE Le ee ae ae ee H-23 NAME: William B. Mathers, Sr. NICKNAME: “Bill” “Billy” GROUP NAME: Mathers. W WORK HISTORY SHEET EMPLOYER: JOB SITE: Brookley Air Force Base CITY, STATE: Mobile, Alabama DATE OF JOB: 1942-1980 EXPOSURE TO ASBESTOS PRODUCTS: LENGTH OF JOB: MY DUTIES AT THIS JOB SITE: Aircraft Engine Mechanic/Equipment Specialist WAS JOB NEW CONSTRUCTION ; REPAIR WORK ; or BOTH X WAS JOB INDOORS? : OUTDOORS? ; or BOTH X REASON FOR LEAVING: Retired WAGE RATE/HOUR: AVERAGE HOURS WORKED/WEEK: 40+ PERCENTAGE OF TIME EXPOSED TO ASBESTOS PRODUCTS: 100% SUPERVISOR: NAMES OF COWORKERS & JOB TITLES: Bornis E. Johnson Gerald Dixon James R. Ray Charles C. Ray ON THIS JOB SITE WERE YOU EXPOSED ANY OF THE FOLLOWING: CHEMICALS YES rae: FUMES YES xX NO GASES YES xX NO CHROMIUM YES NO xX CADMIUM YES NO xX ANY OTHER PRODUCT syEs NO xX | LIST: Unknown DID YOU WEAR A RESPIRATOR, MASK OR OTHER PROTECTIVE DEVICE ON THIS JOB TO AVOID INHA- LATION OF ANY DUST OR FUMES INCLUDING ASBESTOS DUST? YES: X NO: (3M Mask - early 70's) ASBESTOS MATERIALS USED WORKED ON THIS JOB: WITH AROUND SEE ATTACHED LIST. H-25 NAME: William B. Mathers, Sr. NICKNAME: “Bill” “Billy” GROUP NAME: Mathers. W WORK HISTORY SHEET | ASBESTOS MATERIALS USED WORKED | ON THIS JOB: WITH AROUND | INSULATING CEMENT: Vermont Asbestos 7M Johns-Manville Grefco Quik-Set Zonolite High Temperature REFRACTORY CEMENT: Plastic Chrome Ore xX FIREPROOFING: | ~ KK OK OK Monokote Xx GASKETS: Armstrong Garlock Victor ROPE PACKING: Garlock X PIPE COVERING: | Unibestos X : Pabco X FIREBRICK: : A.P. Green Xx JOINT COMPOUND: Georgia-Pacific All Purpose X BOARDS AND PANELS: Ruberoid ~ ? the State of Alabama H-61 NAME: ISIAH JONES, JR., DECEASED NICKNAME: GROUP NAME: JONES. I WORK HISTORY SHEET EMPLOYER: Tennessee Coal and Iron JOB SITE: U.S. Steel CITY, STATE: Fairfield, Alabama DATE OF JOB: 1940-1983 EXPOSURE TO ASBESTOS PRODUCTS: LENGTH OF JOB: 43 years MY DUTIES AT THIS JOB SITE: Brickmason/ Laborer WAS JOB NEW CONSTRUCTION REPAIR ___; or BOTH WAS JOB INDOORS? ) OUTDOORS? ___ ; or BOTH pana | REASON FOR LEAVING: WAGE RATE/HOUR: AVERAGE HOURS WORKED/WEEK: PERCENTAGE OF TIME EXPOSED TO ASBESTOS PRODUCTS: d H-62 SUPERVISOR: NAMES OF COWORKERS & JOB TITLES: ON THIS JOB SITE WERE YOU EXPOSED ANY OF THE FOLLOWING: CHEMICALS YES NO FUMES YES NO GASES YES NO CHROMIUM YES NO CADMIUM YES NO ANY OTHER PRODUCT YES NO LIST: DID YOU WEAR A RESPIRATOR, MASK OR OTHER PROTECTIVE DEVICE ON THIS JOB TO AVOID INHA- LATION OF ANY DUST OR FUMES INCLUDING ASBESTOS DUST? YES: NO: ASBESTOS MATERIALS USED WORKED ON THIS JOB: WITH AROUND H-63 NAME: DANNIE OTHAL KENNEDY NICKNAME: GROUP NAME: KNOX WORK HISTORY SHEET EMPLOYER: Tennessee Coal & Iron/USX Corporation JOB SITE: U.S. Steel CITY, STATE: Musgota, Alabama; Fairfield, Alabama DATE OF JOB: 141-1983 EXPOSURE TO ASBESTOS PRODUCTS: LENGTH OF JOB: 41 years MY DUTIES AT THIS JOB SITE: Electrician WAS JOB NEW CONSTRUCTION : REPAIR WORK ; or BOTH X WAS JOB INDOORS? ‘ OUTDOORS? ; or BOTH X REASON FOR LEAVING: Retired WAGE RATE/HOUR: AVERAGE HOURS WORKED/WEEK: 40 PERCENTAGE OF TIME EXPOSED TO ASBESTOS PRODUCTS: 100% SUPERVISOR: NAMES OF COWORKERS & JOB TITLES: See Attached List ON THIS JOB SITE WERE YOU EXPOSED ANY OF THE FOLLOWING: CHEMICALS YES NO_ xX FUMES YES NOX GASES YES NOX CHROMIUM YES NOX CADMIUM YES NO X ANY OTHER PRODUCT YES NO xX LIST: DID YOU WEAR A RESPIRATOR, MASK OR OTHER PROTECTIVE DEVICE ON THIS JOB TO AVOID INHA- LATION OF ANY DUST OR FUMES INCLUDING ASBESTOS DUST? YES: NO: X ASBESTOS MATERIALS USED WORKED ON THIS JOB: WITH AROUND SEE ATTACHED LIST NAME: NICKNAME: H-65 DANNIE OTHAL KENNEDY GROUP NAME: KNOX WORK HISTORY SHEET Co-Workers: ASBESTOS MATERIALS USED ON THIS JOB: FELTS/CLOTH: Asten GASKETS: Armstrong Flexiallic Garlock Victor CEMENTS: Johns-Manville Perf-A-Tape Calsilite Pyroscat Super 711 Pabco Grefco Sam Browning Howard Whaley Jack Chastain Merrell Killingsworth Ray LaBorde Earl Watson Ed Brown William Coleman John Adams Roy Flack A.B. Jones Raymond Howard Clay Blake George Crane WORKED WITH AROUND X ~K KK OK KK KK OK OK OK H-66 Quik Set A. P. Green Kast-O-Lite JOINT COMPOUND: Durabond Gold Bond Georgia Pacific Napko x KX x KK OX NAME: DANNIE OTHAL KENNEDY NICKNAME: GROUP NAME: KNOX WORK HISTORY SHEET ASBESTOS MATERIALS USED WORKED ON THIS JOB: WITH AROUND FIREPROOFING: Zonolite Cafco Heat Shield PIPECOVERING: Unibestos Kaylo Pabco Thermasil REFRACTORY CEMENT: Vee Block Mix Micacrete GUN MIX: Narco X x & or BOT x H-180 REASON FOR LEAVING: Completed Job WAGE RATE/HOUR: AVERAGE HOURS WORKED/WEEK: 40+ PERCENTAGE OF TIME EXPOSED TO ASBESTOS PRODUCTS: 100% SUPERVISOR: NAMES OF COWORKERS & JOB TITLES: See Attachment “C” ON THIS JOB SITE WERE YOU EXPOSED ANY OF THE FOLLOWING: CHEMICALS YES NO X FUMES YES X NO GASES YES NO X CHROMIUM YES NO xX CADMIUM YES NO X ANY OTHER PRODUCT YES NO X comm ED LIST: Paint fumes DID YOU WEAR A RESPIRATOR, MASK OR OTHER PROTECTIVE DEVICE ON THIS JOB TO AVOID INHA- LATION OF ANY DUST OR FUMES INCLUDING ASBESTOS DUST? YES: X NO: a COMMENTS: 3M Mask Worn Occasionally ASBESTOS MATERIALS USED WORKED ON THIS JOB: WITH AROUND SEE ATTACHMENT “B” FOR PRODUCTS USED ON COMMERCIAL & INDUSTRIAL SITES H-181 NAME: RAY HARDIN HOLLINGSWORTH NICKNAME: GROUP NAME: JONES. I WORK HISTORY SHEET ATTACHMENT “A” ASBESTOS MATERIALS USED WORKED ON THIS JOB WITH AROUND FLOOR TILE: Armstrong X JOINT COMPOUND: Durabond Georgia-Pacific Gold Bond Paco Synko Triple Duty Triko PLASTIC CEMENT: CertainTeed Flintkote KK KK OK RK » X H-182 NAME: RAY HARDIN HOLLINGSWORTH NICKNAME: GROUP NAME: JONES. I WORK HISTORY SHEET ATTACHMENT “B” ASBESTOS MATERIALS USED WORKED ON THIS JOB WITH AROUND INSULATING CEMENTS: Johns-Manville Pabco Grefco Delta Maid One Shot Carey A.P. Green Quik-Set Zonolite High Temperature REFRACTORY CEMENTS: Vee Block Mix Micacrete Insulag FIREPROOFING: Monokote Cafco GASKETS: Armstrong Flexitallic Garlock Victor PACKING: Anchor ~ KK KK DK OK OC ~x KX x XK ~~ KK OX ~ ; t H-184 NAME: RAY HARDIN HOLLINGSWORTH NICKNAME: GROUP NAME: JONES. I WORK HISTORY SHEET ATTACHMENT “C” Coworkers: Bobby Hamilton Sherman Smith Bobby Joe Smith H. Eugene Powell Lawrence Pierce Melvin Pierce Eddie Lee Harry Woods Fred Phillips Bill Dumas Lee Grandquest ee I-1 APPENDIX I IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CLEO JONES, Individually § and as Personal Representative § of the Heirs and Estate of § CIVIL ACTION ISAIAH JONES, JR., Deceased, § FILE NO. 98-CF-745 ET AL., 8 Plaintiffs, : VS. § GEORGIA PACIFIC § CORPORATION (successor to § BESTWALL GYPSUM § COMPANY), ET AL.; ; Defendants. S PLAINTIFFS’ REPLY IN SUPPORT OF EMERGENCY MOTION FOR REMAND (Filed April 13, 1998) Defendant General Motors Corporation (“GM”) has filed a lengthy memorandum in opposition to plaintiffs’ emergency motion for remand. Plaintiffs tender to the Court this brief reply. I. PLAINTIFFS NEED NOT PROVE THEIR PRODUCT LIABILITY CLAIMS AGAINST GEORGIA-PACIFIC TO DEFEAT REMOVAL. In their memorandum in support of their motion for remand, plaintiffs noted that their right to remand I-2 depends not on their current ability to support their allegations against Georgia-Pacific but on vrhether there is “no possibility” that they will be able to develop evi- dence to support their claims against that defendant. Plaintiffs’ Mem. at 2-3, citing Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). Plaintiffs pointed out that the Eleventh Circuit has recently noted that the burden for demonstrating a right to remand is “much lighter” than that for opposing a summary judgment, and that the Eleventh Circuit has also pointed out that “the party opposing a motion for summary judgment should be permitted an adequate time to complete discovery prior to consideration of the motion.” Plaintiffs’ Mem. 3, citing Crowe, 113 F.3d at 1541-42; Plaintiffs’ Mem. 5, citing Jones v. City of Columbus, Georgia, 120 F.3d 248, 253 (11th Cir. 1997). GM's response completely ignores these principles. Instead, GM essentially repeats the non sequitur asserted in its notice of removal, arguing that plairsi‘is, by stating their intent to conduct discovery and further investiga- tion on the issue of product identification, “have effec- tively admitted that they have no grounds for suing Georgia-Pacific individually.” GM Mem. 12. Of course, plaintiffs have admitted no such thing; all they have “effectively admitted” is the difficulty of providing speci- fic product exposure and work history information for workers who were exposed over decades (often ending many years ago) to hundreds, or perhaps even thou- sands, of products. Their inability to provide product information at this early Stage in the litigation does not conceivably provide a basis for a finding that plaintiffs I-3 have “no possibility” of developing this information within a reasonable time through discovery. GM analogizes its allegation of “fraudulent joinder” in this case with the motion for summary judgment based on inadequate product identification granted by the dis- trict court and affirmed by the Eleventh Circuit in Black- ston v. Shook & Fletcher Ins. Co., 764 F.2d 1480 (11th Cir. 1985). Of course, as the Eleventh Circuit made crystal clear in Crowe, different legal standards govern the dispo- sition of fraudulent joinder and summary judgment claims. Crowe, 113 F.3d 1541-42. Moreover, the court in Blackston explicitly recognized that “plaintiffs who did not work directly with asbestos, but instead were exposed to it because it was used in proximity to their workplace, face formidable proof problems in their attempts to show causation.” Blacxston, 764 F.2d at 1485. It therefore affirmed summary judgment only after noting that the district court had “provided