Document 2Gzpj9bBDnkgK3dZYGdJyQxr

1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF LOS ANGELES 3 4 WILLIAM MOLINA and ANGELINA MOLINA, 5 Plaintiffs, 6 -against- Case No. BC 367800 7 SHELL OIL COMPANY, et al., 8 Defendants. 9 10 11 12 __________________________________________________ 13 Friday, April 11, 2008 14 11:20 a.m. 15 TELEPHONIC DEPOSITION of the 16 Non-party Witness, DR. JOHN WHYSNER, Ph.D., 17 DABT, taken pursuant to agreement, held at 18 the Marriott Hotel, 670 White Plains Road, 19 Tarrytown, New York before a Notary Public 20 of the State of New York. 21 Reported by: Christy J. Rockower 22 23 JOB No. 86263 24 25 1 1 A P P E A R A N C E S: 2 PAUL & HANLEY, LLP, Attorneys for Plaintiffs 3 1608 Fourth Street Suite 300 4 Berkeley, California 94710 5 BY: DEAN A. HANLEY, ESQ. 6 STEPTOE & JOHNSON, 7 Attorneys for Defendants Shell Oil Company, Chevron, 8 U.S.A., Inc., Union Oil Company of California d/b/a 9 UNOCAL 633 West Fifth Street 10 Suite 700 Los Angeles, California 90071 11 BY: RUTH D. KAHN, ESQ. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 D R. J O H N W H Y S N E R, Ph.D., DABT, the 2 witness herein, having been first 3 duly sworn by Christy J. Rockower, a 4 Notary Public of the State of New 5 York, was examined and testified 6 as follows: 7 EXAMINATION CONDUCTED 8 BY MR. HANLEY: 9 Q Would you please state your 10 name? 11 A Dr. John Whysner. 12 Q What is your address, please? 13 A 166 Farrington Avenue, Sleepy 14 Hollow, New York 10591. 15 Q Good morning, Dr. Whysner. 16 A Morning. 17 Q Can you describe for me any 18 work that you've done since we've last 19 spoke during your deposition on April 1st? 20 A Well, I read over my -- the 21 transcript of my deposition, and I read 22 over Dr. Bennett's, the deposition or 23 whatever you call it that was going to be 24 used at trial. I didn't have a chance to 25 read over his prior day deposition. And 3 1 based upon that, I also, because you'd 2 asked him a number of very specific 3 questions about the Hayes article and the 4 Chinese study, I was looking into the 5 references that -- within the Hayes study 6 there are certain references to other 7 articles that describe more fully certain 8 aspects of the study, and so I obtained 9 those and -- in other words, so in case you 10 were asking me more detailed questions like 11 you did with Dr. Bennett. And those are 12 the two articles that were sent to you, the 13 Travis article and the Dosemeci article, 14 D-O-S-E-M-E-C-I article. 15 Q Okay. And you have copies of 16 those articles there with you? 17 A Yes, I do. 18 Q Okay. And just for reference, 19 we'll go ahead and mark those two articles 20 as exhibits, first exhibit to the 21 deposition. 22 (The Travis article and 23 Dosemeci article were marked as Plaintiff's 24 Exhibit No. 1 for identification.) 25 Q Is there any other work that 4 1 you did or articles that you reviewed? 2 A Well, I went back through my 3 files in order to be able to bring them 4 here today. I looked over some of the 5 references that I had previously brought to 6 my prior deposition. 7 Q And what materials did you 8 review specifically? 9 A Well, specifically, mostly the 10 -- those solvent case-control studies, 11 because in many of the cases, remember I 12 had put these colored stickys on them, and 13 in many of the cases they were not placed 14 in exactly where I had put them before, and 15 so I wanted to go through them to make sure 16 that at least that file had the -- had the 17 markings, so that if you wanted to discuss 18 any of those papers, I could quickly get to 19 the relevant information. 20 Q Are there any particular 21 solvent case-control studies that you 22 reviewed? 23 A Well, I read -- there were 31 24 of them, I think, and I looked over all of 25 them. I didn't really read them. 5 1 The only thing, like I 2 mentioned before, that I -- I looked at in 3 some depth was the -- was not one of those, 4 but was a Hayes study, and also then the 5 papers, the two papers, that have just been 6 marked as Exhibit 1. 