Document 15vEgyrBQbBa4E3X1VwObQ51d

1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF KENTUCKY 3 AT FRANKFORT 4 3:07-CV-67-KKC 5 ----------------------------------- DONALD QUILLEN, 6 Plaintiff, 7 -vs8 SAFETY-KLEEN SYSTEMS, INC., 9 Defendant. 10 -----------------------------------/ 11 12 The videotaped deposition of DAVID HAY 13 GARABRANT, M.D., taken pursuant to Notice, taken at 14 623 W. Huron, Ann Arbor, Michigan, on Thursday, 15 January 21, 2010, commencing at 9:57 a.m., before 16 Barbara J. Turner, RPR, CSR-2343, Notary Public in and 17 for the County of Oakland, acting in the County of 18 Oakland. 19 APPEARANCES: 20 SALES, TILLMAN, WALLBAU, CATLETT & SATTERLEY 1900 Waterfront Plaza 21 325 West Main Street Louisville, KY 40202 22 502.589.5600 BY: Mr. Kenneth L. Sales 23 24 Appearing on behalf of Plaintiff. 25 1 1 JONES CARR MCGOLDRICK, LLP 5307 E. Mockingbird Lane, Ste. 600 2 Dallas, Texas 75206 214.828.9200 3 BY: Mr. Christopher W. Carr 4 Appearing on behalf of Defendant. 5 ALSO PRESENT: Mr. Steve Alfonsi, Videographer 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 INDEX 2 3 WITNESS: DAVID HAY GARABRANT, M.D. PAGE NO. 4 Examination by Mr. Sales 4 5 6 7 EXHIBIT INDEX 8 EXHIBIT NO.: DESCRIPTION PAGE NO. 9 Exhibit 1 Testimonial History 120 10 Exhibit 2 CV 18 11 Exhibit 3 Report 18 12 Exhibit 4 Affidavit 18 13 Exhibit 5 Declaration 18 14 Exhibit 6A 5-12-09 Garabrant Statement 18 15 Exhibit 6B 2-24-09 Garabrant Statement 18 16 (Exhibits furnished to both attorneys.) 17 18 19 20 21 22 23 24 25 3 1 Ann Arbor, Michigan 2 Thursday, January 21, 2010 3 9:57 a.m. 4 ---------5 VIDEOGRAPHER: On the record. This is 6 the videotaped deposition of Dr. David Garabrant 7 taken in Ann Arbor, Michigan. Today is January 8 21st, 2010. The time is 9:57 and 53 seconds a.m. 9 Will the attorneys please introduce 10 themselves and the court reporter please swear in 11 the witness? 12 COURT REPORTER: Doctor, if you raise 13 your right hand, I'll swear you in. Do you swear 14 or affirm to tell the truth, the whole truth and 15 nothing but the truth, so help you God? 16 THE WITNESS: I do. 17 DAVID HEY GARABRANT, M.D., 18 Called as a witness by the Plaintiff, was examined and 19 testified as follows: 20 EXAMINATION 21 BY MR. SALES: 22 Q. Would you state your name and professional address 23 for the record, please? 24 A. David Hay Garabrant, 1420 Washington Heights, 25 Ann Arbor, Michigan 48109. 4 1 Q. Doctor, before we get started, I just want to do a 2 little discussion about the ground rules for the 3 deposition if you don't mind. I know that you 4 have been deposed a number of times so you 5 understand what a discovery deposition is all 6 about, correct? 7 A. I think so. 8 Q. Okay. Well, if you don't, if there is something 9 you don't understand, you let me know, okay? But 10 this is what I'll -- what I want to tell you. I'm 11 here to discover information and that's purely my 12 role here. My role is not to play games, 13 embarrass you. I'm, I'm just gathering 14 information. You have opinions. I've already 15 prepared and I know something of your background 16 and all that, but I'm really just here to try to 17 understand what your opinions are and the basis 18 for them. 19 If at any time I ask a question that 20 you're not sure of, would you stop me and tell me 21 you're not sure of it? Don't understand? 22 A. Yes. 23 Q. Okay. If I use a word or a phrase that you are 24 not sure of or that you have a question about, 25 would you let me know? 5 1 A. Yes. 2 Q. The whole opinion of this is that I want your 3 answers to be based upon your full understanding 4 of the questions I ask and that your answers are 5 responsive to a question that you fully 6 understand. Is that fair enough? 7 A. Yes. 8 Q. Okay. Anytime you need a break please take one. 9 Okay? 10 A. Yes. 11 Q. And if you need to, you've got counsel here who 12 has retained you, and if you need to take a break 13 to talk to him, you can do so. I don't care. I 14 really don't. 15 If I have a question hanging out and it 16 bothers me, I will let you and him know about it, 17 and we'll discuss it at that point. But as far as 18 I am concerned you're a professional and you're a 19 witness and you know this pretty well. If you 20 need to take a break, just take it. You don't 21 need to do a euphemism, so to speak, to take a 22 break. Okay? 23 A. Okay. 24 Q. Did you bring anything with you here today? 25 A. Yes. 6 1 Q. What did you bring? 2 A. I got a box of stuff. 3 Q. Good. 4 A. How do you want me to go through it? 5 Q. Well, let me start with, you have objections to -6 counsel I think had objections to our third notice 7 and I'm looking at it now or do you not? 8 MR. CARR: I got the third notice 9 yesterday. My understanding is if there are 10 objections, they will be small, if any. 11 I know that Jeff Wood from our office 12 has reached agreements with Rob Shelton from your 13 office. 14 MR. SALES: Right. 15 MR. CARR: I spoke with Rob either 16 yesterday or the day before about what he wanted 17 us to bring, and I think we complied with that. 18 The only thing is Dr. Garabrant printed out either 19 his testimonial history or his deposition history, 20 something you had asked for. We identified that 21 he did not have that with him this morning. 22 MR. SALES: Okay. 23 MR. CARR: Because it's probably sitting 24 on a printer. 25 MR. SALES: Okay. 7 1 MR. CARR: So that was produced 2 originally with his report in this case. If you 3 want us to, we can check whatever he has now, 4 which may have been updated three or four, five 5 months after his report and see if there are any 6 differences, but we don't have that and that is 7 just something that got stuck on the printer. 8 MR. SALES: That's all right. So it was 9 attached to his report though, as I recall? 10 MR. CARR: Yeah, it was. 11 MR. SALES: Well, let me, let me do 12 this. What I'm going to do, and we will provide 13 you this at, you know, in the next day or so, or 14 he can e-mail you, we are going to provide as 15 Exhibit Number 1 the most recent list of your 16 testimonial history, of the Doctor's testimonial 17 history. Okay? 18 COURT REPORTER: Yes. 19 MR. CARR: Agreed. 20 MR. SALES: So anyway you want to get it 21 to the court reporter, Doctor, is fine with me. 22 Let me see here. Were there any other 23 issues on the notice that you recall? 'Cause I 24 frankly got the third amended notice myself. 25 Let's see. I saw it like last night. 8 1 MR. CARR: Yeah. And I saw it 2 yesterday. I'm really relying on my conversation 3 with Rob and Jeff telling me that Rob and Jeff 4 have had conversations and that there are no 5 disputes but sitting right here right now 6 that's -- that is really between Jeff and Rob. I 7 know we did not withhold anything that you asked 8 for based on my quick review of it. 9 MR. SALES: Yeah. 10 MR. CARR: Per any objection. 11 So the only things that stuck out to me, 12 I think you guys asked for copies of any study he 13 ever participated in. And he -- he gave you all 14 the CV that's got all of his studies on it. 15 MR. SALES: Okay. 16 MR. CARR: Many of them are not relevant 17 to this case. And I did ask Rob, I said I've got 18 this index with eight hundred different points 19 that could arguably be relevant in a benzene case, 20 and Rob said I don't want eight hundreds studies. 21 I what you to bring the ones that he's relying on 22 in this case and that's what we did. 23 BY MR. SALES: 24 Q. Okay. Fair enough. Well, let's first talk about 25 the box. What you got. 9 1 A. First set is the Notice of Deposition and there's 2 three versions of it. Okay. So we got that. And 3 I brought my curriculum vitae. 4 Q. Okay. 5 A. My report dated January 20, 2009. Actually two 6 copies of that. 7 Q. Okay. 8 A. An affidavit I wrote dated April 3rd, 2009. Two 9 copies of that. A Declaration I wrote dated 10 February 16, 2009. Then I brought my invoices for 11 work done on this case. And I have correspondence 12 from Jones Carr McGoldrick. Then the rest of it 13 is all the documents from the case. So I have 14 Daniel Wolen's deposition. 15 Q. That's the one from the Workers' Comp case? 16 A. I believe so. May 11, 2009 in the Workers' 17 Compensation, right. 18 Q. Okay. 19 A. I have Dr. Ellenbecker and Dr. Tsei, T S E I, 20 report dated December 18, 2009; Dr. Ellenbecker's 21 report dated November 25, 2008; affidavit of John 22 Spencer dated February 9, 2009; affidavit of John 23 Spencer dated April 2, 2009; Dr. Spencer's 24 curriculum vitae; a report from Dr. Spencer dated 25 January 26, 2009; report of Dr. Clapp dated 10 1 November 26, 2008; report of Dr. George Rogers 2 dated November 25, 2008; affidavit of 3 Dr. Ellenbecker dated March 13, 2009; affidavit of 4 George Rogers dated March 13, 2009; affidavit of 5 Richard Clapp dated March 12, 2009; Plaintiff's 6 Response To Defendant Safety-Kleen System's Motion 7 for Summary Judgment; deposition Billy Ray Ross, 8 Jr. dated September 11, 2008; and then part two 9 dated September 12, 2008; deposition of Donald 10 Quillan, volume two, and I have volume one I 11 believe electronically, I don't have it printed 12 out; I have the affidavit of David Pyatt dated -13 I don't see the date on that actually, I don't 14 know what the date is; it was filed on February 15 11, 2009; ah, here's the date February 6th, 2009; 16 affidavit of David Pyatt dated March 31, 2009; 17 Dr. Pyatt's curriculum vitae; Dr. Pyatt's report 18 dated January 23, 2009; a number of CDs; one of 19 them titled Sergeant and Greenleaf Inspection and 20 the date on the disc is 6-6-08; the disc titled 21 Quillan materials dated 12-19-08; the disc titled 22 Quillan records 1-6-09; a disc titled Quillan 23 expert designation with no date on it. 24 Q. Do you know what's on those discs? I mean I 25 assume you know what's on those discs? 11 1 A. Not from memory anymore. I think I got them about 2 a year ago, so I don't recall from memory. 3 Q. How did you -- you were sent those discs by 4 counsel? 5 A. Yes. 6 Q. Okay. Do those discs -- to your memory do they 7 contain the materials that you have already talked 8 to us about or -9 A. I believe that these contain materials that are 10 listed in my report from January of 2009 or at 11 least the discs that I had that are dated prior to 12 January of '09 I believe I listed the materials in 13 my reports. So it would be these two. This one 14 was received -- this is 1-6-09. That one is on my 15 report. This one came in March of '09 so that's 16 not in my original report. And this one isn't 17 dated. I would have to boot it up and see what's 18 on it. 19 Q. Why don't we do this; can you just make a copy of 20 it or have a copy made and provide them to us? 21 MR. CARR: Sure. 22 MR. SALES: We don't ever need to make 23 them exhibits to your deposition. If you will 24 just -25 MR. CARR: No problem. 12 1 MR. SALES: Just do a transmittal letter 2 of some type identifying what they are, that they 3 are copies of what I requested, and I will just 4 make those a -- this is just a formal request for 5 production of those. 6 MR. CARR: Sure. 7 MR. SALES: Of copies at our cost. 8 MR. CARR: You got it. 9 THE WITNESS: All right. I have the 10 transcript of the hearing held at the Department 11 of Workers' Compensation dated October 21, 2009; 12 the deposition of Dr. Monty Metcalfe, January 14, 13 2009; the deposition of Dr. Richard Clapp dated 14 January 12, 2010; the deposition of Dr. George 15 Rogers dated January 13, 2010. 16 Then I have published scientific 17 materials, a set that I've labeled MDS. These are 18 the studies relevant to the issue of the causes of 19 myelodysplastic syndrome. Another set that I 20 labeled benzene AML. These are the studies 21 relevant to benzene and the causation of AML in 22 which there are measurements of benzene exposure. 23 I've brought a copy of the benzene IRIS, I-R-I-S 24 document, the toxicological profile for benzene 25 from the ATSDR and a copy of the Institute of 13 1 Occupational Medicine report from 2005 titled A 2 Review of the Data Quality and Comparability of 3 Case Control Studies of Low Level Exposure to 4 Benzene in the Petroleum Industry; and then I have 5 an additional set of studies that I printed out 6 which were exhibits attached to Dr. Rogers' 7 deposition that were not in my own list of 8 materials that also interested me. 9 BY MR. SALES: 10 Q. Okay. Are these yours are or these copies? 11 A. These are mine. 12 Q. These are yours. Okay. I've looked at your list 13 of materials. Are these on that list or are these 14 in addition to what you've listed? 15 A. Which list are you -16 Q. Well attached to your report. 17 A. Okay. The list attached to my report contains the 18 set of documents that I've labeled MDS. 19 Q. Okay. 20 A. This is the bibliography to my report. 21 Q. Okay. 22 A. The others are in addition to that. 23 Q. Okay. Do you have these in an electronic format? 24 A. Yes. 25 Q. Can you copy those to a disc and provide me a copy 14 1 of that? 2 A. I can, yes. 3 Q. Okay. 4 A. I just, I just located and printed from all of 5 those electronic copies last night and so that's 6 probably -7 Q. That's why I asked, are these for you to keep or 8 are these something I can take? 9 A. You can take them. 10 Q. Oh, okay. I can take the hard copy? 11 A. Yeah. Here's the issue. For me to actually find 12 the files and print them, this was probably an 13 hour-and-a-half's work. 14 Q. Okay. 15 A. Just to put them together. For me to find the 16 files, put them on a disc, it's probably 17 another -- to go back it's probably another hour. 18 Q. No. No. I'm more than glad to take this with me. 19 A. Okay. 20 Q. Maybe I misunderstood. 21 A. No. You can take them. 22 Q. I thought this was yours to keep. 23 A. Well, can I get them back? 24 Q. Yeah. Sure. How do you want to work it? 25 MR. CARR: That or I think it would be 15 1 easier to just send them on to a copy service and 2 have it done. 3 MR. SALES: Yeah. Frankly I would 4 prefer -- I'm sorry. Can you'll just put them on 5 a disc, scan them? 6 COURT REPORTER: Yes. 7 MR. SALES: Why don't you do that. I 8 hate paper. 9 COURT REPORTER: Okay. No problem. 10 MR. CARR: So Ken, do you want to make 11 them an exhibit or do you just want an agreement 12 at the end; we're going to deliver this stuff to 13 her and she is going to discify it and give it to 14 you and give the studies back to him? 15 MR. SALES: Why don't we do that. 16 MR. CARR: That's fine. 17 MR. SALES: I mean for the purposes of 18 the record, you're going to agree that what she 19 puts on a disc, you're going to agree is what he 20 just told me? 21 MR. CARR: I think so. 22 MR. SALES: I do too. 23 MR. CARR: Can you be trusted? 24 MR. SALES: I think we can agree that's 25 going to happen. Okay. 16 1 THE WITNESS: All right. 2 MR. SALES: Okay. Super. And so we'll 3 have all these just scanned, put on a disc, and we 4 won't make them an exhibit to the deposition, but 5 we have an agreement that they are there and 6 that's what the Doctor has testified to. Okay? 7 MR. CARR: You are talking about the 8 little group, not the big group, just the studies? 9 MR. SALES: Okay. You mean this? 10 MR. CARR: Yeah. 11 MR. SALES: Okay. I'm just talking 12 about just the studies. 