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February 15, 1990


The opinion of the court was delivered by: Whitman Knapp, District Judge.

We have before us several in limine motions asking that we rule on the admissibility of certain documents that the plaintiff has unearthed either from the two moving defendants' files or in other circumstances which might reasonably lead one to believe that at some point they came to a particular defendant's attention. These documents are all offered to show that such defendant failed to heed warnings purported to be conveyed by the document or documents at issue; and that punitive and other damages should therefore be assessed against it. We are not the first court to rule on their admissibility, and, if the number of asbestos actions now pending against these particular defendants is any indication, we will not be the last.

Specifically, defendant Eagle-Picher has moved for the exclusion of the Spencer Memorandum (and the related testimony of Robert Bockstahler), the Bureau of Mines documents, the Harrington Letter, and the Aber Report. Defendant Owens-Corning Fiberglas has moved to exclude the Saranac Lake Study documents. For reasons that follow, we admit the Spencer Memorandum, the Harrington Letter and the Aber Report, and exclude the Bureau of Mines and Saranac Lake Study documents.

The Spencer Memorandum and the Related Bockstahler Testimony.

Although the facts surrounding the Spencer memorandum and the related Bockstahler testimony are relatively complex, those necessary for deciding this motion are essentially simple. The memorandum in question — which appears on its face to be privileged and which for present purposes we presume not to have been knowingly and voluntarily disclosed to any third party — purports to be a lawyer's summary of responses of one Dr. Kenneth Smith on February 19, 1964 to various inquiries concerning the hazards of defendant Eagle Picher's insulation plant. The document makes clear that Dr. Smith, on the defendant's behalf, had conducted a thorough examination of the plant and had reached the definite conclusion that the defendant's "cement operation, or any operation involving . . . asbestos would constitute an occupational hazard."

In 1982, the document and its contents became known to one Robert Bockstahler. According to his deposition testimony in another asbestos case (the "related Bockstahler testimony"), he was instructed by various lawyers acting on defendant's behalf that the document was covered by the attorney-client privilege and that he should never reveal its existence (let alone his knowledge of its content) to anyone. Despite these limiting instructions, he was on numerous subsequent occasions designated by the defendant as the appropriate person to testify on its behalf in asbestos litigations. On each such occasion, he testified (contrary to his obvious knowledge) that the company was not aware of the dangers precisely described by Dr. Smith.

The question of whether or not this document was privileged and should therefore be deemed inadmissible has been litigated in numerous asbestos lawsuits. The most careful consideration of this question that has come to our attention appears in a report by Carolyn M. Johnson, Master in Chancery, in Heathman v. Owens-Corning Fiberglas Corp. No. 87-1934 (Dist. Ct. Brazoria Cty. Tx. 1989). In that report, she observes:

    A comparison of the testimony of Bockstahler
  with the document shows that the composite
  knowledge of the Defendant Company is not
  reflected in Bockstahler's testimony although he
  is the agent designated by the Company as its
  representative spokesman. This suggests a number
  of disturbing possibilities:
    (1) The company is unknowingly producing a
  witness who is "sterilized" on the key issues of
  notice and the company's tests relative to hazards
  — issues which are basic to a fair determination
  of the instant lawsuit.
    (2) The company is knowingly producing such a
    (3) The witness, and vicariously the company,
  is offering perjured testimony on behalf of the
    (4) Attorneys are shielding the document while
  permitting the Company's designated witness to give
  inaccurate and false testimony.

She then concludes:

  a failure to produce the document while allowing
  a witness to continue to give inaccurate
  testimony which can be easily corrected and
  explained by the document effectively distorts
  the search for truth and constitutes a fraud upon
  the parties, the witness, and the Court.

Id. at 17-19 (emphasis in original). We cannot but agree with the Master in Chancery and conclude that any privilege had been waived long before the onset of this litigation, and that the document and ...

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