Rogers, Field, Gentry, Benjamin & Robertson to George A. Weller on Delaying Publication of the Borel Opinion (1973)

A two-page letter of September 20, 1973, from the Kansas City law firm Rogers, Field, Gentry, Benjamin & Robertson to George A. Weller of Weller, Wheelus, Green & Brocato in Beaumont, Texas, copied to S. Rollins Heath of Johns-Manville. Written after a defense conference in Weller's office on September 17, it encloses a memorandum for the petition for rehearing in the Borel case, which the Fifth Circuit Court of Appeals had just decided. The writer urges the defendants also to move to stay the court's mandate while they seek review by the U.S. Supreme Court.

What it shows

"I should say to you quite frankly that our principal practical ambition now is to achieve at least a 90 day delay before the Fifth Circuit opinion is printed in the advance sheets," the letter says. A stay would "buy 90 days additional time," which was "most vital from the national point of view, because as I am sure you know, there are many other cases pending elsewhere in the United States and we need as much time as we can get to marshall our forces 'before the deluge starts'." The Borel case, brought by insulator Clarence Borel in 1969 (the complaint), produced the opinion holding asbestos makers liable for failure to warn. The Fifth Circuit denied rehearing in 1974 (Fibreboard memo). See also The Borel v. Fibreboard Case File (1969-1972).

About this copy

The letter is unsigned in this copy. The typist's initials "LF" suggest it was written by Lyman Field, a partner in the firm, but that is an inference, not a signature.

In Johns-Manville's chronology

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

Letter to George A. Weller of Weller, Wheelus, Green & Brocato from The Law Offices of Rogers, Field, Gentry, Benjamin & Robertson; 9/20/73, describes local counsel's efforts to achieve at least a 90-day delay before the Fifth Circuit opinion (in Borel) is printed in the advance sheets. The purpose of this delay is to delay public knowledge of the opinion.

Editor's note: J-M's description presents this as local counsel describing its own efforts. The letter is from the Kansas City firm to George Weller, J-M's counsel in Beaumont, urging him to seek the delay.

Related documents

• Clarence Borel v. Fibreboard Paper Products Corporation, Plaintiff's Original Complaint (1969)
• Richard P. Carter's Memo on the Beaumont Meeting and Holding Off on New Warning Labels Until the Borel Appeal (1971)