IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
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`JOHN ROBERT LUKACS,
`Plaintiff,
`V.
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`84 LUMBER COMPANY, et al.,
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`Defendants.
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`1006021
`3380.0006
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`CIVIL DIVISION - ASBESTOS
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`No. G.D. 13-024060
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`Type of Pleading:
`INSUL COMPANY, INC.’S PRETRIAL
`STATEMENT
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`Filed on behalf of:
`Defendant, INSUL COMPANY, INC.
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`Counsel of Record for this party:
`JONI M. MANGINO, ESQUIRE
`Pa. 1.D. #43586
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`DAVID F. RYAN, ESQUIRE
`Pa LD. #56182
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`ZIMMER KUNZ, PLLC
`310 Grant Street, Suite 3000
`Pittsburgh, PA 15219
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`(412) 281-8000
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`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
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`JOHN ROBERT LUKACS, ) CIVIL DIVISION — ASBESTOS
`)
`Plaintiff, ) No. G.D. 13-024060
`)
`V. )
`)
`84 LUMBER COMPANY, et al., )
`)
`Defendants. )
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`DEFENDANT, INSUL COMPANY, INC.’S
`PRETRIAL STATEMENT
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`AND NOW comes the Defendant, INSUL COMPANY, INC., by and through its counsel,
`JONI M. MANGINO, ESQUIRE, DAVID F. RYAN, ESQUIRE and ZIMMER KUNZ, PLLC,
`and submits the following Pretrial Statement.
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`By the submission of this Pretrial Statement, this Defendant does not waive any defenses
`that it may have. This Defendant may call any and all witnesses listed in any witness disclosure
`filed on behalf of any party. This Defendant reserves the right to supplement this Pretrial
`Statement through trial.
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`BRIEF NARRATIVE STATEMENT OF THE CASE
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`The Plaintiffs bought this action asserting Section 402A and negligence claims against
`various Defendants including Insul Company, Inc. It is alleged that Plaintiff developed an
`asbestos related disease as a result of his occupational exposure to asbestos-containing products
`manufactured or distributed by the Defendants while he was employed at Plaintiff alleges that
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`Mr. Lukacs was exposed to asbestos-containing products while employed at various steel mills.
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`INSUL COMPANY INC.’S PROPOSED VOIR DIRE QUESTIONS
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`1. Do you have any strong feelings or opinions about asbestos and the companies
`that made or sold asbestos-containing products?
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`2. Do you believe that companies that used to manufacture and/or supply equipment
`have the burden of proving their products did no harm?
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`3. Have you ever had the primary responsibility to care for a terminally ill person?
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`4. To the best of your knowledge, have you, or a family member, ever worked with
`or around any minerals, chemicals or substances that in any manner was/are considered harmful
`or dangerous?
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`5. Do you think companies put profit ahead of concern for safety of their employees
`or consumers?
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`6. The plaintiff in this case is an individual. The defendants are corporations. Would
`you have any feelings of sympathy and feel inclined to decide in one way or the other based
`solely on the identities of the parties?
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`7. Do you believe that where someone has filed a claim or lawsuit such person
`should be entitled to recover simply because suit was filed?
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`8. Do you believe that if a company made asbestos-containing products in the past, it
`is liable if it has been sued in a lawsuit?
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`0. Punitive damages are sometimes assessed, at the discretion of the jury, to punish
`or set an example. Punitive damages may or may not become an issue in this case. Please raise
`your hand if you have particular opinions about punitive damages that you think you should
`share with the court and the attorneys?
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`10. Have you read any articles, heard any radio broadcasts, seen any television
`programs or had access to any information on the internet that have discussed the health
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`problems alleged to be associated with asbestos? If your answer to this question is “yes” will
`such articles, broadcasts, or programs influence you in reaching a verdict in this case?
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`11. Have you or any member of your family been diagnosed with a disease caused by
`asbestos exposure?
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`12. Have you or any member of your family filed a claim for compensation or a
`lawsuit because of exposure to asbestos?
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`13. Do you have opinions about people who file claims based upon allegations of
`asbestos exposure?
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`14. Have you or a member of your family worked in a steel mill? If so, which one?
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`VOIR DIRE STATEMENT
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`This Defendant requests that the following Voir Dire Statement be read to the jury:
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`The Plaintiff filed suit against various defendants alleging that Plainitff developed
`mesothelioma as a result of his exposure to asbestos. Plaintiff has the burden of proving that Mr.
`Lukacs’s mesothelioma was caused by exposure to asbestos. The defendants do not have the
`burden of disproving causation. If you are selected to be on the jury, you will be required to
`determine the cause of Mr. Lukacs’s disease and if one or more of the defendants is liable. If
`you determine that one or more of the defendants are liable, you will need to determine the fair
`amount of damages that should be awarded and how liability shall be allocated.
