Herlihy & Herlihy to Johns-Manville at Lompoc on Howard Winn's Compensation Trial (1952)

A four-page letter of April 29, 1952, from Herlihy & Herlihy, the Los Angeles lawyers defending Johns-Manville, to E. T. Legge, director of industrial relations at J-M's Lompoc, California, diatomaceous earth plant, reporting on the workers' compensation trial of former employee Howard Winn. Winn, who had worked at Lompoc from 1933 to 1942, was so ill that he had to "wear a mask" and rest often during the hearing. He testified that respirators were furnished only on the car loading job and "did not prevent the fine dust from getting into his nostrils and mouth," and he denied that J-M or its doctors had told him his lung condition could be caused by his work. A second letter, of January 19, 1953, reports that the referee found Winn permanently and totally disabled by diatomaceous earth pneumoconiosis with far-advanced tuberculosis.

What it shows

J-M's defense rested on the statute of limitations: its lawyers argued that Winn must have known earlier that his illness came from the dust. Winn said he first learned it in August 1950 from his doctor, T. B. Caldwell, who told him that J-M had accepted the claim of another former employee, Max Romero. Dr. Caldwell testified that J-M's acceptance of the Romero case changed his views on these diatomaceous earth cases. The referee agreed with Winn on the timing, and the lawyers advised that the award left no basis for further litigation, since the commission's own medical examiner had "definitely connected" Winn's disabling tuberculosis to his dust exposure at J-M. Copies of the first letter went to Vandiver Brown, J-M's attorney.

In Johns-Manville's chronology

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

In a letter to E.T. Legge (Industrial Relations Manager), 4/29/52, Herlihy & Herlihy (J-M attorneys) report on the workers' compensation trial of Howard Winn, former Lompoc employee. Winn filed his claim against J-M for pneumoconiosis and aggravated TB in 1951. He was employed at Lompoc from 1933-1942. Herlihy & Herlihy state that the trial was conducted under some difficulty because Winn was required to "wear a mask" and was required to rest frequently.

Winn stated that respirators were not always available at Lompoc and were not always adequate in keeping the dust out of his nose. He said that J-M never told him that his pulmonary condition was caused by his work. Dr. Caldwell (private doctor) was the first to tell him this and advised him to file a claim against J-M. (Dr. Caldwell was aware of Max Romero's successful claim against J-M.) Herlihy & Herlihy believe the Commission will rule in favor of Winn, which in fact it did on 1/9/53 (permanent, total disability).