Owens-Corning Fiberglas' Liability in Asbestos Cases

Owens-Corning Fiberglas

Owens-Corning Fiberglas ("OCF") was formed in 1938 for the purpose of developing and marketing applications for glass fiber, then a new invention. It was a joint venture between Owens-Illinois and the Corning Glass Works.

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The Case Against Owens-Corning Fiberglas

The story of OCF's liability in asbestos cases actually predates its direct involvement in the manufacture and sale of asbestos-containing products by over a decade. OCF's main product was fiberglass. The fiberglass thermal insulation products that OCF was selling competed directly with asbestos-containing products like 85% Magnesia that were meant for the lower temperature ranges — i.e., below 600 degrees. In 1940-41, the Asbestos Worker locals began to demand an hourly premium to work with fiberglass, based on asserted "health hazards." In fact, fiberglass is God-awful stuff to work with, because the fibers, released during sawing, sanding and other handling, get into the skin and cause an itch for which there is no known relief. After working with it over a period of time, however, an immunity is built up to this problem. In any event, the feeling on behalf of workers in the field was that the stuff was unhealthy. OCF suspected that Johns-Manville, through its tremendous influence on the Union, had a role in rumor-mongering about supposed dangers of fiberglass. The strategy developed by OCF in response to this challenge is outlined in its internal documents. It is also explained in great detail in the deposition of Edward Ames, the head of public relations for OCF during this period. First, OCF compiled all of the literature on the health hazards of asbestos then available, which was, of course, considerable. Second, they undertook to have an independent expert physician in industrial medicine do thorough testing of fiberglass for possible health hazards. The favorable results of this testing were then published in the medical literature. Third, they contacted Aetna Insurance to underwrite blanket liability coverage for fiberglass products, with the permission to publicize Aetna's willingness to do so. Fourth, they combined the fruits of all this into a well-coordinated publicity campaign. One document is of particular interest — it is a lengthy memorandum from Ed Ames that responds, part to a memorandum from Fred Heath in commercial development, where Mr. Heath urges the development of a new textile product line using a mixture of asbestos and fiberglass. Ames responds that this is a lousy idea because everybody knows how dangerous asbestos is, and they are in the middle of this massive P.R. campaign to show why everybody should use fiberglass because asbestos is so deadly. He then goes on to outline the health education campaign they have undertaken with the asbestos workers. This memorandum is extremely important for a number of reasons. First, it shows early knowledge of the hazards of asbestos and other potential workplace hazards to applicators in the field, as well as to workers in the plant where the products are manufactured. Second, and perhaps more importantly, it shows a course of conduct in connection with fiberglass that is the model for the conscientious manufacturer when the safety of its product has been called into question, and it is exactly what OCF did not do in connection with the Kaylo line of asbestos-containing thermal insulation products, years later.

Because of the resistance to fiberglass, fomented to at least some extent by the asbestos manufacturers, OCF formed its own contract units to bid and perform industrial insulation jobs. This is also a part of the strategy laid out by Edward Ames in his memo of December 1943, and is a logical extension of what OCF was trying to accomplish. The first units started in about 1950. Of course, some of the insulation jobs involved temperatures that far exceeded the capabilities of fiberglass at that time. These contractors, therefore, had to stock asbestos containing thermal insulation (you have to remember that it is generally not the asbestos that does the insulating, however). This varied between Johns-Manville Thermobestos, Unarco's Unibestos, and Kaylo from Owens-Illinois ("OI"). In or about 1953, OCF reached an agreement with OI to carry Kaylo exclusively in this product niche, and to be the exclusive distributor of Kaylo. In 1958, OCF bought the Berlin, New Jersey, Kaylo plant and product line outright from OI, and all of the OI files regarding Kaylo were transferred to OCF.

This now brings in a parallel course of conduct on the part of OI, which is then imputed to OCF for post 1958 exposure. Kaylo was developed by OI in the period 1942-43. It is what is known as a hydrous calcium silicate. The only reason it contains asbestos is as a reinforcing agent to stop it from breaking up (otherwise it would be very brittle) prior to installation on the pipe or boiler. The significant thing, for purposes of a substitute reinforcement, is that the final step in the manufacturing process involves what is known as an autoclave. This involves using steam to heat the final product to a temperature of around 600 degrees. The ingredients then go through a chemical reaction where the end substance forms a certain crystalline structure as it cools. The raw ingredients are lime, silica and asbestos.