13 MR. CARR: Me too. 14 MR. SALES: I don't want what I 15 definitely already got. 16 MR. CARR: Me, too. 17 MR. SALES: Okay. I really don't want 18 what I definitely already got. Now, I am going to 19 go through the big group. If you will turn back 20 up properly. 21 THE WITNESS: Yeah. There is one, one 22 more thing. 23 BY MR. SALES: 24 Q. Okay. 25 A. Okay. And then I received a Fed Ex yesterday that 17 1 I have not had time to look at, so I don't know 2 what's on it. It just has a cover letter with it 3 and a CD. 4 Q. Okay. You don't mind? 5 A. I have not looked at it. 6 Q. So this is Quillan versus SK, it's 1-19-10, 7 Garabrant. Can I look at it? 8 MR. CARR: Sure. 9 MR. SALES: Okay. You haven't seen it? 10 MR. CARR: I have not. 11 MR. SALES: Well, I know. 12 THE WITNESS: We will discover it 13 together. 14 MR. SALES: No. I was sure you would 15 say yes but I want to give you the opportunity to 16 do the right thing or not. 17 MR. CARR: Ken, while you look at that, 18 may I run to the restroom? 19 MR. SALES: You absolutely can. 20 MR. CARR: Thanks. 21 MR. SALES: Want to go off the record? 22 MR. CARR: Yeah. 23 VIDEOGRAPHER: Off the record. The time 24 is 10:19 and 27 seconds. 25 (Garabrant Exhibits 1, 2, 3, 4, 5, 6A 18 1 and 6B are marked.) 2 VIDEOGRAPHER: We're back on the record. 3 The time is 10:27 and 43 seconds a.m. 4 BY MR. SALES: 5 Q. Doctor, we're attaching as Exhibit 1 to your 6 deposition the case list, and which is going to be 7 updated and you will provide to the court 8 reporter. I reviewed the list that you attached 9 to your report, and I believe the earliest date 10 that I see on that list is testimony in November 11 of 2004. Did you -- have you testified in 12 litigation prior to that time? 13 A. Yes. 14 Q. How long ago did you first start testifying in 15 litigation? 16 A. I think the first time was in the maybe 1983 or 17 '84. 18 Q. And how many times would you say that you have 19 provided testimony at trial in litigation? 20 A. I'm not sure I can give you an accurate estimate. 21 Probably fifteen or twenty times over the past 22 twenty years. 23 Q. So at trial only fifteen or twenty times in court 24 in trial? 25 A. I think that's a, yeah, that's a reasonable 19 1 estimate. 2 Q. And by deposition? 3 A. Probably sixty, seventy, maybe eighty. I don't 4 know. 5 Q. Okay. 6 A. Again, that's going back over twenty years. 7 Q. Where did you put all the exhibits -- oh, these 8 are. All right. 9 Have you testified previously in a case 10 involving exposure to benzene? 11 A. Yes. 12 Q. And which case was that or cases? 13 A. I'm not sure I can recall all the names. I know 14 I've testified in, let's see, a case Anthony Agudo 15 verse Chevron. That's one I recall. 16 Q. And you testified on behalf of Chevron? 17 A. Yes. 18 Q. And did the person claiming injury in that case, 19 what disease did that person have? 20 A. I believe Mr. Agudo had myelodysplastic syndrome. 21 I think that was about five years ago. I'm not 22 sure my memory is accurate but I think that's 23 right. 24 Q. Okay. And did you testify that Mr. Agudo's MDS 25 was unrelated to exposure to products manufactured 20 1 by Chevron or other oil companies? 2 A. My recollection is Mr. Agudo claimed his 3 myelodysplastic syndrome came from gasoline, from 4 handling gasoline. He worked for Chevron at an 5 engine test facility and he was responsible for 6 hooking up the fuel lines to the engines; and I 7 testified that his myelodysplastic was not caused 8 by the work he did which involved hooking up fuel 9 lines. 10 Q. Okay. What other cases have you testified -- do 11 you recall where that case was? 12 A. I believe it was in San Jose -- the court was in 13 San Jose, California. 14 Q. Is that on your updated list? 15 A. I couldn't tell you from memory. I think so. 16 Q. Okay. Because I didn't remember it right off the 17 bat. Seeing it on the original list that you 18 provided to us. No. I didn't see it. 19 So that would have been just in the last 20 couple of years? 21 A. No. I think that was four, five years ago. 22 Q. Okay. So the list that you're, you're going to 23 provide, how far back does that go? 24 A. Four years. 25 Q. Okay. Would that case be on the list? 21 1 A. If it was within the last four years it would be. 2 Q. Are you capable of determining what cases you 3 testified in prior to four years ago? 4 A. I -- only to the extent that I can remember them. 5 Like Agudo if it was more than four years ago. 6 Q. Okay. Have you prepared previous to four years 7 ago any list of testimony that you have given? 8 A. Yes. 9 Q. And where would that list be? 10 A. If I have it, it would be in a box from those old 11 cases if those haven't been discarded. 12 Q. Would you, would you search and see if you have 13 lists that predate four years ago? 14 A. Yeah. 15 Q. And if so would you provide those to us through 16 counsel? 17 MR. CARR: Well, I'm more than happy to 18 agree that this is a formal request. 19 MR. SALES: Yes. 20 MR. CARR: But we need to consider it. 21 MR. SALES: Right. Okay. That's a 22 formal request. 23 MR. CARR: Fair enough. 24 BY MR. SALES: 25 Q. So if, if you have -- because I presume that you 22 1 prepared these lists because you're in federal 2 court and you're required to do so? 3 A. That's correct. 4 Q. All right. And since you testified, you know, 5 since the eighties, I would think on several 6 occasions you had to prepare a list for a federal 7 court? 8 A. I have. 9 Q. Okay. And so what I would like for you to do is 10 to determine if any list predating four years 11 still exists; if you have any case files predating 12 four years where you have produced such a list, 13 please see if you can produce to us through 14 counsel? 15 MR. CARR: Yes. 16 MR. SALES: Our request is for any list 17 that might be outstanding, no matter how far back 18 it goes. 19 MR. CARR: And Dr. Garabrant, what's he 20 just done is made a formal request. Typically 21 what happens is I get to see that first. We look 22 at the law, we visit with you, so I don't think 23 he's seeking your agreement right now, but if he 24 is what I'm advising you is let me consider the 25 request and we will visit about that. 23 1 MR. SALES: No. I always want an 2 agreement, Doctor. I'm wasting my time at this 3 point otherwise. Okay. I'm making a request and 4 hopefully you can find that and let me know. And 5 the purpose of this is I'm just trying to 6 determine what cases where you may have testified 7 regarding exposure to benzene, what cases you 8 testified in. 9 For instance, the, the Agudo, unless I'm 10 missing it, is not on the list that you provided 11 me. So I appreciate that you did remember it but 12 it's just not on that list. 13 BY MR. SALES: 14 Q. Let me kind of go backwards with the list I have. 15 The last date I have is '08. So apparently the 16 list that you're going to provide as Exhibit 1 is 17 brought current to, to today's date? 18 A. I printed it out last night. 19 Q. I understand. 20 A. And forgot to take it off the printer. 21 Q. That's okay. 22 A. I believe it was current through September of '09. 23 Q. Okay. That's pretty close. Since 11-18-08, and 24 this shows Kelley Bohr versus American Honda 25 Motor, Inc., have you testified in any cases 24 1 involving benzene exposure? 2 A. Yes. 3 Q. And can you tell us what those are? 4 A. Well, I'm not sure of the dates. Is, is 5 Henricksen verses Chevron on there? I don't know 6 if that was before or after November of '08. 7 Q. Actually I don't see that. 8 A. Okay. Well, then I testified in Henricksen. 9 Q. Okay. What else? 10 A. I testified in Baker. 11 Q. Okay. 12 A. And -13 Q. Would that be Baker versus Chevron? 14 A. Yes. 15 Q. Okay. 16 A. And I testified in Milward. 17 Q. What's that? 18 A. Milward. 19 Q. M I L W A R D? 20 A. Yes. 21 Q. Also Chevron? 22 A. No. I don't believe so. 23 Q. Who would, who would you have been testifying on 24 behalf of in that case? 25 A. Boy, it's hard to recall. Mr. Milward was a 25 1 lithographic printer and I testified on behalf of 2 some of the companies that supplied printing 3 chemicals to the best of my recollection. 4 Q. Do you recall where that was? 5 A. Boston. 6 Q. Okay. I mean that will be on your list? 7 A. Yes. 8 Q. And did these printing chemicals contain benzene? 9 A. That was one of the issues in the case. Some of 10 them I think did not and some may have contained 11 very small amounts. 12 Q. Okay. And what disease did Mr. Milward have? 13 A. Acute promyelocytic leukemia. 14 Q. And was your testimony in that, in the Milward 15 case that his exposure to these chemicals, 16 printing chemicals did not contribute to the cause 17 of his leukemia? 18 A. My testimony in that case was that the -- there 19 was no evidence that benzene caused APL and that 20 the plaintiff's experts had not provided reliable 21 scientific testimony. 22 Q. Okay. In what way did you believe that they had 23 not provided reliable scientific testimony in that 24 case? 25 A. The way the epidemiologic studies were handled was 26 1 inappropriate and a number of calculations made by 2 plaintiff's expert were wrong and created results 3 that were based on faulty assumptions. 4 Q. Okay. Did you testify at trial or deposition? 5 A. I testified in a Daubert hearing. 6 Q. Okay. I see the -- actually did locate the Baker 7 case. It looks like on your list it says August 8 13, 2008. Baker versus Chevron in looks like 9 Cincinnati, Southern District of Ohio? 10 A. Yes. 11 Q. Okay. You testified in a deposition and a Daubert 12 hearing in that case? 13 A. Yes. 14 Q. Do you know what the Daubert hearing concerned? 15 A. It concerned the testimony of plaintiff's expert, 16 Dr. James Dahlgren. 17 Q. Do you know what the result of the Daubert hearing 18 was? 19 A. I believe Dr. Dahlgren was excluded and the case 20 was dismissed. 21 Q. Okay. What disease did Mr. Baker have or 22 Ms. Baker? 23 A. There were four plaintiffs in Baker. 24 Q. Okay. 25 A. One of them had breast cancer, one of them had 27 1 Hodgkin's disease and two of them had monoclonal 2 gammopathies of unknown significance or MGUS. 3 Q. Okay. No leukemias? 4 A. One of them -5 Q. Or pre-leukemia? 6 A. -- developed AML. 7 Q. Okay. 8 A. I'm trying to remember which. I think was a 9 consequence of chemotherapy for a prior cancer. 10 Q. Okay. 11 A. I'm not -- I can't say as I'm sure again from 12 memory. I would have to look it up. 13 Q. Obviously if I look at your deposition or the 14 Daubert hearing transcript, it will tell me all 15 that, won't it? 16 A. Yes. 17 Q. Any other benzene cases? 18 A. Yes. There are others. I can't recall them by 19 name. 20 Q. Okay. 21 A. But I believe there have been a couple of others. 22 Q. Since November of '08? 23 A. I'm not sure. I'd have to look. 24 Q. Let me kind of go through, let me ask you some 25 general questions, and then I will kind of go 28 1 through the list I do have and we can see what we 2 can figure out. 3 As I understand it, you testified on 4 behalf of companies involved in asbestos 5 litigation? 6 A. I have testified on behalf of companies that 7 either make or distribute or purchase or buy 8 brakes for cars and trucks. 9 Q. Like Pneumo Abex? 10 A. Pneumo Abex, Nissan. 11 Q. Honda? 12 A. Honda, Toyota, Mitsubishi, Cateran Pillar. So I 13 have testified on behalf of defendants in cases 14 that alleged that motor vehicle brakes cause 15 mesothelioma. 16 Q. Okay. And you uniformly and completely testified 17 on behalf of automobile manufacturers or brake 18 suppliers, distributors or manufacturers in those 19 cases? 20 A. That's correct. 21 Q. Okay. And you've always testified on those cases 22 that a person who had mesothelioma, which is a 23 form of cancer related to asbestos exposure, was 24 not related to brake exposure? 25 A. I have testified to that because that's what the 29 1 scientific evidence says. 2 Q. Okay. You've testified in -- well, rather than me 3 trying to give you specifics, what type of cases 4 would you say you testified in in general? Can 5 you group them? 6 A. I'm not sure, I'm not sure I understand your 7 question. 8 Q. Well, for instance, you testified in cases 9 involving asbestos exposure. Okay? 10 A. Brakes. 11 Q. Yeah. And brakes had asbestos in them? 12 A. Some brakes have had chrysotile asbestos in them. 13 Q. And you testified in cases involving benzene, 14 products that contain benzene? 15 A. I have. 16 Q. What other kinds of cases have you testified in? 17 A. Those have been the two areas where I have 18 testified. I have on occasion testified in cases 19 involving vinyl chloride, for example. 20 Q. And these are -- are these cancer cases involving 21 vinyl chloride? 22 A. Yes. 23 Q. And who have you testified for in vinyl chloride 24 cases? 25 A. Companies that have either handled or manufactured 30 1 vinyl chloride or in one instance a company that 2 owned a dump site where there was vinyl chloride 3 in the plume of groundwater under that dump site 4 at parts were billion levels. 5 Q. And what type of cancers were claimed as a result 6 of exposure to vinyl chloride in those cases? 7 A. Angiosarcoma of the liver and in some cases 8 hepatocellular carcinoma and I believe in one case 9 a cholangiocarcinoma of the liver. 10 COURT REPORTER: What was the last one? 11 THE WITNESS: Cholangiocarcinoma. 12 BY MR. SALES: 13 Q. And are these cancers cancers that have been 14 identified in the literature as being related to 15 exposure to vinyl chloride? 16 A. Angiosarcoma of the liver is clearly related to 17 exposure to vinyl chloride. Cholangiocarcinoma is 18 not and hepatocellular carcinoma is not. 19 Q. And in those cases in each instance did you 20 testify that the individual involved exposure to 21 vinyl chloride by the company that you were 22 testifying on behalf of was not a contributing 23 cause of their cancer? 24 A. I'd actually have to look back at my testimony. 25 The, the focus of my testimony actually had to do 31 1 with the development of scientific evidence over 2 the past thirty years, and that the studies done 3 by the chemical industry in fact matched the 4 studies done by various government agencies and 5 academic institutions in terms of when they were 6 published. Right, right from the start the 7 industry and the academic and government agencies 8 were publishing contemporaneously, and the 9 findings actually showed exactly the same thing. 10 So they -- the association between vinyl 11 chloride and angiosarcoma was reported by 12 industry, by university researchers and by 13 government researchers. The relative risks were 14 roughly the same and they were reported over the 15 same period of time. 16 Q. So would you describe your work in those cases as 17 being more or less on the state of the art? 18 A. No. 19 Q. But were you concluding in those cases that the 20 individual involved had a cancer particularly with 21 regard to angiosarcoma related to vinyl chloride 22 exposure or not? 23 A. In the instance where it was an angiosarcoma of 24 the liver and where the person had plausible 25 substantial exposure to vinyl chloride, I believe 32 1 my opinion is it may well have been a cause. But 2 that wasn't what I was testifying about. My -- I 3 was asked to respond largely to the claim that 4 plaintiffs had made that industry was hiding risks 5 from vinyl chloride, and it was clear in the 6 published literature that they were doing as much 7 work to uncover those risks as everyone else was. 8 Q. Did you represent BF Goodrich or were you working 9 on behalf of BF Goodrich in those cases? 