7 Q Since your last deposition in 8 this case on April 1st, how much time have 9 you spent working on the Molina case? 10 A I would say probably maybe ten 11 hours, something like that. 12 Q And how much of that time was 13 spent discussing matters with counsel? 14 A I would say maybe 15 minutes, 15 maybe a little bit more. 16 Q Was that one conversation or 17 multiple conversations? 18 A Well, there are a couple. 19 Well, we talked a lot about scheduling and 20 what was going to happen. 21 And what I had -- it wasn't 22 clear to me whether or not I had to bring 23 everything, and I did wind up bringing 24 everything back again. 25 And I mentioned the articles 6 1 that I wanted to -- well, counsel had 2 informed me about the Bennett deposition 3 and that they were going to send that to 4 me. I mean -- well, whatever you want to 5 call it, trial testimony, and the 6 deposition, and so they in -- that was one 7 conversation where they informed me about 8 that. And then after I reviewed the 9 Bennett testimony, then I said to Miss 10 Khan -- Mrs. Khan, that I wanted to include 11 these two articles that are referred to in 12 the Hayes article because they describe 13 both the exposure assessment and also how 14 the cases were evaluated in terms of the 15 medical records. 16 Q What is the import of these 17 two studies that we have attached as 18 Exhibit 1 in your way of thinking? 19 A Well, I think that the, for 20 example, the Travis article in particular 21 talks about how cases were verified in 22 terms of whether or not they were 23 non-Hodgkin's lymphoma. And I just -- I 24 was interested in that because you and 25 Dr. Bennett had spent some time talking 7 1 about the degree of verification because 2 I'd also remembered that the Mayo Clinic 3 was involved in doing some of the 4 verification, and I wanted to see to what 5 extent they were able to verify cases of 6 NHL. And it turns out that whereas there 7 was a lot of leukemia cases that were able 8 to be verified because it included 9 peripheral blood slides, which, from what I 10 gather, was more available. There were 11 only four of the 12 NHL cases that could be 12 verified by histopathological evidence. 13 And that's found on page 93 of this paper, 14 the first column, the first paragraph. And 15 so it is -- it indicated to me that there 16 may be some uncertainty about the actual 17 diagnoses for the other 12 cases. 18 The other thing that is also, 19 I think, of some importance, is that this 20 is the paper where they actually talk about 21 how many non-exposed workers they had. And 22 also in that same page, table 1, the 23 non-exposed workers, there were only three 24 cases of malignant lymphoma and related 25 disorders, which would have included 8 1 non-Hodgkin's lymphoma. And I thought that 2 that number was quite a bit lower than one 3 would expect. 4 In other words, in the Chinese 5 studies, the reason that they compared them 6 to non-exposed workers is that they don't 7 have the kind of standardized mortality 8 statistics that we have in the United 9 States so that you can do a study and then 10 you can compare the mortality of the group 11 that you're studying to the general 12 population. And so they had to have a, in 13 essence, a comparison group. And that's 14 why they talk about relative risks rather 15 than SMRs. 16 And if the group that you're 17 comparing, using for comparison, happens to 18 have a lower than expected mortality rate, 19 then that would tend to overinflate or to 20 inflate the comparison to the group that 21 you're interested in studying. 22 And so I -- you know, that's 23 one of the things that I look for in these 24 types of studies is to see what is the 25 quality of the group that they are using 9 1 for comparison. 2 Q And in this last answer you 3 just gave, are you referring to the Travis 4 article? 5 A Yes. 6 And then, I guess you asked me 7 about the articles, plural. And the 8 Dosemeci, sorry I can't pronounce his name 9 very well, but I wanted to see also what 10 were the exposure levels that were involved 11 in these studies. And I think it's clear 12 that these were people that had reasonably 13 high levels of exposure in terms of part 14 per million in the atmosphere, and that can 15 be seen on table 3 of that paper on page 16 408. 