STATE OF NEW YORK SUPREME COURT : COUNTY OF ONONDAGA ____________________________________ MARK IRWIN and ALICE IRWIN,

Plaintiffs, -vs-

ALCOA INC, et al., Defendants. -----------------------------------------------------UNIMIN CORPORATION,

AFFIRMATION OF COUNSEL FOR U.S. SILICA CO. IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Third-Party Plaintiff, -vs-

Index No. 2010-1098 RJI No.: 33-10-0799 Hon. John C. Cherundolo

SYRACUSE CHINA COMPANY and LIBBEY INC.,

Third-Party Defendants. ____________________________________

JOINT ATTORNEY AFFIRMATION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

LYNN D. GATES, pursuant to N.Y. CPLR 2106, and under the penalties of perjury, affirms as follows: 1. I am an attorney at law duly licensed to practice in the State of New York and am a member of the law firm of Smith, Murphy & Schoepperle, LLP, attorneys for defendant U.S. Silica Company (U.S. Silica) in the above-referenced actions. As such, I am familiar with the facts and circumstances of this action. 2. I submit this joint affirmation in support of defendants motion for summary judgment seeking dismissal of plaintiffs Complaints and all cross-claims against these moving defendants.

NATHAN A. SCHACHTMAN, pursuant to N.Y. CPLR 2106, and under the penalties of perjury, affirms as follows: 3. I am an attorney at law duly licensed to practice in the State of New York and I practice as a professional corporation, Nathan A. Schachtman, Esq., P.C., which is an attorney for defendant U.S. Silica Company (U.S. Silica) in the above-referenced actions. I have represented U.S. Silica for over 20 years. As such, I am familiar with the facts and circumstances of this action. 4. I submit this joint affirmation in support of defendants motion for summary judgment seeking dismissal of plaintiffs' Complaints and all cross-claims against these moving defendants.

I. PROCEDURAL HISTORY 5. On or about January 15, 1990, Mark and Alice Irwin commenced an action by the filing of a Summons and Complaint with the New York County Clerk's Office. (A copy of which is attached hereto as Exhibit A). The lawsuit sought damages for personal injuries alleged to have been sustained by Mark Irwin while he was employed at the Syracuse China Corporation, plant located in Syracuse, New York (Syracuse China). The Complaint alleged causes of action for alleged negligence, breach of express and implied warranty, and strict liability product liability against various defendants including U.S. Silica Company, formerly known as Pennsylvania Glass Sand Corporation, and successor in interest to Ottawa Silica Company (U.S. Silica). The matter was assigned Index number 105497/09.

6. On or about March 13, 1990, U.S. Silica served a timely Answer to the Complaint. (A copy of which is attached hereto as Exhibit B). On or about April, 12, 2012, following the commencement of a third-party action by Unimin Corporation against Syracuse China and Libbey Inc., U.S. Silica served a Reply to Cross-Claim of Third-Party Defendant Syracuse China and Libbey Inc. and a Supplemental Answer (A copy of the Supplemental Answer and reply to Cross-Claims is attached here on as Exhibit C. ) 7. In June 2010, defendant U.S. Silica served a demand for interrogatory responses to plaintiffs counsel and plaintiffs counsel provided interrogatory responses in September 2010. (A copy of the demand and interrogatory responses is attached as Exhibit D). 8. On January 19, 2010 this case was transferred to Onondaga County by a So-Ordered Stipulation (Gishe, J.) entered in the Office of the County Clerk, New York County on January 19, 2010. (A copy of the Stipulation is attached as Exhibit E) 9. A Note of Issue with Statement of Readiness was served on April 24, 2012 and at a pretrial conducted on August 13, 2012, The Honorable John C. Cherundolo granted defendants an extension to file motions for summary judgment until October 1, 2012. 10. Co-defendant Unimin has filed a third-party claim for indemnification against Mr. Irwin's employer, Syracuse China Company and Libbey Inc. No other original defendant has joined that third-party claim. 11. Deposition of plaintiff Mark Irwin has been conducted. Plaintiffs' counsel conducted examinations of defendants' designated corporate representatives. The defendants conducted examinations before trial of Dr. David Seeley, and of Mr. Philip Harvard, whose testimony is described and excerpted, below.

II. FACTS 12. Mr. Irwin alleges that he was exposed to silica-related materials (clays, nepheline, and other raw materials) during the course of his employment with Syracuse China. (Irwin Complaint at 35-38). 13. Mr. Irwin alleges to have been employed by Syracuse China from 1973 through April 2009, in various job capacities (Plaintiffs' Responses to Defendants Interrogatories, at Chart A). Plaintiffs failed to plead a date of diagnosis, in their Complaint. Similarly, the plaintiffs failed to plead that their injuries were latent and undiscoverable for any period of time; nor did they plead any inability to have discovered their alleged injuries earlier, for any reason. 14. It has been common knowledge for over many years that inhalation of silica dust can cause silicosis. 15. In the cases at bar, the evidence shows that Syracuse China had on staff individuals in
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charge of occupational safety and regulatory compliance who were familiar with the known dangers of silica. As more fully set forth herein, these individuals were aware of the need for air monitoring for respirable crystalline silica, and for air hygiene engineering. Furthermore Syracuse China had in place a respirator program; it was a member of various trade associations, including the American Ceramic Society, dealing with workplace safety issues; and it was well aware of its federal duties with respect to workplace safety issues. In addition, Syracuse China had employees whose duties including the assurance of regulatory compliance with the federal Occupational Safety and Health Act and federal regulations promulgated by the federal Occupational Safety and Health Administration (OSHA), and other work place safety guidelines such as the federal Hazards Communication Act. 16. The evidence below also demonstrates that Syracuse China was highly proactive in workplace monitoring to ensure that dust levels in the plant were not in excess of federal and state permissible exposure levels. Specifically, employees and management of Syracuse China conducted air monitoring to assess the level of silica in the workers breathing zones. Such localized and individualized air monitoring is required by federal OSHA, and is the prerequisite to assess what level of engineering and administrative controls are required to abate any potential hazard, as well as whether a respiratory program is required, and if so, what kind of respiratory is needed by each worker. 17. Industrial engineers at Syracuse China designed, maintained, and modified industrial ventilation systems to constrain dust exposures to within federal and state permissible exposure limits. 18. Syracuse China maintained a program of providing personal protective equipment in the form of dust masks or respirators, if but only if the company could not control dust exposures to within permissible exposure limits by engineering and administrative control procedures. This program appears to have conformed to the regulatory policy and philosophy of OSHA, which makes the use of respirators (also known as personal protective equipment or PPE) to be the last line of defense against overexposures to raw materials, such as silica.

III. ARGUMENT 19. As more fully set forth in the accompanying Memorandum of Law, the sophisticated user doctrine states that a supplier has no duty to warn if the user knows or should know of the potential danger, especially when the user is a professional who should be aware of the characteristic of the product or material. 20. In determining whether an employer is a sophisticated user, Courts look to a variety of factors. Examples of such factors in silica litigation include general considerations such as the common state of medical knowledge concerning silica and the various statutes and regulations governing silica. Other factors, tailored specifically to the user/employer include: 1) the employers membership in trade groups, 2) the length of time that the employer was aware of the dangers of silica, 3) the employer's familiarity with OSHA standard relating to silica, 4) whether
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the employer had in place a respirator program and 5) whether the employer conducted air sampling. (See Accompanying Memorandum of Law). 21. Applying these standards to Syracuse China, it becomes apparent that Syracuse China was a sophisticated user of silica. Evidence of Syracuse China's sophistication can be established by both general considerations pertaining to federal and state regulations as well as specific factual considerations pertaining to operations at the Syracuse China plant.