10 A. I believe I have in some of those cases. 11 Q. I'm curious how far back you believe that BF 12 Goodrich, for instance, the vinyl chloride cases 13 was researching or developing material regarding 14 the risk of angiosarcoma and exposure to vinyl 15 chloride? 16 A. I don't recall specifically how far back BF 17 Goodrich was. Just from my memory as I sit here 18 my recollection was the first cluster of 19 angiosarcoma that lead to the realization that 20 this was a human carcinogen occurred in a BF 21 Goodrich plant and was reported by a BF Goodrich 22 physician. That's the Creech & Johnson paper as I 23 recall. 24 Q. Do you recall when that would have been? 25 A. 1973 or 74. 33 1 Q. Do you remember what case that was or group of 2 cases? 3 A. Not, not from memory. 4 Q. It would be on your list? 5 A. If it's been in the past four years, yes. 6 Q. Is the Genevieve Selby verses BF Goodrich 7 Corporation, is that one of those cases? 8 A. I don't believe so. I believe Mr. Selby had 9 glomerular nephritis which he claimed was due to 10 solvent exposure. 11 MR. CARR: That's the common spelling. 12 BY MR. SALES: 13 Q. So then the Goodrich angiosarcoma case may well 14 have predated this four year list? 15 A. Some of them may have. I believe some of them are 16 on that list however. 17 Q. Fortunately the only one I'm seeing is the Selby 18 case and you say that's a solvent case. 19 Do you recall where those cases were 20 located or how many you were involved in? 21 A. I believe those cases were largely located in Ohio 22 and I've been involved in perhaps five over the 23 past eight years. 24 Q. Do you know where in Ohio? 25 A. I do not. The law firm that I worked with is 34 1 based in Columbus. I don't, I don't -- I'm not 2 sure I know which court was handling this. 3 Q. What was the law firm? 4 A. The Borris Sader. 5 Q. Borris Sader. I know. 6 A. Borris Sader and somebody and somebody and 7 somebody. 8 Q. That's right. I got an e-mail from them 9 yesterday. So I know exactly who they are. 10 Okay. Another category that you kind of 11 mentioned of cases that you testified in are 12 solvent-induced disease cases, correct? 13 MR. CARR: Objection. 14 Mischaracterization. 15 THE WITNESS: I think you asked me 16 earlier about benzene and my response was 17 regarding benzene and leukemias and other 18 hematologic malignancies. 19 BY MR. SALES: 20 Q. I think you may have misunderstood me. What I 21 have been doing is trying to go through the type 22 of cases categorically that you testified in, and 23 we talked about the angiosarcoma cases, we talked 24 about asbestos disease cases that you have done 25 for brake-related entities, and of course benzene 35 1 cases that you've done on behalf of manufacturers 2 of products that may contain benzene products. 3 And so what I was saying is that there's 4 another category of case I believe you testified 5 in and those are cases involving exposures to 6 solvents. Is that -- have you testified in those 7 types of case? 8 A. We talked about Selby which was a glomeular 9 nephritis and solvent case. So I guess the answer 10 would be yes. 11 Q. Any other companies that have had claims against 12 them based upon solvent exposure that you have 13 testified on behalf of? 14 A. Setting aside the ones that deal with traces of 15 benzene? 16 Q. Yeah. 17 A. I mean -18 Q. Yeah. As I'm talking I understand the petroleum 19 products are solvents. 20 A. Right. 21 Q. Okay. 22 A. Well, petroleum products typically include 23 solvents. 24 Q. Yes. 25 A. Gasoline, diesel fuel, jet fuel. 36 1 Q. Right. So that, that could create confusion in 2 the question I asked you. 3 A. Yeah. 4 Q. Okay. I gotcha. Let me, let me try to be a 5 little more clear. How about those, those 6 companies who deal in cleaning solvents, for 7 instance, trichlorethylene, trichlorethylene, 8 perchloroethylene, mineral spirits, things of that 9 nature. 10 Have you worked on behalf of companies 11 that maybe manufacture or use those products and 12 have had claims made against them based upon their 13 use of those products? 14 A. Okay. Well, let me clarify. Mineral spirits I 15 would put in the category of a petroleum product. 16 Q. It's a crossover? 17 A. Well, it's a petroleum product. 18 Q. It is. No. You're right. I guess what really -19 maybe I can be more detailed. Those solvents that 20 may -- for which people may claim brain injuries, 21 for instance, like organic brain injuries of some 22 type. 23 A. Okay. I've testified -- I remember a case that 24 involved dry cleaning solvents which are typically 25 perchloroethylene. 37 1 Q. Right. 2 A. But may involve some other materials in addition. 3 I testified in a case called Magistrini. 4 Q. And who did you testify for in that case? 5 A. On behalf of the defendants but I'm not sure at 6 this point who that was. 7 Q. If I look at, at the list that you're providing -8 that you have provided us and that you will 9 provide us, in any of the cases that you have 10 testified in did you testify on behalf of an 11 individual claiming that they had been injured as 12 a result of exposure to a product? 13 A. Not on that list but I have done that in the past. 14 Q. How long ago? 15 A. Well, I'm an occupational medicine specialist and 16 so I've done workers' compensation care throughout 17 my career, and I've testified on behalf of 18 plaintiffs and workers in workers' compensation 19 many times. 20 Q. Well, would that be in the setting of -- your 21 day-to-day work is as an occupational physician? 22 A. My day-to-day work is as a professor at the 23 University of Michigan. I'm a Professor of 24 Occupational Medicine and Epidemiology and 25 Emergency Medicine. 38 1 Q. Okay. And do you work day-to-day as an 2 occupational physician as well in actual practice 3 or do you not anymore? 4 A. Very little now. I used to. 5 Q. How long ago did you cease essentially the active 6 practice of medicine as opposed to the academic 7 practice of medicine? 8 A. I'm not sure I know the difference between the 9 active practice of medicine and the academic 10 practice of medicine. 11 Q. How about clinical? How about if I use terms of 12 art like clinical practice? 13 A. Yeah. I still see patients. 14 Q. Okay. 15 A. If that's the question I still see patients. 16 Q. Well, how much of your practice is clinical as 17 opposed to academic? 18 A. It's -- now again you know -19 Q. Okay. Okay. 20 A. At a university seeing patients is part of one's 21 academic duties. 22 Q. It sure is because you have to take people around 23 and show them the patients and discuss them with 24 them, and it's also part of your day. I realize 25 that. I apologize. 39 1 A. Yeah. But patient care is a small part of my 2 activities now. I would say five percent or less. 3 Q. Okay. And how long have you been in a situation 4 where your -- where patient care is five percent 5 or less? 6 A. I've been reducing it in the past few years so 7 it's hard to say. I would say five years ago 8 patient care was probably twenty percent of my 9 time, maybe twenty-five percent, and it's been 10 reducing slowly since then. 11 Q. Would you, would you say that those cases where 12 you have testified, and you said workers' comp, 13 where you testified in a workers' comp setting for 14 an injured worker were cases where these people 15 had been your patient? 16 A. Well, I'm not sure what you or how you want to 17 differentiate. I saw them in clinic. I provided 18 care but it was under workers' compensation. 19 Q. Right. But I mean they weren't, these weren't 20 individuals who were sent to you for evaluation, 21 for instance, as in this case? 22 A. I'm not sure I understand the question. 23 Q. Well, where you testified for, for an individual 24 who claimed injury in a workers' comp setting, 25 these were people who you had contact with in your 40 1 medical practice either through your clinic at the 2 university or in whatever way as a doctor actually 3 coming in contact with a patient? 4 A. I saw them in clinic, yes. 5 Q. Right. So they were, they were your patient, one 6 way or the other? Maybe you weren't their primary 7 physician but you were one of the physicians who 8 saw them and attended to them and therefore was 9 able to develop an opinion based upon your contact 10 with them in, in your medical practice? 11 A. Well, I saw them in clinic and provided care and 12 to the extent that I developed opinions it was 13 based on materials I reviewed as well as the 14 encounter I had in clinic. 15 Q. Right. So what, what would typically happen in 16 that situation is an attorney such as myself might 17 contact you and say I see that you're one of the 18 physicians who saw my client. Do you have 19 opinions regarding the causation of their 20 condition? Would that be a typical situation? 21 A. That would be one of a number of situations. 22 Q. Right. But your initial contact with that person 23 who you testified for in a workers' comp setting 24 would not have been as a litigation situation; it 25 would have been as a medical situation? 41 1 A. It could have been either. 2 Q. Do you recall ever having a -- testifying in a 3 case for an individual where they had been sent to 4 you for evaluation in litigation? 5 A. Yes. 6 Q. And when was that? 7 A. Well, that's happened throughout my career or 8 since the mid eighties; twenty, twenty-five years. 9 Q. Are any of those cases on your case list that you 10 provided do us? 11 A. I believe some of them are, yes. 12 Q. Can you -- would you know which one is? 13 A. Without having the list in front of me and not 14 being able to see them I can't but if I, if I 15 could see the list, or if you want to read me the 16 names of the cases? 17 Q. Why don't I just run down. 18 A. Sure. 19 Q. I'm going to run down quickly and you stop me when 20 one of the names on this list -21 A. Okay. 22 Q. -- was a person claiming injury and you testified 23 on their behalf. Yates v. Anchor Packing? 24 A. No. 25 Q. Essenmacher verses Orkin? 42 1 A. Angela Essenmacher was -- I think I saw her in 2 clinic. She claimed that she had multiple 3 chemical sensitivity from Orkin applying 4 pyrethroid insecticide around her apartment. 5 Q. Okay. So that was -6 A. I did not testify on her behalf. I testified on 7 behalf of -8 Q. Orkin? 9 A. -- the pesticide applicator, I believe. 10 Q. Petruzzi versus Allison Transmission? 11 A. No. 12 Q. Ward versus Albion Personnel Services, State of 13 Michigan Worker's Comp Agency? 14 A. I believe I saw her. I don't recall her first 15 name. 16 Q. Jerry Ward is. 17 A. I believe, I think that was a woman, and I believe 18 I saw her in clinic, and I don't recall what the 19 case was to be honest. 20 Q. Okay. MDL Docket, welding rods product liability 21 litigation that was -22 A. No. 23 Q. -- for welding rod manufacturers in asbestos cases 24 I would think? 25 A. No. 43 1 Q. No. That would have been another lung disease 2 cases? 3 A. Nope. 4 Q. Oh, okay. Well, I'm guessed out. You tell me. 5 A. Parkinson's disease. 6 Q. Okay. But you testified on behalf of the welding 7 rod manufacturers? 8 A. I testified that the epidemiology does not support 9 that welding rods cause Parkinson's disease. 10 Q. Presler versus Lincoln Electric? 11 A. That's a welding case. Parkinson disease. 12 Q. Okay. That wasn't for the plaintiff in that case 13 or the claimant? 14 A. No. 15 Q. Karen Brown versus Christus Spohn Health System? 16 A. I did not see her in clinic. 17 Q. Okay. But you testified for the company in that 18 case? 19 A. That's a complicated issue. I testified on behalf 20 of the hospital. 21 Q. Right. 22 A. Ms. Brown had a barium enema and they perforated 23 her colon and which resulted in the barium 24 contrast material getting into her peritoneum, and 25 she got a peritoneal reaction, and they had to do 44 1 surgery to clean the barium out of her peritoneum. 2 It was a mess but she claimed that she had barium 3 poisoning which she did not. 4 Q. Okay. Leach verse Allied Glove. That was for the 5 company? 6 A. That's a brakes case, I believe. 7 Q. Flax versus Abex company? 8 A. That's a brakes case. 9 Q. Boren versus Lincoln Electric Company? 10 A. I believe that was a Parkinson's disease case. 11 Q. Bouhanna versus 128 Imports -12 A. Brakes. 13 Q. -- Company. Harrick versus A. W. Chesterton? 14 A. That's a brakes case. 15 Q. All right. Sauers versus 20th Century Glove? 16 A. Brakes. 17 Q. Mohammad and Raja Jamal versus Honda? 18 A. I believe that's a brakes case. 19 Q. Mallia versus Mack Trucks? 20 A. Brakes. 21 Q. Spirydowicz versus Owes-Illinois? 22 A. That's a brakes case. 23 Q. Dyer versus Waste Management of Wisconsin? 24 A. That's the vinyl chloride in groundwater from a 25 dump. 45 1 Q. Okay. You testified on behalf of Waste Management 2 of Wisconsin? 3 A. Yes. 4 Q. Okay. Martinez verse GMPT, Saginaw Grey Iron? 5 A. GMPT stands for General Motors Power Train. 6 Q. That's a workers' comp, Michigan workers' comp? 7 A. Yeah and I don't recall to be honest. 8 Q. So you may have -- you don't know whether you 9 testified on behalf of Martinez or on behalf of 10 GM? 11 A. What was the year? 12 Q. August 2005. 13 A. I don't recall to be honest. 14 Q. Okay. We've already talked about Selby versus 15 Goodrich. That was the company. 16 Mallia versus Genuine Auto Parts? 17 A. I think you just asked me about that one. That's 18 a brakes case. 19 Q. Right. Sandy versus asbestos defendants. I 20 assume you testified on behalf of the asbestos 21 defendants? 22 A. Mr. Sandy had colon cancer, claimed it was from 23 asbestos exposure which there's no support for 24 that. 25 Q. Okay. I mean there is literature that colon 46 1 cancer can be caused by asbestos exposure? 2 A. In fact, if you look at the literature and put it 3 altogether, there is no association at all. We 4 published a Meta-analysis on that point in 2000 -5 no, in 1994, and have followed that issue closely 6 and in fact there is no association at all. 7 Q. Meta-analysis is where you go back and look at the 8 studies that other people have done and interpret 9 them, separate and apart from the way they 10 interpret them essentially? 11 A. No. Absolutely not. 12 Q. Okay. Well, we don't need to debate that. 13 Tizcareno versus BorgWarner, that was a 14 company, was it not? 15 A. It's a brakes case. 16 Q. Yeah. Atwell versus City Corp or Conti Corp -17 Contigroup. I'm sorry. 18 A. I did not see any patient in that case. 19 Q. Okay. So that would have been for the company? 20 A. I believe that was for the farm. 21 Q. Okay. But it wasn't for the person injured 22 claiming injury? 23 A. There was no claim of injury in that case as I 24 recall. 25 Q. Okay. White versus Alloy Rods? 47 1 A. That was a Parkinson's disease. 2 Q. Okay. Again, that would have been on behalf of 3 the defendant in the case? 4 A. The companies that made welding rods. 5 Q. Parsons versus American Honda? 6 A. Brakes. 7 Q. Pitts versus A. W. Chesterton. 8 A. Brakes. 