17 Q Do you agree with the findings 18 of the Travis authors as reflected in the 19 last sentence of the abstract where they 20 state, "Results in our series, one of the 21 largest to date, also indicate that a 22 greater diversity of hematologic neoplasms 23 is evident among benzene exposed workers 24 than previously described"? 25 MS. KAHN: Objection. Overly 10 1 broad, vague and ambiguous, and calls for 2 speculation as to what the authors had in 3 mind. 4 A I mean the problem with their 5 statement is they are not really saying 6 anything other than the fact that there is 7 -- there are these hematologic neoplasms in 8 these people who are exposed, but they 9 really don't say whether those were at a 10 higher rate than would be expected or at a 11 lower rate than would be expected. So I'm 12 really a little puzzled by the way in which 13 they describe -- made that description. 14 Q Do you agree or disagree with 15 that statement of those authors? 16 MS. KAHN: Objection. Asked 17 and answered. 18 THE WITNESS: I don't have 19 anything to add to what I just said. 20 BY MR. HANLEY: 21 Q My question, sir, is: Do you 22 agree or disagree with that statement? 23 MS. KAHN: Objection. 24 Argumentative, asked and answered. 25 THE WITNESS: Well, I think 11 1 the statement is just -- all it is is 2 saying is that there are these 3 hematological neoplasms among benzene 4 exposed workers, and I don't really have 5 any disagreement with that statement 6 because it really doesn't -- I mean 7 that's evident that within any group of 8 workers there would be a -- there could 9 be a diversity of all sorts of different 10 diseases. The crucial question is 11 whether or not those are occurring at a 12 greater rate than would be expected or 13 not. 14 BY MR. HANLEY: 15 Q Isn't that the clear 16 implication of what they are saying? Isn't 17 that the import of that statement that 18 there is an increase in these, in a variety 19 or diversity of these cancers of the blood 20 forming organs? 21 MS. KAHN: Objection, the 22 question calls for speculation, it's 23 leading and suggestive. It's overly 24 broad. 25 THE WITNESS: No, I don't 12 1 think it says that or that's the 2 implication necessarily. 3 BY MR. HANLEY: 4 Q Well, when they say that, "The 5 results in our series, one of the largest 6 to date, also indicates that a greater 7 diversity of hematologic neoplasms is 8 evident among benzene-exposed workers than 9 previously described," what are they saying 10 is the greater diversity of hematologic 11 neoplasms that is evident compared to what 12 has been previously described? 13 A Well, I'd have to speculate 14 about what they actually are trying to say. 15 I think I gave you my answer about when you 16 tried to say, What does this imply? And I 17 said that I don't think it necessarily 18 implies what you had stated previously. 19 Q You don't think that it's 20 explained by the context of the abstract 21 which starts out saying that, "Although the 22 relationship between benzene and acute 23 non-lymphocytic leukemia, ANLL, is well 24 established, most of the analytic cohort 25 investigations examining the relationship 13 1 between benzene and hematologic neoplasms 2 have evaluated only death certificates to 3 validate diagnosis." You don't think that 4 the context of the last sentence is to be 5 taken from the abstract as a whole 6 including the first sentence? 7 A No. 8 Q So is your -- is the bottom 9 line of your testimony that you agree or 10 disagree with the last sentence of the 11 abstract? 12 MS. KAHN: Objection. Asked 13 and answered, overly broad, vague and 14 ambiguous, argumentative. 15 THE WITNESS: I don't have 16 anything to add to what I've already 17 said. I think you've asked that question 18 before. 19 BY MR. HANLEY: 20 Q I have, but I'm waiting for an 21 answer whether or not you agree or disagree 22 with that last sentence of the abstract? 23 MS. KAHN: Objection. Overly 24 broad, vague and ambiguous, 25 argumentative, asked and answered. 