every opportunity for Blackston to produce such evidence” of exposure to the moving defendant’s product. Id. at 1484. Neither Blackston, nor any other case cited by GM, suggests that plaintiffs may be deprived of the opportunity to develop, through formal discovery, evidence of their exposure to Georgia-Pacific products. GM nevertheless claims that the Court should find that plaintiffs fraudulently joined Georgia-Pacific because Rule 11 of the Federal Rules of Civil Procedure and the “governing rules” of Georgia procedure “do not allow plaintiffs to bring claims against any defendant without having a reasonable factual basis to support that claim.” GM Mem. 9. But neither Rule 11 nor any other rule of procedure requires the plaintiff in an asbestos case to ee EE eSreEsE=SEOarrrrrrrrree—eeee eae ee eer I-4 possess proof of exposure to each defendant’s products at the time of filing. Obviously, the plaintiff in Blackston did not possess such proof, yet there is nothing in Blackston suggesting that the plaintiff was guilty of a Rule 11 violation. Instead, “in view of the length of time between exposure and perceived injury and the migratory nature of much of the employment involving asbestos expo- sure,” (Blackston, 764 F.2d at 1486), the rules require only that the plaintiff has a good faith basis to believe that discovery might reveal exposure to each defendant's products. The Rule 11 cases cited by GM are patently distinguishable, and do not support removal in this case. See Jones v. Int'l Riding Helmets, Ltd., 49 F.3d 692 (11th Cir. 1995) (Rule 11 sanctions warranted by counsel’s knowl- edge when he filed complaint that defendant could not have manufactured the sole product that injured plaintiff because defendant came into existence after helmet was manufactured); Albright v. Upjohn Co., 788 F.2d 1217 (Rule 11 sanctions warranted because plaintiff’s attorney knew that medical records revealed that the products to which the plaintiff was exposed were manufactured by com- panies other than the moving defendants); Kendrick v. Funderburk, 1998 WL 128476 (Ga. Ct. App. Mar. 2, 1998) (recognizing — in language omitted by GM in its quota- tion from the case — that sanctions are appropriate “where a claim having arguable factual or legal support is filed in good faith for the purpose of pursuing discovery, but contin- ued by the attorney after discovery reveals there is no basis for the claim.” (emphasis added)) Finally, GM seems to argue that because plaintiffs’ answers to GM’s discovery requests were allegedly eva- sive and inadequate, plaintiffs’ inability to prove their I-5 allegations of exposure to Georgia-Pacific products must be conclusively presumed. GM-Mem. 9, quoting Atlanta Coca-Cola Bottling Co. v. Transamerica Ins. Co., 61 F.R.D. 115, 119 (N.D. Ga. 1972) for the proposition that “[i}]ncor- poration by reference of the allegations of a pleading is not a responsive and sufficient answer to an interroga- tory.” The proper course for a party aggrieved by an opponent's failure to respond properly to discovery is to file a motion to compel. If GM desired an early deadline by which plaintiffs must complete all investigation and discovery concerning the products to which plaintiffs were exposed, they were free to seek one from the state court. Removal is an inappropriate “discovery sanction” to impose on plaintiffs — and indirectly on the federal courts — for serving allegedly unresponsive answers to discovery requests. A trial on the merits, or even a summary judgment proceeding, on plaintiffs’ allegations of exposure to Geor- gia-Pacific products would be premature and inappropri- ate. GM has failed to carry its heavy burden of establishing that plaintiffs have “no possibility” of estab- lishing exposure to Georgia-Pacific products. The motion for reinand should be granted on that basis. il. PLAINTIFFS HAVE ADEQUATELY ALLEGED A VIABLE CIVIL CONSPIRACY CASE AGAINST GEORGIA-PACIFIC. As GM admits, under Georgia law a conspiracy is “a combination between two or more persons either to do some act which is a tort or else to do some lawful act by methods which constitute a tort.” GM Mem. 13, quoting Pe eS aa ee ee ere yet es pe a ae, © 1-6 Savannah College of Art & Design, Inc. v. School of Visual Arts of Savannah, Inc., 464 S.E.2d 895, 896 (Ga. Ct. App. 1995). The rule is the same in Alabama, Jones v. BP Oil Co., 632 So.2d 435, 439 (Ala. 1993), and in Texas (Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983)). Unques- tionably, the marketing of an unreasonably dangerous product is a tort. And although it is true that the underly- ing tort in a conspiracy case must be intentional in nature, GM Mem. 13, there is no doubt that a manufac- turer can intend to market an unreasonably dangerous product. In this case, plaintiffs have alleged that Georgia- Pacific, with other manufacturers, conspired to manufac- ture and market intentionally defective and unreasonably dangerous products. Complaint, [] 67-72. The viability of this conspiracy theory is demon- strated by a recent asbestos case tried by plaintiffs’ coun- sel in Texas. In Mary Beth “Maisie” Wheat v. Raymark Corp., et al., No. 95-12812-D, in the 95th District Court of Dallas County, Texas, the plaintiff sued Raymark for fatal asbestos-related injuries sustained by her husband. The plaintiff was unable to develop evidence that her dece- dent was exposed to a Raymark product, but alleged that Raymark was nonetheless liable for the death because (1) Raymark had conspired with Johns-Manville to suppress medical and scientific data concerning the hazards of asbestos, (2) Johns-Manville’s act of marketing its asbestos products with an “intentional defect” was a tortious overt act in furtherance of the conspiracy, and (3) the decedent’s death was proximately caused by Johns- Manville’s overt act in furtherance of its conspiracy with Raymark. See Judgment (Amended) in Mary Beth “Maisie” Wheat v. Raymark Corp. signed Mar. 3, 1998 (copy attached SAMMI SI tre I-7 hereto as Exhibit “A”) at 2-3. The jury found for the plaintiff on this theory, and the trial court entered judg- ment on the verdict. Id. Raymark has since filed for protection under the Bankruptcy Code. Neither the Georgia nor the Alabama courts have addressed the viability of the type of conspiracy theory upon which the plaintiff prevailed in the Wheat case. The very existence of the Wheat case, and the legion of other cases which recognize the viability of the theory of civil conspiracy for marketing an asbestos product with an intentional defect, (see cases cited in plaintiffs’ Memoran- dum in Support of Motion for Remand at 6-7), simply forecloses the contention that plaintiffs have “no possi- bility” of recovery on the conspiracy theory alleged in their complaint. See Lane v. Champion Int'l Corp., 827 F. Spp.. 701, 706 (S.D. Ala. 1993) (“If plaintiffs’ allegations set forth a good faith claim under state law, no matter how doubtful, the presence of the non-diverse defendant will defeat removal.”). The potential viability of plaintiffs’ civil conspiracy claims against Georgia-Pacific is further demonstrated by the Fourth Circuit’s decision in Central Wesleyan College v. W.R. Grace & Co., 6 F.3d 177 (4th Cir. 1993). In that case, the plaintiff college sought to serve as a representative plaintiff in a property damage class action brought by colleges and universities against suppliers of asbestos products. 6 F.3d at 183. The defendants claimed that the college did not meet the prerequisites for serving as a representative plaintiff, because the evidence indicated that the products of only one manufacturer, which had filed for bankruptcy, were used in its buildings. Id. & n.1. The district court, and the Fourth Circuit on appeal, I-8 rejected the defendants’ objection, in part because the college’s allegation that the defendants “cooperated and assisted each other in the suppression and active conceal- ment and misrepresentation of the relationship between asbestos and various diseases as early as the 1930's,” id. at 187, stated “non-frivolous conspiracy claims that gave [the college] standing against all members of the asbestos industry.” Id. at 183. Georgia-Pacific is identified as a defendant in that case. Id. at 178-79. GM asserts that plaintiffs’ allegations of conspiracy against Georgia-Pacific are ineffectual because plaintiffs did not plead any acts of fraud with Specificity as required by both Rule 9(b) of the Federal Rules of Civil Procedure and its Georgia analog. Contrary to GM’s assumption, however, fraud is not a necessary component of plaintiffs’ civil conspiracy claim. Rather, as plaintiffs explain above, the conspiracy as alleged in plaintiffs’ complaint was to suppress knowledge of the hazards of asbestos from the consuming public (for the Purpose of maximizing profits from the Sale of asbestos Products), and the tortious acts undertaken by the conspirators was to market intentionally defective Products (i.e., products without adequate warnings). These allegations are unquestionably actionable without Proof of fraud and, under the literal language of the federal and Georgia rules, need not be pleaded with specificity. GM’s emphasis on the failure of plaintiffs to provide details of “all statements or omissions of Georgia-Pacific Corporation (including precise time, place and content) claimed to have harmed [plaintiff]” (GM Mem. 19) only highlights its misunderstanding of plaintiffs’ conspiracy theory. Plaintiffs’ claim here is not that the defendants 1-9 affirmatively made fraudulent statements, but that they wrongfully suppressed information regarding the hazards of asbestos. Rule 9(b) and its Georgia analog do not, and cannot require plaintiffs to allege the circumstances of these “non-statements” with particularity. ! Finally, plaintiffs would alert the court to information that they have recently obtained indicating that Georgia- Pacific Corporation was indeed engaged in a conspiracy to suppress the hazards of asbestos from the general public, and that plaintiffs were injured as a result of the conspiracy. As plaintiffs pointed out in their initial memorandum in support of remand, Georgia-Pacific Corporation manu- factured asbestos-containing wallboard and gypsum 1 Because plaintiffs’ conspiracy theory is based not on defendants’ statements but on their “non-statements,” the only facts that plaintiffs could conceivably plead relate to defendants’ conduct within the conspiracy. It is obvious that, contrary to GM’s assertion, these facts would not be “uniquely known to plaintiffs prior to filing the complaint” (GM’s Mem. 19); therefore, they cannot be required to plead them with particularity. 