9 Q. Haskell versus Airo? 10 A. I don't recall Haskell. I think that's a brakes 11 case. 12 Q. Barker verses Honeywell? 13 A. Brakes. 14 Q. Atwell versus PSF? 15 A. That's the same Atwell that we just discussed. 16 Q. Diaz versus American Standard? 17 A. That's brakes. 18 Q. Galloway versus UPRR? 19 A. That's a welding Parkinson's disease. 20 Q. But you would have testified on behalf of the 21 company? 22 A. I think that was actually on behalf of the 23 railroad that Mr. Galloway worked for. 24 Q. Okay. 25 A. He claimed that welding caused him to have 48 1 Parkinson's disease. 2 Q. Okay. Montalbano versus Lincoln Electric? 3 A. Welding. 4 Q. Okay. Drummond verse DuPont? 5 A. That was an environmental case alleging that a 6 zinc smelter had resulted in exposure in the 7 neighboring community to lead and cadmium and 8 arsenic in which -9 Q. But you testified on behalf of DuPont? 10 A. -- in which there was no evidence that anyone was 11 exposed and I testified on behalf of DuPont. 12 Q. Okay. Thompson verses Abex? 13 A. About, probably sixty percent of all these cases 14 are brakes cases in which it was alleged that 15 automobile brakes caused mesothelioma. So it's 16 the same issue. 17 Q. Yeah. I understand. I'm just trying to find 18 that, that -19 A. Yeah. 20 Q. -- person who claimed injury that you testified on 21 behalf of. 22 Monroe, Lidster, Campbell and Meyer v 23 PneumoAbex? 24 A. Brakes. 25 Q. Hichman, Neil versus Honeywell? 49 1 A. Brakes. 2 Q. Hauck, BorgWarner? 3 A. Brakes. 4 Q. Willhusen versus PneumoAbex? 5 A. Brakes. 6 Q. Franklin, General Motors? 7 A. Brakes. 8 Q. Barrett versus Pneumo Abex? 9 A. Brakes. 10 Q. Garcia versus Allied Diagnostic, California? 11 A. Mr. Garcia had non-Hodgkin's lymphoma and he 12 claimed that that was caused by his work as a 13 printer in a commercial printing plant. They 14 made -- well, they did commercial printing. 15 Q. Okay. But you testified on behalf of Allied 16 Diagnostic in that case? 17 A. No. 18 Q. Or you testified that his claim was not related to 19 the material? 20 A. It was not related to the inks and -21 Q. Right. 22 A. -- materials he used in printing. 23 Q. Schwarber versus General Motors? 24 A. Brakes. 25 Q. Luman versus Allied Manufacturing? Hintz verses 50 1 Pneumo Abex? 2 A. I don't recall Luman. 3 Q. I'm sorry. Allied -- it's in Delaware. September 4 7, '07. It looks like two cases. Luman versus 5 Allied and Hintz versus Pneumo Abex. Maynard 6 verses Pneumo Abex? 7 A. I believe that would be brakes. 8 Q. Okay. Amick versus ABB Luman, Luman -- Lummus? 9 A. That would be brakes. 10 Q. Perrine versus DuPont? 11 A. That's the same issue as the -- when we talked 12 about the claim that the zinc smelter caused 13 exposure to lead, arsenic and cadmium. 14 Q. But you testified on behalf of the defendant in 15 that case? 16 A. I did. Yes. 17 Q. Buttiffa versus Honeywell? 18 A. Buttiffa? How do you spell that? 19 Q. Maybe it's Buttitta. B U T -20 A. Buttitta, yes. That's a brakes case. 21 Q. Turner versus Chevron? 22 A. Turner that's a, that's a man who claimed that he 23 got pulmonary fibrosis from using a pesticide when 24 he worked for Cal Trans. Cal Trans is the State 25 of California agency that does all the highway 51 1 construction and maintenance. 2 Q. Right. 3 A. And he was a -- essentially he took care of the 4 plants and vegetation along the interstate and 5 state highways in California, and he claimed that 6 he got pulmonary fibrosis from handling 7 pesticides, and I testified on behalf of Chevron. 8 Q. Andre versus Union Electric? 9 A. That was welding and Parkinson's disease. 10 Q. You testified on behalf of the Union Electric? 11 A. That's correct. 12 Q. Hoskins versus Honeywell? 13 A. Brakes. 14 Q. Mitchell versus Honda? 15 A. Brakes. 16 Q. Haun versus Pneumo Abex? 17 A. Brakes. 18 Q. Bier versus Chesterton? 19 A. Brakes. 20 Q. Free versus Ametek? 21 A. That was a Frye hearing regarding plaintiff's 22 expert claiming that any exposure to asbestos 23 above background caused mesothelioma. 24 Q. Okay. You testified that exposure to asbestos 25 above background did not cause mesothelioma? 52 1 A. No. I testified that the plaintiff's expert 2 actually had no method for reaching that 3 conclusion. 4 Q. Okay. Guilder verses American Honda? 5 A. Brakes. 6 Q. Henricksen versus Chevron? 7 A. That was an AML where it was alleged that 8 Mr. Hendricksen got AML from handling gasoline and 9 diesel fuel. 10 Q. Okay. 11 A. And that was a Daulber hearing I believe, or Frye, 12 I'm not sure. I think it was a Daulber. 13 Q. But you testified on behalf of Chevron in that 14 case? 15 A. Yes. 16 Q. Schylaske verses Genuine Parts? 17 A. Brakes. 18 Q. Riley versus Genuine Parts? 19 A. I don't recall Riley. Yeah. That was brakes. 20 Q. Simons versus Pneumo Abex? 21 A. Okay. 22 Q. Mairose versus Dow Chemical? 23 A. That was vinyl chloride. 24 Q. And you testified on behalf of Dow? 25 A. No. 53 1 Q. Who? 2 A. Not Dow. 3 Q. Another company though? 4 A. Some other company, yeah. 5 Q. Okay. Baker versus Chevron? 6 A. That's the one we talked about. 7 Q. Okay. Daly versus Arvinmeritor? 8 A. Brakes. 9 Q. English verses Zone, Auto Zone West? 10 A. Brakes. 11 Q. Whited versus Long-Lewis? 12 A. What's the name again? 13 Q. Whited, W H I T E D, versus Long dash Lewis? 14 A. Brakes. That was brakes. 15 Q. Adams versus Allied? 16 A. Brakes. 17 Q. Morin versus Toyota? 18 A. Brakes. 19 Q. Bohr versus American Honda? 20 A. Brakes. 21 Q. So I guess we can agree at least on the list that 22 you provided us for the four years preceding 23 November of '08 you could not identify any case in 24 which you testified on behalf of a person claiming 25 injury as a result of exposure to something made 54 1 by another, another entity? 2 A. Well, I think that all of those cases have been on 3 behalf of defendants. 4 Q. Okay. 5 A. I'm not sure I understood exactly your question. 6 Q. Would you, would you say that at least say 7 ninety-eight, ninety-nine percent of the testimony 8 you have given over the years has been on behalf 9 of people who are defending claims that they -10 from people who are claiming injury as a result of 11 exposure to products? 12 A. No. No. In fact, over much of my career I think 13 that it was evenly split. About half for 14 plaintiffs and half for defendants. 15 Q. Well, let's take out workers' compensation cases. 16 In litigation such as this how would that number 17 split? 18 A. Well, I'm not sure how you can take out workers' 19 compensation. I testified on behalf of injured 20 workers throughout my career. So setting aside 21 when I have testified on behalf of injured 22 workers, I've testified on behalf of defendants. 23 Q. Well, you would agree with me -- I mean I can't 24 see in the last four years and I'm -- based on 25 what you told me up until today when you testified 55 1 on behalf of any injured worker. So at least in 2 the last say five years a hundred percent of your 3 work has been on behalf of defendants in law 4 suits, is it not? 5 A. I believe that's correct. 6 Q. Would that be also true for pretty much for the 7 five years preceding that? 8 A. No. 9 Q. And in the workers' comp cases where you testified 10 for injured workers, those were people who were 11 actually your patients or you saw in clinic, 12 correct? 13 A. Some of them. 14 Q. Yeah. 15 A. Some not. 16 Q. Okay. Can you tell me -- well, let's go through. 17 We got some -18 MR. CARR: Ken, if you are on a subject 19 you want to stick with, I don't want to stop you, 20 but I would like to take a brake in the next five 21 or so minutes. 22 MR. SALES: We're good. Take a break 23 now. I'm pretty cool about that. 24 VIDEOGRAPHER: We're going off the 25 record. This is the end of tape one. The time is 56 1 11:19 and 27 seconds a.m. 2 VIDEOGRAPHER: We're back on the record. 3 This is tape two. Time is 11:24 and 53 seconds 4 a.m. 5 BY MR. SALES: 6 Q. We've marked as Exhibit 2 to your deposition your 7 most up-to-date CV. Is that it? 8 A. Yes. 9 Q. Have you written any papers regarding benzene 10 exposure? 11 A. Yes. 12 Q. How many? 13 A. I don't know. I would have to go through and 14 count on my CV. 15 Q. Why don't you do this; can you just take a second 16 and go through with a pen and mark the ones? If 17 you want to thumb through. 18 A. It will take a little more than a second but. 19 Q. Well, why don't we not waste the film. That's 20 dead space, go off, and just let you -- if you 21 will just circle the number of which ones you 22 believe are related to benzene exposure. 23 MR. CARR: Let's go off both records. 24 MR. SALES: Yeah. Yeah. Yeah. 25 VIDEOGRAPHER: Going off the record. 57 1 The time is 11:25 and 55 seconds a.m. 2 VIDEOGRAPHER: We're back on the record. 3 The time is ll:32 and 17 seconds a.m. 4 BY MR. SALES: 5 Q. Doctor, we have gone off the record so that you 6 could mark on the exhibit those articles that you 7 had written involving benzene exposure, 8 benzene-related diseases. Could you go through 9 those with us? 10 A. Yes. Number twenty-seven on page fifteen, 11 Occupational exposures of parents of children with 12 acute non-lymphocytic leukemia; number 13 thirty-eight, Exposure to magnetic fields among 14 electrical workers in relation to leukemia risk in 15 Los Angeles County; number thirty-nine, 16 Occupational cancer; number fifty-two, Risk of 17 solvent exposure among women with undifferentiated 18 connective tissue disease; number fifty-three, 19 Epidemiology of organic solvents and connective 20 tissue disease; number sixty-seven, Scleroderma 21 and solvent exposure among women; number one 22 eighty-one, Case control study of pancreas cancer 23 at the Philadelphia plant of the Rohm & Haas 24 Corporation; number two 0 six, Carcinogens and 25 cancer risks in the microelectronics industry. 58 1 I think that would be it. 2 Q. Okay. Any, any of these cases -- any of the 3 articles that you have written or research you 4 have done leading to these articles deal with the 5 issue of benzene exposure and the development of 6 myelodysplastic diseases or syndromes? 7 A. I don't believe so. One of them I mentioned 8 looked at acute non-lymphocytic leukemia but I 9 don't believe it looked at myelodysplastic 10 syndrome. 11 Q. And none of the work you have done academically is 12 related to the relationship or research of 13 exposure to petroleum distillates and development 14 of myelodysplastic syndromes? 15 A. I'm not sure what you mean by the work I have done 16 academically. 17 Q. Well, as contained in your curriculum vitae which 18 is a list of all your, I would assume all your 19 publications, research papers, abstracts, etc., 20 that would be your, what I would call your 21 academic work, correct, your curriculum vitae or 22 Exhibit 2? 23 A. Well, that would be part of my academic work. 24 I've also spent my career teaching. 25 Q. I understand. I don't mean to cut that short, but 59 1 I mean your written, your written work -- and of 2 course you have your teaching qualifications on 3 this curriculum vitae as well? 4 A. I do. 5 Q. All right. Not part of this curriculum vitae 6 would be work that you have done in a separate 7 arena and that's what I call the litigation area 8 which we have discussed previously. 9 A. What's the question? 10 Q. Well, you don't include your, your litigation work 11 as part of your curriculum vitae, correct? 12 A. That's correct. 13 Q. All right. So I mean I wouldn't see a list of all 14 the cases you may have testified in or the 15 companies you may have evaluated cases for, done 16 work for? 17 A. No. But that's the list we just discussed a few 18 minutes ago. 19 Q. That's a separate item, correct? 20 A. That's correct. 21 Q. All right. So when I, when I say that this is 22 more -- this is your -- as an occupational 23 physician or a physician who is specialized in 24 emergency medicine or internal medicine are these 25 fields and your academic background, that's what 60 1 your curriculum vitae or Exhibit 2 would 2 demonstrate, correct? 3 A. Well, my curriculum vitae speaks for itself. It 4 gives my education, my training, my academic 5 appointments, my licensure, my board 6 certification, all the conferences I've been 7 invited to speak at, the papers I have published, 8 the book chapters I've written, the abstracts I've 9 given. Among other things, yes. 10 Q. Right. And none of the book chapters, none of the 11 papers you've written and none of the academic 12 presentations that you've made deal with the 13 relationship of exposure to benzene and petroleum 14 distillates and the development of, of 15 myelodysplastic syndromes? 16 A. I believe that's correct. 17 Q. Okay. In fact, the work that you've done 18 regarding whether the exposure to petroleum 19 distillates and their relationship to 20 myelodysplastic syndromes, that work is almost 21 entirely associated with the litigation side of 22 your work, correct? 23 A. Well, I think the correct answer is I have spent 24 my career studying the health effects of 25 chemicals. I was educated as a chemical engineer, 61 1 then I got a medical degree, then I got two 2 degrees in public health and physiology; and I 3 spent my career focusing on long-term health 4 effects of chemicals. Chemicals such as petroleum 5 distillates and benzene have been central to many 6 of the research investigations I've done and 7 solvents more broadly. 8 So my career has focused on issues of 9 health effects of those chemicals, but not 10 particularly on myelodysplastic syndrome. 11 Q. Well, let me put it this way, no academic 12 institution has invited you to discuss and present 13 your views on the relationship of petroleum 14 distillate exposure in the workplace and 15 myelodysplastic syndromes, correct? 16 A. That is correct. I'm not sure that there's even 17 any controversy about that. There is no 18 relationship. 19 Q. Well, suffice it to say, others may have different 20 views but you have not been invited to write any 21 papers by any peer-reviewed or other academic 22 journals regarding the relationship to -- of the 23 occupational exposure to petroleum benzene and 24 petroleum distillates in myelodysplastic, 25 myelodysplastic syndromes, correct? 62 1 A. Journals don't typically ask you to write papers. 2 You write papers and submit them and try to get 3 them published. So no, I have not been asked to 4 write a paper where there's very little 5 controversy. 6 Q. And, and you haven't done that research 7 independently and submitted it to a journal 8 regarding the relationship or non-relationship 9 between petroleum distillates, the benzene 10 contained therein, and myelodysplastic syndrome? 11 A. Well, I certainly surveyed the world's literature 12 on that topic and some people would call that 13 research. It's certainly literature research but 14 I've not written a manuscript on that or submitted 15 a manuscript on that -16 Q. All right. 17 A. -- for publication. 18 Q. All right. And in fact, the groups that have 19 invited you and asked you and paid you to give 20 opinions regarding the relationship of petroleum 21 distillates to myelodysplastic syndromes is almost 22 exclusively those companies that are defendants in 23 lawsuits where people have claimed that they have 24 injury from exposure to those petroleum 25 distillates as a result of benzene? 