14 1 THE WITNESS: I don't know 2 any other way I can answer the question 3 other than the way I already have. 4 BY MR. HANLEY: 5 Q Do you understand what they 6 are saying in the last sentence? Do you 7 believe that you understand what it is that 8 they are saying? 9 A Well, I think what they're 10 saying is that they have looked at a number 11 of different hematological diseases in this 12 group of people, but I don't think they 13 have drawn any conclusion regarding it. I 14 think that's what they are saying is that 15 there is a -- they are looking at a more 16 diverse group of hematological neoplasms. 17 And don't forget that before this was 18 published, the Rinsky cohort only really 19 talked about leukemia. It wasn't until 20 2002 that, from the way I read the 21 literature, my understanding is that Rinsky 22 reported on their lack of increases in NHL. 23 So I think what they are implying here is 24 that they are looking at a wider range of 25 hematological neoplasms than previous 15 1 authors had described in 1994. And I think 2 that's the correct interpretation. 3 Q If you go to the Discussions 4 section on page 98 of the article and look 5 at the second paragraph of the second 6 section, and you'll see where the author 7 states that, quote, "Another new finding in 8 our study is the greater diversity of 9 hematological malignancies than usually 10 reported with benzene exposure, perhaps due 11 in part to the sizeable number of subjects 12 in a variety of occupational settings." 13 Did I read that correctly? 14 A I'm missing where you are. 15 Q In the Discussion section on 16 page 98 of the article. 17 A Okay. 18 Q If you look at the second 19 paragraph in the first sentence of the 20 second paragraph, did I read that sentence 21 correctly? 22 MS. KAHN: Objection. The 23 document speaks for itself. 24 THE WITNESS: Again, this 25 says pretty much the same thing as we 16 1 were discussing before in the abstract. 2 What these authors are talking about is 3 that they have -- they have looked at a 4 greater diversity of neoplasms in this 5 particular study than has previously been 6 studied, and I think that's a fair 7 statement in terms of the way that they 8 have reported the data. 9 BY MR. HANLEY: 10 Q So you would agree with that 11 sentence? 12 A Well, I don't know that -13 MS. KAHN: Objection. 14 THE WITNESS: I don't think I 15 agree with the kind of interpretation 16 that you're trying to imply from that 17 sentence. I think that the sentence 18 speaks for itself. And I think that what 19 my interpretation -- I gave you my 20 interpretation of what I believe it says, 21 and I don't see how I can do anything 22 different from that. 23 BY MR. HANLEY: 24 Q Do you agree or disagree with 25 that sentence? 17 1 MS. KAHN: Objection. Asked 2 and answered, argumentative. 3 THE WITNESS: I've already 4 answered the question. I don't have 5 anything to add to it. 6 BY MR. HANLEY: 7 Q Sir, do you agree or disagree 8 with that sentence? 9 MS. KAHN: Objection. Asked 10 and answered. 11 THE WITNESS: As I mentioned 12 before, what I find in this sentence that 13 I agreed with is that, yes, indeed they 14 have examined a wider diversity of 15 hematological malignancies. And what I 16 see here is that they were able to do it 17 because they had a sizeable number of 18 subjects, because, don't forget, they 19 looked at, I think, 74,000 20 benzene-exposed workers, so that allows 21 you to be able to look at things that are 22 less common than the leukemias that have 23 been -- had been previously described. 24 BY MR. HANLEY: 25 Q These authors go on to publish 18 1 in subsequent papers, including the 1997 2 Hayes article that I was examining 3 Dr. Bennett about, that in fact they 4 associate high levels of exposure to 5 benzene with an increased risk for 6 non-Hodgkin's lymphoma; is that correct? 7 MS. KAHN: Objection. It's 8 vague and ambiguous. It's not clear if 9 by "these authors" you mean Travis et. 10 al, or another set of authors. Also, the 11 question is compound and overly broad. 12 THE WITNESS: Well, could you 13 repeat the question, please? 14 BY MR. HANLEY: 15 Q The authors of this particular 16 study, the Travis -- 1994 Travis article 17 that we're reviewing include Dr. Hayes; 18 correct? 