IV. GENERAL CONSIDERATIONS A. The Common State of Medical Knowledge and Federal Regulations Regarding Silica 22. Silicosis is one of civilizations oldest known occupational diseases. (Jacqueline K. Corn, Historical Aspects of Industrial Hygiene II. Silicosis, 41 Am. Indus. Hyg. Ass'n 125 (1980), attached hereto at Exhibit F). 23. References to dust diseases appear in the ancient medical literature, beginning with Hippocrates, who noted the connection between dust and disease. Id. at 127. Pliny the Elder and Celsus described the association between mining, dust and disease, and in the sixteenth century, Agricola published a treatise on the mining industry which described the ailments and accidents of miners, and the methods by which they can guard against these . . . Id. 24. The term silicosis was coined by Visconte in the early nineteenth century to denote the pathological condition of lungs resulting from the inhalation of dust. Id. at 128. By the close of the nineteenth century, the significance of occupation as an influence upon the occurrence of silicosis was established. Id. 25. In the United States, rapid industrial growth, combined with a progressive movement toward protective labor legislation and workers compensation laws, led to an increased awareness of the problem of silicosis in the early twentieth century. Id. Various studies undertaken in the early 1900s demonstrated that silicosis was a severe health problem in the United States. Id. These studies included: A joint effort in 1914 and 1915 by the United States Bureau of Mines and the United States Public Health Service to study miners in the Joplin district of Missouri. Id. at 129. See also Doyle, Henry N., The Federal Industrial Hygiene Agency (A History of the Division of Occupational Health, United States Public Health Service (excerpt attached as Exhibit G.)(See full bibliographical information at: <http://www.worldcat.org/title/federalindustrial-hygiene-agency-a-history-of-the-division-of-occupational-health-united-statespublic-health-service/oclc/6783338&referer=brief_results>) Mr. Doyle, a former Sanitary Engineer Director for the U.S. Public Health Service, notes that the study showed that more than 60% of the miners were diagnosed with miners consumption. Id. at 2. Following this study, a silicosis clinic was established in Joplin, and jointly financed by the U.S. Public Health Service, the Bureau of Mines, and Metropolitan Life
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Insurance Company. Id. A study of Vermont granite workers conducted in the early 1920s, showed silicosis rates as high as 94%, with an average exposure period of 21 years. Id. at 4, 5. In 1928, the U.S. Public Health Service conducted a study of the cement industry (Corn, at 129), and in 1933, the United Mine Workers of America and the Pennsylvania Department of Labor and Industry surveyed pulmonary disease among anthracite miners. This study confirmed that pulmonary fibrosis among miners was due to silica, and not coal dust. Doyle at 4-5. 26. Further studies were conducted of the sandstone, marble, pottery and abrasive blasting industries. Id. By the 1930s, it was well established that: Silicosis was an industrial disease caused by the inhalation of silica dust; The development of silicosis was dose-dependent, and Prevention of silicosis could be achieved through the use of engineering controls. Id. 27. In 1933, the U.S. Bureau of Labor Statistics issued the third edition of Bulletin No. 582, entitled: Occupation Hazards and Diagnostic Signs: A Guide To Impairments To Be Looked for in Hazardous Occupations. (See Bulletin 582, attached as Exhibit H). The Bulletin is based on published works from a number of sources, including the Harvard School of Public Health, the U.S. Bureau of Labor Statistics, the U.S. Public Health Service, and the Bureau of Industrial Hygiene of the New York State Department of Labor. Id. at vi. The Bulletin states that since its first publication, it had been requested, and endorsed, by [l]arge numbers of industrial physicians, directors of compensation boards, factory inspectors, safety engineers, industrial rehabilitation agents, faculties of medical colleges, and . . . general practitioners of medicine. Id. at v. 28. Bulletin No. 582 states that, since the publication of the second edition in 1923, our knowledge of well-known health hazards has [] been enriched. To mention only a few . . . dusts containing free silica, have been thoroughly studied and reported upon. Id. The Bulletin lists Dust as one of nine major hazards of employment, and states: Dusts containing free silica, however, are definitely known to be extremely harmful, producing serious pulmonary damage in a comparatively short time. The pathological condition resulting from exposure to silica dust is properly referred to as silicosis. Xray pictures of the silicotic lung show a characteristic mottling due to the formation of fibrotic nodules where silica has lodged in the lymphatic system. Symptoms of the disease may not show until it is well advanced, where there is a decreased lung expansion, marked shortness of breath, and cough.
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Id. at 19. 29. Bulletin No. 582 recommends ways to decrease exposure to silica dust, including wetting, use of exhaust systems or enclosed chambers, and the use of helmets covering the head and neck, preferably those which permit supplying air through a pipe from non-dusty areas. Id. at 19, 20. 30. The gains made in public awareness and policy about silicosis and its prevention were dealt a blow during the Great Depression, a time when workers were willing to face any known or unknown danger in order to receive a paycheck. Corn, at 129. 31. At the height of the Great Depression, in the early 1930s, a subsidiary power company of Union Carbide contracted to build a water diversion tunnel beneath the Hawks Nest Mountain, near the Gauley Bridge in West Virginia. Id. In what became known as the Hawks Nest Tunnel tragedy, at least 476 of the 2,000 men employed on the project died of silicosis after drilling through deposits of nearly pure silica. Another 1,500 became disabled. Id. 32. Following the highly publicized Hawks Nest Tunnel tragedy, hearings were held before a subcommittee of the House of Representatives, which concluded that the mining project was conducted with grave and inhuman disregard of all consideration for the health, lives and future of the employees, . . . . The Committee declared: [S]ilicosis is one of the greatest menaces among occupational diseases. Id. at 130. 33. The Hawks Nest Tunnel tragedy also prompted Frances Perkins, then U.S. Secretary of Labor, to convene the first National Silicosis Conference in April of 1936. The Conference was attended by 200 representatives of labor, industry, government, the public, insurance carriers, and the medical, engineering and legal professions. After a year-long investigation, the Conference Committee issued a report, published by the U.S. Government Printing Office in 1938, detailing how silicosis occurs, where it occurs, and what the disease is. (See transcribed text of Stop Silicosis," a 1938 film produced by the Department of Labor, attached as Exhibit I; see also attached CD-ROM of the digitized film, attached hereto as Exhibit J) (digitized version of film is also available at <http://archive.org/details/StopSilicosis>). 34. In the 1938 U.S. Department of Labor newsreel entitled Stop Silicosis, in which Labor Secretary Frances Perkins discussed the results of the National Silicosis Conference Committee report. The newsreel graphically and grimly depicts silica use in a number of industrial settings, and states that millions of American workers are dangerously exposed to silica dust. The newsreel further states: We know the practical engineering methods which will control the death-dealing dust. The newsreel concludes with the statement that Silicosis can be entirely prevented, and advises viewers to contact the Division of Labor Standards for additional information. Id. 35. The U.S. Department of Labor kept its focus on the hazards of silica exposure, and in 1943 produced a document in its Industrial Health Series entitled, Silicosis, Cause and Prevention. (See Industrial Health Series, No. 9, attached hereto at Exhibit K). The document describes the causes of silicosis and its signs and symptoms. A section on Prevention begins with a discussion of What Employers Should Do, and recommends that employers Keep the air free of silica dust. . . . Respirators are no substitute for silica-free air.
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Id. at 3. Workers are advised, Do not fail to use the protective equipment supplied by your employer, and to [c]ooperate with the management, individually or through your union, in the measures to control the silica dust. Id. at 4. 36. On the judicial front, in 1949, the United States Supreme Court declared it to be a matter of common knowledge that breathing silica dust is injurious to the lungs and dangerous to health, a fact the plaintiffs employer was bound to know. Urie v. Thomas, 337 U.S. 163, 180 (1949), citing the New York Court of Appeals, Sadowski v. Long Island R. Co., 292 N.Y. 448, 456 (1944) 37. The first significant federalization of the duty to provide a safe workplace, occurred in 1935, with the passage of the Walsh-Healey Public Contracts Act, Publ. L. 74-846, 49 Stat. 2036, 41 U.S.C. 35, et seq. (1935) (effective on June 30, 1936). The act required that government contractors perform any manufacturing or fabrication in factories that appropriate industrial hygiene methods to protect the health and safety of employees who are engaged in the performance of the contract. Starting in 1942, the federal government promulgated regulations of workplace standards, including standards for various dusts, to be binding upon businesses awarded public contracts. See Safety and Health Standards for Federal Supply Contracts 34 Fed. Reg. 7946, 7953 (1969) (standards for crystalline and amorphous silica). 38. In 1970, the federal government moved beyond an investigative and advisory role for business enterprises not government contractors, and enacted sweeping legislation governing safety in a wide range of industrial activities, including those involving the use of silica. President Richard M. Nixon signed the Occupational Safety and Health Act on December 29, 1970, thereby creating the Occupational Safety and Health Administration (OSHA) within the Department of Labor, and the National Institute for Occupational Safety and Health (NIOSH) within the Centers for Disease Control and Prevention (CDC), in the Department of Health and Human Services. 39. The stated goal of the OSH Act is to assure as far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources. The General duty clause requires Each employer [to] furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. 29 USC 654(a)(1). See also All About OSHA, OSHA Publication No. 2056-07R, 2003 (attached hereto at Exhibit L). Employers must, among other things: Keep workers informed about OSHA and safety and health matters; Comply with standards, rules and regulations issued pursuant to the OSHA Act; Minimize or eliminate potential hazards; Provide employees with appropriate personal protective equipment, and ensure that they use it, and Warn employees of potential hazards.
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Id. at 4, 5. 40. With the creation of NIOSH, the responsibility for certifying respiratory protection equipment, previously placed in the Bureau of Mines, was moved to NIOSH, which was a branch of the Centers for Disease Control. 41. In 1972, OSHA adopted formal exposure standards setting the maximum allowable exposure level to silica dust. 29 CFR 1910.1000, Table Z-3. The regulations emphasize that administrative or engineering controls must first be determined and implemented whenever feasible. 29 CFR 1910.1000(e). Where such controls are not feasible to achieve full compliance, the regulations state that protective equipment or any other protective measures shall be used ... Id. 42. The OSH Act requires employers to supply their workers with respirators when such equipment is necessary to protect the health of the employee. Employers must provide the respirators which are applicable and suitable for the purpose intended. The employer shall be responsible for the establishment and maintenance of a respiratory protection program which shall include the requirements outlined in paragraph (c) of this section. 29 CFR 1910.134(a)(2). 43. To ensure that its regulations would be understood and enforced, in 1972, OSHA issued a Directive to its Field and National Offices specifically addressing industry use of crystalline silica. (See OSHA Directive, CPL 2-2.7 Crystalline Silica, October 30, 1972, attached hereto at Exhibit M.) This Directive specifies the procedures to be followed in inspections, air sampling, and, where necessary, the issuance of citations. 44. In 1985, the federal government launched another major initiative designed to protect workers from hazardous substances, including silica, in the workplace. The Hazard Communication Standard, 29 CFR 1910.1200, was designed to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees. The Hazard Communication Standard requires employers to provide information to employees about hazardous substances, such as silica, by means of a hazard communication program, labels and other forms of warning, Material Safety Data Sheets, information and training. 29 CFR 1910.1200(b)(1). 45. HCS requires all employers to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training. 29 CFR 1910.1200(b)(1). Employers must: develop and implement a written hazard communication program for their workplaces (29 CFR 1910.1200(e)(1)); compile a list of every hazardous chemical used in their workplaces (29 CFR 1910.1200(e)(1)(i)); maintain copies of the MSDS for each hazardous materials in the workplace (29 CFR
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1910.1200(g)(8)); provide employees with effective information and training on hazardous chemicals in their work area (29 CFR 1910.1200(h)(1)).

B. New York Regulations 46. New York has been in the forefront of silica awareness and safety. A 1913 report by the Factory Investigation Commission urged that every possible precaution should be taken to minimize the danger from dust which, as statistics show, renders the foundry worker very susceptible to pulmonary troubles. (See Second Report of the Factory Investigation Commission, Vol. 1, 1913, at 17, attached hereto as Exhibit N). 47. As early as 1915, the New York State Labor Department enacted Industrial Code Rules governing foundry operations. (See New York State Industrial Bulletin, Vol. 20, December, 1941, attached hereto at Exhibit O.). The Code Rules were strengthened in 1941, following a study by the Labor Departments Division of Industrial Hygiene that showed that the foundry industry is one having a definite silicosis hazard as shown by the high percentage of free silica. Id. at 359. 48. In 1935 or earlier, New Yorks Division of Statistics and Information published an article entitled, Silica Hazards in Foundry Dust. (See article, attached hereto at Exhibit P). The article states, Since silica is a hazard causing silicosis, which becomes a compensable disease on September 1, 1935, it is desirable that employers should inform themselves not only of its dangers but the means of preventing it. Id. at 96. 49. New Yorks efforts to protect workers from silica exposure achieved national recognition in 1940, when LIFE magazine published a story describing measures taken by the Department of Labor to safeguard workers on an 85-mile tunnel constructed as part of the Delaware Aqueduct. (See Silicosis, LIFE Magazine, April, 1940, 68-69, attached hereto at Exhibit Q). 50. The tunnel project required as many as 6,000 workers to drill and blast through quartz rock. Intent on avoiding a second Hawks Nest tragedy, the New York Department of Labors Industrial Hygiene Division imposed a host of safety measures on the project, including wet drilling, elaborate ventilations systems and the use of air sampling. A special truck was built for transporting X-Ray machinery, and workers were regularly screened on the job site. Id. LIFE declared the precautions to be [a] triumph of preventative medicine. Id. 51. In 1940, the Industrial Commissioner of New York, Fred Miller, issued a progress report to the New York legislature, on dust diseases, with an emphasis on silicosis. Fred S. Miller, Detection and Control of Silicosis and Other Occupational Diseases: What New York State Has Done and The Job Ahead (March 1940) (emphasizing the preventability of silicosis in New York state, and including a bibliography of the Department of Labors extensive investigations into silicosis hazards within the state), attached as Exhibit R.
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52. The New York courts also have been in the forefront in recognizing the hazards of silica exposure, and addressing the legal implications of knowledge of those hazards. The New York Court of Appeals in Sadowski v. Long Island R. Co., 292 N.Y. 448, 456 (Ct. of Appeals of NY, 1944), held that It is a matter of common knowledge that it is injurious to the lungs and dangerous to health to work in silica dust, a fact which defendant was bound to know. Sadowski was cited and relied upon by the United States Supreme Court in its decision Urie v. Thomas, 337 U.S. 163, 180 (1949) (See 36, above). 53. In 1956, well ahead of the regulatory efforts of the federal government, the New York legislature enacted Industrial Code Rule No. 12 Control of Air Contaminants. With certain exceptions not relevant to this matter, Rule No. 12 governed all processes and operations releasing or disseminating air contaminants in any workroom or work space . . . ( 12.1), and squarely defined the role of the employer in protecting workers. (See Industrial Code Rule No. 12, attached hereto as Exhibit S) 54. Section 12.2 of the Rule, Responsibility of employers, states: Every employer shall observe and effect compliance with the provisions of this rule relating to prevention of air contamination and to providing, installing, operating and maintaining control or protective equipment, and shall instruct his employees as to the hazards of their work, the use of such control or protective equipment and their responsibility for complying with this rule. 55. The employees responsibility under the Rule is to use the controls and equipment provided by his employer for his protection. 12.3. 56. New Yorks regulations, like the federal regulations that would follow in the 1970s, focused on avoiding exposure to hazardous substances such as silica in the first instance. Section 12.7, Prevention, states that All processes and operations where practicable shall be so conducted or controlled as to prevent avoidable creation of air contaminants. Section 12.9, General control methods, recommends [o]ne or more of the following methods . . . to prevent, remove, or control dangerous air contaminants: 1. Substitution of a material which does not produce air contaminants; 2. Local exhaust ventilation at the source of generation of the air contaminant; 3. Dilution ventilation in any work space in which air contaminants are generated or released; 4. Application of water or other wetting agent to prevent air contaminants; 5. Other methods approved by the board.
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57. Section 12-29 of the Rule, Maximum allowable concentrations evidence of dangerous air contaminants, states that air contaminants in quantities greater than those listed in the regulations shall constitute prima-facie evidence that such contaminants are dangerous air contaminants. In a chart entitled Mineral Dusts, the regulations specifically address the maximum allowable quantity of free silica, measured in million particles per cubic foot. 58. In 1958, the New York legislature amended and re-named Rule 12. Re-titled Industrial Code Rule No. 12 Control of Air Contaminants in Factories, the amended Rule, at 12.3, gave a more detailed description of the responsibilities of employers. (See Industrial Code Rule No. 12 (1958), attached hereto as Exhibit T). The provision states: Responsibility of employers. Every employer shall effect compliance with the provisions of this rule relating to the prevention and removal of air contaminants, the storage and use of flammable liquids and the provision, installation, operation and maintenance of control or protective equipment. Every employer shall instruct his employees as to the hazards of their work, the use of the control or protective equipment, and their responsibility for complying with this rule. No employer shall suffer or permit an employee to work in a room in which there exist dangerous air contaminants in a work atmosphere. No employer shall suffer or permit dangerous air contaminants to accumulate or remain in any factory. 59. Section 12.6 of the Rule, Prevention of air contamination, states that All operations producing air contaminants shall be so conducted that the generation, release or dissemination of air contaminants is kept at the lowest practicable level. Section 12.8, General control requirements, states: Dangerous air contaminants shall be removed or controlled as prescribed in this rule. 60. Rule 12 was amended again in 1963 and in 1971, when silica dusts were further broken down into categories reflecting the amount of free silica contained in the product, and corresponding maximum allowable exposure limits were set. (See Industrial Code Rule No. 12 (1963), attached hereto as Exhibit U, and Industrial Code Rule No. 12 (1971), attached hereto as Exhibit V). 61. Under Section 18 of the OSH Act, states with their own safety and health programs may receive OSHA approval, and funding, if the states program is at least as effective as federal OSHA requirements. See All About OSHA, at 10, supra at 39, attached as Exhibit L. See also http://www.ehso.com/osha_States.htm. New Yorks Occupational Safety and Health Plan has met the requirements of an OSHA-approved state plan. Id.
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V. EMPLOYER-SPECIFIC CONSIDERATIONS 62. Examination before trial of former Syracuse China employee Philip E. Harvard, as well as plant physician, Dr. David Seeley were taken. Syracuse China responded to a subpoena request by producing over 1,800 pages of documentary evidence. The testimony coupled with the documentation produced by Syracuse China demonstrates that it was, at all times relevant to this lawsuit, a sophisticated user of silica.