63 1 A. Well, in this case I have been asked by defendants 2 to give an opinion as to whether Safety-Kleen 3 causes myelodysplastic syndrome, and there is no 4 evidence to support such a claim. 5 Q. I understand that but my question was that the 6 only group that has asked for your opinion on this 7 subject, almost exclusively, are those companies 8 who have been named as defendants in lawsuits by 9 people claiming injury as a result of exposure to 10 benzene and their petroleum distillates? 11 A. That's correct. Because I don't think that it's 12 an issue of real concern outside of that context. 13 Q. Okay. Now, let me -- Exhibit 3 to your deposition 14 is your report in this case, correct? 15 A. Yes. 16 Q. Okay. Have you in any way supplemented that 17 report beyond what, what is contained in 18 Exhibit 3? 19 A. Well, I wrote an affidavit and a declaration which 20 are also marked as exhibits. 21 Q. Okay. And that would be Exhibit 4, correct? 22 A. That is the affidavit, yes. 23 Q. Okay. And then we also have Exhibit 5 and what is 24 that? 25 A. That's a declaration that I wrote in this case. 64 1 Q. Okay. Do you know what the purpose of the 2 declaration was? 3 A. I do not know from memory what the purpose of it 4 was other than to state my opinions in the case. 5 Q. Okay. There are two separate claims in this case, 6 and I'm trying to determine to what extent you 7 have or don't have opinions on the two separate 8 claims. And one is a claim that the configuration 9 of the equipment that Mr. Quillan worked on 10 created -- or the design of the equipment created 11 fumes which contained benzene and may have 12 contributed to the cause of disease. 13 You know just listening -- looking at 14 your reports and what you have done in this case, 15 I had doubts whether you had any opinions or 16 whether that was really your field to evaluate the 17 equipment used. 18 Do you have opinions concerning the 19 equipment, the design of the equipment, or whether 20 that design could have, could have contributed to 21 the development of fumes that may have been 22 dangerous to Mr. Quillan's health? 23 A. I was not asked to provide any opinions regarding 24 the design of the equipment. 25 Q. All right. 65 1 A. So no, I do not. 2 MR. CARR: Ken, so the record is clear 3 are we talking about hardware or solvent here? 4 MR. SALES: The SK parts washer. 5 MR. CARR: Is that the hardware? 6 MR. SALES: The hardware. 7 MR. CARR: Okay. So not the solvent? 8 BY MR. SALES: 9 Q. Well, yeah. I'm trying, I'm trying to take the SK 10 machine separately and whether it was designed 11 properly, whether it had proper ventilation. You 12 don't have an opinion regarding the equipment one 13 way or the other, correct? 14 A. I don't have opinions about the design of the 15 parts washing machine. I do have opinions 16 regarding the solvents used in the parts washing 17 machine. 18 Q. Okay. So whether it had adequate exhaust 19 ventilation to, to remove solvent or benzene fumes 20 is not an area you're going to get into? 21 A. I have not been asked to talk about exhaust 22 ventilation, that's correct. 23 Q. Okay. And just looking at your, I mean honestly, 24 Doctor, I don't, I don't mean this to be 25 pejorative, but it appears to me that evaluating 66 1 whether a piece of equipment or its exhaust 2 capabilities is defective or not is just not your 3 area of expertise. Can we agree on that one? 4 A. I would agree that the design and evaluation of 5 ventilation equipment is not within my area of 6 expertise. 7 Q. Okay. We will take that and throw it out the 8 window and we'll just deal with that with somebody 9 else. 10 Your opinions in this case are that 11 Mr. Quillan's exposure to solvents containing 12 benzene did not contribute to the cause of his 13 myelodysplastic syndrome? 14 A. My opinions are given in writing in my report and 15 declaration and affidavit; and essentially it is 16 that Mr. Quillan's alleged exposure to the 17 solvents in the Safety-Kleen parts washer did not 18 play any role in the causation of his 19 myelodysplastic syndrome. 20 Q. And what is -- what are the bases for your belief? 21 Well, let me back up. 22 Let's see if we can agree or define 23 where we disagree. 24 Do you have a belief whether a 25 sufficient exposure to solvents containing benzene 67 1 can be a substantial factor in causing the 2 development of a myelodysplastic syndrome? 3 A. Well, I think the scientific evidence is adequate 4 to support a conclusion that high exposures to 5 benzene can cause the myelodysplastic syndromes 6 but is not adequate to justify a statement that 7 solvents other than benzene or solvents containing 8 small amounts of benzene are linked in any way to 9 myelodysplastic syndrome. 10 Q. Well, how do you, how do you quantify a high 11 exposure to benzene? 12 A. The epidemiologic literature indicates that people 13 who have worked in settings where the exposures 14 have been either measured or estimated to be up in 15 the tens and hundreds of parts per million or in 16 which they were using straight benzene without any 17 control of exposure with limited ventilation, such 18 as in home industries, in shoemaking and leather 19 working, are, are at increased risk of 20 myelodysplastic syndrome. 21 Q. Well, again I'm trying to understand what you mean 22 by high exposure as contracted to what 23 Mr. Quillan's exposure would have been over a 24 period of years. 25 A. I think I just answered it. 68 1 Q. Can you quantify that? I mean is, is there a 2 study that's been, that's been done that holds 3 that one must be exposed to X amount of benzene or 4 solvent containing benzene to develop a 5 myelodysplastic syndrome? 6 A. There's no study that has established exactly what 7 you've pointed out. The studies that have shown 8 excesses of myelodysplastic syndrome have been 9 done in settings where, as I answered just a 10 moment ago, where the exposures were up in the 11 tens to hundreds of parts per million of benzene 12 itself or in which people used neat or straight 13 benzene as a solvent such as in shoemaking and 14 leather working where the exposures were not 15 measured but it was pure benzene and the 16 circumstances were such that there was 17 uncontrolled exposure and it's reasonable to infer 18 that those were very high exposures. 19 Q. Well, looking at -- when you mean reasonable to 20 infer that it is very high exposures, they did not 21 quantify the level of exposure in those 22 situations, in those studies, did they not? 23 A. That is correct. The people were using straight 24 benzene as a solvent in glueing leather, and they 25 were doing it in relatively unsophisticated 69 1 settings, assembly shoes. And those settings 2 typically result in exposures that can be in the 3 hundreds of parts per million to straight benzene, 4 not, not mineral spirits with traces of benzene. 5 I mean it is a very different setting. 6 Q. Well, could we agree that benzene is a known 7 carcinogen? 8 A. Benzene is known to cause acute myelodysplastic 9 leukemia -10 Q. Okay. And -11 A. -- under circumstances of exposure such that the 12 cumulative exposure is above forty or fifty parts 13 per million years and when those exposures occur 14 within about fifteen years or less of the 15 diagnosis of AML. 16 Q. Do you know of any governmental agency that has 17 found a safe level of exposure to a known 18 carcinogen such as benzene? 19 A. Could you tell me what you mean by safe level? 20 Q. Sure. Any, any exposure level to a carcinogen 21 such as benzene for which a person was unlikely to 22 contract a cancer. 23 MR. CARR: Your question was unlikely? 24 MR. SALES: Sure. 25 MR. CARR: Okay. 70 1 THE WITNESS: Yes. I mean OSHA has a 2 permissible exposure limit of one part per 3 million. NIOSH has a recommended exposure limit 4 of .1 part per million. ACGIH has a TLV, I don't 5 recall what it is, but it's somewhere in the range 6 of .1 part per million, .1 or .2. ACJ is not a 7 government agency but OSHA and NIOSH are. 8 BY MR. SALES: 9 Q. Well, but those are -10 A. EPA -- well, well, those are -11 MR. CARR: Let him finish his answer. 12 MR. SALES: Go ahead. I'm sorry. 13 THE WITNESS: Those are, those are 14 settings that are believed to not pose 15 unreasonable risks. In other words, it is 16 unlikely that anyone would be harmed by them. 17 That's what they're about. 18 BY MR. SALES: 19 Q. Well, OSHA and NIOSH and the ACGIH have levels, 20 potential levels of exposure to carcinogens such 21 as asbestos as well but do not endorse that as a 22 level, a safe level of exposure to a carcinogen. 23 A. Well, I thought we were talking about benzene, not 24 asbestos. 25 Q. Well, the analogy is the same. Are you saying 71 1 that the ACGIH, NIOSH and OSHA have stated that 2 their permissive -- their PELs or TLVs are safe 3 levels of exposure to benzene? 4 MR. CARR: Object to the form of the 5 question. First question addressed likelihood. 6 We're back to the word safe which is an undefined 7 term. 8 BY MR. SALES: 9 Q. Okay. Go ahead. 10 A. Your question was whether there were levels that 11 were unlikely to cause disease and the answer is 12 yes. That's what the PELs and RELs and TLVs are 13 about. They are very unlikely to be associated 14 with any risk of disease. The only way you can 15 come to any assessment of risk of disease at those 16 low exposure levels is by extrapolating well below 17 the observed data using a theoretical model to 18 estimate risks that are so low they can't be 19 measured. 20 Q. Flipping that though to the question I have just 21 asked, and that is, do either OSHA, NIOSH or AC -22 ACGIH in setting the TLVs or PELs state that those 23 are safe levels of exposure with regard to 24 development of cancer? 25 A. Well, we would have to go back through all of the 72 1 testimony leading up to the OSHA benzene standard 2 and all the challenges to that standard. 3 Q. Is your answer that you don't know? 4 MR. CARR: Hang on. Let him finish his 5 answer, please. 6 BY MR. SALES: 7 Q. Okay. 8 A. The answer is there is a very large mass of 9 published material and public record that is 10 directly relevant to answering your question and I 11 have not memorized it. As to what it says 12 explicitly I don't know. It was clearly evident 13 in the setting of the PEL and the REL and the TLV 14 that those entities felt that those were 15 reasonably safe levels in, in the work setting. 16 Q. In what way did you evaluate Mr. Quillan's 17 exposure to Safety-Kleen to conclude that it was 18 insufficient to be a substantial factor in causing 19 his myelodysplastic syndrome? 20 A. Well, the, the first and most important way was to 21 look at the information I was provided about the 22 benzene content of the Safety-Kleen and the 23 benzene content was extremely low. Down, I don't 24 recall all of the numbers, but less than a part 25 per million. 73 1 So issue number one is Mr. Quillan was 2 potentially exposed to vapors from a petroleum 3 distillate that had extremely low levels of 4 benzene at most in it; and given my background in 5 occupational medicine and public health and 6 chemical engineering, it seemed implausible to me 7 that he could have had any substantial exposure to 8 benzene. 9 The second line of reasoning comes from 10 looking at the epidemiologic literature in the 11 scientific publications to see whether people who 12 did jobs such as Mr. Quillan's are known or have 13 been shown to be at increased risk of 14 myelodysplastic syndrome and they have not. 15 And so there's simply neither scientific 16 support for a belief that exposure to Safety-Kleen 17 or materials like it, such as mineral spirits, are 18 associated with increased risk of myelodysplastic 19 syndrome; and there is good reason to think that 20 the materials he handled contained such small 21 amounts of benzene or no benzene at all that one 22 could measure that there was not any plausible 23 exposure scenario in which he could be exposed at 24 the levels that are known to cause damage to the 25 bone marrow leading to leukemia and pre-malignant 74 1 conditions such as myelodysplastic syndrome. 2 MR. CARR: Ken, can you stop for one 3 second. Will you read back the last question? 4 (The last questions is read back: In 5 what way did you evaluate Mr. Quillan's 6 exposure to Safety-Kleen to conclude 7 that it was insufficient to be a 8 substantial factor in causing his 9 myelodysplastic syndrome?) 10 THE WITNESS: And then the last part of 11 my answer would be I've also relied upon the 12 report of John Spencer, which I believe clearly 13 substantiates that his exposure, that 14 Mr. Quillan's exposures were extremely low, if 15 any. 16 BY MR. SALES: 17 Q. In looking at Mr. Quillan's exposure to 18 Safety-Kleen, did you do any attempt to study the 19 release of benzene in the Safety-Kleen product? 20 A. What do you mean by study the release of benzene? 21 Q. Do any study, get the Safety-Kleen product, try to 22 study how it might release benzene, to what extent 23 it might release benzene? 24 A. Do you mean did I do a laboratory study or 25 simulation? 75 1 Q. Yes, sir. 2 A. No. 3 Q. Did you ask anybody to do it? 4 A. Well, I believe such studies have been done. I 5 believe Mr. Spencer has done such studies. I 6 believe another group at ChemRisk has done such 7 studies and they're in the published literature. 8 Q. Do you consider ChemRisk to be an independent and 9 reliable source of studies? 10 A. Well, the work I'm referring to is published in 11 the peer-reviewed literature. I believe that it 12 is peer reviewed and is reliable. 13 Q. Do you believe that ChemRisk is a company that 14 does independent studies that can be relied upon 15 as objective studies regardless of whether they 16 are in the peer-reviewed literature or not? 17 A. To the extent that I know ChemRisk, I am aware 18 that they do scientific research and they publish 19 it in the peer-reviewed literature like everyone 20 else and it undergoes the same standards of 21 scrutiny and I believe it's reliable. 22 Q. How do you know ChemRisk? 23 A. I am aware of the publications that have come from 24 ChemRisk that are in the peer-reviewed literature. 25 I also know some of their scientists. I can think 76 1 of two of them who were trained in public health 2 at the University of Michigan, I knew them as 3 graduate students, and I know Dr. Paustenbach who 4 is the president of ChemRisk. 5 Q. How do you know Dr. Paustenbach? 6 A. I have met him. 7 Q. How often? 8 A. Oh, I probably me him six to eight times. 9 Q. Have you been to any conferences where he has 10 talked? 11 A. I was at a conference in 2005, the American 12 Industrial Hygiene Conference, where he was the 13 moderator of a session in which I spoke. 14 Q. What was that session in? 15 A. It had to do with cancer risk related to asbestos. 16 Q. Was that -- did that deal with brakes as well? 17 A. I gave a talk on brakes and the Meta-analysis that 18 I did with some of my colleagues. 19 Q. Have you worked with Dr. Paustenbach in any other 20 capacity? 21 A. No. And I'm not sure what capacity you're 22 referring to other than he moderated a scientific 23 session in which I was a speaker. 24 Q. Who else do you know at ChemRisk? 