19 A Yes. 20 Q And Dr. Hayes is one of the 21 researchers that has published repeatedly 22 regarding this Chinese cohort exposed to 23 high levels of benzene occupationally; 24 correct? 25 A Yes. 19 1 Q And Hayes, in subsequent 2 studies, based on the same data described 3 a -- in this 1994 article has gone on to 4 conclude and published in the scientific 5 literature, including the 1997 article that 6 I was asking Dr. Bennett about, that 7 exposure to benzene in the context and at 8 the levels described in the Chinese workers 9 is associated with an increased risk for 10 development of non-Hodgkin's lymphoma; 11 correct? 12 A Well, no, I don't agree with 13 that, because in 2000 Hayes et. al said, 14 and I quote, "We noted, however, that an 15 excess of NHL was found in our study which 16 could potentially be attributed to other 17 exposures as the excesses were significant 18 only in the subset of benzene exposed 19 chemical workers." 20 Q Where are you reading that 21 from, sir? 22 A This is one of the articles in 23 my files which is Hayes, and that is from 24 the Journal of Toxicological and 25 Environmental Health, year 2000. 20 1 Q Are you saying that Hayes has 2 published that non-Hodgkin's lymphoma is 3 not associated with benzene exposure? 4 A What he is saying is that the 5 associations they found -- don't forget, 6 these people were exposed to a lot of 7 different chemicals, not just benzene. And 8 so what he's saying is that the excess that 9 they found in their study could have been 10 due to co-exposure to other chemicals 11 because the excesses -- what he said, and I 12 quote, "The excesses were significant only 13 in the subset of benzene exposed chemical 14 workers." And, so in the other industries, 15 what he's saying is that these excesses 16 weren't significant. 17 In order to have some degree 18 of confidence in one's findings, I think 19 one have to be able to see the kind of 20 consistency among different industries 21 because what we're looking at is benzene 22 exposures; but, if you see a large excess 23 as you did in the chemical workers who were 24 exposed to lots of different chemicals and 25 you don't see those in some of the other 21 1 industry groups. I think it leads you to 2 the concern that this excess might be due 3 to the other chemicals that the chemical 4 workers were exposed to rather than to 5 benzene. 6 Q Yes, those other chemicals 7 that he's referring to are other 8 petrochemical hydrocarbon solvents; 9 correct? 10 MS. KAHN: Objection. The 11 question is overly broad, vague, and 12 calls for speculation. 13 THE WITNESS: If you would 14 like to refer me to something that is 15 what they are saying, I would be glad to 16 look at it, but I don't recall that that 17 is the case. 18 BY MR. HANLEY: 19 Q What other chemical exposures 20 is he talking about that would -- that you 21 have any information based on the context 22 of the studies or the people being 23 evaluated that would suggest that it was 24 anything other than hydrocarbon 25 petrochemical solvents that he's talking 22 1 about? 2 A If you want to give me some 3 time to look through this, I could try to 4 find it. 5 Q Yes, sir, if you can find 6 anything that Dr. Hayes or any of his 7 fellow authors have said in any of these 8 studies that suggest that the other 9 chemicals that he's referring to are 10 anything other than petrochemical 11 hydrocarbon solvents, please point it out 12 to me, sir. 13 A Well, it would take me a 14 while. 15 Q Well, do it. If he's not 16 talking about petrochemical hydrocarbon 17 solvents as the other chemical exposures, 18 you show me where it says that. 19 A Well, you show me where he 20 says that it is about petrochemical 21 exposures. 22 Q I'll show you that all of 23 these cohorts that he's looking at are 24 people that are exposed to petrochemical 25 hydrocarbon solvents, including benzene and 23 1 including other petrochemical hydrocarbon 2 solvents. That is, from what that I see 3 from these studies, the clear and obvious 4 import of their findings. You show me 5 where there's something different. 