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`The defendants have various defenses particular to their own products. Our client, Insul
`Company, Inc., incorporated in 1960, was a small family owned and operated company based in
`East Liverpool, Ohio. Insul was a manufacturer of specialized products used only by specific
`steelworkers exclusively in the steel pouring areas of steel mills. We will show that there is no
`evidence that will demonstrate that Mr. Lukacs, who was not a hot top worker, ever came into
`contact with asbestos as a result of the use of product manufactured by Insul. The evidence will
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`demonstrate that the products manufactured by Insul did not pose a health risk to even those who
`worked in close proximity to them. We will also show that there is no evidence which will
`support that Insul products played any part in the development of Mr. Lukacs’s disease. Insul
`will defend on the basis that no competent evidence exists that Mr. Lukacs was injured as a result
`of any action taken by this Defendant, and that no product of this Defendant was a substantial
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`contributing factor to any injury Mr. Lukacs may have sustained.
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`EXPERT WITNESSES
`1. This Defendant incorporates by reference the medical and liability expert witness
`list of lead counsel.
`2. Moreover, this Defendant reserves the right to call co-Defendant medical, state of
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`the art, and liability witnesses as set forth in each of the co-Defendant’s witness lists and pretrial
`statements.
`3. The following expert witnesses may be called to testify:
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`A. Earl Gregory
`5718 Yamassee Drive
`Hamilton, OHIO 45011
`(513) 374-4280
`Report to be provided.
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`Mr. Gregory is a Certified Industrial Hygienist. From 1974 to
`1981 he worked for OSHA. In 1981 he left OSHA and entered
`private industry as a Corporate Industrial Hygiene Engineer for
`Armco Inc. He has also worked for several other companies in a
`similar capacity. During his career his responsibilities have
`included management and supervision of the use, handling, and
`removal of many different kinds of asbestos-containing products.
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`Mr. Gregory personally conducted or supervised industrial hygiene
`monitoring of operations being directly performed on or with
`asbestos and asbestos- containing materials. He will testify based
`on his experience, training, and education that the incidental, short
`duration, small quantity, and infrequent use of asbestos containing
`products, such as some Insul hot tops, presented an insignificant
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`health hazard to the employees working at mills, including Mr.
`Lukacs. Mr. Gregory’s understanding and OSHA’s instructions to
`him in the 1970’s were that asbestos posed a significant health
`hazard only in those industries such as the mining and the
`processing of asbestos, the manufacturing of asbestos-containing
`products, where employees were involved in the installation or
`removal of asbestos-containing thermal insulation construction
`products, and where employees were involved in the installation
`and or spraying of asbestos containing products.
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`Mr. Gregory will testify that due to the small quantity of asbestos,
`in those Insul hot tops which contained asbestos, (i.e., 3%), the
`encapsulated nature of the product, the distance which existed from
`the top of the ingot molds to the nearest employee, and the short
`duration of time in applying hot tops, resulted in an insignificant
`risk of employee exposure to excessive airborne concentrations of
`asbestos dust.
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`Mr. Gregory will testify that certain hot tops incorporated a small
`percentage of asbestos fibers which were encapsulated in a hard
`nonfriable product consisting of dolomite limestone, silica,
`sawdust, and sodium silicate. As such, significant asbestos fibers
`would not be released absent vigorous mechanical intervention
`such as grinding or sanding. Such mechanical intervention was not
`employed nor was such intervention required for the use of hot
`tops in the melt shops.
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`Mr. Gregory will also testify that the extreme heat of the molten
`metal (i.e. 3000 degrees Fahrenheit) utilized in the steel making
`industry would have converted the small amount of asbestos used
`in asbestos containing hot tops into a chemically and physically
`different substance. Asbestos dehydroxylates at roughly 1100
`degrees Fahrenheit, followed by subsequent recrystallization to
`form forsterite and silica at around 1500 degrees Fahrenheit. The
`resulting chemical and physical transformation results in fibers
`which have a much lower length/width ratio of 3:1. The scientific
`community generally considers that it is overexposure to asbestos
`fibers with length/width ratios of 3:1 or greater which can result in
`carcinoma.
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`Mr. Gregory is in the process of finalizing his report, which will be
`provided separately, wherein he will offer his opinions based on
`the evidence in this case and based on his experience, training, and
`education, including his opinion that Mr. Lukacs was not exposed
`to a hazardous level of asbestos as a result of working in the
`vicinity of Insul hot tops.
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`4, Michael J. Warhol, M.D., F.C.A.P.
`135 Allgates Drive
`Haverford, PA 19041
`(610) 896-0919
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`5. Gregory J. Fino, M.D., F.C.C.P.
`St. Clair Hospital
`1000 Bower Hill Road, Suite 211
`Pittsburgh, Pennsylvania 15243-1899
`(412) 942-2025
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`6. Any expert identified by any entity whose product or services may be at
`issue in the current litigation for purposes of the Fair Share Act and
`otherwise.
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`FACT WITNESSES
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`This Defendant may call the following fact witnesses as well:
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`1. Any witness identified in any fact witness list, discovery request or response,
`pleading, motion or response to motion including but not limited to any witness identified in
`Plaintiff’s response to motions for summary judgment in this case.
