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Owens-Corning Fiberglas Corp. v. Garrett8/28/1996
evident in 1941, when one of the lawyers in its Legal and Patent Department, having received a letter from a Saranac Doctor, expressed his gratification at the Doctor's belief, referring to OCF's main product at the time, fiberglas, that "we are not going to encounter any evidence of an asbestos-like reaction because none of the fiber reaches the lungs." Moreover, OCF has admitted that, in that same year, it was aware of a case of asbestosis or cancer in a user of an insulation product which contained asbestos.
Thereafter, OCF developed a "germ of a major strategy." It was to put together an asbestos file to be held as a "weapon in reserve." The file would be "an impressive file of photostats of medical literature on asbestos," to comprise some 500-600 pages, including "two bibliographies covering medical literature to 1938, citing references to scores of publications in which the lung and skin hazards of asbestos are discussed." The file was to be used should the unions balk at working with fiberglas or should they require OCF to pay a premium for doing so. It compiled the file, although it never had to resort to its use. Thus, it is clear that, by 1942, more than 10 years before it began to market a product containing asbestos, OCF had a wealth of knowledge concerning the hazards of asbestos and that the knowledge it had was actual and not constructive.
Despite having this knowledge and being concerned with avoiding having its fiberglas product "smeared with the hazards of asbestos," OCF began mixing fiberglas and asbestos, which it sold as Kaylo, in 1953. When OCF was reminded, in 1956, by a Doctor from whom an opinion was solicited concerning favorable past experiments with fiberglas, that "asbestos is fairly incriminated as a carcinogen and the asbestos causes damage by virtue of the length of its fibers," the concern it expressed was about the "general tenor" of the letter containing the reminder and the fact that "it is certainly nothing that we could show customers or a union." A similar concern was expressed in response to Dr. Selikoff's 1964 study of insulation workers. In a confidential memorandum, OCF's Director of Industrial & Personnel Relations, wrote: "our present concern is to find some way of preventing Dr. Selikoff from creating problems and affecting sales." Indeed, it appears that the purpose for which OCF monitored the medical experiments and studies was to keep tabs on how the public perceived its product and to gauge the effect of the experiments and studies on the profitability of the product.
OCF was aware that asbestos was more dangerous to the insulation worker because that worker handled it directly and, therefore, was exposed to a greater extent than a by-stander. And it knew that it was the dust generated during the insulation process that posed the danger. The September 17, 1963 memorandum by William Lotz of OCF's Product Development Laboratory is illustrative. He wrote: "Asbestos (as found in Kaylo) when breathed into the lungs causes asbestosis which often leads to lung cancer.... All insulations are dusty and insulators seldom complain except when the dust is particularly irritating to them."
There was a view between 1968 and 1972 that asbestos dust was hazardous only above a certain level of concentration. The indicator of the average concentration of dust particles per cubic foot of air to which a worker could be exposed safely was characterized by a threshold limit value. The evidence before the jury was that OCF did not accept as gospel the accuracy of that value. In a 1966 memorandum, the Director of Industrial and Personnel Relations wrote:
Asbestos is recognized as a health hazard causing asbestosis. Asbestosis
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