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Owens-Corning Fiberglas Corp. v. Garrett8/28/1996
onditions of the autoclave? Would there be chemical alteration in the presence of lime?" The writer also questioned again the applicability of the Selikoff study done three years earlier to Kaylo and other calcium silicate insulations, and concluded:
"Thus Kaylo insulation is indicted only by inference and association, and not by direct evidence. The only common denominator is that asbestos is a component of thermal insulation in general. The possibility that the carcinogenic property or contaminant of asbestos may be eliminated during calcium silicate processing should not be ignored or dismissed from consideration."
OCF's second line of attack is based on the widely prevailing view during the relevant time period of 1968 to 1972 that asbestos dust was not hazardous to a worker's health until it reached a certain concentration, called a "threshold limit value," in the work environment air. The "threshold limit value" was a term used to describe the average concentration of dust particles (of all kinds, not merely asbestos) per cubic foot of air to which an individual in a work environment where asbestos dust was created could, at least in the consideration of the health experts of the day, be "safely" exposed. OCF argues that at the time of Mr. Scruggs' exposure, company officials believed that even if asbestos' dangerous properties were not diminished or eliminated in the Kaylo manufacturing process, the small amount of asbestos in Kaylo would not create a concentration of dust particles exceeding the threshold limit value for asbestos.
The same writer commenting on the Selikoff studies noted rather tentatively in another memorandum in 1964 that the dust content in areas where workers used Kaylo could "be expected normally to be below the threshold limit value," because "good housekeeping and efficient working conditions dictate the use of dust collectors over saws and sanding machines in any case . . . ."
OCF also cites to studies it had done in the early 1960's on the dangers of fabricating Kaylo and other thermal insulations, in which the industrial hygienist who conducted the studies, Robert Peele, found that "the fabrication of Kaylo insulation with band saws does not constitute a hazard to health." In a follow-up study several months later, Mr. Peele and his investigators performed three separate intervals of dust sampling, analysis, and evaluation in the Construction Insulation Shop at a Union Carbide plant to resolve "unanswered health problems." Mr. Peele did not include Kaylo in the third of the three intervals of sampling because the first investigation, without any supplementary ventilation, disclosed only one exposure exceeding the threshold limit value and "therefore, it could be assumed that any ventilation that might be added could be more than adequate in controlling the hazard."
OCF's belief, during the time period of concern in this case, in a "safe" level of asbestos dust was entirely consistent with the prevailing view among industrial hygienists that "asbestos-caused diseases, principally asbestosis, could be generally avoided if dust in the work environment could be kept below a certain limit . . . ." Godwin, 340 Md. at 365, 667 A.2d at 130. As we described in Godwin, the U.S. Secretary of Labor publicly acknowledged the controversy over the toxicity of asbestos and "the determination of a specific level below which exposure is safe." Id. at 366, 667 A.2d at 131. Further evidence that experts in the 1960's widely accepted the theory of a safe level of asbestos dust comes from the record in this case. In 1968, the New York Academy of Sciences sponsored a meeting of industrial hygienists chaired by Dr. Irving Selikoff, author of the
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