# Petition for Writ of Certiorari — Garlock Inc. v. Pool > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1283%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 508 U.S. 909 ## Text IN THE Supreme Court of the United States OCTOBER TERM, 1992 GARLOCK INC, Petitioner, Vv. REUBEN S. Poon, et al., Re spondents. Petition for Writ of Certiorari to the Court of Appeals for the Sixth Supreme Judicial District, Texarkana, Texas PETITION FOR WRIT OF CERTIORARI A.B. CONANT, JR. (Counsel of Reeord) RAYMOND P. HARRIS, Jt. CONANT WHITTENBURG WHITTENBURG & SCHACHTER (A Professional Corporation) 2300 Plaza of the Americas 600 North Pearl, LB 133 Dallas, Texas 75201 Telephone No. (214) 999-5700 Telecopier No. (214) 999-5747 Attorneys for Petitioner QUESTION PRESENTED Whether the award of damages against Garlock Ine made in the absence of any evidence that its products caused the plaintiffs’ injuries violated Garlock’s due pro- cess rights under the Fourteenth Amendment of the Constitution? il PARTIES AND RULE 29.1 STATEMENT Defendants Fibreboard Corporation The Celotex Corporation The Flintkote Company H.K. Porter Company, Inc. Garlock Ine Plaintiffs in Civil Action No. 86-363 Reuben 8S. Pool Lee Pool Charles Strong Naney Strong Thomas Sledge Betty Sledge Bobbie Freeman Donna Freeman Ollie Freeman Plaintiffs in Civil Action No. 88-08-293 Lessie L. Williams Ralph E. Williams Robert E. Williams Carrol A. Purdy Murry W. Williams Cindy L. Powdrill Bobbie S. Phillips Emory G.L. Williams Patsy R. Fountain Coltee Industries Ine is the parent corporation of Garlock Ine. The following is a list of all subsidiaries of Garlock Ine that are not wholly owned: Garlock Bearings Ine Garlock de Mexico S.A. de C.V. Garlock Pty. Limited Louis Mulas Sues, S.A. de C.V. il TABLE OF CONTENTS Page QUESTION PRESENTED...........----++-+++5+> i PARTISS AND RULE 29.1 STATEMENT ......... ii TABLE OF AUTHORITIES ..........--+--++-+05> iv OPINIONS BELOW ......... 2 ccc cc cccccecccees ] UUMUEMET IED. og caves scree rcccnssscesesencccoes 2 CONSTITUTIONAL PROVISION ..........-++555- 2 STATEMENT OF THE CASE ..........--+--+5+5: 2 REASONS FOR GRANTING THE WRIT.......--. 5 A. The Due Process Clause Protections Extend to apc acasdecancesessvereceses 6 B. The Burden Plaintiffs Were to Bear .......... 8 C. Garlock’s Products Are Safe..........--+-+-: 1] Garlock Had No Reason to Believe That Its Products Could Cause Injury .........-+-++++: 16 CONCLUSION 2... oc ccc cc cece cece ence ner cnnnccs 19 iv TABLE OF AUTHORITIES CASES Page Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869 3 Se ee 10, 13 . Brantff Airways, Inc. v. Nebraska State Board of Equalization & Assessment, ae Wk ee CE 6 hie beds coc benesdecen naan 3, 4 Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989) ....... 8 Fibreboard Corp. v. Pool, 813 S.W.2d 658 (Tex. App. — Texarkana 1991, writ denied) .......... 1 Gideon v. Johns-Manville Sales Corp., 761 F.2d REDS COCR GI. BD occ cc vncccavan 9, 10, 12, 17, 18 Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841 (5th Cir. 1967), cert. denied, 391 U.S. 913 | ee ny Srey ee en ee 8 Kennedy v. Mendoza-Martinez, ee EE bc Avuws scab een ctannned cee 7 Kirch v. Atlantic Coast Line R.R., 38 F.2d 963 (5th Ck SE habe eek ba Matun cow eu eae e641 7 Lorenz v. Celotex Corp., 896 F.2d 148 (5th Cir. A Peer ee eee Pere yy ery Seer ne 9 Morris v. Adolph Coors Co., 735 S.W.2d 578 (Tex. App. — Fort Worth 1987, writ refd n.r.e.) ..... 8, 19 Pacific Mut. Iife Ins. Co. v. Haslip, 499 U.S. —, BES Ws Gi REED 6.04 40600 an se HeSakcuens 8 Snyder v. Massachusetts, 291 U.S. 97 (1934) ...... 7 Tot v. United States, 319 U.S. 463 (1943) ......... 7 United States v. Romano, 382 U.S. 136 (1965) ..... 7 Western & Atlantic R.R. v.-Henderson, 279 U.S. 639 CR + * WILLIAM CLARK COOPER, M.D. was called as a witness by the Defendants, and having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. GLASPY: [1782] Q: Doctor, would you please state your name. A: William Clark Cooper. [1798-1799 ] Q. ... Doctor, have you had a chance to review a study that was done by the Navy on gaskets? A. Yes, I have. I’ve seen that study a number of times, and I have had a chance to review it recently. Q. There was a study done at the Puget Sound Naval Ship Yard in Washington? A. Yes. Q. In 1978? A. That’s correct. Q. And do you recall after their tests on gaskets what they concluded? A. They said that the average exposures was something of the order of, when it was in the general work environ- ment, of about, I think, .02 fibers per ec, and they did not regard it as a significant hazard. Q. Was that finding .02 fibers per ee below any thresh- old limit values of standards set by the government? A. Yes. Even if you did it all day, day in and day out llla for a lifetime. Q. And did you review a study that was done by Carl Mangold in October of 1982? A. Yes. Q. And that study duplicated the Navy’s study? A. Yes. Q. But this time they used solely Garlock gaskets? A. That’s right. [1800 } Q. And do you recall what finding Mr. Mangold made as a result of that study? A. Again, he was — I’m not sure whether this was a study where he excluded any other background exposures or not, but when he dealt in a mixed environment