A. The American Ceramics Society 63. The publications of the American Ceramics Society show that Onondaga Pottery was an early, active, and dominant member of the Society. The Bulletin of the American Ceramics Society described itself as A Monthly Publication Devoted to Proceedings of Society, Discussions of Plant Problems. Discussions of Technical and Scientific Questions and Promotion of Cooperative Research. The first two volumes of the Bulletin listed B. E. Salisbury as a trustee and as affiliated with Onondaga Pottery Co., Syracuse, NY. (Onondaga Pottery was later renamed Syracuse China.) See Exhibit W, excerpt of volume 1, available in its entirety at <http://archive.org/details/bulletina01amer>; Exhibit X, excerpt of volume 2, available in its entirety at <http://archive.org/details/bulletina02amer >. 64. Membership Rosters were regularly posted in the Journal of the American Ceramics Society (which is available on-line through the American Ceramics Society, and at archive.org). In 1929, the Society published the Membership Roster of [the] American Ceramic Society, 12 J. Am. Ceramics Soc'y 187 (1929) <http://onlinelibrary.wiley.com/doi/10.1111/j.11512916.1929.tb18067.x/pdf>, attached as Exhibit Y. The following members, including Dr. Schramm and Mr. Pass, from Onondaga Pottery Company were listed: Onondaga Pottery Co., B. E. Salisbury (Voter), Syracuse, NY Cannan, William, Jr., Onondaga Pottery, Syracuse, NY Haley, Mark A., 854 Maryland Ave., Syracuse, NY (Business address, Onondaga Pottery Co.) Hall, F. P., 606 Crossett St., Syracuse, NY (Business address, Onondaga Pottery Co.) Parmelee, Clifford H., 210 Warham St., Syracuse, NY (Business address, Onondaga Pottery Co.) Pass, R. H., Onondaga Pottery, Syracuse, NY Salisbury, Bert E., 1810 W. Genesee St., Syracuse, NY (Business address, Onondaga Pottery Company, President.) Schramm, Edward, Research Chemist, Onondaga Pottery Co., Syracuse, NY
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65. In 1931, the American Ceramics Society reported that Edward Schramm had been elected a fellow in the American Ceramics Society. Activities of the Society, 14 J. Am. Ceramic Soc'y 88, 89, 93 (April 1931). <http://onlinelibrary.wiley.com/doi/10.1111/j.11512916.1931.tb16597.x/pdf>, attached as Exhibit Z. This issue of the Journal also records that Edward Schramm served as trustee of the Terra Cotta Division of the Society. Id. at 96. 66. In 1933, the Journal recorded Edward Schramm's service as chairman of the White Wares Division of the Society. Notes and News, 16 J. Am. Ceramic Soc'y 56, 58 (Feb 1933). <http://onlinelibrary.wiley.com/doi/10.1111/j.1151-2916.1933.tb16949.x/pdf>, attached as Exhibit AA. 67. Later the same year, 1933, Edward Schramm is listed in the Journal as active in various committees an Society activities. Activities of the Society: Our Thirty-Fifth Annual Meeting, 16 J. Am. Ceramic Soc'y 95, 96 (April 1933) (Publications Committee for 1932-33); see id. at 106 (White Wares Division Advisory Committee to the Bureau of Standards). <http://onlinelibrary.wiley.com/doi/10.1111/j.1151-2916.1933.tb16963.x/pdf>, attached as Exhibit BB. 68. In 1942, several Onondaga Pottery employees are noted to be active in various Society activities. Standing Committees for 1941-1942, 25 J. Am. Ceramic Soc'y 52 (April 1942) (Committee on Data, F. P. Hall, Onondaga Pottery Co., Syracuse, NY; Committee on Gaseous Fuels: C. H. Parmalee, Onondaga Pottery Co., Syracuse, NY) <http://onlinelibrary.wiley.com/doi/10.1111/j.1151-2916.1942.tb15586.x/pdf>, attached as Exhibit CC.

B. W.C.L. Hemeon's Article on Dust Control in the Foundries 69. In August 2012, your declarant, Nathan Schachtman, corresponded with the American Ceramics Society, to request an acknowledgment of the authenticity of a 1949 article in the American Ceramic Society Bulletin. In reply, Linda Ballinger, Director of Finance and Operations of the Society, answered with her certification of authenticity of the article, along with membership lists that included Onondaga Pottery, both in 1948 and in 1949. See Correspondence from Ms. Ballinger to Nathan Schachtman, Exhibit DD, attached to this affirmation. 70. In April 1947, the Engineering Director of the Industrial Hygiene Foundation, Mellon Institute, Pittsburgh, Pennsylvania, presented a paper at the 49th Annual Meeting of the American Ceramic Society, in Atlantic City, New Jersey. The paper was subsequently published in The American Ceramic Society Bulletin. W.C.L. Hemeon, Dust Control in the Ceramic Industries, 28 Am. Ceramic Soc'y Bull. 94 (1949). Exhibit EE, transmitted by Ms. Ballinger, in response to correspondence by Nathan Schachtman.

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71. The Bulletin described itself as A Monthly Publication Devoted to Proceedings of the Society, Discussions of Plant Problems, Discussions of Technical, Scientific, and Art Questions, and Promotion of Cooperative Research. Id. 72. Hemeon's article was presented and published at a time, after World War II, when many ceramic manufacturers were expanding or modernizing their factories. The paper addressed the problems of dust control in relation to modernization plans, and choices that ceramic manufacturers faced in implementing dust control necessary to protect their workers. Id. at 94. 73. Hemeon noted that the handling of raw materials presented engineering problems to control operations that have the potential to be inherently dusty. Id. [T]he minimum requirement for success is that the dust that may cause silicosis be completely controlled. This means that if the dust from pulverized silica and from silica sand can be completely suppressed, the minimum requirements are satisfied. Id. 74. In the context of the more traditional manual handling of raw materials, which involved shovels and wheel-barrows to unload rail cars and trucks [which methods had been abandoned by Mr. Irwin's employer long before his employment began], Hemeon noted that [t]here is no way of eliminating the silicosis hazard in manual unloading of box cars of flint by exhaust ventilation. Id. 75. Hemeon, in his paper, proceeded to describe modern techniques of material handling, which involved pneumatic conveyors, dust collectors, wet methods, and ventilation and exhausting equipment. Id. at 95 - 96. 76. Hemeon further described that the control of the silicosis hazard required quantification of dust, as well as an assessment of particle size and chemical makeup. Id. at 96 - 97 77. Hemeon concluded that any remaining silicosis hazard in this [ceramic] industry could be eliminated within a couple of years if management were apprised of the facts. The silicosis hazard can be measured and methods for its elimination, practically, are available. Id. at 97. 78. The methods described by Hemeon were well known to Onondaga Pottery, and its successor, Syracuse China. The 1949 volume of the Bulletin, in which Hemeon's article appears, contained a roster of corporate members, including Onondaga Pottery Company (R.H. Pass), of Fayette Street, Syracuse, New York, described as [m]anufacturers of Syracuse china, a thoroughly vitrified, nonabsorbent ware used in public eating places and homes, in decorated, plain-tinted, and white. See Bulletin at p. 309, attached as Exhibit FF.

C. Edward Schramm 79. Edward Schramm's work at Onondaga Pottery Company, documented in the pages of the Journal of the American Ceramics Society, commenced with some fanfare, including an
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announcement in scientific journals. See 10 J. of the Washington Academy of Sciences 452 (1920) (Mr. Edward Schramm, formerly on the chemical staff of the Bureau of Standards, has left the research laboratory of the Bridgeport Brass Company, to take charge of research for the Onondaga Pottery Company of Syracuse, New York.) (available on-line at <http://archive.org/details/journalofwashingt10wash>), the relevant pages of which are attached as Exhibit GG. 80. Edward Schramm held several patents, all assigned to Onondaga Pottery. See Edward Schramm, Method of Producing Colored Flatware, U.S. Patent 2,174,198, Application December 30, 1938, Patented Sept. 26, 1939 (Edward Schramm, Syracuse, N. Y., assignor to Onondaga Pottery Company, Syracuse, N. Y., a corporation of New York). attached hereto as Exhibit HH.; Edward Schramm, Fuse [for Igniting Explosives], U.S. Patent 2,464,650, Application of July 3, 1944, Patented Mar. 15, 1949 (Richard H. Pass and Edward Schramm, Syracuse, and Foster T. Rhodes, De Witt, N. Y., assignors to Onondaga Pottery Company, Syracuse, N. Y., a Corporation of New York), attached hereto as Exhibit II; Edward Schramm, Sagger Pin [invention for preventing stacked molded pottery from fusing together while being fired to produce ceramic vitreous ware], U.S. Patent 2,908,960, Application of February 21, 1957, Patented Oct. 20, 1959 (Edward Schramm, Syracuse, N.Y., assignor to Onondaga Pottery Company, Syracuse, NY, a corporation of New York), attached as Exhibit JJ. 81. Schramm was acknowledged as a scientist for contributions outside the narrow area of ceramics research. Albert B. Peck, of the University of Michigan, acknowledged Dr. Schramms contributions to optical mineralogy. See Peck, A New Type of Monochromatic Light Source, 7 Am. Mineralogist 104, 106 (1922) (The writer wishes to record here that the idea of adapting the principle of the Monroe crucible to a monochromatic light source is not his exclusively but rather that of Dr. Edward Schramm, research chemist for the Onondaga Pottery Company, at whose suggestion and by whom it was developed during the summer of 1921.), available at <http://www.minsocam.org/ammin/AM7/AM7_104.pdf> 82. The National Research Council of the National Academies of Science published directories of industrial (non-governmental) research laboratories within the United States. Edward Schramm is listed as the director of research for Onondaga Pottery Company, in the 1920s, through the 1950s. See Clarence West & Ervye Fisher, eds., National Research Council, Bulletin of the National Research Council: Industrial Research Laboratories of the United States at 82 (1927) (listing Edward Schramm as director of research staff of Onondaga Pottery, Syracuse, N.Y.), available at <http://books.google.com/books?id=yS0rAAAAYAAJ&pg=RA1-PA82&lpg=RA1PA82&dq=%22edward+schramm%22+%22onondaga+pottery%22&source=bl&ots=vtJPBULt9 r&sig=7NcX5yyUCTu5lzQG6fHGBR7AqQo&hl=en#v=onepage&q=%22edward%20schramm %22%20%22onondaga%20pottery%22&f=false>;
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Callie Hull, ed., National Research Council, Bulletin of the National Research Council: Industrial Research Laboratories of the United States at 208 (7th ed. 1940) (same), available at <http://books.google.com/books?id=riwrAAAAYAAJ&pg=PA208&lpg=PA208&dq=%22edwar d+schramm%22+%22onondaga+pottery%22&source=bl&ots=S8Xq8wgfBF&sig=VnVqs19wE 437HUauXJW2BUt4sPA&hl=en#v=onepage&q=%22edward%20schramm%22%20%22ononda ga%20pottery%22&f=false>; Myron Rand, ed., National Research Council, Bulletin of the National Research Council: Industrial Research Laboratories of the United States at 269 (9th ed. 1950) (Edward Schramm, Director of Research), available at <http://books.google.com/books?id=ijcrAAAAYAAJ&pg=PA269&lpg=PA269&dq=%22edwar d+schramm%22+%22onondaga+pottery%22&source=bl&ots=wPu0AWmoa&sig=bopDNcupRIn1qXknIUuVpNmIxrg&hl=en#v=onepage&q=%22edward%20s chramm%22%20%22onondaga%20pottery%22&f=false>; James Mauk, ed., National Research Council, Bulletin of the National Research Council: Industrial Research Laboratories of the United States at 357 (10th ed. 1956) (listing Richard H. Pass as President, and Edward Schramm, as Director of Research, of Onondaga Pottery, 1858 West Fayette St., Syracuse 4, N.Y.) [Lib. Congress No. 2-26022], relevant excerpt attached as Exhibit KK; full book available at <http://books.google.com/books?id=6DgrAAAAYAAJ&pg=PA357&lpg=PA357&dq=%22edw ard+schramm%22+%22onondaga+pottery%22&source=bl&ots=MM1pI4Go1h&sig=ZfjgiRkg3p9xd2nYkAej6Gj_8&hl=en#v=onepage&q=%22edward%20schramm%22%20%22onondaga%20pottery%22&f=f alse>.