25 A. Well, I said two of their employees did their 77 1 graduate study at the University of Michigan. 2 Q. They were who? 3 A. Let's see. I believe, boy, I'm not sure I can do 4 it from memory. I think it was Kara Franke but 5 I'm not sure that's right. And the other was 6 Dana, and I can't recall her name, but she got 7 married and changed her name which is why I'm 8 having trouble with her name now. Anyway, I will 9 think of it. 10 Q. Okay. Anyone else with ChemRisk that you know? 11 A. I have met some of their scientists in various 12 scientific settings. 13 Q. Do you know with regard to any work that they've 14 done involving myelodysplastic syndromes or 15 benzene who has funded their research? 16 A. I do not know their work in myelodysplastic 17 syndrome. So I have no knowledge of that. With 18 respect to benzene the only work I'm aware of is 19 some of the exposure reconstruction and simulation 20 studies they've done and I don't know who funded 21 that. 22 Q. Do you know whether ChemRisk and Dr. Paustenbach 23 and his associates have provided regular testimony 24 to industry in toxic exposures cases? 25 A. I don't know the history of ChemRisk and 78 1 Dr. Paustenbach. 2 Q. So you have no idea to what extent they may 3 provide testimony to the industry in toxic 4 exposure cases? 5 A. I believe that Dr. Paustenbach has testified on 6 behalf of industry but I don't know the extent of 7 it. 8 Q. Okay. Any of the other people in the company, do 9 you know to what extent that company regularly 10 provides testimony to industry in toxic exposure 11 cases? 12 A. I do not. The -- one of the women who we trained, 13 her married name now is Dana Hollands, but I can't 14 remember her previous name. 15 Q. Did you talk to anyone at Safety-Kleen regarding 16 whether or not the company has done any internal 17 studies of whether their product may contribute to 18 the cause of myelodysplastic syndromes? 19 A. No. 20 Q. Did you ask them whether they ever had any claims 21 from other people regarding whether or not they -22 their Safety-Kleen product has contributed to the 23 cause of myelodysplastic type syndromes? 24 A. No. So you're asking did I ask them about their 25 litigation history? 79 1 Q. Sure. 2 A. No. I didn't ask them about that. 3 Q. Okay. Why didn't you? 4 A. Because I don't think it's relevant to whether 5 Mr. Quillan's claim has a scientific basis or not. 6 Q. Why didn't you ask them whether they had done any 7 internal studies of the potential release of 8 benzene from their Safety-Kleen product? 9 A. My review of this issue is based on the 10 peer-reviewed scientific literature which I think 11 I have reviewed carefully and thoroughly. If 12 Safety-Kleen has done any work, it's in the 13 peer-reviewed literature; or funded any work, it's 14 in the peer-reviewed literature regarding the 15 risks of myelodysplastic syndrome. I think I 16 would have seen it. And it's not in the 17 peer-reviewed literature. I would be cautious 18 about using it as a foundation for my opinion as 19 to whether their product causes myelodysplastic 20 syndrome. 21 Q. You don't know one way or the other whether 22 Safety-Kleen has attempted to determine to what 23 extent benzene may be released from the use of 24 Safety-Kleen in the normal workplace? 25 A. I do not know what work they may have done in that 80 1 area. 2 Q. I'm still, and it's probably my fault, I'm just 3 not understanding. To what extent did you attempt 4 to quantify Mr. Quillan's exposure to 5 Safety-Kleen? 6 A. I didn't attempt to quantify his exposure. John 7 Spencer quantified his exposure. 8 Q. So you're totally relying on Mr. Spencer's report 9 in that regard? 10 MR. CARR: For the record we just 11 finished I believe it's Dr. Ellenbecker's 12 deposition which has been sent to Dr. Garabrant. 13 He's not had an opportunity to review it given 14 that it was just completed a day or two ago, but 15 I'm going to ask him to look at that as well. 16 MR. SALES: Okay. 17 MR. CARR: He hasn't had an opportunity 18 to formulate an opinion on it. 19 BY MR. SALES: 20 Q. I understand but I'm here today to take your 21 deposition about your opinion. You've already got 22 an opinion, correct? 23 A. I have an opinion regarding the relationship 24 between Mr. Quillan's alleged exposure to 25 Safety-Kleen and benzene that may have been 81 1 present in that product in the causation of his 2 myelodysplastic syndrome. 3 Q. And to the extent that it is been quantified that 4 exposure to Safety-Kleen of the benzene and 5 Safety-Kleen has been quantified, you're opinion 6 relies on Mr. Spencer's report, correct? 7 A. Yes. I have also read Dr. Ellenbecker's initial 8 report which did not quantify it and his new 9 report which sought to quantify it. 10 Q. And you haven't relied or accepted his conclusions 11 I take it? 12 A. I have not. 13 Q. Okay. You disagree with Dr. Ellenbecker's 14 conclusion? 15 A. I think Dr. Spencer's report provides a more 16 reliable basis for estimating Mr. Quillan's 17 exposure but I haven't seen Dr. Ellenbecker's 18 deposition testimony so I have to look at that 19 before I can see how he justifies the decisions he 20 made in writing his report. 21 Q. In what way do you find the Spencer report more 22 reliable or how, how does that make you disagree 23 with Dr. Ellenbecker's evaluation? 24 A. All right. First, in Dr. Ellenbecker's report 25 dated November 25, 2008 Dr. Ellenbecker made 82 1 absolutely no quantitative estimate of 2 Mr. Quillan's exposure, which I regard as 3 extremely odd for a doctoral-trained industrial 4 hygienist, that he couldn't come up with any 5 quantification, any range, nothing. That's odd. 6 Okay. So that's, that's a deficiency that 7 surprised me. 8 In contrast, Dr. Mr. Spencer went 9 systematically through the physical properties of 10 the benzene and 150 Premium Solvent supplied by 11 Safety-Kleen. He talked carefully about the 12 possibility that waste materials contaminated the 13 Safety-Kleen. He talked about the benzene content 14 of the Safety-Kleen product that was at or below.4 15 milligrams per liter. He talked about the 16 published studies that have tried to estimate 17 exposures, benzene exposures from mineral spirits 18 such as Safety-Kleen's solvents, and he discussed 19 them in detail. He applied what was demonstrated 20 from those peer-reviewed published studies to the 21 setting of 150 Solvent in a manner that I found to 22 be reliable. And he then used those estimates to 23 make an assessment of Mr. Quillan's likely benzene 24 exposure. Dr. Ellenbecker did none of those 25 things in his initial report. So I didn't find it 83 1 to be a reliable report. 2 Q. Is it your opinion then in order to relate disease 3 to toxic exposure that from an epidemiological 4 standpoint one must exactly quantify the exposure? 5 A. No. But you can't do it knowing nothing about the 6 exposure. 7 Q. And it's your opinion that based on the material 8 provided -- strike that. 9 I'm trying to understand what you mean 10 by knowing nothing about the exposure. 11 A. Dr. Ellenbecker's report essentially indicates 12 nothing about the exposure. Absolutely nothing. 13 Q. If you were to design an epidemiological study 14 regarding benzene exposure in the development of 15 myelodysplastic syndromes, how would you do it? 16 A. Well, I think it's already been done. I think 17 that there are a number of studies that have been 18 conducted and published that have tried to look 19 for the relationship between solvent exposure and 20 benzene exposure and risk of myelodysplastic 21 syndrome. We could just look at those studies and 22 see how they were done. 23 Q. Well, my question to you is how would you design 24 such an epidemiological study? 25 A. I would probably use a case control design and try 84 1 to reconstruct people's past exposures. 2 Q. And you believe that they needed -- they would 3 need to be rather exactly quantified when you say 4 case control? 5 MR. CARR: Objection. Vague. 6 THE WITNESS: I don't understand your 7 question. 8 BY MR. SALES: 9 Q. Well, explain to me what you mean by case control 10 and, and try to quantify. That's the terminology 11 you used. What do you mean by that? 12 A. A case control study is one in which you have 13 access to a population of people who have the 14 disease of interest, in this instance 15 myelodysplastic syndrome. And then you define the 16 source population from which those cases arose. 17 And then you choose people from the source 18 population who are representative of that source 19 population. You then reconstruct the various 20 factors of interest for both the cases and 21 controls and compare them. And comparison is 22 typically done by calculating exposure odds among 23 the cases and exposure odds among the controls and 24 then taking an exposure odds ratio. And then 25 assessing the role of chance by calculating a 85 1 ninety-five percent confidence interval around the 2 odds ratio. 3 Q. So, for example, you might take a group of people 4 who had known exposures to solvents containing 5 benzene and compared to a group of people who 6 for -- you could not identify exposure and see 7 whether they had increased risk of developing 8 disease? 9 A. Are you talking about case control studies? 10 Q. Yes, sir. 11 A. No. 12 Q. That's a cohort, is it not? 13 A. I'm not sure what you have designed but it's not a 14 case controlled study. 15 Q. Okay. The, the case control study that you've 16 just talked about, give me a little more precision 17 in who would be in what group in that case 18 control. 19 MR. CARR: Objection. Vague. 20 THE WITNESS: I've already answered 21 that. The people with myelodysplastic syndrome 22 would be the cases. 23 BY MR. SALES: 24 Q. Right. 25 A. And the people who were representative of the 86 1 source population from which the cases arose would 2 be the controls. 3 Q. All right. I see what you're saying. 4 That's one way of doing an 5 epidemiological study? 6 A. Case control studies are one way that we do 7 epidemiology studies. 8 Q. Okay. And there are other ways to do 9 epidemiological studies? 10 A. There are. 11 Q. I guess the largest example or most well-studied, 12 for instance, is asbestos. Where cohorts have 13 been examined, groups of people, to see whether 14 they have increased disease levels as opposed to 15 the nonexposed or a general population. 16 A. What's your question? 17 Q. Well, there are, there are other -- let me go in a 18 different direction. 19 You said there had been, or I may have 20 missed speak, you said there have been sufficient 21 studies to date regarding benzene exposure in 22 solvents and myelodysplastic syndromes to come to 23 conclusions? 24 A. I don't, I don't believe I said that. 25 Q. Okay. I may have misunderstood you. Okay. 87 1 MR. CARR: Ken, sometime in the next 2 five minutes, we have been going about an hour, 3 can we take a break? 4 MR. SALES: Okay. Take a break. Go 5 ahead. 6 VIDEOGRAPHER: We're going off the 7 record. The time is 12:23 and 5 seconds p.m. 8 VIDEOGRAPHER: We're back on the record. 9 This is the beginning of tape three. The time is 10 12:34 and 34 seconds p.m. 11 BY MR. SALES: 12 Q. Getting back to the epidemiological studies and 13 the studies that have been done, there's never 14 been a study published in the literature regarding 15 exposure to the Safety-Kleen product, has there? 16 A. I'm not aware of one. 17 Q. And one way to do that, for instance, to do a 18 epidemiological study of like Safety-Kleen or 19 another benzene-containing product would be to 20 identify a group that's exposed to Safety-Kleen on 21 a regular basis in their work, correct? 22 A. Well, I'm not sure what epidemiology study you're 23 trying to design. There are lots of ideas you can 24 think of theoretically that cannot be done 25 practically. So it's pretty easy to come up with 88 1 theoretical ideas for how to do studies. It's 2 much harder to actually do them. 3 Q. Well, let me, let me analogize so I can -- maybe 4 we can get on the same plane here. 5 With regards to say asbestos, some of 6 the earlier studies or say the silica studies 7 involved looking at asbestos workers, like the 8 seventeen thousand asbestos workers in the 9 asbestos workers' union. 10 A. Are you talking about the insulators? 11 Q. Yeah. They were in the asbestos workers' union. 12 So he looked at a group of seventeen some odd 13 thousand insulators and followed them over a 14 period of years, which as I understand the study, 15 he's still continuing to watch that group of 16 people to see what levels of disease they had as 17 compared to the general population. 18 But one, one way to do this would be to 19 look at individuals such as Mr. Quillan who worked 20 regularly in their occupation around Safety-Kleen 21 or other similar products, correct? 22 MR. CARR: Objection. Side bar. Vague. 23 THE WITNESS: How would you do that? 24 BY MR. SALES: 25 Q. How would you look at asbestos workers? 89 1 A. You got a union. 2 Q. Well, I understand. 3 A. They are union members. 4 Q. Well, I mean I don't have to be an epidemiologist 5 but you could certainly look around the country 6 for -- for instance, you could go to Safety-Kleen, 7 you could say to Safety-Kleen who do you provide 8 your products to? And if Safety-Kleen wanted to 9 do such a study, they could go to their, their end 10 users and say, gee, who uses our products in your 11 shop, and we want to set up a study of people who 12 use our products on a regular basis in their 13 occupation. You could do that, couldn't you? 14 A. In my experience, and I've been doing epidemiology 15 studies for thirty years -16 Q. Uh-huh. 17 A. -- it would be extremely difficult for a chemical 18 supplier to go out to purchasers of their products 19 and to get them to participate in a large 20 epidemiology study. It's very difficult to do. 21 Q. Well, regardless though, a viable way of doing a 22 study of, for instance, of exposure to say 23 Safety-Kleen would be for the company that 24 manufactured it to go to its customers and say we 25 would like to look at your workers who use 90 1 Safety-Kleen on a regular basis and study them 2 over a period of years. I mean that's one way to 3 put together the cohort whether it's, whether it's 4 difficult or not, that would be one way to do it, 5 wouldn't it? 6 A. Well, you just said's that's a viable. That's 7 your opinion, that's not nine. 8 Q. Well -9 A. You're designing the study. I'm not. I don't 10 think that that works. I've been doing 11 epidemiology for thirty years. 12 Q. Well, wouldn't you want to identify a cohort of 13 people whose only exposure was to say the 14 Safety-Kleen product from using it on a daily 15 basis and then to follow that cohort over a 16 sufficient period of time? 17 A. Well, there is a premise to your question, 18 wouldn't I want to? 19 Q. Yeah. 20 A. I wouldn't undertake any epidemiologic study 21 unless there was a clear reason that it needed to 22 be done and there is no clear reason. 