Kenneth G. Gulley to Robert S. Venning on Why J-M Fought Discovery of Plant Workers' Compensation Files (1981)

A three-page letter of December 18, 1981, from Kenneth G. Gulley, a Johns-Manville attorney, to Robert S. Venning of the San Francisco law firm Heller, Ehrman, White & McAuliffe, in Johns-Manville v. Home, a dispute with an insurer over workers' compensation. At Venning's request, Gulley listed seven reasons, given to him by Bob Andre of J-M's asbestos-health attorneys, why those attorneys "have traditionally sought to prevent discovery of our plant worker compensation files." The files might show the number of sick J-M employees, plant conditions, comments by J-M's own doctors, and "smoking gun documents" such as letters from Dr. Kenneth Smith; they might show J-M accepted the link between asbestos and lung cancer or mesothelioma "at a date earlier than we generally admit in the underlying actions"; and Dennis Markusson feared they would show disease in employees "either indirectly exposed to asbestos or exposed to low levels of dust."

What it shows

Gulley noted that J-M's interrogatory answers on plant conditions "usually paint a relatively rosy picture of the measures we took to prevent exposure to raw fiber in our own plants," and that J-M had "acquired some small, relatively dirty and dusty plants which they operated for various lengths of time, without improving conditions, then sold." He also reported that Markusson, J-M's associate general counsel, "has stated that there are plant physicians who have not yet been deposed in the underlying actions and who claim that they were told not to tell J-M employees of changes in their respiratory condition." The letter sets out, in the company's own words, what its lawyers expected the workers' compensation files to reveal. On who decided what employees were told, see Dr. Kenneth Smith's taped message to Kent Wise, 1975.

In Johns-Manville's chronology

Johns-Manville's own chronology of what the company knew describes this document as follows:

In a letter to Robert S. Venning, Esq. of Heller, Ehrman, White & McAuliffe; dated 12/18/81, regarding Johns-Manville v. Home, Kenneth G. Gulley lists the reasons for the decision of the asbestos health attorneys to prevent discovery of J-M plant worker compensation files. First, such a decision would prevent plaintiffs from obtaining the "smoking gun documents", such as letters from Smith which would confirm portions of his deposition testimony, the documents relating to an alleged hush-hush corporate policy, and the documents relating to the need for labeling. This decision would also prevent what Gulley also explains as Markusson's fear, that plant worker worker's compensation files will show cases of disease in employees with either indirect exposure to asbestos or exposure to low levels of dust.