2 GM asserts that the Court should disregard any additional material that plaintiffs provide to the Court to rebut GM’s claim that plaintiffs fraudulently joined Georgia-Pacific, because plaintiffs did not provide the material to GM in response to the state court discovery requests. GM Mem. 20. Contrary to GM’s assumption, however, the record is not closed; plaintiffs are entitled to provide information to the Court establishing the viability of their claims. Crowe, 113 F.3d at 1538. And even if plaintiffs’ failure to provide this information to GM upon its initial request was improper, which plaintiffs deny, GM cites no case holding that the consequence of such a discovery violation is automatic federal jurisdiction. paso PE eb a Red By ¥ if I-10 products, and, along vith other manufacturers of asbestos products, was a member of the Gypsum Associa- tion since the mid-1960’s. Minutes of the Gypsum Asso- ciation confirm that the members of the Association were aware of the relationship between asbestos and lung can- cer as early as 1967, and worried that related pollution problems might have “a dramatic effect on all indus- tries.” Minutes of the Safety Committee Meeting of the Gypsum Association, September 19, 1967 (Ex. “B” to this Reply). In 1973, representatives af the Gypsum Associa- tion attempted, without success, to convince OSHA rep- resentatives to relieve manufacturers of asbestos- containing joint compound from the requirements of placing warning labels on their products and monitoring the job sites where joint compound products were used. Report of Special Task Force on Joint Treatment Com- pound, November, 1973 (Ex. “C”). In November of 1973, the Gypsum Association conducted a study “to determine the concentrations of airborne asbestos to which workers were exposed during mixing and sanding of joint cement compounds and to interpret the results in terms of poten- tial health hazards with Particular reference to regula- tions promulgated” under OSHA. Evaluation of Exposure to Asbestos During Mixing and Sanding of Joint Com- pounds, Gypsum Association, November 19, 1973 (Ex. “D” to this Reply), at 1. The study concluded, inter alia, that “[i]t is clear that persons engaged in the mixing and sanding of joint compounds similar to those used during this test would be exposed to concentrations of airborne asbestos in excess of two fibres per cubic centimeter during the entire course of their work,” which was the Proposed acceptable limit to become effective July 1, I-11 1976. Id. at 6. Nevertheless, in August of 1976, members of the Association suggested preparing a “position paper” showing that “to the best of our information, there is no carcinogenetic relationship with gypsum,” and advising that the industry should establish a position that any blanket mineral fiber standard is totally out of order.” Special Meeting, Manufacturing and Mining Com- mittee, August 10, 1976 (Ex. “E”). These facts establish at least a “possibility” that Georgia-Pacific conspired with other manufacturers to suppress from the public informa- tion concerning the hazards of asbestos, and that the conspiracy caused injury to the plaintiffs. Georgia-Pacific has already been found to have con- spired with other members of the Gypsum Association. In the early 1970’s, Georgia-Pacific, along with three other companies, was convicted of having “engaged in a nationwide conspiracy to fix the prices, the terms and conditions of sale, and the method of handling gypsum board products.” United States v. United States Gypsum Co., 600 F.2d 414, 416 (3d Cir. 1979), cert. denied, 444 U.S. 884 (1979). It is certainly reasonable to expect that these - same companies conspired to promote the sale of their asbestos-containing products by concealing the hazards of such products from the public. Further discovery may or may not reveal such information, but for purposes of deciding the motion for remand, all that is important is that defendants have not shown there is “no possibility” that plaintiffs can recover from Georgia-Pacific under their conspiracy theory. I-12 Ill. THE LYONS OPINION DOES NOT SUPPORT REMOVAL IN THIS CASE. GM relies heavily on the recent decision of this Court in Lyons v. Brown & Williamson Tobacco Corp., Civil Action No. 97-CV-1850-CC (N.D. Ga. Mar. 23, 1998), but the case is clearly distinguishable. Lyons was a class action on behalf of all Georgia residents who are cigarette smokers or survivors of cigarette smokers against the tobacco industry. In addition to the cigarette manufacturers and their trade associations, the plaintiffs also sued an indi- vidual who was a former tobacco executive and three local distributor defendants. The individual and distribu- tor defendants were the only Georgia residents named in the complaint. The district court found that the plaintiffs had fraudulently joined the Georgia residents because “the distribution Defendants have nothing to do with the manufacture or advertising of cigarettes, or the conceal- ment of the products’ allegedly hazardous effects” and because the plaintiffs’ “general allegations of fraud and RICO violations” against the individual tobacco executive “are wholly insufficient to Satisfy the pleading require- ments of either the federal] (or Georgia) rules or the RICO Statute, not to mention the obvious statute of limitations Problems that arise when a corporate officer is sued over eight years after he held the Position at issue.” Lyons, slip op. at 7-8. In contrast, Georgia-Pacific is an undisputed member of the asbestos industry and is alleged to be liable to plaintiffs for Precisely the same reasons that all the other defendants are alleged to be liable. The only alleged problem with plaintiffs’ joinder of Georgia-Pacific is that plaintiffs have not yet proved that Georgia-Pacific is I-13 actually liable for their injuries. This is an insufficient basis upon which to find fraudulent joinder. CONCLUSION For the foregoing reasons, and for the reasons stated in plaintiffs’ motion for remand and supporting mem- orandum, plaintiffs respectfully urge the Court to remand this case to the Superior Court for Fulton County, Geor- gia, and to award such fees and costs as it deems just. Respectfully submitted, BARON & BUDD A PROFESSIONAL CORPORATION The Centrum Suite 1100 3102 Oak Lawn Avenue Dallas, Texas 75219 (214) 521-3605 FAX: (214) 520-1181 By: /s/ Brent M. Rosenthal Brent M. Rosenthal Texas State Bar No. 17281075 AND DOFFERMYRE, SHIELDS, CANFIELD, KNOWLES & DEVINE Suite 1600 1355 Peachtree Street Atlanta, Georgia 30309 By: /s/ Kenneth S. Canfield by #750415 Kenneth S. Canfield Georgia State Bar No. 10774 Attorneys for Plaintiffs = a Es * we : ie e I-14 NO. 95-12812-D MARY BETH “MAISIE” WHEAT, § IN THE Individually and as Personal § DISTRICT Representative of the Heirs and § COURT Estate of SAMUEL JOE WHEAT, § Deceased, ET AL.: § Plaintiffs pony ; COUNTY, TEXAS VS. RAYMARK CORPORATION (as successor to ASBESTOS LITIGATION MANAGEMENT CORPORATION); and RAYMARK INDUSTRIES (as successor to RAYMARK FRICTION COMPANY, INC. and UNIVERSAL FRICTION COMPOSITES), ET AL.; Defendants. 95TH JUDICIAL DISTRICT PAM nn nn an Mn aM un En nr JUDGMENT (AMENDED) CAME ON FOR TRIAL BY JURY the claims of Plain- tiffs MARY BETH “MAISIE” WHEAT, Individually and as Personal Representative of the Heirs and Estate of SAM- UEL JOE WHEAT, Deceased, and KENNETH WHEAT, TAMARA MOORE, TARA MARTZ, and NINA MAE WHEAT, Individually as Heirs and Beneficiaries of SAM- UEL JOE WHEAT, against Defendants Raymark Corpora- tion and Raymark Industries, who all appeared in person and by attorney of record and announced ready for trial. All matters of fact and things in controversy were submit- ted, and a jury having been Previously demanded, a jury TA REN tae OA es 7 NE aad *t I-15 consisting of twelve good and lawful jurors was duly empaneled, and the case proceeded to trial. The claims of WILLIAM LUTHER DOUGLAS, LAURA JO HERRIDGE, ROBERT EARL STEEL, EFFIE JEAN EURINE, Individually and as Personal Representa- tive of the Heirs and Estate of ANTHONY RAY EURINE, Deceased and MATTIE CHARLENE ALLEN did not pro- ceed to trial, as the claims of these Plaintiffs against all Defendants were settled and dismissed prior to trial. At the conclusion of the evidence, in the first phase of this bifurcated trial, the Court submitted the case to the jury on special issues. The jury deliberated and announced its verdict to the Court on February 19, 1998, as follows: 1. Do you find SAM WHEAT sustained an asbestos-related injury or disease that caused his death? Answer “YES” or “NO”. YES NO xX If you have answered Question No. 1 “YES,” answer Question No. 2; otherwise, do ot answer Question No. 2. 