23 Q. Well, when you say there is no clear reason, I 24 asked you earlier whether you had asked the people 25 at Safety-Kleen whether they had had reported to 91 1 them numbers of people, whether by litigation or 2 otherwise, that had come down with myeloplastic -3 myelodysplastic syndromes and you said no. What 4 if they have a large number of people, through 5 litigation or otherwise, coming to them and saying 6 we're developing myelodysplastic syndromes after 7 working with Safety-Kleen. Wouldn't that be a 8 reason to want a study to see whether it caused 9 those conditions or had no cause? 10 A. Well, what that would mean is there is a lot of 11 people making allegations and suing them. That 12 doesn't necessarily mean there's any scientific 13 evidence to support those allegations, and I think 14 that Safety-Kleen, if I were in their shoes, I 15 would look carefully at what it is these people 16 are alleging and whether it had any scientific 17 plausibility before I would undertake a study. 18 And if the allegations such as in this case are 19 that benzene in Safety-Kleen is causing 20 myelodysplastic syndrome, I would look at the 21 benzene concentrations, which of course 22 Safety-Kleen has done, and this product is down 23 below .4 milligrams per cubic meter which is 24 extremely low. 25 And then I would look to the scientific 92 1 literature and see whether there was any support 2 for the premise that trace benzene such as .4 3 milligrams per cubic meter and below would put 4 people at increased risk of myelodysplastic 5 syndrome or leukemia or other lymphohematopoietic 6 diseases. And the answer there is no literature 7 to support that. 8 Benzene has been studied hundreds and 9 hundreds of times. There are dozens of 10 epidemiologic studies that have looked at risks of 11 hematologic diseases among benzene-exposed cohorts 12 and there is no support for the premise that 13 exposures such as might occur from Safety-Kleen 14 would put people at increased risk of those 15 diseases. 16 Q. Well, that's the whole point though. If you're 17 having a large number of people who are exposed to 18 Safety-Kleen without being -- having other 19 significant exposures to products that contain 20 benzene develop myelodysplastic syndromes and you 21 wanted to design an epidemiological study, the way 22 to do it would be to look at those users of 23 Safety-Kleen and follow them over a long period of 24 time to see whether they had increased development 25 of myelodysplastic syndromes as opposed to those 93 1 who weren't exposed to Safety-Kleen, wouldn't you? 2 A. What, what is the basis for the claim that there 3 were large numbers of people developing 4 myelodysplastic syndrome? 5 Q. I was asking you theoretically. I'm not -- 'cause 6 you told me you haven't talked to Safety-Kleen 7 about it. For all you know they have large 8 numbers or they don't. I mean what I know and 9 what you know may be two different things. 10 My question is theoretically I'm asking 11 you to assume that there is a number of potential 12 or people claiming, whether it's by litigation or 13 otherwise, I mean litigation is just one way that 14 you might know that you have a product that's 15 causing injury, you may believe it is totally 16 wrong but if you wanted to design an epidemiologic 17 study to discount whether your product was a 18 contributor to that condition, in this case 19 myelodysplastic syndromes, wouldn't the best way 20 to do it is to put together a group of people who 21 use the product and follow them over a period of 22 years to see whether they had increased numbers? 23 MR. CARR: Objection. It assumes facts 24 not in evidence. 25 THE WITNESS: Your, your question -- 94 1 MR. CARR: Excuse me. Hang on a second. 2 THE WITNESS: Your question -3 MR. CARR: Excuse me. Hang on a second. 4 THE WITNESS: Sorry. 5 MR. CARR: It's an incomplete 6 hypothetical and it is vague. That's it. 7 BY MR. SALES: 8 Q. Go ahead. 9 A. Your question has a premise that is simply not 10 known to be true. Okay. 11 Q. I'm asking you to assume it, and I'm asking you to 12 tell me whether or not it would be appropriate, 13 assuming that there were -- I wanted to develop an 14 epidemiological study to disprove specifically 15 that Safety-Kleen and the amount of benzene 16 contained therein could contribute to the cause of 17 myelodysplastic syndromes. Wouldn't it be 18 appropriate to study a group of those people 19 working around the product for a number of years 20 and determine whether they had any increased 21 numbers? 22 MR. CARR: Same objections. 23 THE WITNESS: Your question is loaded 24 with premises that show a complete lack of 25 understanding for the scientific process. Okay. 95 1 First off, your premise that a study can prove the 2 null hypothesis. That's contrary to scientific 3 methods. The idea that you can prove that a 4 chemical doesn't cause something, that is contrary 5 to what scientists do. 6 We, we pose hypotheses that chemicals do 7 cause something. We then seek to prove them. If 8 we can't prove them, then we say there is no proof 9 that that chemical causes it. 10 BY MR. SALES: 11 Q. That's fair enough. 12 A. We don't, we don't say I'm going to prove it can't 13 cause it because it can't be done. 14 Q. That's fair enough. 15 A. So that premise is simply wrong. 16 But more fundamentally than that, your 17 premise that something should be done in the 18 complete absence of evidence that there is 19 anything going on is fundamentally not how 20 scientists function. We follow up leads. We 21 follow up plausible hypothesis. What you're 22 proposing I think is that any time a company is 23 informed that somebody is suspicious that 24 something is happening, they should do an 25 epidemiologic study; and my experience as a 96 1 practicing epidemiologist, and I have spent my 2 career designing and conducting the studies that 3 look for cancer risks related to chemicals, is 4 that if we did what you're proposing we would 5 spend countless hours pursuing false leads to no 6 benefit. 7 I'll give you an analogy. Early in the 8 20th Century there were a substantial number of 9 case reports of women who had received trauma to 10 their breast and very soon afterward were 11 diagnosed with breast cancer and believed that the 12 trauma, such as falling down on a street car and 13 bruising themselves or bumping into the handrail, 14 was the cause of their breast cancer. 15 If you were to pursue that simply 16 because of those allegations, the street car 17 companies would have been in the position of doing 18 a substantial amount of absolute fruitless work 19 pursuing leads that were in fact nonsense, really 20 not biologically plausible, and that with 21 subsequent investigation prove to have no 22 scientific foundation at all. 23 So your idea that any time there is an 24 allegation a company should do an epidemiology 25 study really has no precedent and I think is 97 1 simply nonsensical. Could be a waste of 2 resources. There has to be plausible, a plausible 3 scenario under which you think that this effect 4 could be related to your product before you should 5 try to undertake anything as expensive, difficult 6 and complicated as doing an epidemiology study. 7 Q. Doctor, I'm going to show you Exhibits 6A and 6B. 8 These are your statements in this case I believe. 9 A. Yes. 10 Q. Okay. Are -- is this your entire billing to date? 11 A. I believe it is. 12 Q. Do you plan to do more work on this case? 13 A. If I'm asked to. 14 Q. And your billing rate is what? 15 A. Six hundred and twenty-five dollars an hour. 16 Q. And does that change if you are in court? 17 A. No. 18 Q. So it's six hundred and twenty-five no matter what 19 you do? 20 A. Yes. 21 Q. Okay. Do you have minimums? 22 A. No. 23 Q. So I guess I'm paying for this deposition today. 24 I'm not paying for the whole day? 25 A. No. You're paying -- 98 1 Q. For the number of hours? 2 A. For the number of hours we spend. 3 Q. Down to the minute? 4 A. I usually do it to the nearest tenth of an hour. 5 Q. I'll live with that. 6 MR. CARR: So you pay for our depos -7 MR. SALES: Oh, I don't know. 8 MR. CARR: -- in the jurisdiction? We 9 haven't talked about it but I will not take what 10 you just said as an admission. How about that? 11 MR. SALES: It's a mixed bag. 12 MR. CARR: Okay. 13 MR. SALES: Lot of times we pay, you 14 pay. It mixes. 15 MR. CARR: There's not been any 16 discussion of that one way or other? 17 MR. SALES: No. I'm not worried about 18 it one way or the other. It's not like anybody is 19 cheating. I'm not. 20 BY MR. SALES: 21 Q. How much -- let's say in the past five years would 22 you estimate your -- out of your total income what 23 percentage would be related to litigation-oriented 24 work such as what we are doing here today? 25 A. I don't know that I have an exact number. It's 99 1 more than half. 2 Q. Okay. Would it be more than seventy percent? 3 A. I don't think so. 4 Q. Sixty percent? 5 A. That I couldn't say. 6 Q. All right. So somewhere between fifty and seventy 7 percent? 8 A. I would think that's reasonable, yeah. 9 Q. Okay. In the year 2009, for instance, do you know 10 what your income was from litigation-related 11 sources? 12 A. I do not. I do not know. 13 Q. Do you know how many hours you may have worked 14 doing litigation related material in the year 15 2009? 16 A. That's roughly the same question as what my income 17 was and the answer is I don't know. 18 Q. How do you provide that information to your -- I 19 assume you're using an accountant to do your tax 20 returns? 21 A. I do. 22 Q. Yeah. And so you have to provide that 23 information, how do you do that? 24 A. Are my tax returns fair game in the deposition? I 25 wasn't aware. 100 1 MR. CARR: My, my -- well, first of all, 2 it's your tax returns. No request has been made 3 for them. 4 MR. SALES: I haven't asked for them. 5 MR. CARR: Right. So I don't think he's 6 asking you to give him your tax returns. I think 7 he's asking is there a method by which you report 8 money you've made consulting in cases to your CPA 9 and that seems like a simple yes or no question to 10 me. 11 THE WITNESS: Yes. I, I report my 12 income to my accountant. 13 BY MR. SALES: 14 Q. Okay. So you will get a statement from say the 15 university who sends you whatever they might send, 16 a 1099 or W-2, I don't know how that might work 17 for you. You probably have a separate medical 18 practice I would assume. Right or wrong? I mean 19 the doctors I work with who use -- who work with 20 universities, they are with the university, and 21 then they have their separate practice and 22 sometimes the university has it all. I don't know 23 how yours works but you will get some sort of 24 statement from those entities, right? 25 A. I will, I will get a statement from the University 101 1 of Michigan. 2 Q. Okay. All right. And then you have, you have 3 your litigation work. Is that under, for 4 instance -- well, that goes to -- with the PLLC, I 5 guess is this your private medical practice? 6 A. That is my private company. 7 Q. Okay. It's, it's not -- well, it's a professional 8 limited liability corporation. Is it, is it meant 9 to be your medical practice or is this a company 10 devoted to the litigation area? 11 A. That is my private limited liability corporation. 12 Q. Okay. And is that devoted to litigation? 13 A. No. It is -- first off, my medical practice is 14 entirely through the University of Michigan. 15 Q. Fair enough. Okay. So the PLLC then, of the 16 income it gets, is that -- how much of that is 17 related to litigation-related materials, matters 18 such as this? 19 A. The majority of it. 20 Q. Okay. So then does that, does that company report 21 to you every year what your income from that would 22 be? 23 MR. CARR: Objection. Vague. 24 THE WITNESS: It's hard to say. The 25 company is me. I mean it's -- 102 1 BY MR. SALES: 2 Q. Well, it has to generate some sort of report of 3 income. I mean you get a K-1, do you not? 4 A. No. 5 Q. Okay. Your accountant doesn't prepare a K-1 for 6 you? 7 A. No. 8 Q. Okay. Well, I guess what I'm trying to figure 9 out, for instance, in the last year we can 10 probably agree that a hundred percent of the 11 litigation work you did was on behalf of 12 defendants in litigation, correct? 13 A. Yes. 14 Q. Okay. What I'd like to know is what income you 15 derived from that litigation work in the past 16 year? 17 A. Okay. You've already asked me the percent of my 18 income. 19 Q. Yeah. 20 A. And I've answered that. 21 Q. Right. 22 A. Okay. Now, if you want the amount, then that goes 23 to revealing my personal tax return which -24 Q. Actually I'm not asking for your personal tax 25 return. 103 1 A. But you're getting -2 Q. I might be able to but I'm not. 3 A. You're getting the percent and the amount, so it's 4 essentially the same. I've given you the percent. 5 Q. Well, I understand, what I would like to know, and 6 if you would, I would like for you to produce to 7 me whatever income in the year 2009 that you or 8 your company made from litigation-oriented work. 9 MR. CARR: Okay. We will consider that 10 a formal request. 11 MR. SALES: Sure. 12 MR. CARR: We'll respond to it. 13 MR. SALES: Sure. 14 MR. CARR: So you understand he has made 15 a formal request. You need not agree or not agree 16 right now. We will consider it. 17 MR. SALES: Right. 18 MR. CARR: And, you know, obviously to 19 the extent that I'm observing, Dr. Garabrant may 20 not be interested in that, and we need to talk the 21 judge about it, we will do that. 22 MR. SALES: I understand. 23 MR. CARR: Okay. 24 BY MR. SALES: 25 Q. Okay. Do you know how many cases that you worked 104 1 on in the year 2009? 2 A. I do not by number. I would estimate that I 3 probably worked on a couple of dozen. 4 Q. Okay. 5 A. And what -- it's a little bit difficult because I 6 have things, for example, the Quillan case where I 7 did work in the winter and then nothing happened 8 until just recently. So it was sort of dormant 9 for almost a year or nine months, and there, there 10 are things that I'm asked to do. Something -11 nothing happens for a year or two years -12 Q. Sure. 13 A. -- or three years and then someone says we need 14 you to look at these materials so. 15 Q. Well, for instance, these Exhibits 6A and B, do 16 you have like an -- in order to generate your 17 statements to clients in litigation, do you have a 18 piece of software that you use to collect and to 19 send that statement to put it together? 20 A. I use Microsoft Word. 21 Q. Okay. So you just, you just put it on a -- I mean 22 you don't have like an accounting program that you 23 use? 24 A. No. 25 Q. Okay. Or a billing program of some kind? 105 1 A. No. 2 Q. A dedicated billing. So what you do is you just 3 add the file and you figure out how much time you 4 worked on a particular day and then you -- how 5 much time you worked on a particular day and you 6 write, you write it down and you send a bill? 7 A. That's correct. 8 Q. Okay. Fair enough. During a normal work week how 9 many hours a week do you think you would spend on 10 litigation-related matters as opposed to your 11 other work as a physician? 12 A. It varies. 13 Q. Okay. Well, would, and this may be different 14 than, than -- I asked you a question, you know, 15 how much percentage of your income is to 16 litigation as opposed to your physician-related 17 work. It may be different though in terms of time 18 because they don't always correlate. I understand 19 that. 20 In terms of the time that you worked 21 during a week, do you spend more than fifty 22 percent of your time on litigation or less than 23 fifty percent of your time on litigation? 