D. Edward Schramm's Article: Dust Elimination in the Pottery Industry 83. In December 1933, the Journal of the American Ceramic Society published an article on the industrial hygiene of silica exposure in the pottery industry. Edward Schramm, Dust Elimination in the Pottery Industry, 16 J. Am. Ceramics Soc'y 205 (1933)[cited as Schramm]. Exhibit LL. 84. Schramms paper had been presented at the Annual Meeting of the American Ceramic Society, earlier in 1933. Schramm at 205. 85. Schramm acknowledged that there have been two generally recognized health hazards in the manufacture of pottery, one due to the use of lead, the other to the breathing of air containing silica dust. Id.

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86. Schramm further acknowledged that historically the dust problem in potteries has been a difficult issue. He stated: The writer, therefore, was sufficiently concerned with it to undertake an experimental study in the pant to serve as a guide to remedial measures. Id. 87. In his article, Schramm described previous ventilation systems in place, and improvements to those systems introduced to achieve reduced silica dust levels. Id. 88. Schramm describes himself as fortunate in having the assistance of Dr. Leonard Greenburg of the United States Public Health Service, in carrying out his study. Id. 89. Dr. Greenburg was the inventor of the dust counting device, known as the impinger, which greatly improved the quantification of dust exposures and permitted objective evaluation of dust control and elimination activities. 90. Dr. Greenburg, an engineer and a physician, was among the thought leaders on silica and other dust hazards, from the 1920's forward. He was the first Commissioner of Air Pollution Control, for New York City. Previously, he had served in New York's Division of Industrial Hygiene, as its Executive Director. See Leonard Greenburg, Pollution Official, 98, N.Y. Times Obituaries (April 12, 1991) < http://www.nytimes.com/1991/04/12/obituaries/leonardgreenburg-pollution-official-98.html >; attached as Exhibit MM. See description of publications by Dr. Greenburg in <http://www.worldcat.org/identities/lccn-no88-2052>, as well as the collection of publications by Dr. Greenburg, in the National Library of Medicine's PubMed web-based database. [PubMed Search <http://www.ncbi.nlm.nih.gov/sites/entrez> searched on <Greenburg+L[auth]>]. 91. When an official with the New York Department of Labor, Dr. Greenburg published prolifically on silica dust issues. Leonard Greenburg; Theodore F Hatch; New York (State). Division of Industrial Hygiene. New York (State). Division of Industrial Hygiene. Studies in silicosis. 1946 (Originally published in 21 Industrial bulletin (April, May, June, 1942); Leonard Greenburg, M.D., Dangerous Dust: The Silicosis Hazard in American Industry. Division of Industrial Hygiene, New York State Department of Labor (December 1936); Leonard Greenburg, William Siegal, and Adelaide Ross Smith, Silicosis in the Foundry Industry. Special bulletin (New York Dep't of Labor), no. 197 (1938); Leonard Greenburg & Theodore F. Hatch, Dust Problems in Ceramic Industry. New York State Department of Labor, Division of Industrial Hygiene (1942); Leonard Greenburg, M.D., Adelaide Ross Smith, M.D., and May R. Mayers, M.D., Essentials of health maintenance in industrial plants. Special bulletin (New York Dep't of Labor) no. 213. Division of industrial hygiene, Albany, NY (1942). 92. Using the Greenburg impinger, Schramm carried thorough dust counts of a pottery, not identified in his published article. It is fairly obvious that Schramm, an employee of Onondaga Pottery Company, was reporting dust counts from his own workplace. Schramm reported dust counts from the Clay Shop, from the jigger shop, the closed-off room, the finishing room, the stove rooms, and kiln replacing rooms. Schramm at 207 - 11.
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93. Schramm, in his 1933 article, also summarized the medical state of the art with respect to the safety concerns over excessive exposure to silica dust. His Bibliography, at the end of the article, reflects his awareness of important sources of health information about silicosis. Id. at 213. Noting that much valuable work has been carried out by the United States Public Health Service, Schramm described how inhaled mineral dusts can cause lung fibrosis. Id. at 211. Schramm noted that silica dust is especially harmful, and the resulting condition is known as silicosis. Id. 94. Schramm compared dust conditions in the potteries to those known to have existed in the granite quarrying industry, in which the Public Health Service had conducted extensive dust and health-effects surveys. Schramm noted that even before the work described in his article began, the average dust count was less than half that required by the Public Health Service. Id. at 212. Schramm concluded: [i]t therefore appears that conditions have been improved to a point where the dust hazard formerly associated with the manufacture of pottery no longer exists. Id. at 212-13.

E. Syracuse China Archives at the Onondaga Historical Association 95. In November 2010, your declarant, Nathan Schachtman, registered with the Onondaga Historical Association (OHA) Museum & Research Center, 321 Montgomery Street, Syracuse, NY 13202-2098, to register my interest in the history of safety and silicosis at Onondaga Pottery Co., and Syracuse China Co. See Patron Registration Form of Nathan Schachtman, dated November 19, 2010, attached hereto as Exhibit NN. 96. The OHA informed me that they held an archive of personal papers donated by the late Richard Pass, who had been an executive of the Onondaga Pottery Co., which later came to be known as the Syracuse China Co. 97. The OHA permitted me to schedule an inspection, and designate documents for the OHA to copy and provide to me. 98. By correspondence from Ms. Pamela Priest, the Archivist and Research Center Manager of the OHA, dated March 26, 2011, to me, Ms. Priest explained, at my request, the provenance of documents I had reviewed and copied: The entirety of the Syracuse China Archives was deeded to the Onondaga Historical Association (OHA) on April 8, 2009 from Syracuse China of Toledo, OH as part of the Syracuse China Property Collection. The Syracuse China Property Collection was moved-in six tractor trailers directly from the Syracuse China plant in Syracuse, NY, to OHA's building at 321 Montgomery Street, Syracuse, NY, on June 17 and June 18, 2009 .We maintain the Syracuse China Archives as part of our archives, using standard archival methods and procedures.
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We have a finding aid that was prepared by Syracuse China archivists; and has been updated by OHA with box numbers and shelf locations to make it easier to find items in the collection. See Exhibit OO. 99. The Syracuse China archives contained many documents that established, as far back as the 1920s, Syracuse Chinas knowledge of the hazards and health consequences of silica dust exposure in its ceramic and pottery plants, as well as knowledge of the industrial hygiene techniques required to avoid the untoward effects of excessive, prolonged silica exposure. The following paragraphs describe some of the documents found in the Syracuse China Property Collection. 100. A telegram from Mr. Richard H. Pass, to Dr. Leonard Greenburg, of the Yale School of Medicine, New Haven, CT, dated November 9, 1933. Mr. Pass was expressing his hope that Dr. Greenburg would be able to help Attorney Allen, on an unspecified matter. See Exhibit PP, attached hereto. 101. A letter from a Syracuse lawyer, William Mackenzie, to Mr. Richard Pass, dated January 3, 1934. See Exhibit QQ, attached to this affirmation. Mr. Mackenzie noted that he was returning Public Health Bulletin No. 187, which Mr. Pass had lent him previously. The full citation for this publication is: A. E. Russell, R. H. Britten, L. R. Thompson, and J. J. Bloomfield, The Health of Workers in Dusty Trades--II. Exposure to Siliceous Dust (Granite Industry), Public Health bulletin No 187. US Treasury Dept, Public Health Service (1929). The Public Health Bulletin is referenced in the bibliography of Edward Schramm's 1933 article, discussed above. 102. An advance sheet note about a 1938 decision of the New York court system, in Del Busto v. DuPont de Nemours & Co., Inc., 5 N.Y.2d 174, 167 Misc. 920 (1938). The Del Busto decision recounts the prohibitively high insurance rates for industries that allowed a silicosis risk to exist for their employees, and various legislative modifications to the Workmen's Compensation Law of New York. See Exhibit RR, attached hereto. 103. A copy of an article appearing in a Syracuse, New York, newspaper, the Herald, apparently January 15, 1939, reporting that the final disposition of three cases against Onondaga Pottery Company had been decided. Two of the cases alleged fatal pneumoconiosis, and the third alleged non-fatal pneumoconiosis. One disposition was an affirmance by the Appellate Division of the trial court's dismissal of the suit. The two dispositions were settled, but Onondaga Pottery executives stated that the settlements were made by an insurance company. See Exhibit SS, attached hereto. 104. A newspaper article, with a handwritten notation indicating publication on August 14, 1937[sic], in the [Syracuse] Journal [American], about two employees success in motions in
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suits against the Onondaga Pottery Company. The plaintiffs, Lawyer and Johnson, had won motions to compel discovery of the pottery's officers, equipment, and premises. Both plaintiffs claimed that their decedents had died of silicosis from work at the pottery. See Exhibit TT, attached hereto. 105. An affidavit sworn and executed by Richard H. Pass, the Second Vice-President of production and of research, at Onondaga Pottery Company. See Exhibit UU, attached hereto. Mr. Passs affidavit, dated April 1938, and captioned Johnson v. Onondaga Pottery Company, appears to be a response to the plaintiffs motion to conduct discovery of the pottery premises and its production methods. The affidavit recites the history of Onondaga Pottery, as having been incorporated in 1871, and as having two plants, one at West Fayette Street, in Syracuse, and the other at Court Street, in Salinas. Mr. Pass states that his company manufacturers vitreous china, and makes the case for the need for secrecy in production methods and techniques. 106. Mr. Pass, in his affidavit, paragraph 15, states the only exception to the company's rule of secrecy: The only exception to the company's rule of secrecy has been in connection with the work which this company has done in industrial hygiene, insofar as information concerning this work could be disseminated without divulging secret machinery and processes of manufacture. As early as thirty years ago, and more particularly beginning fifteen years ago, under your affiant's personal supervision, the Onondaga Pottery Company undertook, and since carried thorough a study and program believed by your affiant to be the most extensive ever conducted in any pottery in the United States, in the elimination of lead poisoning and dust hazards. During this period, and particularly prior to the year 1930, a thorough and extensive study be competent scientists and medical men was made. In connection with this study, the company developed certain new methods and types of equipment which the company has seen fit to publish for the benefit of health conditions in the industry in general and of allied industries. The only limitation placed upon such publication was that the secret formulae, processes and machinery of the company should not be disclosed to the public in general and to competitors in particular. 107. Although Mr. Pass, in his affidavit, objected strenuously to any disclosure of the formulae for the company's potter's clay, he does acknowledge, in paragraph 19, the use of free silica: The Onondaga Pottery Company concedes that the potters clay used in the Clay Shop contains free silica (although it should be observed in passing, and as noted in the annexed affidavit of Mr. Carroll, that the operation carried on by

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William Johnson in running a jigger machine called for the use of a wet plastic mix to which water was added during the process). 108. In paragraph 19, Mr. Pass states the companys willingness to have the dust content of the factory air measured and analyzed by New York State agencies: The Onondaga Pottery Company is also ready and willing to permit dust samples and counts to be taken in the Clay Shop where the said William Johnson [plaintiff] was employed. The Onondaga Pottery Company, however, is unwilling to permit said dust samples and counts to be taken by any agent or representative selected by the plaintiff or his attorney. The Onondaga Pottery Company, in this respect, is willing to have the said dust samples and counts by the Director of Industrial Hygiene of the State of New York, or by an engineer or industrial hygienist selected by the Commissioner of Health of the City of Syracuse. 109. Among the Syracuse China documents archived at the Onondaga Historical Association was a 1938 dust count, taken by Edward Schramm, of the clay shop, using a Greenburg impinger. Exhibit VV, attached to this affirmation. 110. A Company Policy Handbook, a loose-leaf compendium found among the papers of Mr. Richard Pass. See Exhibit WW, attached hereto. Page E-1, marked Revised 2/1/70 notes that Plant Physicians are engaged by the Company on a part-time basis. *** They are expected to make recommendations regarding health and safety matters. Page E-3, marked Revised 6/1/62, describes ACCIDENT PREVENTION: Safety is Everybodys Job. This explains simply who participates in an accident prevention program. Each supervisor, however, plays the very important role in that he is responsible for seeing that the employees under his supervision are trained how to do their jabs correctly and safely. The foreman is acquainted with all the hazards in his department and acquaints his employees with these hazards. He also initiates corrective action to eliminate hazards. When employees behave in an unsafe manner, he alerts them to such violation and exercises disciplinary action when necessary. He further investigates all accidents in his department. We firmly believe that a clean plant is a safe plant, so health and safety go handin-hand. A good health and safety record is not an objective in itself but only a means to an end - that of producing a product without inducing pain or suffering to any human being and without unnecessary cost. When we accomplish this, Safety Pays.