6 A Okay. Page 404, table 1. 7 Chemical workers. Organic synthesizers. 8 Now, organic synthesizers 9 means they are probably involved with a lot 10 of reactive intermediates. Some of these 11 will be epoxides. I don't know, I'm 12 speculating a little bit about that. But 13 as you can see, the other chemical workers 14 are pesticide production workers. Okay. 15 Q Anything else? 16 A Well, again, I can go through 17 and try to find some more, but it clearly 18 says organic synthesizer and pesticide 19 production worker, so those are not -- some 20 of those I would propose would not be the 21 kinds of petrochemicals that we're talking 22 about in this case. 23 Q Anything else? Are you 24 drawing the -- are you looking at the 2000 25 study that you referred to? 24 1 A No, this is the Dosemeci 2 study. This is the Hayes -- this is the 3 1994, that's the other part of Exhibit 4 number 1. 5 Q We'll talk about that in a 6 minute. But you were talking about a 7 statement made in this 2000 article; 8 correct? 9 A Well, you asked me to find 10 a -- some kind of documentation. And the 11 Dosemeci study is the one that they talk 12 most extensively about exposures, so I was 13 looking at that particular paper because 14 that's probably one of the better sources 15 of information. 16 Q Let's go back to the article 17 that you were quoting, published in 2000. 18 MS. KAHN: I believe it's 19 2001. 20 BY MR. HANLEY: 21 Q Was it 2001, sir? 22 A I think it's 2000. 23 Q I thought it was too. Why 24 don't you read the name of the article and 25 we'll attach it as Exhibit 2. 25 1 A Okay. Well, it's already part 2 of Exhibit 10. 3 Q That's all right. 4 A It's Benzene and 5 Lymphohematopoietic Malignancies in China. 6 Hayes and -- it's published in Journal of 7 Toxicology and Environmental Health, year 8 2000. 9 (Article entitled "Benzene and 10 Lymphohematopoietic Malignancies in China" 11 published in Journal of Toxicology and 12 Environmental Health, year 2000, was marked 13 as Plaintiff's Exhibit No. 2 for 14 identification.) 15 Q Now, where in that article is 16 there any suggestion that the other 17 chemicals he's referring to are not in fact 18 petrochemical hydrocarbon solvents? 19 A Well, all I can say is that 20 they also refer to the -- or they list in 21 their references the Dosemeci study. And 22 what this is, this particular paper is, is 23 more of a review article and discussion 24 article. And so I think that on page 426 25 they refer to the Dosemeci article, the one 26 1 that I'm just referring to in 1994, and 2 that's the article that then talks about 3 the fact that these chemical workers were 4 involved in doing -- included pesticide 5 production workers and also organic 6 synthesizers. 7 Q In that 2000 article marked 8 here as Exhibit 2, is there any explicit 9 reference anywhere in that article to 10 chemicals other than hydrocarbon 11 petrochemical solvents such as benzene and 12 other such solvents? 13 A Well, they don't specify the 14 particular chemicals that they are 15 concerned about as causing -- may be 16 involved in the excess -- excesses that 17 were found in non-Hodgkin's lymphoma. But 18 they -- all I can say is that they -- this 19 article refers -- relies upon, as does the 20 Hayes article by the way, to the Dosemeci 21 article in order to -- in order to provide 22 more information regarding the types of 23 exposures for the various groups. 24 Q I'm going to attempt to ask a 25 yes or no question. If you can answer it 27 1 yes or no, I would appreciate that. And if 2 you need to explain your answer in any way, 3 you're welcome to do that. 4 My question is: In the 2000 5 article marked as Exhibit 2, is there any 6 explicit reference to any chemicals other 7 than petrochemical hydrocarbon solvents 8 such as benzene and other such solvents? 9 A Well, I don't see any 10 reference to petrochemical solvents in that 11 paper. You're trying to say that they are 12 referencing petrochemical solvents, and I 13 don't really see that. They are talking 14 about benzene and other exposures that 15 chemical workers could have. They haven't 16 used the word, as far as I can tell in 17 their statement, other petrochemicals. 