24 A. Less. 25 Q. Okay. What percentage of your work week would you 106 1 spend on litigation? 2 A. It varies. 3 Q. On the average, say in a year how much? Of the 4 total time you work in a year, how much of your 5 time would be spent on litigation as opposed to 6 non-litigation-related work? 7 A. It could be thirty, thirty-five percent. 8 Q. Okay. And what's your normal work week on the 9 average? 10 A. My normal work week? 11 Q. Yeah. I mean is it forty, fifty, sixty hours; 12 what is it? 13 A. My wife and I have a difference of opinion on 14 that. 15 Q. Mine don't. I'm always gone. 16 A. I get up in the morning I go to work, you know, 17 often 8:30, 9, sometimes 10, sometimes I work at 18 home in the morning. Often if I have consulting 19 work that had to be done that day, I will work at 20 home in the morning, go down to the university, 21 work usually 'til 6 or 7 at night, come home. 22 Some nights I have to get stuff done either for 23 the university or for consulting work and then I 24 work most weekends at least one day. 25 Q. So do you think you put in a sixty hour on average 107 1 work week or fifty on average work week? 2 A. It's not sixty. I don't think so. 3 Q. Okay. Would fifty be more likely? 4 A. It's, it's probably fifty-ish, yeah. 5 Q. Okay. And hopefully since we're in the same 6 geographical, geological and timeframe in this 7 jury, you get at least a month off every year, 8 don't you? Or if you are like most physicians I 9 know you travel and speak? 10 A. You know, it varies. 11 Q. Yeah. 12 A. I find that I end up working on vacation. I take 13 my laptop. You can't, you can't be away for long 14 anymore. 15 Q. But do you get, I mean in all fairness, Doctor, 16 I'm trying to do an analysis of your income and 17 that's what I'm doing. In all fairness to you, I 18 mean at your point in your career, and I don't 19 mean that you're older because I'm not, at your 20 point in your career you should have certain, I 21 don't know if perks is the right thing, but at 22 your level in the university and where you are, 23 you should I would assume there's at least a few 24 weeks a year you get to enjoy without the total 25 dedication to your work? 108 1 A. I take vacation. 2 Q. Okay. All right. We don't need to quibble over 3 that. Give me five minutes and I will let you 4 know. I think I may be done. 5 MR. CARR: Sure. 6 VIDEOGRAPHER: We're going off the 7 record. The time is 1:00 and 24 seconds p.m. 8 VIDEOGRAPHER: We're back on the record. 9 The time is 1:06 and 36 seconds p.m. 10 MR. SALES: Doctor, have you -- would 11 that be helpful? 12 VIDEOGRAPHER: Yes. 13 BY MR. SALES: 14 Q. Doctor, have you done any work with the 15 Safety-Kleen people or any of their counsel 16 previously? 17 A. I think I have assisted them in a small number of 18 litigation matters in the past. 19 Q. And in what way? 20 A. I think I've been an expert witness regarding 21 Safety-Kleen. 22 Q. Okay. I didn't see their name on the list that I 23 had, and you didn't tell me -- I don't mean this 24 in a bad way, but you didn't tell me that you had 25 been involved in cases since 2008 involving 109 1 Safety-Kleen, so I would assume that that predates 2 the list or predates that four years? 3 A. You know, to the best of my recollection, I think 4 I may have been an expert in a case in which 5 Safety-Kleen was a defendant. Whether I was 6 retained by Safety-Kleen or not, I actually don't 7 recall. 8 Q. Was this a case involving whether or not someone 9 had developed a myelodysplastic syndrome as a 10 result of exposure to benzene? 11 A. I'm not sure I remember any specific case. And to 12 be honest I don't -- I think I have been involved 13 in another case or small number of cases in which 14 Safety-Kleen was a defendant. I might have been 15 retained by them. I honestly don't know. 16 Q. How many years ago would this have been? 17 A. More than, more than four or five. I simply don't 18 know. 19 Q. Okay. 20 A. So I guess, I guess my answer is I think I might 21 have. I don't know. 22 Q. Your working with the law firm -- or I assume that 23 the law firm retained or contacted you in this 24 case? 25 A. Yes. 110 1 Q. First? It wasn't someone from Safety-Kleen? 2 A. That's correct. 3 Q. All right. Have you worked with that law firm 4 previously? 5 A. I don't think so. I don't know. 6 Q. Do you know how they got your name? 7 A. I have no idea. 8 MR. SALES: Do you know whether, this is 9 a request to Safety-Kleen, and you're, you're 10 Safety-Kleen counsel. 11 Do you, do you -- would you provide, and 12 this is a formal request, any information 13 regarding Dr. Garabrant's prior work with 14 Safety-Kleen in any manner? 15 MR. CARR: I'll consider it a formal 16 request. To the extent that he has been retained, 17 hired or may be used as a consultant, I can tell 18 you the answer would be no. But I don't know of 19 any instances where that's the case. But I think 20 sitting here, Dr. Garabrant, I don't know if you 21 are talking about the Wolfe case. We were a 22 defendant in it but I don't remember if we 23 retained you or not. 24 THE WITNESS: I don't -- you know, to be 25 honest I don't know. 111 1 MR. CARR: Okay. Well, the answer is I 2 will consider your formal request and we will look 3 at it. 4 MR. SALES: Okay. 5 MR. CARR: Okay. 6 MR. SALES: Fair enough. 7 BY MR. SALES: 8 Q. Other than what you told me you have, you have no 9 recollection of being retained or working for 10 Safety-Kleen previously? 11 A. I've given you the best of my recollection. 12 Q. Okay. Do you plan on doing any more work on this 13 case? 14 A. Only if I'm asked to. 15 MR. CARR: And for the record, we have 16 sent him Dr. Rogers, Dr. Clapp, Dr. Ellenbecker. 17 We are going to ask him to review those 18 depositions and perhaps comment on both 19 methodology and conclusions. But those 20 depositions have been completed here in the past 21 three, four, five days, so that's -22 MR. SALES: Doctor -23 MR. CARR: -- not doable yet. 24 BY MR. SALES: 25 Q. I'm sorry. Doctor, I've -- we've gone over your 112 1 reports, your declaration, your affidavit and then 2 I've asked you a number of questions here in this 3 deposition; and I think we probably covered 4 between those documents and my questions all of 5 the opinions you may have relative to Mr. Quillan 6 and Safety-Kleen. Would you agree with that? 7 A. I don't think we discussed any of my opinions or 8 the basis for them. We certainly didn't discuss 9 any of the scientific literature. 10 Q. Well, when I -- what I said was your report, okay, 11 your affidavit, your declarations, correct? And 12 you provided me -- in addition, you provided me a 13 copy of scientific literature that you have relied 14 upon, correct? 15 A. Yes. 16 Q. Or you are? 17 A. Yes. 18 Q. Would that, would that -- I understand your 19 opinion, and I don't want to -- but that would, 20 that would be comprehensive of your opinions 21 regarding Mr. Quillan? 22 A. Well, as of the date on which these documents were 23 written, those would be comprehensive but there's 24 all these new supplemental reports from Dr. Clapp, 25 Dr. Ellenbecker, Dr. Rogers, new literature, their 113 1 deposition testimony. So I may have additional 2 opinions -3 Q. I'm with you. 4 A. -- related to those documents. 5 Q. And I don't mean to interrupt. I'm with you. I'm 6 just trying to get us to today. Okay. And then I 7 will talk to you just briefly about tomorrow. 8 As of today between your affidavits and 9 I would assume that your report is a fairly, it is 10 a fairly detailed report that expresses your 11 opinions regarding Mr. Quillan and your evaluation 12 of Mr. Quillan, correct? 13 A. As of January of 2009. 14 Q. Right. And we're -- yes. A year ago. Okay. Is 15 there something that you've received in the 16 intervening year that adds to that report? 17 A. I have received the affidavits of John Spencer, 18 David Pyatt and various affidavits from 19 Dr. Ellenbecker, Dr. Clapp, Dr. Rogers. 20 I think the one thing that is even 21 clearer to me than it was year ago is that the 22 Plaintiff's experts actually have not method for 23 reaching a causal determination in this case. 24 Q. Okay. 25 A. Their opinions appear to be simply guesswork. 114 1 Q. Your report and your conclusions then have not 2 changed since you did your original report? 3 A. That's correct. 4 Q. All right. 5 MR. CARR: For the record since he is my 6 expert, you and I did discuss the fact the 7 Plaintiff's experts have injected differential 8 diagnosis into this case, and we have discussed 9 that topic. And for the record we still have 10 recently taken depositions that this expert's not 11 had an opportunity to digest yet. And there's 12 also upcoming depositions of treaters as well 13 where that issue may be discussed, and then we 14 will ask Dr. Garabrant to share his views with 15 that at trial but those issues were not in the 16 case when he reported. 17 BY MR. SALES: 18 Q. Okay. I appreciate that. But I -- and that's 19 what I'm trying to isolate because I'm trying to 20 get us to today and then I'll close out tomorrow 21 in some way. 22 At the time you did your original 23 report, for instance, you did not have 24 Mr. Spencer's evaluation? 25 A. I did not have his report. 115 1 Q. Okay. Had you spoken to him? 2 A. No. 3 Q. All right. So I assume that when you did your 4 original report, you made your original 5 conclusions, you had not relied on Mr. Spencer's 6 evaluation in this case? 7 A. I had not seen his report and I had not spoken 8 with him to the best of my recollection. I may 9 have asked whether he had an estimate of the 10 exposure range for Mr. Quillan related to benzene 11 because typically I need to have a sense for what 12 the exposure expert thinks the exposure range was. 13 I don't recall whether I received that 14 information from Mr. Carr and his colleagues but I 15 may have received that. To be honest I don't 16 remember. 17 Q. Okay. Well, I mean I'm just trying to understand. 18 If you didn't talk to him and you didn't have his 19 evaluation, and I didn't see anything in your 20 report about Mr. Spencer, is it fair to say I can 21 assume that when you reached your conclusions you, 22 you did not have anything from him? 23 A. No. I just answered that. I may well have had an 24 estimate of where he thought the exposure range 25 would fall. 116 1 Q. Where -2 A. What typically happens in my experience is that I 3 have a deadline for my report and the exposure 4 expert has the same deadline for his or her 5 report, but I need to have a sense for what the 6 exposure estimate is. And so I often ask counsel 7 can you get a sense for where that's going to 8 fall? Is it a tenth of a part per million year, 9 ten parts per million year, a hundred parts per 10 million year, give me a sense for it. And that's 11 a difficult issue because often the exposure 12 expert is working on their calculations and report 13 simultaneously. But they often have a sense for, 14 well, it's going to be, you know, somewhere 15 between, you know, .1 and 2 or 2 and 5 or 16 whatever. So I often get a sense for where that 17 number is going to fall. I may have had that in 18 this case. To be honest I don't, I don't recall. 19 Q. You have not, you have not documented that 20 anywhere that you had -21 A. No. 22 Q. -- that conversation? 23 A. No. 24 Q. So it's not in your report and no where in your 25 file would there be any documentation that you 117 1 ever had such a discussion with Mr. Spencer, 2 correct? 3 A. No. 4 Q. And you have no recollection of it as we sit here 5 today? 6 A. I do not have any specific recollection of -7 Q. Okay. 8 A. -- of any such discussion. 9 Q. Okay. So then you may develop additional opinions 10 based upon other things that take place after 11 today, correct? 12 A. I may develop additional opinions based on things 13 that have already taken place prior to today. 14 Q. Okay. 15 A. But which I have not yet had time to review and 16 consider. 17 Q. Okay. Well, this is what I want you to do for me. 18 If you develop any additional opinions other than 19 what you have given us through your testimony, the 20 reports, the affidavits and so forth up until this 21 point, would you please advise counsel so he can 22 advise me that you have additional opinions? 23 MR. CARR: Yeah. And Ken, we'll 24 consider that a formal request for that. 25 Obviously if there's going to be reciprocity, and 118 1 it can be agreed on, we will do it. I, I don't 2 know. I didn't make a similar request of your 3 experts in depos but if we want to discuss that we 4 will discuss it. 5 MR. SALES: Okay. That's all I got. 6 MR. CARR: You done? 7 MR. SALES: I'm done. 8 MR. CARR: All right. 9 THE WITNESS: Thank you. 10 MR. SALES: You're welcome. 11 VIDEOGRAPHER: This concludes the 12 deposition. 13 MR. CARR: Whoa. Whoa. Let's -- we can 14 go off the video record. Let's stay on the 15 written record real quick. 16 VIDEOGRAPHER: This concludes the video 17 portion of the deposition. The time is 1:20 and 5 18 seconds p.m. 19 MR. CARR: We talked earlier. An 20 agreement that a copy would be made though 21 exhibits not attached to the deposition of 22 scientific literature upon which Dr. Garabrant 23 intended to rely. 24 I am holding in my hot little hands four 25 stacks of documents. The first one has an OCMAP 119 1 Plus label on it that says Rogers, the second is 2 an OCMAP Plus label that says MDS, the third is a 3 review of the data quality and comparability of 4 case control studies of low level exposure to 5 benzene in the petroleum industry, and the fourth 6 is a group of studies with a stickie on it that 7 says benzene AML. I think that says O dash R but 8 I'm not sure. 9 THE WITNESS: D R. 10 MR. CARR: D R. Pardon me. I got you. 11 Right. I'm going to give these to you. I'm going 12 to hand these to the court reporter. She's going 13 to make a copy of them, she going to return the 14 original to Dr. Garabrant, and we are going to 15 agree that this is the stuff that he has in this 16 case on science right now. Agreed? 17 MR. SALES: Okay. Agreed. 18 (Garabrant Number 1 was marked) 19 20 (Deposition concluded at 1:21 p.m.) 21 22 23 24 25 120 1 STATE OF MICHIGAN ) SS. 2 COUNTY OF OAKLAND ) 3 CERTIFICATE OF REPORTER 4 I, Barbara J. Turner, Certified 5 Shorthand Reporter, a Notary Public, certify that 6 this transcript is a complete, true and correct 7 record of the testimony of DAVID HAY GARABRANT, 8 M.D., deponent in the foregoing deposition, taken 9 on January 21, 2010. 10 I further certify that prior to taking 11 this deposition the witness was duly sworn by me 12 to tell the truth. 13 I also certify that I am not a relative 14 or employee of a party or an attorney for a party, 15 or have a contract with a party, or am financially 16 interested in the action. 17 18 19 20 __________________________________________ 21 22 Barbara J. Turner, CSR-2343, RPR 23 Notary Public, Oakland County, Michigan 24 My Commission Expires: 02/14/14 25 Dated: This 22nd day of January, 2010 121