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The Safety Coordinator will furnish administrative assistance to such a prevention program. The supervisor should feel free to seek his services whenever needed. 111. A 1961 edition of the New York legislature's amended and re-named Rule 12. Re-titled Industrial Code Rule No. 12 Control of Air Contaminants in Factories, described in 53-59, supra; attached hereto as Exhibit ZZ hereto. F. Syracuse China Employee Physicals and Physician One-on-One Explanations of Silica Hazards 112. Dr. David Joseph Seeley testified in an examination before trial, on September 14, 2011. The transcript of Dr. Seeley's testimony is attached to this affirmation as Exhibit XX. 113. David Joseph Seeley, M.D., is a physician and part owner of Industrial Medical Associates, 961 Canal Street, Syracuse, New York 13210. (Seeley transcript at p. 7). Dr. Seeley received a degree in chemical engineering from Notre Dame University, and his M.D. degree from S.U.N.Y. Upstate Medical School, in 1978. After completing his residencies, Dr. Seeley became board certified in internal and emergency medicine. (Seeley transcript at p. 8). In addition, Dr. Seeley has completed over 200 hours of post-graduate medical training in occupational medicine at the University of California. (Seeley transcript at p. 9-10). 114. From 1982 until 2009, Dr. Seeley worked full-time at St. Joseph's Hospital. In addition, he formed Industrial Medical Associates in 1984, which provides occupational medical services to small and medium-sized businesses in the Syracuse area. (Seeley transcript at p. 9). 115. Sometime in the late 1980s, Dr. Seeley, through Industrial Medical Associates, began to provide occupational medical services to Syracuse China, to help manage their Workers Compensation costs, and provide employee physicals and monitoring with respect to both lead and silica exposure. (Seeley transcript at p. 11-12). 116. Dr. Seeley became personally familiar with the details of the Syracuse China program. Personal protective equipment was made available to the employees of Syracuse China; chest radiographs (X-rays) were taken periodically; pulmonary function tests administered; and respirator training was provided. (Seeley transcript at p. 13, 23). 117. Records of Dr. Seeleys examinations of Mr. Irwin, and records relied by Dr. Seeley in his evaluation of Mr. Irwin were produced by Syracuse China. (Seeley transcript at p. 16). 118. Dr. Seeley saw Mr. Irwin at roughly yearly intervals, beginning around 1990. Dr. Seeleys records indicate that at the time of his first visit, Mr. Irwin was using a Type H respirator, occasionally. (Seeley transcript at p. 18-91, 44). In a 1990 examination, Dr. Seeley reviewed Mr. Irwins job description and duties, and advised him to wear respirator at all times in building because of high risk of exposure to silica. (Seeley transcript at p. 22). 119. The 1990 examination included a detailed discussion [that] include[d] communicating to
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him that unprotected exposures over time could lead to a lung disease, and difficulty breathing. (Seeley transcript at p. 54-55). 120. Dr. Seeleys impression at the time, in 1990, was that he had explained the significance of wearing that respirator to Mr. Irwin as well as he could, and that Mr. Irwin understood what was being explained to him. (Seeley transcript at p. 89-90). 121. During the course of Mr. Irwin's evaluations by, and consultations with, Dr. Seeley, Mr. Irwin acknowledged that there were times that he did not wear his respirator while working around silica dust: Q. Did Mr. Irwin ever indicate to you that there were times while he was working at Syracuse China in and around silica dust that he did not wear the respirator that was made available to him? MR. SATISKY: Object to the form. You can answer. Q You can answer. A Oh, yes. (Seeley transcript at p. 44:23-45:5). 122. In 1991, Mr. Irwin, in connection with the silica surveillance program, stated, I'd like to start having annual chest X-rays because of the silica dust I'm exposed to and the length of time exposed (nine years). (Seeley transcript at p. 25-26, 90). 123. Also in 1991, Dr. Seeley noted that Mr. Irwin expressed concern about the duration of his silica exposure, and thus Silica discussed, disease process, chest x-ray monitoring, and clinical manifestations. Dr. Seeley explained that this interview involved a face-to-face meeting in which he told Mr. Irwin what he, Dr. Seeley, knew about silica. (Seeley transcript at p. 28-29). 124. In 1993, Dr. Seeley documented another detailed discussion with Mr. Irwin about the hazards of silica exposure, as well as an admonition to wear his respiratory protection all the time. In Dr. Seeleys contemporaneous notes, he recorded Silicosis discussed in detail. Explained scarring, respiratory insufficiency, need for protection despite his familiarity with substance. After discussion appeared to understand the importance. He stated he did not wear respirator protection all the time -- at all times. Advised to do so. (Seeley transcript at p. 31). 125. According to Dr. Seeley, he tried to impress on Mr. Irwin in at least that note I made when despite his familiarity with the substance, because this substance it doesn't burn your eyes, and it doesnt always make you cough and sneeze, and it's sand. So you work around it for a long time and you can get careless, and because you dont -- there's no immediate impact, you know, were talking about something that develops 10, 15, 20 years later, and you're trying to increase the employees awareness of this particular -- and thats not easy to do to a lay person or anyone.
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You know, they dont have the, you know, they dont read the literature and look at the X-rays of people who have been exposed for 20 years and see what happens to the lungs. And its not at an industry where, like, coal miners where their buddy or their father or their brother has developed coal miners pneumoconiosis, and they know that this is a bad thing and they better wear a respirator, because theres no reference point. They don't have a familiarity with people with similar problems. So its hard to -- thats why I made a few of these notes and why I tried to, you know, bang on him as best as I could that this can be a potentially serious problem, and you know, you should protect yourself from it. (Seeley transcript at p. 49). 126. Dr. Seeley testified that he tried as well as he could as a physician to sensitize Mr. Irwin to the long-term dangers of working around silica without proper protection. (Seeley transcript at p. 49-50). 127. In November 2000, the X-ray surveillance reported abnormalities on Mr. Irwin's films. (Seeley transcript at p. 40-41). 128. Dr. Seeley, despite being in a position to know, was unaware of any workmans compensation claims being filed against Syracuse China for silicosis. As a physician in the community, he was unaware of any other cases of silicosis developing at Syracuse China. (Seeley transcript at p. 43, 50). 129. Throughout the years that Dr. Seeley saw Mr. Irwin, he approved Mr. Irwin to work with silica; that is, he was able to wear a respirator safely without overtaxing his cardiovascular/pulmonary systems.

G. Testimony of Philip Eugene Harvard Background and Employment at Syracuse China 130. Mr. Philip Eugene Harvard gave testimony in this case, pursuant to subpoena, on two days, August 29, and September 15, 2011. The transcript of Mr. Harvards testimony on the two days was paginated consecutively, and is attached as a single Exhibit YY. 131. Mr. Harvard, born in 1948, now resides in Memphis, NY. Id. at 11-12. Mr. Harvard studied ceramic engineering at Alfred University, and starting in 1967, he worked during his summer breaks as an intern at Syracuse China. After he was graduated from Alfred University, Mr. Harvard went to work full time, without interruption, at Syracuse China, from 1970, until his retirement in 2010. Id. at 12, 21-22. 132. Mr. Harvards summer work, as an intern, was in the laboratory as a technician. In 1970, he became a full-time ceramic engineer in Research and Development. In 1973, he became supervisor of the ceramic laboratory. In 1976, Mr. Harvard became manager of the technical division, which included process engineering, laboratory, combustion processes, and research
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and development. In 1988, Mr. Harvard became a senior ceramic engineer, assigned to special projects. A year later, he assumed responsibilities as the environmental compliance manager. In 2004, he resumed his duties as senior ceramic engineer, until the Syracuse China plant closed to general employment. In its last year, Mr. Harvard worked on environmental compliance until the plant closed completely. Id. at 24-25. Membership in the American Ceramic Society 133. Early in his career, Mr. Harvard was a member of the American Ceramic Society, and later he was a member under the umbrella corporate membership of Syracuse China. Id. at 1920. Mr. Harvard confirmed that Syracuse China, formerly known as Onondaga Pottery Company, had been a member of the Society, and that Syracuse China maintained a library of Society publications, including the Journal of the American Ceramic Society, and the American Ceramic Society Bulletin. Id. at 98-99. The Syracuse China Library 134. The library was located in the ceramic library, and contained other books and publications, in addition to those published by the American Ceramic Society. The library contained texts on material science and mineralogy. For some period of time, Ceramic Industry magazine was received and kept in the library, as well. Id. at 142-43.

H. Dear Customer Letter from U.S. Silica Company 135. U.S. Silica Company, and its predecessors, including Pennsylvania Glass Sand Corporation, sent its customers, and prospective customers, dear customer letters to alert them to new developments with respect to potential hazards of silica exposure. See generally Affidavit of Walter Pellish, submitted in support of U.S. Silica's Motion for Summary Judgment. 136. In September 1976, U.S. Silica (then Pennsylvania Glass Sand) sent a letter to Syracuse China, addressed to Mr. Philip Harvard. The letter forwarded a letter from a Deputy Assistant Secretary in the United States Department of Labor, who in turn, introduced a ten page publication of the United States Occupational Safety and Health Administration (OSHA) Guidelines for Control of Occupational Exposure to Crystalline Silica and Abrasive Blasting. Harvard transcript at 76, 90; Harvard Exhibit 22 (USSNYIRWIN 00001 - 12), attached as Exhibit AAA to this affirmation. 137. Although OSHA had distributed its Guidelines directly to employers, U.S. Silica sent it directly to Syracuse China in case OSHA had omitted Syracuse China. In addition to sending the Guidelines, U.S. Silica also alerted Syracuse China to the publication of the National Institute for Occupational Safety and Health (NIOSH) Criteria for a Recommended Standard on Occupational Exposure to Crystalline Silica, (HEW Publication No. (NIOSH) 75-120), available
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at < http://www.cdc.gov/niosh/docs/1970/75-120.html>, and informed Syracuse China how to obtain a copy of the NIOSH document. 138. The letter from the Department of Labor, which introduces the 10 pages of Guidelines, states simply: If the employee exposure is found to be in excess of permissible limits, you must implement feasible engineering or administrative controls or maintain an effective respiratory protection program should such controls be found infeasible. 139. The OSHA Guidelines, sent to Syracuse China in 1976, outline provisions of the relevant Code of Federal Regulations, which articulate basic principles of industrial hygiene. The Guidelines state for instance, [t]he first mandatory requirement is that employee exposure be eliminated through the implementation of feasible engineering controls. Harvard transcript at 92. Mr. Harvard understood this basic principle before U.S. Silica relayed the OSHA Guidelines. Id. By 1976, Syracuse China had in place ventilation systems in areas of the plant where crystalline silica exposures could high. Id. at 93. Syracuse China improved those ventilation systems over time. Id. 140. When engineering controls are infeasible, or ineffective, employers have a second line of approach, described in the OSHA Guidelines: After all such controls are implemented and they do not control to the permissible exposure limit, each employer must rotate its employees to the extent possible in order to reduce exposure. Such administrative controls were known to Mr. Harvard, and to Syracuse China, in 1976, when U.S. Silica relayed the OSHA Guidelines. Id. at 93 141. The OSHA Guidelines go on to state that an employer [may] rely on a respirator program pursuant to the mandatory requirements of [C.F.R. Section] 1910.134, only when engineering and administrative controls are ineffective. Mr. Harvard described this basic principle as consistent with how Syracuse China approached the protection of its employees. Id. at 94. 142. The OSHA Guidelines sent to Syracuse China by U.S. Silica in 1976, also described monitoring of silica dust exposures, and medical surveillance of employees. These activities were also done at Syracuse China. Id.

I. Safety Manual 143. Mr. Harvard described Syracuse China as having a safety manual, which was periodically updated. Id. at 39. Mr. Harvard received his own copy of the manual, id. at 68, but he described the safety manual as being on file, where anyone could access it, including in the offices of the health and safety manager, the plant manager, and the medical department. Id. at 73.

