Vandiver Brown's Memorandum on the Illinois Dust Situation: Legislative and Legal Aspects (1935)

A seven-page memorandum of February 14, 1935, by Vandiver Brown, Johns-Manville's attorney, on "Dust Situation - Illinois: Some Legislative and Legal Aspects." Brown explains why J-M favored an occupational disease law in Illinois that would make asbestosis and silicosis compensable, describes the Illinois Manufacturers' Association's draft bill and its "seven cardinal virtues," and reviews the claims by former workers at J-M's Waukegan plant. Twenty-seven former employees had gone to lawyers alleging injury from "our failure to provide safe working conditions," and twelve had sued.

What it shows

Brown's reasons for wanting a law were practical: Illinois courts had held that the time limit on claims did not run until a worker discovered a latent disease like silicosis, so "there is no Statute of Limitations"; J-M could not examine plaintiffs or take its own X-rays; and the safety standard in the old act was left to juries. He writes that "our chances with the worst type of Industrial Commission were far better than the treatment we could expect from the highest type of jury," and that under a new statute J-M "could play an active part" in how it was interpreted. On the lawsuits, Lloyd Heth, whose firm represented J-M, advised trying two small cases and stressing the "engineering" rather than the medical side, and Brown concluded from six workers' X-rays that the claims "are not bona fide and that we are victims of the racket." The draft bill is at the Illinois draft law, and Brown's supplement of February 28 at Brown to Voorhees.

In Johns-Manville's chronology

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

Brown comments on proposed Illinois legislation in a memorandum dated 2/14/35. Brown discusses why he wants "properly drawn" occupational disease legislation in Illinois (and not necessarily in New Jersey). He states that in Illinois there is no real statute of limitations on claims. Under the present statutes, the statute does not run until the claimant discovers the injury. Brown states this means that claims can be brought as long as 20 years from the date of last employment.

Brown points out how the ruling of a judge in 6/34 caused insurance companies to threaten cancellation of policies. Brown explains that the judge interpreted the current statute to cover diseases caused by poisonous chemicals, minerals, etc. This meant that the definition included pneumoconiosis, since the current thinking is that this injury is caused by a chemical or toxic reaction rather than a physical one. As a consequence of this ruling, insurance companies threatened to cancel policies, since these hazards had not been taken into account when determining the premiums. As a result, the Illinois Manufacturers' Association began to draft legislation.

The insurance companies desired legislation that would specifically cover pneumoconiosis. This would "at least limit their potential hazard within the range of the more or less predictable." Brown states that the insurance companies have reviewed the Committee's proposed legislation and indicate that the employer's risk under this legislation is "insurable."

Brown states that 27 claims have been filed by former Waukegan plant employees alleging injury from J-M's failure to provide safe working conditions. Of these 27, 12 have already filed suits. Brown discusses why Lloyd Heth (J-M attorney) would rather litigate these suits than settle them. Heth believes J-M can make a good case that it used "reasonable and approved devices, means or methods." Heth suggested that when J-M goes to trial, it emphasize the engineering rather than the medical aspects. Brown concludes by stating that many of the claims brought against J-M are "not bona fide and that we are victims of the racket."

Editor's note: J-M's description calls Lloyd Heth a J-M attorney; the memo describes him as the lawyer "whose firm is representing us," that is, outside counsel. The 20-year figure is not an Illinois one: Brown gives it in describing a Missouri case, offered as a comparison.