2. Was there an intentional defect in Johns-Manville’s marketing of an asbestos- containing product at the time the product left the possession of Johns-Manville that was a proximate cause of the death of SAM WHEAT? A “defect in the marketing” with respect to the product means the failure to give ade- quate warnings of the product’s dangers I-16 that were known or by the application of reasonably developed human skill and fore- sight should have been known or failure to give adequate instructions to avoid such dangers, which failure rendered the product unreasonably dangerous as marketed. “Adequate” warnings and 38N 88 ZEc’P6e’l (€S°726'Z6) (€S°'7Z6'%6) (€S°7Z6'Z6) (SI'se9’Zss) (SI'SEs’ZSs) SJ9S}JO 00°0000SZ’€ 00°000’0SZ 00°000‘0SZ 00°0000SZ 00°000’00$’I 00'000 ‘00S‘T ‘duo ‘PIPsaA [2IOL ZyIePW eiel s100O/ZFW eIeUWel yPOUM yyoUuUsy yPOUM yeOUM wes %0Z JO ‘gq Arey jo e/, sya3 “ey | %OF 9321S %OF I-26 Accordingly, based on the verdict of the jury as recited herein, the Court’s rulings during trial, the appli- cable law, and taking into account the prior settlements received by Plaintiffs listed herein, as well as offset calcu- lations, it is ORDERED, ADJUDGED, and DECREED: 1. That Plaintiff MARY BETH “MAISIE” WHEAT, as Personal Representative of the Heirs and Estate of SAM- UEL JOE WHEAT, Deceased, shall have and recover from Defendants Raymark Corporation and Raymark Indus- tries compensatory damages in the amount of $942,164.85. 2. That Plaintiff MARY BETH “MAISIE” WHEAT, Individually, shall have and recover from Defendants Raymark Corporation and Raymark Industries, compen- satory damages in the amount of $942,164.85. 3. That Plaintiff KENNETH WHEAT, Individually, shall have and recover from Defendants Raymark Corpo- ration and Raymark Industries, compensatory damages in the amount of $157,027.47. 4. That Plaintiff TAMARA MOORE, Individually, shall have and recover from Defendants Raymark Corpo- ration and Raymark Industries, compensatory damages in the amount of $157,027.47. 5. That Plaintiff TARA MARTZ, Individually, shall have and recover from Defendants Raymark Corporation and Raymark Industries, compensatory damages in the amount of $157,027.47. 1-27 6. That Plaintiff MARY BETH “MAISIE” WHEAT, Individually, shall have and recover from Defendants Raymark Corporation and Raymark Industries, punitive damages in the amount of $500,000.00. 7. That Plaintiff NINA MAE WHEAT, Individually, shall take nothing on her claims against Defendants Raymark Corporation and Raymark Industries. 8. That pursuant to Tex.R.Civ.Stat.Ann. Art. 5069-1E.101, et seq., (formerly Art. 5069-1.05 § 6), Plaintiff MARY BETH “MAISIE” WHEAT, as Personal Representa- tive of the Heirs and Estate of SAMUEL JOE WHEAT, Deceased, shall recover prejudgment interest at the rate of 10% per annum from March 6, 1996, the date the suit was filed, until the date vefore this judgment was signed, in the amount of $186,626.08. 9. That pursuant to Tex.R.Civ.Stat.Ann. Art. 5069-1E.101, et seq., (formerly Art. 5069-1.05 § 6), Plaintiff, MARY BETH “MAISIE” WHEAT, Individually, shall recover prejudgment interest at the rate of 10% per annum from March 6, 1996, the date the suit was filed, until the date before this judgment was signed, in the amount of $186,626.08. 10. That pursuant to Tex.R.Civ.Stat.Ann. Art. 5069-1E.101, et seq., (formerly Art. 5069-1.05 § 6), Plaintiff, KENNETH WHEAT, Individually, shall recover prejudg- ment interest at the rate of 10% per annum from March 6, 1996, the date the suit was filed, until the date before this judgment was signed, in the amount of $31,104.35. 11. That pursuant to Tex.R.Civ.Stat.Ann. Art. 5069-1E.101, et seq., (formerly Art. 5069-1.05 § 6), Plaintiff, a I-28 TAMARA MOORE, Individually, shall recover prejudg- ment interest at the rate of 10% per annum from March 6, 1996, the date the suit was filed, until the date before this judgment was signed, in the amount of $31,104.35. 12. That pursuant to Tex.R.Civ.Stat Ann. Art. 5069-1E.101, et seq., (formerly Art. 5069-1.05 § 6), Plaintiff, TARA MARTZ, Individually, shall recover prejudgment interest at the rate of 10% per annum from March 6, 1996, the date the suit was filed, until the date before this judgment was signed, in the amount of $31,104.35. 13. That postjudgment interest on the amounts owed by Defendants to Plaintiffs shall accrue at the rate of TEN PERCENT (10%) per annum, compounded annu- ally, from the date the judgment is signed until it is Satisfied pursuant to Tex.Rev.Civ.Stat.Ann. Art. 5.069-1E.001-5069-1E.006 (formerly Art. 5069-1.05 §§ 2 and 3). 14. That Plaintiffs’ claims against all other Defen- dants in this action have been settled and Dismissed. 15. Costs of this suit shall be taxed against each Party as incurred by them. 16. All other relief not expressly granted herein is hereby denied. LET EXECUTION LIE IF NOT TIMELY PAID. 1 | + | 1-29 SIGNED this 3 day of March, 1998. /s/ Sally T. Montgomery THE HONORABLE JUDGE SALLY MONTGOMERY AGREED AS TO FORM: DEFENDANT: RAYMARK CORPORATION & RAYMARK INDUSTRIES * /s/ Mike Maddox Mike Maddox William Sxepnek SKEPNEK & MADDOX Mercantile Bank Tower, Ste. 601 900 Massachusetts Lawrence, KS 66044 Phone No: 785-331-0300 Fax No: 785-331-0303 PLAINTIFFS: /s/ Brent M. Rosenthal Lisa Blue Brent M. Rosenthal Lisa Kivett Michael L. Kaeske BARON & BUDD, P.C. 3102 Oak Lawn, Suite 1100 Dallas, TX 75219-4281 Phone No: 214-521-3605 Fax No: 214-550-1181 * objects to punitive damages I-30 MINUTES OF THE SAFETY COMMITTEE MEETING SEPTEMBER 19, 1967 Mr. F.H. Zimmerman, Chairman of the Gypsum Association Safety Committee, called the meeting to order at the Marriott Motor Hotel, Saddle Brook, New Jersey, at 8:30 a.m. Those in attendance were: C. J. Saturnia Celotex Corporation M. F. Fink Georgia-Pacific Corporation Gypsum Division J. Gregg Kaiser Gypsum Company, Inc. R. W. Henly The Flintkote Company J. Tuffy The Flintkote Company T. D. Tolin National Gypsum Company F. H. Zimmerman National Gypsum Company P. Kipp United States Gypsum Company A. V. Abnee, Jr. Gypsum Association F. J. Rogers Gypsum Association 1. GYPSUM ASSOCIATION SAFETY BULLETIN A. The chairman requested that the secretary relate the member company response for Safety articles to be used in the Bulletin. Following a brief discussion by the 3 I-31 committee, it was their recommendation that each mem- ber company stimulate employee participation by urging the plant employees to write and submit safety articles to the Association. B. The committee reviewed the Bulletin format and it was the consensus that it was satisfactory in its present form. One member suggested that a possible change be considered when the next Bulletin mast head is printed. The secretary indicated that present Bulletin stock supply would be depleted at the end of the fiscal year, and at that time, committee suggestions would be solicited. The committee requested that the secretary construct a chart showing the industry frequency rating over the past four years, as related to the all industry frequency rating reported by the National Safety Council, and print this chart in the Safety Bulletin. The secretary indicated that such a chart was already being considered for the October issue. The committee directed that this item be carried on the docket. 2. “CERTIFICATE OF MERIT” AWARD The secretary submitted a “Certificate of Merit” award plaque for committee investigation. He informed the committee that the award cost the Association $20.00 to purchase and mail, and requested that they might consider adopting an award that might have greater util- ity for the winner, such as an ash tray or pen set. the committee, after much discussion, directed the secretary I-32 to obtain a les costly certificate and also purchase an ash tray for the award winners. Following a thorough review of the last three edi- tions of the Safety Bulletin, the committee selected one article by ballot. The article “Did You Bet Your Life?” by Val Robertson, Assistant Production Superintendent, The Flintkote Company, Blue Diamond Gypsum Division, Fre- mont, California (August 1967) won the award. Mr. Robertson will receive a certificate and inscribed ash tray for his contribution to safety. 3. AIR AND STREAM POLLUTION The chairman cited a few pollution problems involv- ing plants on a local level. He stressed the importance of all committee members keeping abreast with local, state, and federal pollution programs. One member noted a recent problem involving the asbestos industry where a number of lung carcinoma cases had been reported by inhabitants of the neighbor- hood surrounding an asbestos plant. It was further noted that clinical tests and investigations had resulted in legal action against the manufacturer by the claimants. The chairman indicated that air and water pollution problems would have a dramatic effect on all industries and that the committee should take the initiative to meet any such problems head on if they should occur in the gypsum industry. Following a discussion of pollution problems in var- ious industries, it was the consensus that the safety com- mittee should have a more active program in this area, i I-33 outlining the problems that exist and what steps have been taken to solve them. On a motion seconded and carried, the committee recommended that the chairman advise the directors of the pollution problem, and suggest that they have plant managers join local groups studying pollution problems, so as to give our industry greater control of the problems. The committee directed that this subject be carried on the docket. REPORT OF SPECIAL TASK FORCE ON JOINT TREATMENT COMPOUND This is the first report on the proceedings and status of the work being done by the Special Committee on Asbestos in Joint Compound. As you will recall, a recom- mendation was made to the Gypsum Association that it involve itself in the assessment of release of asbestos fibers during the use of the joint treatment products by the customer. This recommendation was based on the stringent regulations of the Occupational Safety and Health Act. At the annual meeting, all committees and the Board supported a basic program and funds were appropriated to conduct a field test program to determine what level of asbestos fibers are released in mixing and sanding operations when using joint compound products. It was further stipulated that an independent laboratory would serve to monitor this type of program in order to minimize cost due to duplicate individual efforts by the membership. 