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J. Dust Monitoring 144. Mr. Harvard assumed responsibility for air monitoring of air-borne silica dust, at Syracuse China, about 1973. Id. at 105. William Fenn, Vice President of manufacturing, selected Mr. Harvard to take on this responsibility because of his technical skills as an engineer, and his familiarity with an air flow meter and other pieces of laboratory equipment. Id. at 127. 145. From the beginning of his involvement with air monitoring, employees were informed of dust counts taken in their work area. Id. at 107, 133-34. Mr. Harvard conducted, from his earliest involvement in workplace monitoring, both area and personal dust sampling. Id. at 109. 146. Outside contractors came in to do air monitoring assessments on a number of occasions. Id. at 130. 147. At the end of the 1980s, Mr. Harvard gave up his primary responsibility for air monitoring to the health and safety department, although he continued to assist in this task. Id. at 131-32. 148. Mr. Harvard understood that the reason he was engaged in air monitoring for silica dust was to help identify problems and protect the employees. Id. at 135:17-18. The point was to determine how much silica was in the atmosphere, how much of that silica dust was under 10 microns in size and thus respirable, and whether the respirable silica fraction exceeded a regulatory permissible exposure limit. Id. at 135-36. An outside contractor was needed even for the in-house dust surveys to determine the silica portion of the dust. Id. at 137. 149. Mr. Harvard acknowledged that the entire point of air monitoring was to assess whether workers were exposed to potentially hazardous levels of silica: Q Was it your understanding that a measurement of silica taking into account the percentage of the respirable dust that exceeded the permissible exposure limit presented a potential health hazard? A Yes. Id. at 137:9-13. *** Q And your air monitoring was designed to assess whether people were being exposed to potentially hazardous levels of silica; right? A Yes. Q When you undertook this air monitoring, did you understand what the respiratory hazard that was posed by excessive exposures to crystalline silica?
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A Yes, I believe I did. Id. at 138:14-21. 150. Mr. Harvard explained that air monitoring was necessary to protect worker health and safety (whether or not required by law). Without air monitoring, an employee would have no way to know whether he was overexposed to silica: Q Is it fair to say that an employee could not judge from the amount of visible dust in the air whether or not he or she was being overexposed to crystalline silica? MR. McCANN: Object to the form. MR. SATISKY: Object to the form. A Yes, thats correct. Id. at 156. *** Q All right. Is it fair to say that you did the air monitoring specifically because visual assessments were not scientific or reliable? A Thats part of it, yes. Q Is it also fair to say that the employee would really have to depend upon the technical measurement of crystalline silica in the air in order to know whether or not he was being overexposed? A For silica, yes. Id. at 158:16 - 24. 151. The Syracuse China plant was divided into different areas, which varied in their potential for silica exposure, depending upon the work processes taking place. Initially, Mr. Harvards efforts in air monitoring were the result of an interest in silica exposures. Although he realized that air monitoring in the clay silo complex would be particularly important, he monitored throughout the plant to assess the potential for exposure in other work processes. Id. at 146-47. 152. Another initial and persisting concern was monitoring in and around rail cars, where Mr. Harvard conducted air monitoring from his first assumption of these duties. Id. at 147-48. From the very first, Harvard recognized that rail cars were a source of silica exposures that potentially exceeded permissible exposure limits. Id. at 148-49. Concern over silica exposure arose when air monitoring results showed that it was above the PEL [permissible exposure limit] and people were being exposed to something that may harm them. Id. at 283.
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153. As he obtained data from across many departments, areas, and work processes, Mr. Harvard focused on some areas and processes more than others. In addition to the clay silo complex and rail cars, he learned that castware finishing and some general housekeeping activities could, at times, become a focus of interest for silica exposures. Id.; 72. Glaze batching, involving mixing the ingredients for the finishing glaze for the pottery, also involved materials and work practices that occasionally gave rise to concerns over silica exposure. Id. at 284. The mold shop involved some exposure to silica, although not known to be excessive. Id. at 285. 154. Not all areas of plant were of concern with respect to silica exposures. Some areas emerged as relatively free of concern about excessive silica exposures. The powerhouse, for instance, was not a serious source of concern. Id. at 50. There was very little dust in the air in the Quonset hut storage facility or the bag warehouse. Id. at 230 -31; 234. 155. Mr. Harvard doubted that there was any dust exposure in the translide department. Id. at 284-85. He explained the basis for his opinion: the translide operation was a decorating process involving water. Id. at 288; 284. 156. The mold shop involved primarily plaster and plaster dust, not necessarily clay or silica. Id. at 290:1-7; 284. 157. The ram die room would not have involved significant exposure to clay or silica dusts because those materials, clay and silica, were not used in that room. Id. at 290-91; 284. The processes in that room were wet and involved mostly plaster. Id. at 285. The measurements of silica dust around the ram operators typically showed readings below the permissible exposure level. Id. at 165; 97. 158. The forming department also was not identified as an area of concern for significant silica exposure at the Syracuse China plant. Id. at 284. 159. Syracuse China, through Mr. Harvards efforts, compiled dust monitoring data specific to individual employees. Mr. Harvard described Harvard Exhibit 11 (L290; L289), attached to this affirmation as Exhibit BBB, which recorded silica dust monitoring for plaintiff Mark Irwin, 1982 through 1990. Id. at 110. If workers were exposed in excess of the PEL, they were advised to wear a respirator. Id. at 111. 160. Workers were informed of the results of their work area and personal air monitoring. Id. at 111. Employees received written summaries of their dust monitoring, and signed acknowledgments. Id. at 183. 161. Mr. Harvard identified air monitoring notification forms to Mr. Irwin, with Mr. Irwins monitoring results from 1986 and 1987. Harvard Exhibit 12 ( L287), attached hereto as Exhibit CCC; Harvard Exhibit 13 (L288), attached hereto as Exhibit DDD. Id. at 111; 183 (Harvard Exhibit 31, L292) (signed by Mr. Irwin), attached hereto as Exhibit EEE.
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K. Ventilation 162. Several variables affected silica levels in the air. As previously noted, the wetness of the methods used, the extent of silica in the materials used in a work area, and the nature of the work process all factored into the variations in dust levels between and among departments and areas. Ventilation also varied. As noted by Schramm in 1933, ventilation and exhaust engineering was a key component in maintaining safe levels of silica exposure. 163. Mr. Harvard testified that the commitment to engineering controls, exhibited by Edward Schramm in the 1930s through the 1950s, was still present from 1967, forward. Syracuse China had outside engineers, from C&H Engineering and other firms, do ventilation surveys to evaluate ventilation, air currents, and work process isolation. Id. at 77. 164. Syracuse China also had engineers on its staff. Some of these engineers, in the design and mechanical engineering group, had specific responsibility for ventilation issues. Id. at 80.

L. The 1978 Seminar on Silicosis 165. In 1978, Mr. Harvard, on behalf of Syracuse China, attended a seminar in Pittsburgh, Pennsylvania, to hear various physicians address silica and silicosis issues. Id. at 100-101. 166. Tom Hoffman, from the Human Resources department, accompanied him at this all day conference. The primary focus of this conference was the health effects of silica. Mr. Harvard received written materials, which were distributed at the conference, and which he carried back to Syracuse China. In addition, Mr. Harvard wrote a trip report to Bill Fenn, Vice President of Manufacturing. Id. at 138-39.

M. Safety Managers 167. Mr. Harvard described Syracuse China as having either a safety manager, or someone in human resources, who had primary responsibility for safety, throughout his employment at Syracuse China. 168. When he arrived at Syracuse China, Joseph Boehm worked in human resources and attended to safety issues. Id. at 30. James Fortino held the position of safety manager in the 1980s. Stephen Valentine, an industrial hygienist, assume responsibility for safety management in 1996. Eileen Reynolds took over in 2000, with the assistance of Kimberly Lagomarinso and Nate Rufa. Paula DiStefano was the last of the safety managers. Id. at 28-30. In addition to Stephen Valentine, Syracuse China manager, Robert St. John was also an industrial hygienist by training. Id. at 77; 82.
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N. Material Safety Data Sheet (MSDS) 169. Mr. Harvard testified that to the best of his knowledge, from at least 1981 forward, Syracuse China regularly requested copies of Material Safety Data Sheets (MSDSs) from its vendors. Id. at 205. 170. MSDSs were first made widely available to employees in the mid-1980s, as a result of the 1985 Hazards Communication Act, which changed employers obligations with respect to posting MSDSs. Id. at 74-75. 171. MSDSs relevant to particular departments operations were kept in the respective department. Full sets of all MSDSs were kept in the main hallway, at both ends of the plant, in maintenance, in the health and safety managers office. The MSDSs were updated as new MSDSs were received from vendors. Id. at 75. 172. Starting in the 1980s, Syracuse China employees were trained how to read and interpret MSDSs. Id. at 75-76. 173. Starting in the 1980s, Syracuse China had annual training sessions, which included training on silica safety issues. Id. at 180-81; 203. 174. Mr. Irwin, and his department, the clay preparation department, was included in these sessions. Part of the training sessions, held at least annually, addressed the requirements of the Hazards Communication Act, and alerted employees to the existence of MSDSs, and trained them how to read and interpret MSDSs. Id. at 181-82. 175. Warnings about the health hazards of excessive exposure to silica came from the suppliers of silica materials in the form of MSDS, as well as dear customer letters, and in the form of printed warnings on the bags of silica. Id. at 87-88.

O. Enforcement of Work Rules and Supervision and Discipline of Employees 176. Mr. Harvard described everyone as responsible for health and safety at the plant. Every department supervisor had a supervisor, and every supervisor had responsibility for the health and safety of his or her employees. Id. at 78 -79. 177. The Plant Manager had primary responsibility for OSHA compliance on safety and health regulations. Id. at 88-89.

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178. Departmental supervisors were responsible for enforcing workplace rules in their respective departments. Although safety was everyone's business, departmental supervisors had specific responsibility to enforce safety rules within their departments. Id. at 145. 179. Compliance with respirator rules was responsibility of the employee and his supervisor. Id. at 67. 180. Mr. Irwin was a supervisor of the clay preparation department. Id. at 79.

181. Syracuse China could discipline its employees for failure to comply with safety rules. Id. at 144. 182. Supervisors were supposed to write up employees for infractions, and place their written notes in the appropriate personnel files. Id. at 149. 183. Vendors could not come in and discipline workers. Id. at 150.

184. In 1998, Syracuse China hired a contractor, CMP Sheet Metal, to build a new dump station with duct work, in the clay silo complex. Id. at 150-51. Steve Valentine, head of safety for 186. Syracuse China, wrote to the contractor, informing the company that it should take responsibility for making sure its employees are protected from potential overexposures to silica, when they came on to the premises of Syracuse China. Id. at 151; Harvard Exhibit 23 (L859) (Steven Valentine Letter, dated March 19, 1998), attached to this affirmation as Exhibit FFF.

P. OSHA Special Emphasis Program (SEP) 185. OSHA introduced a Silica Special Emphasis Program in 1996, which roughly coincided with the assumption of safety responsibilities by Stephen Valentine, a professional industrial hygienist. Id. at 76; 179. See also Harvard Exhibit 28 (L1674-1701)(OSHA Memorandum describing Special Emphasis Program for achieving the elimination of silicosis in the workplace.), attached to this affirmation as Exhibit GGG. 186. In July 1996, Mr. Valentine, Safety Manager, wrote a memorandum to Bob St. John, about the status of Syracuse China's silica program in view of the company's need to show responsiveness to the OSHA Special Emphasis Program. Mr. Valentine transmitted table of past silica exposures, a copy of the then current silica medical surveillance program, information about planned improvements to comprise a more comprehensive silica program. Harvard Exhibit 37, attached to this affirmation as Exhibit HHH.