18 Q Sir, my question was, yes or 19 no, is there any explicit reference to any 20 chemicals other than benzene, or any other 21 hydrocarbon petrochemical solvents? 22 MS. KAHN: Objection. The 23 question lacks foundation based upon the 24 witness' answer. The question has been 25 asked and answered to the best that the 28 1 witness can. 2 THE WITNESS: That wasn't 3 your previous question. Your previous 4 question, if I can have it read back. 5 BY MR. HANLEY: 6 Q Well, answer the question 7 pending now, sir. 8 A Well, your question talked 9 about the previous question. So, I can't 10 really because it's predicated upon the 11 fact that you said that you had already 12 asked the same question, and I disagree 13 with that. 14 Q Is there any reference to any 15 chemical in the 2000 article other than 16 benzene or any other petrochemical 17 hydrocarbon solvents? 18 A All I can say is that they 19 don't used the word and/or other 20 petrochemical hydrocarbon solvents. I 21 don't see those words in this paper. 22 Q Do you have an understanding 23 of what petrochemical hydrocarbon solvents 24 are? 25 A Yes. 29 1 Q What is it, and what do they 2 include? 3 A Well, they include a wide 4 variety of things. One of them, of course, 5 being benzene. Another -- there are groups 6 of alkanes which are things line propane. 7 There are things like gasoline which is a 8 mixture. There is -- there's just a huge 9 variety of different kinds of gases, you 10 know, propane gas is what people use in 11 their stoves. There's methane, that's a 12 hydrocarbon. I think that -- and there are 13 aromatic hydrocarbons like benzene. 14 Q What references to any kinds 15 of solvents are expressly made in the 2000 16 article? 17 A I don't see them using the 18 word "solvent" in this 2000 article. 19 Q They do refer to benzene; 20 correct? 21 A They refer to benzene, yes. 22 Q You'll agree with me that 23 benzene is a petrochemical hydrocarbon 24 solvent; correct? 25 A That's one of its uses, yes, 30 1 as an -- I mean it can be used as a 2 solvent. 3 Q Do they refer to any other 4 petrochemical hydrocarbon solvents 5 expressly in this article? 6 A I don't see them referring to 7 any other petrochemical hydrocarbon 8 solvents. 9 Q Other than benzene; correct? 10 A That's correct. 11 Q And they don't refer to any 12 other chemical or solvent other than, 13 expressly, other than benzene; correct? 14 MS. KAHN: Objection. The 15 document speaks for itself. 16 THE WITNESS: Well, I don't 17 know in what context you're talking 18 about. They talk about smoking, tobacco 19 smoke, which of course includes lots of 20 different hydrocarbons. They include 21 paints, printing, which of course we know 22 include a lot of different kind of 23 solvents. But as you mentioned, this 24 paper is only one of a whole series of 25 papers that these authors have published, 31 1 and I think that they sort of have to be 2 taken together because they don't 3 redescribe a lot of things, they just 4 refer to their previous publications 5 which contain more complete descriptions. 6 Q Do you consider yourself an 7 epidemiologist? 8 A Well, I would not consider 9 myself in a sense the kind of 10 epidemiologist who would do an 11 epidemiological study. I mean I do a lot 12 of review of epidemiological studies as a 13 toxicologist, but I'm not an epidemiologist 14 per se. Toxicology requires the 15 understanding of different types of studies 16 including human epidemiology studies, 17 animal studies and invitro studies. 18 Q Have you had any formal 19 training in epidemiology? 20 A Well, I have worked with 21 epidemiologists pretty closely. I don't 22 know how -- I mean Ernst Wyder at the 23 American Health Foundation was a preeminent 24 epidemiologist. I learned a lot from him. 25 I co-published a paper with Jorgen Olsen, 32 1 head of the Danish Cancer Registry who is 2 an epidemiologist. I mean certainly in 3 medical school we had lectures about 4 epidemiology and studies like that. So I 5 mean -- as I said, I didn't specialize in 6 epidemiology as my field but I do have some 7 training and some -- and plenty of 8 experience in terms of being involved in 9 epidemiology studies. 