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
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.
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 ...