Q. Standard Operating Procedures - Railcar Unloading

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187. Achieving compliance in the railcar unloading process, as well as in some activities of clay preparation, continued to be difficult at Syracuse China. Id. at 188. 188. One of the earliest documentary efforts of Safety Manager Stephen Valentine at Syracuse China was to address silica exposure in railcar unloading. Mr. Harvard described a 1996 memorandum from Mr. Valentine to Roger Markell, engineering manager, addressing the railcar silica issue. Id. at 197-98; Harvard Exhibit 38 (L1009-10), attached to this affirmation as Exhibit III. 189. Mr. Valentine memorandum documents the discussions at a September 24, 1996, meeting, attended by the plaintiff, Mr. Mark Irwin, along with several other supervisory and managerial employees, including Philip Harvard. Id. at 198. Mr. Valentine's memorialization of the event and the discussion, reflects an awareness of the OSHA Guidelines and regulations, as well as a solicitous concern for employees working in the railcar unloading area: Current practices in the railroad unloading station do not represent good engineering or housekeeping practices. Exposure levels during railcar unloading exceed the OSHA permissible exposure limit. Our use of respiratory protection and limited exposure times (typically less than 2 hours per day) control employee exposure levels. This is acceptable in the interim, but should be controlled or at least aided by effective engineering controls. Id. at 198. 190. The efforts to control silica exposure levels was an important initiative for management. Mr. Irwin was personally involved in this process of trying to identify better ways to control crystalline silica exposures in the railcar unloading process. Id. at 192. 191. Syracuse China, at some point, embarked upon its own internal Standard Operating Procedures [SOPs], to address silica compliance issues. These SOPs were, understandably, never shared with outside vendors, but rather represented the work of Syracuse China and its employees. One of the earliest of the SOPs that was produced to defendants by Syracuse China in this litigation was Harvard Exhibit 33 (L769), attached as Exhibit JJJ. Harvard at 189. This SOP, dated August 2001, was created by the plaintiff himself, along with Frank Lanno, then manager of engineering, and specified guidelines for emptying railcars containing raw materials. The SOP states: Operator must wear the assigned personal protective respirator at all times when unloading a rail car in the rail house. Filters on the respirator must be applicable for silica dust. Harvard Exhibit 33 (L769), attached hereto as Exhibit KKK. See also Harvard transcript at 190-91 & Harvard Exhibit 34 (L763-64), attached hereto as Exhibit LLL, and titled
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Development of Procedures for Railcar Unloading, dated March 30, 2001, and reflecting the attendance of Philip Harvard and the plaintiff Mark Irwin, as well as other high-level employees. 192. Mr. Harvard also discussed a SOP, dating from 2003, which was created by Mr. Irwin, along with Frank Lanno. Harvard transcript at 192; Harvard Exhibit 35 (L770-781) (SOP dated May 22, 2003), attached hereto as Exhibit MMM. 193. The first page of the 2003 SOP document, Exhibit MMM states that [t]he following procedures shall be followed when unloading flint [silica] raw material from a railcar. The SOP, created by Mr. Irwin, then states in large bold print: SILICA DUST HAZARD Excessive Exposure May result in Silicosis or Other Respiratory Illness. Avoid Creating Or Breathing Dust. Harvard Exhibit 35 (L770) (SOP dated May 22, 2003), attached as Exhibit MMM; Harvard transcript at 192.

R. Common Knowledge in the Plant - Silica Causes Silicosis 194. In the early 1970s, Philip Harvard regarded, as common knowledge, the relationship between excessive silica exposure and silicosis. He believed this relationship, that silica could cause silicosis, was known among employees because of the air monitoring for silica, which was conducted on certain job positions. Id. at 35. When he began work as a summer intern, Mr. Harvard was told that the reason for his receiving a chest X-ray, was that he might have exposure to silica. Id. at 38. 195. When Mr. Harvard began his employment as a summer intern, Syracuse China required him to have a baseline chest radiograph so that they could follow him forward in time, for the effects of potential exposure to silica. Id. at 38; 32. 196. Mr. Harvard explained the ability of silica or silica-containing materials to cause lung disease was a generally known fact, and was known in industries, such as the ceramics industry, in which silica and silica-containing products would have been used, before 1973, when Mr. Irwin started working at Syracuse China. Id. at 312. 197. Mr. Harvard went on to state that he considered Syracuse China to be or to have been a sophisticated user of silica and silica-containing materials. Id. at 313. 198. Mr. Harvard testified that to his knowledge Syracuse China never took any public position that it could not or would not comply with any state or federal regulation with respect to
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providing a safe workplace for its employees with respect to crystalline silica exposure. Id. at 95.

S. Harvard's Knowledge of the Plaintiff, Mr. Irwin 199. Mr. Harvard knows the plaintiff, Mr. Irwin, and worked with him on various issues. He considered Mr. Irwin a friend and colleague. Id. at 56 200. Mr. Harvard confirmed that Mr. Irwin was present with him when the hazards of excessive silica exposures were discussed at Syracuse China. Id. at 192. 201. Mr. Harvard observed Mr. Irwin not complying with Syracuse China's respirator policies. Id. at 295-96. Mr. Harvard reported Mr. Irwin's non-compliance to John Notaro, who was Mr. Irwin's supervisor at the time. Id. at 296.

T. Mr. Mark Irwin's Deposition Testimony 202. The plaintiff, Mark Dennis Irwin, testified over the course of three days. The transcript of his testimony is paginated consecutively, and is attached as a single exhibit, Exhibit NNN. 203. Mr. Irwin was born in September 1952. Irwin at 12-12.

204. Mr. Irwin and his wife, Alice, were both previously married. Mr. Irwin has no children from either marriage. Irwin at 16-17. 205. Mr. Irwin started at Syracuse China in February 1973; he left in April 2009, when the owners, Libbey Inc., closed the plant to manufacturing activities. Irwin at 42-43. 206. Mr. Irwin went to work at Syracuse China because they had a name, and they were a good company -- [t]hey had a good reputation... . Irwin at 213. The company had been around for a long time, having been previously known as Onondaga Pottery. Id. 207. During his 37 years at Syracuse China, Mr. Irwin never heard of anyone other than himself who was diagnosed with a lung condition or disease as result of working around alumina, silica, or silicates. Irwin at 212; 277:23-25. 208. In his first year at Syracuse China (1973-74), Mr. Irwin worked as a hand trucker, in which job he would pull trays of ware from racks that were being decorated, put them on skids and truck them to different departments, just deliver them to different departments for the processing, and general cleanup. Irwin at 47; 44. This work was centered in the Translide Department, where others were decorating ware with decals. Irwin at 50. 209. Mr. Irwin moved to the mold shop, in 1974, where he worked as a mold maker, until 1977. Irwin at 67. His work in the mold shop involved creating plaster molds, which involved
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exposure to plaster dust. Irwin at 75. There is no evidence that there is any silica or silicate material in the plaster molding material. 210. In 1977, Mr. Irwin moved to the ram die room, where he worked with molds for larger items, such as platters. He does not know whether he was exposed to silica as a mold maker. Irwin at 81. 211. In 1978, Mr. Irwin worked as a ram die maker, for a couple of years, until he left to work in the clay silo area, in 1980. Irwin at 93. 212. Mr. Irwin worked in the clay silo complex, from 1980 - 2002, when he was responsible for supervising storage operations of raw materials, and preparing batches of different clay bodies for use in production. Irwin at 111. 213. Mr. Irwin was himself a supervisor for clay preparation, for a portion of the time he worked in the clay silo area, from 2002 to 2003. Irwin at 191-82; 179. 214. In 2004, Mr. Irwin left the silo area to become a laboratory technician. Irwin at 185; 178.

215. In 2007, Mr. Irwin became a quality assurance auditor, which was the last position he held at Syracuse China before it closed its doors. Irwin at 197.

U. UNION 216. Mr. Irwin joined the International Brotherhood of Pottery and Electrical Workers, Local 381, when he went to work at Syracuse China, in 1973. Irwin at 206. 218. Mr. Irwin became ineligible for union membership after 1980 because his position in the clay silo area was a supervisory job. Irwin at 219. 217. Syracuse China had a labor-management safety committee. Harvard at 27.

V. CHEST RADIOGRAPHS 218. Around 1980, shortly after Mr. Irwin went to work in the clay silo complex, he started receiving chest X-rays. When asked why he received these X-rays, Mr. Irwin explained: Well, because I was working in a dusty area. Irwin at 224; 450.

W. RESPIRATORY PROTECTION - PERSONAL PROTECTIVE EQUIPMENT 219. Mr. Irwin described paper dust masks as available to him when he first went to work in the clay silo area. Irwin at 152. Within the first decade of his work at Syracuse China, cartridgetype respirators were made available to him. Irwin at 166. 220. Mr. Irwin understood that the purpose of wearing a dust mask or a respirator was to prevent breathing dust. Irwin at 170.

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221. At his deposition, Mr. Irwin could not recall whether there were any written rules about wearing masks or respirators. Irwin at 163. Similarly, Mr. Irwin did not know whether there were any disciplinary rules for not wearing a respirator. Irwin at 164. 222. Mr. Irwin testified that he received instructions to wear his mask or respirator when the dust appeared very heavy. Irwin at 158.

X. SAFETY OFFICERS 223. Mr. Irwin did recall that there were safety officers at Syracuse China. Irwin at 227. He also recalled that dust counting devices were used around the factory, and he acknowledged that he might have worn one, but he does not recall. Irwin at 229. Mr. Irwin claims to have never seen the results of any dust measurements done. Irwin at 229.

Y. MATERIAL DATA SAFETY SHEETS (MSDSs) 224. Mr. Irwin testified that he was not aware that MSDSs were kept outside the safety office, or at employee bulletin boards. He was unaware whether or where MSDSs were available at Syracuse China. Irwin at 231-32. 225. Mr. Irwin acknowledged that there were employee bulletin boards at Syracuse China, near break areas, but that he [d]idnt pay much attention to [employee bulletin boards. Irwin at 230-31. 226. Mr. Irwin testified that he had never been given any training about where MSDSs would be kept, or in how to read and interpret an MSDS. Irwin at 232:18-22. 227. According to Mr. Irwin, he encountered MSDSs only when he left the clay silo area. Irwin at 174-75. Mr. Irwin testified that learned of silica safety hazards only after I talked with my doctor, Dr. Lenox, in October 2008. Irwin at 207; 276. 228. Mr. Irwin testified that the first time he heard the word silicosis was when he saw Dr. Lenox, in 2008. Irwin at 331. 229. Shortly after visiting Dr. Lenox in 2008, Mr. Irwin went to Syracuse China, and sought out MSDSs for materials with which he worked. Irwin at 331. 230. Having received a diagnosis from Dr. Lenox, Mr. Irwin got curious, and set off to obtain MSDs for the raw materials with which he worked. Irwin at 208-09. 231. In 2008, Mr. Irwin went to the medical department and found MSDs in a drawer, and copied selectively some of the MSDSs that were for materials with which he worked. Irwin at 209. 232. Upon copying and removing the copies from Syracuse China, Mr. Irwin scanned over them, yeah, a little bit of what I can understand. Irwin at 209. 233. Before he obtained the MSDSs in 2008, Irwin claims that he had never been given any information about the potential dangers of exposure to silica or silicates. Irwin at 209.
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234. Among the MSDSs Mr. Irwin found and copied in the nurse's office at Syracuse China, was an incomplete MSDS from U.S. Silica Company. Irwin at 284-85. The incomplete copy was marked as Exhibit 2 to Mr. Irwin's deposition, and is attached to this affidavit as Exhibit OOO. 235. The U.S. Silica MSDS was prepared in 1995, incompletely represented by Exhibit OOO, and was long since superseded by more recent MSDSs, after 1995. See Affidavit of Walter Pellish, submitted by U.S. Silica in support of its motion for summary judgment. 236. Mr. Irwin read from the 1995 U.S. Silica MSDS that exposure to respirable crystalline silica (quartz) can cause silicosis, a fibrosis (scarring) of the lungs. Silicosis may be progressive. It may lead to death and disability. In his testimony, he claimed that he had never seen this stated before; nor had he ever heard it. Irwin at 288. 237. Mr. Irwin read from the U.S. Silica 1995 MSDS, which specified the permissible exposure limit, from the OSHA regulations then in effect, and he acknowledged that he was never in a position by himself to determine whether exposures to silica exceeded any specific level of silica in the air. Irwin at 290. 238. Mr. Irwin did acknowledge having seen and read invoices from the materials shipping raw materials. Mr. Irwin, however, did not make it his business to read all of the invoices. At his deposition, Mr. Irwin had no recall of seeing warnings on invoices of raw materials shipped to Syracuse China. Irwin 239-40. 239. Mr. Irwin had no contact with any representatives of the suppliers of raw materials used to make the clay bodies at Syracuse China. Irwin at 176; 178; 239.

VI. LACK OF PROXIMATE CAUSE 240. At his deposition, Mr. Irwin was asked what he thought upon reviewing the MSDSs, which he claims to have never seen previously. In response, Mr. Irwin testified that he did not know what he would have done had he seen the MSDSs earlier, at an earlier time, when he was still working in the clay silo area: Q After you read the documents what did you think? MR. SATISKY: Objection to the form of the question. Think about what? Q Did any thoughts come to your mind after you read the MSDSs? MR. SATISKY: Same objection. A I was a little bit shocked to see what could develop. I mean, they listed all the things that could be caused from exposure and, so, it kind of took the wind out of my sails.
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Q When you read that and saw the information about the hazards, after having looked at that -- if you had been provided with those MSDSs, what would you have done differently, if anything? MR. SATISKY: Objection to the form of the question. Speculative, but... Mr. Irwin: I don't know what I would do. I dont know. Irwin at 332:10 - 333:3.