he got 02. When he isolated the material and worked in a clear room where there was no background exposures, his levels of exposure ran of the order of .005 fibers per ee. [1801] Q. And is .005 fibers per ee below all standards? A. It’s almost too low to measure. It’s lower than much of the — you’re not surprised at all to go anywhere in the country on a street or along a highway or anywhere and find that number. Q. .005? A. .005. It’s just down at the general level of, as we call it, “ambient air,” and we’ve done — I’ve done many stud- ies of ambient air exposure. Q. We'll get to those in just a bit, Doctor. Did Mr. Mangold also test the Garlock packing products? A. Yes, he did. I’d have to be refreshed on — except all the numbers were just about the same, so you don’t — I mean, the exposures, the fiber levels were about the same. Q. .005? A. Yes, that’s right. Actually the average was less than .005 because some were zero. Q. Now Doctor, did his tests also include studies done 112a on gaskets that were some 40 years old? A. Yes. That was one of the more interesting parts of his study. He obtained gaskets that had been on ships that had been mothballed by the Navy which [1802] — eont’d had been in place, been put in 40 years or more earlier, and measured their exposures that occurred during tak- ing those out. Q. So were they again .005, the results? A. As I say, I’m not positive of the number. It was in that order of magnitude. We’re getting down here when you say .004 or .005 or even .0 that we’re essentially talking about numbers at the borderline of measurement. [1808 ] That means that you — time-weighted average means if you work all day constantly, an eight hour day, day in and day out, while a ceiling means this is something that cannot be exceeded even for fifteen minutes; and anyway, NIOSH recommended two. When OSHA deliberated on their new standard, they came up with the reecommenda- tion in June of 1972 — not a recommendation, a regula- tion in 1972 that the standard would be five fibers per ce with a ceiling of ten fibers per ec, but with the proviso that it would drop to two fibers per cc as of 1976. Q. And that continued on into 1986, right, Doctor? A. In ’76 it dropped. Q. Well, I mean, the two fibers per ee continued on from 1976 to 1986. A. That’s correct. Now there were recommendations in between. They made a recommendation to drop it to .5. They made that about 1975 or so, but that was never adopted. But ultimately then they made a recommenda- tion, they dropped it .2, and this went into effect last year _ or the year before, so the current standard is .2. [1810] Q. Could you relate to us some of the fiber counts you 1l3a obtained? A. Qh, the ones just taken, say, on public buildings and so forth in the San Francisco area ran from .00 — from zero, some of them, up to about .006. I would say about 25 percent of them were above .002 fibers per cc. These were Just — we found — we went over to the —- we took some near the dump in Emeryville. We found two samples there that were up to .6, and this was when there was blowing winds blowing from a place where people had dumped old asbestos in 1969. We also took samples in 1970 in some of the streets downtown San Francisco and number there ran from .005 to .07 on some of the downtown San Francisco streets. In other words — and we have been able to compare these with numbers that Dr. Carl Man- gold has obtained in some of the same areas, and his numbers are of the same order that we get. It is not unusual to find levels of even past .05 in some areas of cities. Most of them will be .0001 or .002, but you'll find occasionally it’s higher. [1814] Q. Doctor, I wasn’t specifically limiting it to your study of California. I was talking more in general. Were the levels found by Mr. Mangold from someone working with — [1815] — eont’d Garlock gaskets day in and day out about the same as you find in natural air? A. Yes. No question about it. Q. Doctor, based upon your 50 years in occupational medicine and your review of the Mangold studies and other literature, do you have an opinion as to whether or not Garlock gaskets or packing products ean cause asbes- tos disease? A. I will make an editorial correction. I’ve been in occupational health only 37 years, not 50; but my answer to this, I do not see any risk involved here that’s of any SE ll4a consequence whatsoever. I mean, it is down at the level where it could not be measured if you studied 100,000 people. Q. Doctor, again, based upon your 37 years in occupa- tional medicine and your 50 years as a licensed doctor and your review of the Carl Mangold’s studies and other literature, do you have an opinion as to whether or not Garlock gaskets or packing caused the asbestos disease of Mr. Pool, Mr. Sledge, Mr. Strong, or the late Mr. Freemen? A. As far as Garlock gaskets, I don’t think it makes any difference who is involved. I don’t think these levels of exposure would cause asbestosis. [1816] Q. Or the related disease of lung cancer? A. I do not think they could make a significant or detectible contribution to the incidence of lung cancer either. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1283%3A1. Public record. Not legal advice.