1-34 In May of this year, representatives from the Gypsum Association met with OSHA representatives in Washing- ton to discuss regulations pertaining to asbestos. The two Purposes for this meeting were (1) a hope to obtain an interpretation of the law which would preclude the need for placing labels on containers of joint compound if the asbestos fiber environment generated during its normal use would not exceed the OSHA limits, and (2) a variance from the regulations which would eliminate the need for the contractor to Provide monitoring at each job site. Although OSHA was impressed with our interest in our consumers use of the product, they verbally denied any general relief from either the labeling or the monitoring requirement. Subsequent to the meeting with OSHA, a special Associa- tion committee was formed from member designates who were skilled in air sampling techniques and evaluations. This committee formulated a test program and selected George D. Clayton and Associates as the independent laboratory to do the monitoring for the test. The actual test work was conducted by Gardineer Drywall Com- Pany, Aurora, Colorado, and they provided excellent cooperation in order that the monitoring of dust and asbestos fibers could be evaluated. Ten dry powder and ready mix topping grade joint com- pounds from five manufacturers were delivered tc the site by the Association members. Containers were unmarked except for a code number assigned by the Association’s confidential depository. Ten test houses, in close Proximity to each other and of relatively compara- ble size were designated for the test program. One me Waren ee PAAR 0. i Nad a EAN Ra Re RR NN iy 4 1-35 product was assigned for each house for the mixing and sanding procedures. The mixing tests required about 15 minutes per product and the sanding required an average of one hour per house; sanding was accomplished in a manner typical of flat work. Although a final report has not been submitted by Clay- ton, there was a special committee meeting held October 3 and a discussion of preliminary results indicated that there might be some area of inconsistency or incomple- tion of data obtained from this test program. The Com- mittee recommends that certain portions of this program be redone to assure the Association that results which are to be published in the final report are accurate, complete and consistent. The phase II program has already been established and the Committee is ready td proceed. It is estimated that this phase will cost no more than $2,000 and it is requested that the Board of Directors approve such expenditures. If funds are appropriated, Phase II can complete their work and submit a comprehensive report of findings and recommendations by the end of January 1974. It is not possible as of now to predict if additional testing will be required after Phase II. Respectfully submitted, /s/ J. Volk Joseph Volk, Chairman Special Committee on Joint Compounds November 1973 1-36 EVALUATION OF EXPOSURE TO ASBESTOS DURING MIXING AND SANDING OF JOINT COMPOUNDS GYPSUM ‘ASSOCIATION Denver, Colorado November 19, 1973 INTRODUCTION The Gypsum Association retained George D. Clayton and Associates to conduct an industrial hygiene Survey at a test site located in Denver, Colorado. The Purpose of the survey was to determine the concentrations of airborne asbestos to which workers were exposed during mixing and sanding of joint cement compounds and to interpret the results in terms of potential health hazards with Particular reference to regulations Promulgated under authority of the Occupational Safety and Health Act of 1970. This Study was conducted on November 19, 1973 by Mr. Robert D. Soule of Clayton and Associates. Results of that study are reported herein. BACKGROUND The Gypsum Association, located at 1603 Orrington Ave- nue in Evanston, Illinois is a trade association which represents ten to fifteen industrial companies which are engaged in the manufacture of products incorporating Sypsum or gymsum-like materials. As with most indus- have become more broad with the passage and imple- mentation of federal regulations such as the Metal and Non-Metallic Mine Safety Act and the Occupational Safety and Health Act. Technical committees composed of I-37 personnel from companies comprising the Gypsum Asso- ciation have been established with particular interest in the occupational safety and health field. Of particular concern in this respect was the potential hazard associ- ated with exposure of workers to airborne asbestos dur- ing mixing and sanding of compounds used to seal cracks and joints formed during installation of wallboard mate- rial. Although the specific formulations used by the var- ious companies manufacturing and supplying the joint compound vary, it is understood that essentially all of them incorporate asbestos in the product whether as a dry compound or a ready-mix product. In order to evaluate the exposure of workers to asbestos during handling and use of the joint compound products, the Gypsum Association decided to undertake a test pro- gram during which several products would be mixed and sanded. George D. Clayton and Associates was retained to collect and analyze samples which would represent the exposure of workers engaged in the study. The tests were performed on November 19, 1973 in a development of townhouses known as King’s Mill Townhouses, which were under construction in a suburban area north of Denver, Colorado. POTENTIAL HEALTH HAZARD ASSOCIATED WITH EXPOSURE TO ASBESTOS Asbestos is a generic term referring to various mineral silicates. The types used most widely in industrial appli- cations include chrysotile, or “white asbestos” (a hydrated magnesium silicate), amosite, or “grey asbestos” (an iron magnesium silicate), crocidolite, or I-38 “blue asbestos” (a sodium iron Silicate), tremolite (a cal- cium magnesium Silicate), and anthophyllite (another iron magnesium silicate), Of these, chrysotile accounts for over 90 percent of the total usage of asbestos in this country, with amosite and crocidolite being the only other types used to any significant extent. Asbestos exists naturally in bundles of extremely fine fibers which can be subdivided easily into many smaller fibers. The potential health hazard associated with expo- sure to asbestos is that of inhalation of airborne fibers resulting in a type of pneumoconiosis referred to as “asbestosis.” Small asbestos fibers can Pass readily through the upper respiratory tract and be deposited in the terminal bronchioles of the lung. There, they produce a local irritation which the body attempts to overcome by initiating a tissue response resulting in the encapsulation membranes and result in respiratory insufficiencies, or even cardia failure. It has been determined, through tox- icological and epidemiological studies, that long fibers, 20 to 50 micrometers in length, are most active in the Production of the fibrosis. Fibers shorter than about two micrometers in length, are practically without an irritat- ing effect. There is some evidence that other minerals having fibrous characteristics can Produce similar reac- tions. Many recent studies have indicated an association between exposure to asbestos in both industrial and NEON TOMA EH 2.20 nar hed ee menenon eee 1-39 urban atmospheres and an increase in a relatively rare type of lung cancer known as mesothelioma. Although it has not been possible to establish a connection with asbestos in all cases of this disease, there is a strong correlation between exposure to crocidolite and occur- rence of mesotheliomas. Other types of asbestos have been implicated to a much lesser extent. However, this “new hazard” has received much public attention because it has been suggested that very minimal, non- occupational exposure can be sufficient to produce the disease in some individuals. For many years the American Conference of Govern- mental Industrial Hygienists has recommended a thresh- old limit value (TLV) of five million particles per cubic foot of air (mppcf) for all types of asbestos-bearing dusts containing less than one percent crystalline silica. The threshold limit value is defined as the concentration of an airborne contaminant to which it is believed that nearly all workers can be exposed for continuous and repeated work days without experiencing adverse effects. The TLV of five mppcf was based on the impinger sampling tech- nique which was selected as the standard method in the early epidemiological studies of occupational exposure to asbestos. With this method, air is drawn through an impinger containing water and the total particles (both grains and fibers) in an aliquot of the sample, are counted using light-field microscopic techniques. Within recent years, because of the increasing concern about asbestos