241. Mr. Irwin's deposition was not completed in September 2010, and when it was reconvened two months later, Mr. Irwin was given another opportunity to explain what he would have done differently had he seen the MSDS he retrieved from the nurses office in 2008, at some earlier time: Q Okay. I believe Mr. Goss asked you a question on the second day of the last session two months ago about your having inspected Material Safety Data Sheets in the nurses office, and I think you said that you were shocked and it took the wind out of your sails when you read what was on the Material Safety Data Sheets; is that fair? A Yes. Q And he also asked you what you would have done back during your employment in the clay silo and prior to the clay silo if you had seen such information that was included on those Material Safety Data Sheets, and I believe you said you didn't know. Do you recall that testimony? A I didn't know. I don't recall. Q All right. Well, two months have gone by and Im just curious whether you thought about it further about what you might have done or would have done had you had that information that you saw in the Material Safety Data Sheets at earlier times in your career at Syracuse China. MR. SATISKY: Objection to form. A Im not sure what I would have done. Irwin at 433:13 - 434:8 242. Mr. Irwin was similarly oblivious to warnings on raw materials shipped in bags. On the one hand, he testified that he had the opportunity to read the printing on bags, and made it his business to do so:
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Q All right. For the materials that came in bags, regardless whether it was for emergency use or whether that was the way it only came, regardless of that, did you have the opportunity to read the printing on the bags? A Yes, I did. Q And did you make it your business to read the printing on the bags? A Yes, I did. Irwin at 238. 243. Irwin had no recall of warnings on the packaging of bagged raw material. Q You did go on occasion into the Quonset hut; correct? A Yes. Yes, I did. Q Did you have an opportunity to read the words printed on the bags of the various products in the Quonset hut? A Yes. MR. SATISKY: Objection to form. Q In other words, it was -- whatever words were printed on the bags were visible to you -A Yes. Q -- correct? Do you recall any of the words, any of the language of descriptions, of instructions, of warnings, or anything else printed on the bags of various materials in the Quonset hut? MR. SATISKY: Objection to form. You can answer. A No. Irwin at 430:13 - 431:6 244. Although most of the raw materials used at Syracuse China was shipped in bulk, either in rail cars or in trucks, some materials did arrive in bags. Irwin Transcript at 143, Exhibit NNN. 245. On redirect examination, Mr. Irwin was asked whether he read the labeling on bags for instructions, cautions, warnings, or other information:

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Q Mr. Satisky just asked you about dumping the bags from the rail cars. When you dumped those bags, did you have the opportunity to read all the print that was on those bags as you dumped? A I didn't -MR. SATISKY: Objection to the form. A I may have had an opportunity, but I -- I didnt read the materials. I mean, I didn't -Q Okay. So you didnt read the writing on the bags? MR. SATISKY: Objection to form. Im not sure thats the testimony. A I just dumped the material that we needed. I didnt go into reading anything on the bag. I just made sure we had the right material and dumped it. Q All right. So if there were instructions or guidelines or warnings on the bags you didnt read them; is that right? A No, I did not. Irwin 434:13 - 435:12 246. Mr. Irwin smoked cigarettes as a young man, but started after warnings were first placed upon cigarette packaging. He continued smoking in the face of those warnings. Irwin at 152. Mr. Irwin quit smoking because he found smoking to be irritating in the presence of a chest cold. Id. at 30. 247. Mr. Irwin has been prescribed two medications for his high-blood pressure. For both drugs, he received package inserts that described the drugs, but he never read them. Irwin at 478:15 - 21.

VII. LACK OF LEGALLY COGNIZABLE INJURY 248. As a result of a chest X-ray, read as abnormal, Mr. Irwin was sent for a needle biopsy of his lung, in the year 2000, by Dr. Suhas Pradhan. Irwin at 480. 249. Mr. Irwin began seeing Dr. Pradhan shortly after the discovery of an abnormal chest Xray done through his work at Syracuse China, by IMA [Dr. Seeley's occupational medical practice]. Irwin at 471.

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250. Irwin saw Dr. Pradhan from December 2000 until November 2004. Copies of Dr. Pradhans records pertaining to Mr. Irwin are attached as Exhibit PPP, to this affirmation. Dr. Pradhans initial note of December 13, 2000 noted that: This patient has regular chest x-rays because he is exposed to clay and silica dust as part of his work at Syracuse China. Recent chest x-rays revealed an ill-defined density in the left upper lobe, and a CAT scan shows an irregular density in the left upper lobe. 251. Because of the possibility of a malignancy, Dr. Pradhan scheduled a biopsy. The biopsy demonstrated that the lesion was benign, and Dr. Pradhan recommended a follow-up CAT scan. 252. Irwin was seen by Dr. Pradhan again on April 24, 2001, at which time the doctor recorded that a chest x-ray did not reveal any obvious lesion. However, because the lesion is best seen in a CAT scan, he recommended a repeat CAT scan. On May 7, 2001, he reported that the CAT scan reveals no change. In November 2001, Dr. Pradhan recorded that CAT scan reveals no change in the upper lobe nodules. Patient has been notified and I have recommended a follow up visit in 6 months with a repeat CAT scan. See Exhibit PPP to this affirmation. 253. Dr. Pradhans saw Irwin again on July 16, 2002, at which time he found No change in lesion. Dr. Pradhan also saw Irwin in February 2003 and September 2003., At the time of this latter examination, Dr. Pradhan reported that CAT scan report mentions possible increase in the left lower lobe lesion compared to 2001 but no change compared to 2002. Dr. Pradhan consulted with a colleague , Dr. Groskin, who recommended a PET scan. Id. 254. On October 21, 2003 Dr. Pradhan recorded that the PET scan was negative for evidence of activity, and that Irwin was notified. Thereafter, Dr. Pradhan continued check-ups at six month intervals with CAT scans. In November 2004, Dr. Pradhan determined that Irwin did not need to continue follow-up with a pulmonologist because his condition was stable and referred him back to his family physician with a recommendation that he undergo chest x-rays on a regular basis for three years. Id. 255. During the period from 2004 to 2008, Irwin saw his primary care physician, Dr. Manfredi, and had repeat x-rays through the Syracuse China medical surveillance program, without a noticeable change in his condition. 256. In September 2008, Irwin was seen by Dr. Robert Lenox, a pulmonologist at Upstate University Hospital, because an X-ray revealed multiple small nodules, indicating some changes from the prior X-rays. Copies of the doctors notes from University Hospital are attached as Exhibit QQQ. Dr. Lenox recorded his impression that because of Irwins history of working with silica, and upper lobe parenchymal abnormalities which seems to have progressed since 2005 that the condition presented by Irwin was suggestive of progressive silicosis. However, he noted other possible explanations, and referred Irwin for pulmonary function tests. 257. On October 30, 2008, Irwin was seen in follow-up by Dr. Lenoxs partner, Dr. James Sexton. Dr. Sextons note of October 30, 2008 records his impression that Plaintiff is suffering from silicosis. He based this conclusion on Irwins history of exposure to silica-containing dust
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and a characteristic CT scan finding showing calcified left hilar lymph node, a diffuse apical interstitial lung disease consistent with silicosis. He noted that the pulmonary function tests could reveal some possible, early, obstructive ventilatory defect. However, the results are grossly normal. He also noted that Irwin was currently asymptomatic. Id. 258. According to Mr. Irwin, Dr. Lenox told him that his prognosis was good: Q And what did Dr. Lenox tell you specifically about what he thought was his -was your prognosis? A He said that from the tests that they had done, they performed, that there doesnt seem to be any concern right now. He said that he would set me up on an annual basis, but they would just monitor it, but he didnt find anything to be too concerned with. He said people live like this for years, something else might get them before silicosis does, heart attack or something, so... Irwin at 483:3-11. 259. Since receiving this diagnosis of a condition consistent with silicosis in 2008, Irwins condition has been stable and unremarkable. Dr. Mark J. Utell, a pulmonologist who reviewed Irwins records and examined him in November 2011, concluded that his clinical course had been stable for twelve years, and that lung function studies performed over seven years indicate that there has been no change in pulmonary mechanics and clearly no evidence of an accelerated loss of lung function. See Dr. Utell's Affirmation and Report, attached hereto as Exhibit RRR. 260. In his deposition, Mr. Irwin described one episode of shortness of breath upon exertion, which he believes to be related to silicosis. He was assigned to clearing stairwells, and he became short of breath upon going up and down the stairs, which lasted a few minutes. Prior to this incident, Mr. Irwin had not experienced anything out of the ordinary. Irwin at 447. 261. No physician has ever told Mr. Irwin that his lungs are not functioning normally; nor has any physician ever told him that any shortness of breath that he might ever have experienced was caused by silicosis. Irwin at 482. 262. Prior to his 2008 chest X-ray, Mr. Irwin did not experience any symptoms that he associated with his claimed silicosis. Irwin at 451:5-9. 263. Mr. Irwin receives no treatments for his claimed diagnosis of silicosis, other than routine, annual checkups. Irwin at 448. 264. Mr. Irwin's present job in custodial cleaning at Crouse Hospital, which job he has held since January 2011, is very physical. Irwin at 32. Mr. Irwin testified that he is not having difficulty performing his job duties. Irwin at 34. 265. Mr. Irwin also confirmed that the lung biopsy he had in 2000 had no impact on his job or job duties at Syracuse China. Irwin at 225.
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266. At his deposition, Mr. Irwin described his health in his own words: I think my health is good. Irwin at 458:23-25. 267. Mr. Irwin has not lost any time from work due to his claimed silicosis. Irwin at 475.

268. Mr. Irwin testified that his claimed silicosis not adversely affected his relationship with his wife. Irwin at 476:3-6. 269. During the summer of 2011, Mr. Irwin went hiking with his wife, several times, about four miles. Irwin at 25-26. The Irwins own three kayaks, and have kayaked several times in the summer of 2011, before his deposition, on courses upwards of six miles. Irwin at 27-28. 270. Mr. Irwin has had, and continues to have other medical problems, considerably more important and threatening than his claimed silicosis. He has had multiple incidents of spontaneous collapsing of his left lung, back in the 1970s. Irwin at 477. He has spine problems, which required surgical laminectomy, which kept him out of work for six months, and left him with work restrictions. Irwin at 222. He has high-blood pressure, which requires medication, lisinopril. Irwin at 459; 478; 11. 271. In 1997, Syracuse University Press published a book on Syracuse China. Cleota Reed & Stan Skoczen, Syracuse China (Syracuse Univ. Press 1997), excerpts attached as Exhibit SSS, to this affirmation. Mr. Irwin received a copy of this book, but he has not read it. Irwin at 33445. The book provides a history of Onondaga Pottery and its change in name to Syracuse China, as well as the role played by the Pass family, and some of their key employees. Mr. Harvard was interviewed by the authors. Harvard at 33-34. The book describes the death of James Pass, one of the company's founders, from pneumonia, complicated by silicosis, in 1913. Syracuse China at 90. Some of the key actors described in this affirmation are discussed at length in Reed and Skoczens book . Syracuse China at 97-98, 106, 111, 128, 130, 152 (discussing Edward Schramm); id. at 129, 149, 152 (discussing Richard Pass). See also The History of Syracuse China, available at <http://syracusethenandnow.org/History/SyracuseChinaHistory.htm>, last visited on Aug. 30, 2012 (describing origins of Onondaga Pottery in 1871, its change in name to Syracuse China, and recommending Cleota Reed and Skoczen's book as a source of information on the history of the company.

VIII. LEGAL AUTHORITIES 272. U.S. Silica submits a memorandum of law with this affirmation, which sets out the points of law and authorities upon which it relies. 273. U.S. Silica further incorporates by reference the motions and memorandum of law filed by the Imerys defendants in support of their request for summary for summary judgment. 274. The following legal authorities are in the form of unpublished decisions, which are attached to this affirmation as exhibits:
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Conley v. Ail' Liquide America Corp., Cuyahoga Cty. C.P. Case No. 516427 (July 15, 2008) (Sweeney, J.) (granting summary judgment to U.S. Silica) [Exhibit "TTT"]; Woodard v. Air Liquide, Cuyahoga Cty. C.P. Pleas No. CV-469127, Entry & Opinion No. 6405397 (Aug. 3, 2005)(Sweeney, J.) (granting summary judgment to silica suppliers) [Exhibit "UUU"]; Pawlowski v. Ail' Liquide, Cuyahoga Cty. C.P. Case No. 499457 (Aug. 2, 2006) (Sweeney, 1.) (granting summary judgment in sandblaster's case) [Exhibit "VVV"]; Huddleston v. Air Liquide, Cuyahoga Cty. C.P. Case Nos. 506488 and 510330 (Oct. 30, 2007) (Sweeney, J.) (granting summary judgment). [Exhibit "www" ] Rickicki v. Borden Inc., Cattaraugus Cty, Supreme Court of N.Y., Decision and Order of January 11,2007 [Exhibit "XXX"]
WHEREFORE, it is respectfully submitted that this Court should grant defendants' request for an order pursuant to CPLR Rule 3212, dismissing plaintiffs' complaint in the Irwin matter against defendant U.S. Silica Company, together with any and all cross-claims asserted against said defendant, and for such other and flUiher relief as this Couli may deem just and proper.
Dated: October 1, 2012 Buffalo, New York Lynn D. Gates

Dated: October 1, 2012 New York, New York

Nathan A. Schachtman

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