Owens-Corning Fiberglass, as a glass company of that era, was familiar with silicosis, which was a particular hazard because it renders the lungs extremely vulnerable to tuberculosis infection. Tuberculosis was, at that time, one of the leading killers of able-bodied people in the United States. In 1943 OI contracted with The Saranac Institute in upstate New York (which started out as a treatment facility for TB) to do animal tests on its new product, which had not yet been marketed. Because of the war, the preliminary reports were not done until 1948, and the final report was not done until January 1952. The correspondence between OI and Saranac during this period still exists. The final report and correspondence stated in no uncertain terms that the product was a potential hazard to both manufacturing workers and applicators in the field.

In 1954, Dr. Gerrit Schepers succeeded Dr. Arthur Vorwald as Director at Saranac. Almost immediately, he was approached by OI, who told him that Dr. Vorwald had done experiments for them, but that they had never gotten a final report (which was, of course, not true). Dr. Schepers went over all of the data going back to the beginning of the work in 1944, including reexamining the actual tissue slides, and generated a final report, which he published, in 1955, entitled "Effect of Inhaled Commercial Hydrous Calcium Silicate Dust on Animal Tissues." Schepers also told the OI people he was dealing with that Kaylo was a dangerous product and they should get the asbestos out of it.

Meanwhile, the "health" campaign to fight the wage premium for handling fiberglass continued through the fifties.

The next major development was Multi-Temp. This was an asbestos-free pipe and boiler insulation that was a spin-off from an R&D project to develop a fire-rated tile product. It was made in small quantities at a pilot plant and became available for distribution in 1964-65. It was never put into full production, apparently because it would not be a profitable product line for OCF, at least in comparison to Kaylo. Multi-Temp did not use the autoclave process. It could, therefore, be manufactured using fiberglass rather than asbestos as a reinforcing material, and was rated for up to 1000 degrees.

In 1962, there was discussion about the feasibility of replacing the asbestos fiber in Kaylo with fiberglass. It was at the bottom of the list on the OCF internal memorandum. It appears, and there is testimony to back this up, that the incentive behind this was wholly unrelated to health considerations, but rather to use fiberglass, a product OCF made and was known for, than asbestos, which is what everybody else used.

In 1964, Johns-Manville started to place cautionary labels on its Thermobestos (a competing product of Kaylo), on the recommendation of their medical director, Dr. Kenneth Smith. This was picked up on by OCF, generating an internal memo, dated 8/12/64, which summed everything up nicely: "The question before us is whether [Owens-Corning] Fiberglas (Kaylo) should protect itself against more stringent and punitive health laws and the possibility of third party actions by following the J-M lead." In January of 1965 the same executive generated a memo which opened with the following sentence: "I have been receiving inquiries from various sources about the health hazards of our Kaylo products and I assume that this will continue." He attributes this to the activities of Dr. Selikoff. He goes on to urge the adoption of the JM label, and notes that JM's decision to label "is in itself pressure on the whole industry to consider labeling." There are further hand-wringing memos back and forth. The label went on in late 1967.

A memo from Wayne Johnson, dated 10/27/66, may be the first recommendation, in writing, that the removal of asbestos from Kaylo should be a priority. It appears that OCF started on the asbestos replacement program sometime in 1966. Throughout 1967, however, the replacement program was de-emphasized as R&D resources were shifted to solving the "stress corrosion" problem that Kaylo had (this is its tendency to cause stainless steel to corrode, because of the high chloride content, which prevented Kaylo's use in nuclear power and certain chemical applications). We don't see actual work on the asbestos replacement project until December of 1967, when Shannon wrote regarding the "Crosfield-Unilever Calcium Silicate Process." Shannon in essence rejected it because it would be too costly, although he stated he was going to attempt to use it as a "building block." From 1968 until 1972, Shannon's team tried a number of substitute fibers, including cotton, cellulose (i.e., wood), glass fibers with various coatings, metal fibers, ceramic fibers and the like, in various combinations. Nothing really worked, but they were working within extremely narrow, and totally self-imposed, constraints — whatever they came up with had to work with the pan molding and autoclaving process that was already in place. This made things very difficult, as there are very few fibers that will survive at 600 degrees. In 1972, a combination of alkali resistant glass fiber and cellulose (wood fiber) was finally made to work, and was put on the market at the end of that year as "AF" (for "asbestos-free") Kaylo. During this period, it is clear that the R&D effort was not receiving the resources it needed to tackle the problem with anything like the sense of urgency that would have been appropriate, considering the health hazards. It is also during this period that Art Pearson, at the headquarters in Toledo, asked Shannon to report on the feasibility of the now discontinued Multi-Temp product, which Shannon had trashed in a 1967 memo. Shannon's reply to Pearson, dated 5/9/69, is an illuminating document. It reveals that Multi-Temp was shelved because OCF did not think it would be profitable enough, and was never really given a chance. With a ban on asbestos in the offing, though, Multi-Temp was far more attractive. This reflects the cynicism of OCF in general about the issue, as stated in a 8/24/67 memo from J.M. Briley to Harold Bochenstein, the company President: "If we can eliminate asbestos, we will have a great commercial advantage when the blitz hits."

