No changes were made in asbestos products or The industry recognized that the government would be a good source of stable profit and strove to convince the government to Members of the industry participated in the use its products. development of and, in many cases, actually wrote the specifications the government used to purchase asbestos or asbestos-containing products. In a deposition taken on November 5, 1980 of Mr. John Haas, Chairman of the Ships Specifications Control Board of the United States Navy, Mr. Haas stated that the specifications were written to conform to commercially available products." The government exercised no control over these 51 specifications because it did not have the experience or expertise to do so and it had a totally cooperative industry ready, willing and able to do the job for it. that The government was primarily interested in performance is the ability of the product to efficiently perform under certain conditions. The industry provided products to do just that and the government accepted the industry's description of these products and called them specifications.52 Further support can be found for 11. 50. A copy of H.K. Porter's Answers is provided as Exhibit 51. A copy of the relevant section of Mr. Haas' deposition is provided as Exhibit 2. 52. See the Declaration of Joseph H. Chilcote, dated July 9, 1981 and provided as Exhibit 3. this contention in the deposition of John Hawkins, of manufacturer Raybestos-Manhattan, dated March 11, 1985 at pages 69-70 and the minutes of the Asbestos Textile Institute Committee dated September 11, 1947. 53 ("ATI") Technical In sworn depositions Mr. Marion Oliver, Mr. John Hawkins and Mr. Milton Scowcroft of Raymark testified, in essence, that the asbestos industry: 1. 2. 3. 4. 5. developed the products for commercial use; sold them to commercial consumers before their sale to the government; offered the products to the government as the answer to the government's need for insulation and other heat resistant materials; S aided the government in writing purchase orders, styled as specifications, for products already available a commercial goods; and the only decision the government really made vis a vis these products was to buy them.54 In effect then the government virtually bought the asbestos products "off the shelf" or "out of stock". The specifications were the government's way of quoting a "stock number", if you will, for the purchase of a commercially available good which the industry convinced the government would fulfill the government's needs. 53. Pages 1 & 2 are provided as Exhibits 4 and 5, respectively. See also a letter from J.A. Bettes of RaybestosManhattan, Inc. to the Office of the Quarter-Master General dated June 26, 1957, provided as Exhibit 6. 54. Copies of the relevant portions of the depositions of Mr. Hawkins, Mr. Oliver and Mr. Scowcroft are provided as Exhibits 4, 7 and 8 respectively. In light of the history of the drafting and revision of governmental specifications, it is no wonder that the former president of Eagle-Picher, Herman Huelster, stated in testimony in Hawaii that governmental specifications were "creatures of the "We industry". Indeed, when the government in the late 1960's sought to remove asbestos from the products which it purchased, the industry tried to discourage an asbestos substitution program. In a letter dated May 28, 1969, Mr. M.Q. Scowcroft of RaybestosManhattan stated to Mr. E. A. Schuman of Johns-Manville that: feel it expedient to submit a letter prior to June 15th in order to contribute to discouraging a development program on substitutes for asbestos in shipboard insulation."55 Nor is not surprising that in Plas v. Raymark Industries, Inc., No. C 78-9 (N.D. Ohio, April 22, 1983) (unreported opinion), the Honorable John M. Manos ruled: "The evidence that I heard is that Raybestos-Manhattan invented the material which they sold to the Government, they worked with the Government on specifications, and the material they sold to the Government was the same material they sold to the private sector motion [to strike the defense of governmental specifications is] granted".56 When the government purchased asbestos cloth or other asbestos related products, it was acting as a mere consumer, albeit a very large consumer. It exercised no more control over the content of 55. Mr. Scowcroft's letter is provided as Exhibit 9. 56. Court's Ruling on Government Specifications, Transcript of Proceedings, dated April 22, 1983, provided as Exhibit 10. those products than does the average grocery shopper over the contents of a can of beans. Conclusion The history of the asbestos industry's reaction to knowledge concerning the dangers of asbestos exposure is a sordid one. It is one of the suppression of critical knowledge about the hazards of asbestos and the consequent epidemic of m asbestos-related disease resulting from the industry's conspiracy of silence. That conspiracy is a continuing one is clear from the continuing efforts of asbestos manufacturers to lobby hard for less stringent regulations and their continued export of asbestos and asbestoscontaining products to the world. 00219-1.LIA Senator HEFLIN. I understand that your focus today has been on asbestos victims. In your opinion, does the scope of this bill go beyond the scope of individuals who may have been injured by asbestos? How far do you see this bill potentially reaching? Ms. NIAL. I think that is one of the major problems with this bill. I think it has an enormous and broad reach, not only in the fact that it has retrospective impact, but also that it is not, it seems to me, a studied change in the Federal Tort Claims Act. There may be some academic arguments to narrow the discretionary function exception, but I do not think they have been treated correctly in this bill. Mr. REED. Let me just add to that, Mr. Chairman, that I think before we start talking about liability, we ought to get some basic legislation in place to ensure safety in the Federal workplace. I don't think any of us know how far reaching this can be, and that is part of the problem. The bill, as presently drafted, will probably take the courts years to interpret and apply in particular cases, and those years will mean that much more delay not only for asbestos victims, but for litigants of other types. I think, as a nonlawyer looking at this, the language seems to me to be very loose and calculated almost to absorb a great deal of judicial time in deciding exactly what it means. Senator HEFLIN. Ms. Nial, would the cases that have been held on failure to warn and failure to take certain action under the discretionary defense-would this bill have the effect of opening up those areas in which sovereign immunity could not be used as a defense? Ms. NIAL. I think we already have areas in which courts have determined that if you do not have a discretionary action by the Government that they are not protected. So I don't think from that point of view we are going to have a problem with that. The definite problem with this bill is that it would open up litigation that is already set in motion. It would add the Government as a defendant. It would bring in complex issues of what they call sharing and what we would view as apportionment, which is not the typical way liability is managed in the courtroom. We have joint and several liability. Professor Popper brought that up. That is one of the complex areas that this bill has not dealt with. The retrospective impact is another issue that I think is a problem. Senator HEFLIN. Thank you. The record will be kept open for other statements and questions if any members of the committee want to submit questions to any of the witnesses that have testified today. We have statements from Senator Bond, Representative Bill Gradison, and Joe G. Hollingsworth from Spriggs & Hollingsworth which we will enter into the record at this point. [The statements of Senator Bond, Mr. Gradison, and Mr. Hollingsworth follow:] |