in the environment and the resulting need for a more relevant sampling method, the American Con- ference of Governmental Industrial Hygienists has pro- posed TLV of five fibers (greater than five micrometers in I-40 length) per cubic centimeter of air. This standard is based on the membrane filter technique with actual microscopic fiber counting at 400-450X magnification using phase con- tract illumination. The Occupational Safety and health Administration (OSHA) has established the above concentration (five fibers, greater than five micrometers in length, per cubic centimeter of air) as an emergency standard and have announced that, effective July 1, 1976, the acceptable limit for an eight-hour, time-weighted average exposure will be reduced to two fibers/cc. In addition, OSHA has established the concentration of ten fibers (greater than five micrometers in length) per cubic centimeter of air as an acceptable ceiling concentration. Workers shall not be exposed to concentrations of asbestos in excess of this value, regardless of duration of exposure. SAMPLING AND ANALYTICAL METHODS The air sampling conducted to evaluate exposures of workers to asbestos was all of the “breathing zone” type. These samples were collected by drawing air through 37- mm diameter membrane filters (Millipore Type AA) at a rate of about two liters per minute using small, battery- Operated pumps (Mine Safety. Appliances Company, Model G). The sampling units were worn by the workers engaged in either mixing or sanding the joint compound; the pump was attached to the belt and the sampler head fastened on the outside of the worker’s shirt at approxi- mate breathing zone height. Thus, these Samples were representative of the time-weighted average conditions to which the men were exposed during the sampling period. I-41 The sampling head consisted of a three piece cassette (Millipore); during sampling the face cap was removed and the filter was used in an “open face” mode with the filter positioned slightly downward so as to minimize dust falling directly onto the filter. Sampling was conduced for the entire duration of the mixing operations but because of the higher anticipated concentrations associated with sanding of the joint com- pounds it was decided to change filters approximately every ten minutes. Sampling during the sanding on the various joint compounds was conducted over a total period of sixty minutes. Therefore six consecutive ten- minute samples were obtained for each sanding test. In addition to the ten-minute tests, samples were collected over thirty-minute periods as well, i.e., two consecutive 30-minute samples for each sanding test. After collection of each sample the filter cap was replaced and the cas- sette, or sampler head, was sealed immediately and pre- pared for transfer to the analytical laboratory. The method of counting asbestos fibers was essentially the same as that used by the U.S. Public Health Service for the enumeration of asbestos dust on membrane filters. The description of this method first appeared in an article written by G.H. Edwards and J.R. Lynch and appeared in the Annals of Occupational Hygiene, Volume 2, pages 106 (1968). In summary, the method consisted of the following steps. A pie-shaped section of each sample was mounted on a standard microscope slide using a high viscosity solution of membrane filter in a I-42 1:1 mixture of diethyl oxalate and dimethyl pht- halate to render the filter transparent. The asbestos fibers which were on the surface of the filter were then counted using a 10X eyepiece and a 40X objective with phase contrast illu- mination. A number of fields, selected at random across the sample, sufficient to reveal a minimum of 100 fibers were examined and fibers greater than five micrometers in length were counted. Any particle having an aspect ratio of three or greater was considered to be a fiber. Although it was conceivable that there would be fibers of Paper or other materials present on the filters which would have been dislodged from the wallboard during the sanding operation it did not appear that these were of any adverse con- sequence during the analysis of the samples. Although it is realized that the counting tech- nique is not specific in terms of being able to identify the chemical nature of the fibers present in the sample, all of the fibers observed in these Samples appeared to have physical features characteristic of asbestos fibers. For those samples collected over a thirty-minute period, and which were too heavily loaded to evaluate directly under the microscope, the col- lected material on the filters was dislodged in a highly purified distilled water bath using an ultrasonic unit (Dynasonic Corporation, Model Go generator and Model T6 tank) and diluted to one liter. An aliquot of the resulting suspension was drawn, passed through a membrane filter (Millipora Type HA) and was then analyzed according to the procedure described above. 1-43 PRESENTATION OF RESULTS A total of four joint compound products were used dur- ing this study. These products (two dry mix and two “ready mix”) were supplied by two manufacturers whose identities were not known to the investigator. The prod- ucts were identified by code (2D, 2R, 4D and 4R), a number referring to the supplier and the latter indicating whether the product was a “dry” or “ready-mix” com- pound. The results of the sampling program conducted during the mixing of the two dry mix products and sanding tests on all four joint compounds are presented in Tables | through IV. Examination of these data reveals the follow- ing: 1. During mixing of Joint Compound 2D, the worker was exposed to a concentration of 31.4 fibers, greater than five micrometers in length, per cubic centimeter of air. 2. The amount of total particulate generated during the sanding operation on Joint Com- pound 2D was so great that direct analysis of the ten-minute samples was not possible. Analysis of the thirty-minute samples, which were redeposited, indicated an aver- age concentration of 39.4 fibers, greater than five micrometers in length, per cubic centi- meter of air. 3. The results of analyzing four of the six ten- minute samples collected during sanding on Joint Compound 2R indicated an average concentration of 4.2 fibers per cubic centi- meter; two of the samples were too heavily ™ _— VI I-44 loaded to analyze directly. Results of anal- ysis of the two thirty-minute samples col- lected during the sanding on Joint Compound 2R indicated an average concen- tration of 11.1 fibers per cubic centimeter, a factor of over 2.5 times as high as the aver- age obtained from analysis of the ten-minute samples. The sample obtained during the mixing of Joint Compound 4D indicated a concentra- tion of 7.6 fibers, greater than five microme- ters in length, per cubic centimeter of air Results of analyzing four of the six ten-min- ute samples collected during the sanding on Joint Compound 4D indicated an average concentration of 4.4 fibers per cubic centi- meter. Analysis of the two thirty-minute samples, which were subjected to the redepositing procedure, indicated an aver- age concentration of 14.8 fibers per cubic centimeter, a factor of 3.4 times as high as results obtained from the ten-minute sam- ples. The results of analysis of five of the six samples obtained during the sanding on Joint Compound 4R indicated an average concentration of 10.8 fibers per cubic centi- meter. Results of analysis of the two thirty- minute samples indicated an average con- centration of 9.7 fibers per cubic centimeter, a value essentially the same as that obtained from analysis of the ten-minute samples. Six of the thirteen ten-minute samples obtained during sanding on the four joint compounds indicated concentrations in excess of five fibers per cubic centimeter. I-45 Both mixing operations generated asbestos concentrations in excess of five fibers per cubic centimeter. 8. Two of the thirteen ten-minute samples col- lected during the sanding tests indicated concentrations in excess of ten fibers per cubic centimeter, the acceptable ceiling con- centration. One of the two mixing opera- tions generated an asbestos-in-air concentration in excess of ten fibers per cubic centimeter. 9. Of the four products tested, sanding on 2R and 4D resulted in concentrations less than, but approaching, the current acceptable limit for continuous exposure of workers, five fibers per cubic centimeter. Product 4R con- sistently produced very high concentrations of total dust which obscured the asbestos fibers on the samples. CONCLUSIONS The following conclusions are presented on the basis of observations and measurements made during the study reported herein. 