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`2. Michael D. LaBate, former President of Insul company, Inc., via deposition
`transcript dated May 19, 1989.
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`3. Any representatives of Plaintiff’s employers.
`4. Records Custodian of any other Defendant in this case.
`5. Records Custodian or other representatives for hospitals and/or health care
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`provider where Plaintiff was treated.
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`6. Defendant would rely upon the submission by defense lead counsel to furnish the
`specific medical information relative to Plaintiff.
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`7. Any co-worker properly identified pursuant to the Case Management Order.
`8. Plaintiff.
`0. Any representative of any Defendant identified in any fact witness list, discovery
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`request or response, pleading, motion or response to motion including but not limited to any
`representative identified in Plaintiff’s response to motions for summary judgment in this case.
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`EXHIBITS
`Defendant, Insul Company, Inc. submits the following list of exhibits that it
`reasonably anticipates to use at trial:
`A. Report of Earl Gregory to be supplied.
`B. Defense Medical Expert Reports (to be supplied by lead counsel)
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`C. Photographs, site drawings, blueprints of the facility at issue.
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`D. Diagrams or exhibits relative to products at issue.
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`E. Any and all documents marked as exhibits at depositions.
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`F. Any and all medical records and x-rays of any type pertaining to the Plaintiff.
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`G. All plaintiff’s answers, supplemental answers, and amended answers in response
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`to interrogatories, requests for disclosure, and any other discovery requests, and all documents
`referenced in Plaintiff’s responses to written discovery.
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`H. Plaintiff’s Complaint and any Amended Complaints.
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`L. Any and all employment records of the Plaintift.
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`J. Any and all exhibits listed by any other Party.
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`K. Any and all expert reports listed by any other Party.
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`L. Any and all relevant sales invoices, records, or purchase orders for relevant job
`locations.
`Any and all medical and expert reports and records.
`Any deposition taken by any party in this case.
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`Plaintiff’s Social Security records.
`Plaintiff’s W-2 records and income tax returns.
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`Any and all judgments or tax liens applicable to Plaintiff.
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`PO PO z Z
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`Any and all answers to interrogatories and responses to requests for production of
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`documents issued by any defendant, or any entity whose products or services are relevant in this
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`litigation for purposes of the Fair Share Act.
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`S. Any and all depositions and affidavits of any representative of any defendant in
`this case.
`T. Any affidavit and or deposition of any witness listed herein or on any party’s fact
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`witness list or pretrial statement.
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`RESERVATIONS
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`1. This Defendant reserves the right to call any witnesses to offer factual or opinion
`testimony for purpose of impeachment or rebuttal whether or not such witness has been
`identified on the witness disclosure of any party.
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`2. This Defendant reserves the right to call undesignated rebuttal expert witnesses
`whose testimony cannot be foreseen at the presentation of evidence against Insul Company, Inc.
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`3. This Defendant reserves its right to call upon cross-examination, any lay or expert
`witnesses which Plaintiff may be permitted to call.
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`4. This Defendant reserves the right to introduce into evidence any and all medical
`records pertaining to the Plaintiff. In addition, this Defendant reserves the right to have any
`witnesses testify in accordance with the records, reports and letters pertaining to the Plaintiff
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`and/or decedents.
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`5. This Defendant reserves the right to have any witness testify in accordance with
`the scope of any of the above items or as to conclusions reached as a result of the above items.
`In addition, this Defendant reserves the right to call as a witness any person necessary to
`authenticate the above items.
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`6. This Defendant reserves the right to call any or all of the witnesses named in any
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`pleading of record, including depositions, answers to interrogatories or responses to request for
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`admissions.
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`7. This Defendant reserves the right to call any or all of the decedent’s treating,
`consulting and examining physicians.
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`8. This Defendant reserves the right to amend and/or supplement this witness list at
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`any point through trial.
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`Respectfully Submitted
`ZIMMER KUNZ, PLLC
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`BY /s/ Dnvid Loyar
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`JONI M. MANGINO, ESQUIRE
`DAVID F. RYAN, ESQUIRE
`Attorneys for Defendant,
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`Insul Company, Inc.
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`310 Grant Street, Suite 3000
`Pittsburgh, PA 15219
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`(412) 281-8000
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the within DEFENDANT, INSUL
`COMPANY, INC.’S PRETRIAL STATEMENT has been served upon Plaintiff’s counsel via
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`U.S. First Class Mail, postage prepaid this 14™M day of October 2015.
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`Michael J. Gallucci, Esquire
`Savinis, D’ Amico, & Kane, L.L.C.
`Suite 3626, Gulf Tower
`707 Grant Street
`Pittsburgh, Pennsylvania 15219
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`ZIMMER KUNZ, PLLC
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`BY /s/ Dwvid 7 foyan
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`JONI M. MANGINO, ESQUIRE
`DAVID F. RYAN, ESQUIRE
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