By contrast, Phillip Carey removed the asbestos from all Careytemp in 1969. Careytemp is a different animal from Kaylo, and does not use an autoclave process, but the fact that Phillip Carey was able to formulate a usable asbestos-free product so quickly does not reflect well on OCF, who was fully cognizant of the developments at Carey. This perception was also shared by some OCF management, such as John Vyverberg, who wrote a scathing memo dated 8/21/69, noting that two new third party suits had been filed against OCF, that the Tomplait [one of the first asbestos cases ever filed] case had recently been seen settled for considerable money, and that "[w]e have had a Kaylo Asbestos Replacement Program underway for over five years. I recommend that you place major emphasis on bringing this research program to a conclusion. . . . "

While Shannon and the other scientists were looking for a new fiber, Dr. Konzen, OCF's medical guy, was doing his best to undermine the work of Dr. Selikoff and limit his influence on his new proposed research panel, the "Insulation Industry Hygiene Council." Dr. Konzen clearly had problems with health monitoring of workers and that sort of thing. In fact, through the period 1963-72, OCF was getting more and more information from the repercussions of the Selikoff revelations (if they can be called that). OCF became aware of the Selikoff study on September 3, 1963, from a memo to Toledo and Newark about a visit to a New York jobsite by Bill Lotz from product development. On September 17, 1963, Mr. Lotz wrote another memo, comparing the health hazards of asbestos with a glass fiber product that was going into production. On August 8, 1966, F.H. Edwards wrote a memo to J.M. Briley, regarding inquiries from the Bath Iron Works on the subject of asbestos hazards. On October 5, 1966, Mr. Briley got another memo, this time from Wayne Johnson in New York, taking note of an asbestosis workers compensation claim filed by an employee at New England Insulation, who had primarily worked in the fabrication of Kaylo. The memo also quotes Dr. Hardy from MIT, who had become involved in the case, to the effect that "South African asbestos is more dangerous than Canadian." The latter half of 1966 is taken up by memos about the caution label. The order to put a label on was finally issued on December 28, 1966. The important thing about this label, which went on at the end of '66 or the beginning of '67, depending on who you talk to, is that, unlike JM's label, it made no mention of the hazards of asbestos. It simply said that the user should "avoid breathing the dust" and use a respirator if he could not do so.

The next period of time shows a great deal of communication with other manufacturers and customers about asbestos hazards. On January 4, 1968 Fred Kiel, from the OCF office in New York, met with Roger Knowles of Polyply, Inc. and discussed an article in the Washington Post about mesothelioma and asbestos. Upon Mr. Kiel's request, Knowles sent a copy of the article to Kiel via letter dated January 11, 1968. On February 23, 1968, the OCF R&D people met with the Johns-Manville R&D people in Manville, New Jersey. At this meeting they were informed that JM used only chrysotile asbestos in Thermobestos, because amosite asbestos was so toxic (Kaylo contained a combination of both types of fiber). The memo also shows an unfavorable comparison between the resources JM was pouring into R&D with the paltry commitment of OCF.

In March 29 1968, Dr. Konzen sent a memo to Toledo regarding a health hazard survey conducted by Aetna Insurance at the Berlin plant, showing dust levels that exceeded the 5mpcf TLV then in effect. The memo also helpfully points out that asbestos causes cancer. On August 16, 1968, John Vyverberg sent a memo to Toledo about the complaints that local neighbors of the Berlin plant had made to the state about toxic emissions, including asbestos. The memo betrays the "sweep it under the rug" attitude of OCF throughout this period. The memo calls for, among other things, the formulation and dissemination of a "position paper" on the subject: "because of the low percentage content of asbestos in Kaylo, personal discussions should refer to 'general dust conditions' and minimize the emphasis on the asbestos content."

In summary, OCF had early knowledge that asbestos could cause disease, and even used that knowledge to its advantage in marketing fiberglass. Yet it sold Kaylo, a product that had been found to be lethally toxic in laboratory tests by the mid-1940's, and kept it on the market until 1973. The case against OCF for punitive damages is probably one of the strongest that can be made against an existing manufacturer.

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