1. Based on the results of the ten-minute sam- ples, it is apparent that the exposures of workers engaged in mixing and sanding of the various joint compounds used during this test would be to concentrations approaching or exceeding five fibers, greater than five micrometers in length, per cubic centimeter of air. 2. It is clear that persons engaged in the mix- ing and sanding of joint compounds similar I-46 - to those used during this test would be exposed to concentrations of airborne asbestos in excess of two fibers per cubic centimeter during the entire course of their work. This value is the proposed acceptable limit for an eight-hour time-weighted aver- age exposure to asbestos which is scheduled to become effective July 1, 1976. With the exception of the tests conducted during sanding on joint compound 4R the results of analysis of the thirty-minute sam- ples, using the redeposition technique, were consistently higher than those obtained by direct analysis of the ten-minute samples by a factor of 21/2 to 31/2. Therefore, it appears that use of the redeposition technique would result in the apparent concentrations of asbestos in air being higher than actually present and would therefore err on the “con- servative” side. Discounting the results obtained by analysis of the thirty-minute samples, for which the redeposition technique was used, three of the samples collected (mixing of 2D and sanding on 4R) indicated concentrations in excess of ten fibers per cubic centimeter and are therefore a concern as peak exposures. With those exceptions, the problem is one of controlling the time-weighted average expo- sures of workers to asbestos. In that respect, it must be pointed out that the sampling results reported herein are indicative of the exposures of workers during the mixing or sanding operations and not their time- weighted average exposure for a full work- day. 1-47 RECOMMENDATIONS The results of sampling reported herein should be analyzed in conjunction with a study of the work practices and routine of persons engaged in mixing, sanding or oth- erwise being exposed to joint compounds similar to those used in this study. In this way a true evaluation of the time-weighted average exposure of such workers to asbestos can be made. If it is true that, as reported by workers used during this test, it would be unlikely for an individual to mix or sand on the joint compounds for greater than two hours per workday, then the time- weighted average exposure of such workers to asbestos likely would be within accept- able limits. Of course, the problem of con- trolling any exposures to below ten fibers per cubic centimeter would still have to be contended with. From the standpoint of being able to elimi- nate or minimize the problem of excessive concentrations of asbestos being generated by handling and use of the joint compounds, consideration should be given to the follow- ing aspects. a. The most effective means of eliminating the asbestos problem obviously would be to eliminate asbestos from the joint compound formulations if this is feas- ible. although the specific role that asbestos plays in the joint compound formulations is not clear it is understood that manufacturers of joint compounds consider it necessary that asbestos be in the formulations. ¢ * BF pap) iin eek eke: Mom I-48 From an engineering standpoint, it may be necessary to implement the following measures in conjunction with mixing and sanding of the joint compounds con- taining asbestos. li. Mixing of the joint compounds could be done in such a way that the material is more effectively wet- ted as it is removed from the con- tainers or could be done within an enclosure, with or without mechani- cal ventilation, so as to minimize the amount of asbestos fibers released into the breathing zone of the workers. Although the results of the air sam- pling reported herein indicate con- centrations of asbestos fibers in excess of acceptable limits, either those currently enforced or those proposed to be made effective in July, 1976, it was obvious during the study that the sanding process in general has associated with it expo- sure of the worker to tremendously high concentrations of total dust. Therefore, if means were imple- mented to maintain the exposure of the workers to total particulate to within acceptable limits there would be an inherent control of the asbestos problem as well. Although more extensive in nature, engineer- ing control of the total dust gener- ated by the sanding operations is feasible. Such control techniques 1-49 would include, but not be limited to, the use of a wet sanding tech- nique and/or use of a portable local exhaust ventilation system incor- porating, as the air moving device, a unit similar to common industrial vacuum cleaners and bag collectors. 3. The next phase of the testing program to control workers’ exposures to asbestos dur- ing use of the joint cement compounds log- ically would be evaluations of the various potential engineering control concepts indi- cated or inferred above. This report prepared by: /s/ Robert D. Soule Robert D. Soule, P.E. ‘Vice-President, Industrial Hygiene Services I-50 TABLE f GEORGE D. CLAYTON & ASSOCIATES INDUSTRIAL BYCIENE SAMPLING SUMMARY Client Gypsum Association Material Asbestos Sampling Sample Sauple Concentration 1973 JOINT COMPOUND 2D Period Weight Volume/| ribers Dete — Description vi Start | Stop Litere |>5us/ce 11/19 | 2D-™ Mixing of esnaitinant®) 09:28)09:34 13 31.4 11/19 | 2pD-Ss-1 Sanding on compound (©) 11:57}12:27 60 35 .2*%% 11/19 | 2D-S-2 Sanding on eonpeuna ‘*? 11:57})12:07 ae. bad 11/19 |2D-S-3 Sanding on utmened*”? 12:07 12:17 - * 11/19 |2D-S-4 Sanding on compound (¢) 12:17)12:27 - * 11/19 |2p-s-5 | Sanding on compound ‘°) 12:27|12:57 60 43.6% AL/19 1|2D-S-6 Sanding on compound (©) 12:27)12:37 - m it 2D-S-7 Sanding on compound ‘°) 12:37 412:47 - bd 11/19 |2D-S-8 Sanding on compound (©) 12:47112:57 - | ty (b) > (c) 3 7} g p 6 NN + . Townhouse Unit U-81. Townhouse Unit U-77. redeposited for analysis too heavily loaded for direct analysis material on filter was taken into suspension and an aliquot All samples were obtained in the breathing sone of the workers. Mixing of Compound 2D was done by Mr. Harold McDowell in King's Mill Sanding of Compound 2D was done by Mr. James Pasquariello in King's Mill Psychrometric conditions in U-77 at 11:45 were 56°F dry bulb, 41°F wet bulb (222% relative humidity) I-51 TABLE I! GEORGE D. CLAYTON & ASSOCIATES INDUSTRIAL BYCIENE SAMPLING SUMMARY Client Gypsum Association Materiel Asbestos Sanwpling Sample Seuple Concentration 1973 JOINT COMPOUND 2R Period Weight Volume! ribers Saaple (a) Dete No. Description Start | Stop Litere |>Sua/ce 11/19 | 2R-s-1 | Sanding compound (>) 15:48|16:18 60 12.3*4 11/19 | 2R-S-2 Sanding compound (>) 15:48)15:58 20 4.5 11/19 | 2R-S-3 Sanding compound (>) 15:58)16:08 _ 20- 4.2 11/19 |2R-S-4 | Sanding compound ‘”? 16:08)16:18 20 4.1 11/19 | 2R-S-5 Sarding compound (>) 16:186/16:48 60 9.984 11/19 | 2R-S-6 Sanding compound (>) 16:18116:28 20 * 11/19 |2R-S-7 | Sanding compound ‘>) 16:28)16:38 20 3.8 11/19 |2R-S-8 | Sanding compound (>) 16:38116:48 20 > (a) All seeamples were obtained in the breathing sone of the workers. ) \(b) Sanding of Compound 2R was done by Mr. David Potter in King’s Mill , iS Townhouse Unit U-79. Psychrometric conditions ‘in U-79 at 15:45 *. were 39°F dry bulb, 35°F wet bulb (662% relative humidity). : G 2F sz 4} J * too heavily loaded for direct analysis , ** material on filter was taken into suspension and an aliquot v redeposited for analysis A 5 F 3 uN og 1-52 TABLE I1t , GEORGE D. CLAYTON & ASSOCIATES INDUSTRIAL HYGIENE SAMPLING SUMMARY \lent Gypeum Association | Meterial Asbestos 1973 JOINT COMPOUND 4D ‘torte’ liatgee [Melee CT ate — Description gene Start | Stop Liters |>Sye/ece 1/19 | 4D-m Mixing compound (>) __ | 09:09 09:17 14.4 7.6 ‘1/19 | 4p-S-1 Sanding compound (©) 10:20] 10:50 60.0 | 15.5** 1/19 | 6D-S-2 | Sanding compound ‘°) 10:20] 10:29 18.0 5.2 ; 1/19 | 4D-S-3 Sanding compound (¢) | 10:29] 10:40 22.0 * 1/19 | 4n-S-4 Sanding eonpound () 10:40] 10:50 . 20.0 3.7 1/19 | 4D-S-5 Sanding compound (¢) 10:50] 11:90 20.0 4.1 1/19 | 4D-S-6 Sanding compound (¢) 10:50) 11:20 (60.0 14.1%* 1/19 | 4D-S-7 Sanding compound ‘°) 11:00] 11:10 20.0 * cae 1/19 | 4n-S-8 Sanding compound (¢) ‘11:10)11:20 20.0 4.7 (a) All samples were obtained in the breathing sone of the workers. (b) Mixing of Compound 4D was done by Mr. Harold McDowell in King's Mill Townhouse Unit U-89. : : ; (c) Sanding of Compound 4D Was done by Mr. James Pasquariello in King's Mill Townhouse Unit U-76. Psychrometric conditions (dry and wet bulb tempera- tures) were not recorded. ; : Ls ; ] 9 RP * too heavily loaded for direct analysis z ** material on filter was taken into suspension and an aliquot redeposited for analysis ° S\ ; ww BEST AVAILABLE COPY TABLE IV ‘ GEORGE D. CLAYTON & ASSOCIATES INDUSTRIAL BHYCIENE SAMPLING SUMMARY 1-53 Client Gypsum Association Material Asbestos an JOINT COMPOUND 4R entre ORE oe ee Dete — Description ia Start | Stop Liters |>Sus/ce 11/19 | 4R-S-1 Sending compound (>) 14:31] 15:01 60.0 _ii.3** 11/19 | GR-S-2 Sanding compound (>) 14:31] 14:41 20.0 6.3 11/19 | Gr-s-3 | Sending comvound ‘>? 14:41] 14:51 20.0 7.5 11/19 | 4R-S-4 | Sanding compound (>) 14:51] 15:01 20.0 19.9 | Wists 4GR-S-5 Sanding compound (>) 15:91, 15:31 60.0 8.1% 11/19 | 4R-S-6 | Sanding compound ?) 15:01)15:11 20.0 5.3 11/19 | GR-S-7 Sanding compound (>) 15:11] VOID - - 11/19 |arn-s-8 | Sending compound (>) 15:18)15:31 26.0 15.0 (a) All samples were obtained in the breathing sone of the workers. (b) Sanding of Compound 4R- was done by Mr. David Potter in King's Mill Townhouse Unit U-78. 44°F dry bulb, 36°F wet bulb (682% relative humidity). ** material on filter was taken into suspension and an aliquot redeposited for analysis Psychrometric conditions’in U-78 at 14:45 were 1-54 SPECIAL MEETING MANUFACTURING & MINING COMMITTEE SHERATON BUFFALO-EAST BUFFALO, NEW YORK August 10, 1976 The meeting was called to order at 9:00 a.m. by Mr. W. B. Hoffman, Vice Chairman of the Manufacturing & Mining Committee. Those in attendance were: E. R. Kiehl The Celotex Corporation E. J. Cole Georgia-Pacific Corporation C. O. Campbell National Gypsum Company A. H. Fay National Gypsum Company D. G. Hamme National Gypsum Company W. B. Hoffman National Gypsum Company R. G. Moore National Gypsum Company F. H. Zimmerman National Gypsum Company J. D. Cornell United States Gypsum — Company W. Lewis United States Gypsum Company K. E. Mohler United States Gypsum Company A. V. Abnee, Jr. Gypsum Association F. J. Rogers Gypsum Association B. H. Jackson Legal Counsel Vice Chairman Hoffman opened the meeting with self introductions, noting that the special meeting of the I-55 committee has been called relative to the proposed MESA mineral fiber standard, and that the purpose of the meet- ing would be to determine possible action of the Associa- tion with respect to the proposed standard. 1. REVIEW OF PROPOSED MESA MINERAL FIBER STANDARD Mr. Frank H. Zimmerman of the National Gypsum Company, member of the MESA Federal Metal and Non- metal Mine Safety Advisory Committee, reviewed the proposed MESA mineral fiber standard which had been introduced by MESA at the most recent Advisory Com- mittee meeting. He noted that the proposed minera! fiber standard presented to the Advisory Committee by MESA also included consideration of air quality and ventilation, for arsenic, berryllium and lead, and would affect well over 2000 industrial operations in addition to the gypsum industry. He stated that the proposed mineral fiber stan- dard was nothing more than the current asbestos stan- dard with the word “asbestos” removed, and questioned the need for such a standard in view of the fact that there are no documented health problems, that he was aware of, in any of the industries that would be covered by the proposed standard. Mr. Zimmerman noted that a special task force of the Advisory Committee consisting of two labor, two management and one state government repre- sentative, to which he had been assigned, would be meet- ing sometime in the future for the purposes of studying the proposed standard. Mr. Zimmerman said that he had been notified that the sub-committee would not be meet- ing prior to the next scheduled Advisory Committee I-56 meeting August 24 through 26, 1976. He noted that it was not known at this time when such meeting is held, whether it would be open to the public. Mr. Zimmerman concluded his review by noting the importance for indus- try to study the effect of the proposed standard on their operations and to prepare data that could be used with MESA, if it became necessary in the future, to assure defeat in the promulgation of the proposea standard. There followed discussions relative to the intent and wording of the proposed MESA mineral fiber standard, and it was the consensus that on the basis of our current industry operational knowledge within the minerological and employee health areas, that application of the pro- posed mineral fiber standard in the gypsum industry is unwarranted. 2. REVIEW OF MEMBER COMPANY MINERAL FIBER TESTING EXPERIENCE Industry representatives commented briefly on their company’s programs to test air quality relative to mineral concentrations within their gypsum mining, quarrying, crushing and grinding operations. In general, such mem- ber company programs were few and limited in scope, and it was the consensus that there was no current indus- try data available relative to gypsum mineral fibers. It was noted of the various varieties of gypsum deposits that only the Satin Spar variety was found in a fibrous silky form, and that this variety of gypsum was not common in North American gypsum deposits. Mr. A. H. Fay, of National Gypsum Company, reported on an asbestos fiber study conducted by the I-57 Asbestos Information Association of North America. He noted that the Weston Environmental Consultants of Westchester, Pennsylvania had conducted the AIA study and he referred to their report entitled: “Technological Feasibility and Economic Impact of OSHA Proposed Revision to the Asbestos Standard,” and also “Excerpts from Asbestos Industry Response to OSHA on Proposed Revision to Asbestos Standard 29, CFR part 1910,” during his comments. He stated that he was not attempting to correlate our current mineral fiber concerns with that of asbestos, but that the general format and policies fol- lowed by the AIA in initiating such studies could be quite beneficial and possibly serve as guidelines for our indus- try if it was decided that we pursue a similar study course through the Gypsum Association. He noted that the AIA study program covered two major areas; one, relative to actual dust counts taken in industrial opera- tions, and the second, to analyze the medical justification given by Labor for the proposed standard. Mr. Fay noted that the total AIA project had been financed by Associa- tion dues along with contributions from asbestos opera- tors outside of the AIA membership. 3. POSSIBLE ASSOCIATION ACTIVITY Mr. Zimmerman suggested that the Association con- sider developing a position paper based on current oper- ational knowledge showing industry action to protect workers, and that to the best of our information, there is no carcingenetic [sic] relationship with gypsum. Mr. Fay noted that MESA’s definition of a mineral fiber is all important and that our industry should establish a posi- tion that any blanket mineral fiber standard is totally out 1-58 of order. Mr. Abnee noted that Gypsum Association has some historical data on gypsum which has been used by the membership. Mr. Zimmerman commented that the old data of significant value in the past would be of little value at this time in view of the new scientific testing procedures currently in existence to study fibrous mate- rials. Mr. Zimmerman noted that we should develop a current data bank upon which to base future defensive industry testimony if we are to effectively address our- selves to the proposed MESA mineral fiber standard. It was once again reiterated that our current industry knowledge, both mineralogical and medical, is insuffi- cient to support the consensus that there are no fibrous problems with our mineral, especially as relates to the 10 or 15 per cent impurity content of gypsum deposits. It was the consensus that an industry study program was essential at this time and that it should address itself to collecting industry dust count data that would give both fibrous and silica analysis data. It was the consensus that such a study program should cover both total dust and total fiber analysis to determine: 1) if we have a fiber problem from gypsum or impurities associated with gyp- sum ore deposits, and 2) on the basis of the collected data, to determine if any of the resulting data can be associated with Industrial respiratory health problems. In addition, it was the consensus that each member com- pany review their company’s historical experience rela- tive to worker-related illness to determine what, if any, historical medical problems might have to be considered. The individual member company historical medical expe- rience, it was suggested, could be collected by the Asso- ciation through the development of a questionnaire form. 1-59 The committee briefly discussed several testing labora- tory possibilities, among which were noted the Clayton and Nalsco operations, in addition to a private consulting firra operated by Mr. Jeremiah Lynch. 4. SUMMARY AND COMMITTEE RECOMMENDA- TIONS Vice Chairman Hoffman summarized the various dis- cussions which called for a recommended industry pro- gram to be coordinated through the Gypsum Association in two phases: first, the employment of an environmental consulting firm to conduct an all mineral analysis for fiber and silica in the mining, quarrying, crushing and grinding operations for our industry throughout the United States. The Association would solicit through a questionnaire form, and compile historical member com- pany medical data that could be related to either fiber or silica exposures as the second phase. On motion made, seconded and unanimously car- ried, the Manufacturing and Mining Committee recom- mends to the Board of Directors that the Gypsum Association interview and hire an environmental consul- tant firm to conduct an all mineral analysis study cover- ing both fibers and silica, and to collect historical medical data in this same area from the industry through an Association questionnaire form. The following industry personnel were assigned to the Manufacturing & Mining Committee task force to assist the Association in accom- plishing the recommended actions of the committee: I-60 E. R. Kiehi The Celotex Corporation H. E. Beard The Flintkote Company E. J. Cole Georgia-Pacific Corporation A. J. Trommershausen Kaiser Gypsum & Cement Corporation J. Volk National Gypsum Company J. D. Cornell United States Gypsum Company Mr. J. D. Cornell was appointed Chairman of this special committee study group which is to work with the Association staff in the development of the necessary industry questionnaire and interview, hire and work with the selected consultant firm until such time that this Project is completed. Mr. Cornell noted that he would work closely with the Association staff and call a meeting of this special study group in the near future to interview and select a consultant laboratory. Mr. Hoffman thanked everyone in attendance for their input and direction. Mr. Rogers briefly outlined a Projects schedule whereby the study committee, consul- tant and budgetary recommendations would be pre- sented at the next Manufacturing & Mining Committee meeting on October 5, 1976, and then subsequently to the Board for their approval at the semiannual meeting, Octo- ber 6 and 7. Mr. Rogers noted that this projects schedule would be followed unless expedited handling of this study was necessitated by accelerated MESA action other than that anticipated at this time. I-61 There being no further discussions, the meeting was adjourned at 12:15 p.m. Respectfully submitted, /s/ FJ. Rogers/ne F.J. Rogers Secretary FJR:nc --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1004%3A2. Public record. Not legal advice.