10 Q What training have you had in 11 epidemiology, formal training? 12 A Well, if working with one of 13 the world's best epidemiologists side by 14 side, and a couple of them, and actually 15 working on epidemiology studies, I don't 16 know, do you think that qualifies as formal 17 training? 18 Q No, sir. 19 A Okay. Then I have worked with 20 epidemiologists. I have been involved in 21 epidemiological studies and I have reviewed 22 epidemiological studies and I also teach my 23 students in toxicology. One of my 24 responsibilities is how to review an 25 epidemiological study. And those are my 33 1 activities and that's the best answer I can 2 give you. 3 Q Have you ever taken a class 4 dedicated to the field of epidemiology or 5 the study of epidemiology? 6 A No, I have not, because, as I 7 said, I was -- I mean the -- none of my 8 classes -- well, some of the medical school 9 classes actually did involve looking at 10 epidemiology studies, so in a sense I did. 11 But I've never, for example, in schools of 12 public health there are whole departments 13 in epidemiology, and I have not 14 participated in those kind of courses. 15 Q In other words, you've never 16 taken a class wherein the class itself was 17 dedicated in any way to the field of 18 epidemiology or to the study -- or to the 19 discipline of epidemiology; correct? 20 MS. KAHN: Objection. It's 21 vague and ambiguous. 22 THE WITNESS: Well, like I 23 said, I haven't because I've learned by 24 doing and working with other 25 epidemiologists as a toxicologist. 34 1 BY MR. HANLEY: 2 Q You do recognize that 3 epidemiology is its own discipline with its 4 own set of classes and course work and 5 degrees including a doctorate degree in 6 epidemiology; correct? 7 MS. KAHN: Objection. The 8 question is overly broad and compound. 9 A Well, I know that as I 10 mentioned there are epidemiology 11 departments and there are degrees in 12 epidemiology, yes. 13 Q Including doctorate degrees; 14 correct? 15 A Yes. Usually they are part of 16 a Doctorate of Public Health. But with the 17 specialty in epidemiology, I don't know if 18 there's actually a -- actually a Ph.D. in 19 epidemiology, but there may be at some 20 schools, I don't know. 21 Q Is it fair to say that you 22 have more than 80 hours now invested into 23 this case? 24 A I would say that's probably 25 correct. 35 1 Q Is it your opinion that no 2 matter what level of benzene exposure 3 Mr. Molina suffered, and no matter what 4 level of additional exposure to 5 petrochemical hydrocarbon solvents he was 6 exposed to, it would be your opinion that 7 regardless of those levels, no matter how 8 high they were, his non-Hodgkin's lymphoma 9 was not caused by any such exposures? 10 MS. KAHN: The question is 11 overly broad as phrased and compound. 12 A Well, I think I mentioned 13 before we can only speak to what we have 14 already -- what has already been studied. 15 And so I'd have to qualify my answer by 16 saying that studies have looked at certain 17 exposures to benzene and other solvents. I 18 believe those exposures have been quite 19 high. So, given what you say, making the 20 assumption, and I think there's good 21 evidence for this based upon what the 22 industrial hygienists have come up with, 23 the fact that Mr. Molina was exposed to 24 within the range of the exposures that have 25 been studied in the scientific literature, 36 1 I would say the answer is yes, that within 2 that range of studies that are available to 3 us, which it's my conclusion which we've 4 discussed previously that it doesn't show 5 causal association between those benzene 6 and the solvents in this case to 7 non-Hodgkin's lymphoma. I can say that 8 within those exposure levels what you said 9 is just true, that his non-Hodgkin's 10 lymphoma is not due to his chemical 11 exposures. 12 Q That's not exactly the 13 question I asked. My question specifically 14 was whether or not that would be the case 15 regardless of the level of exposure that he 16 had? 17 A Well, as I said, I can only 18 speak in terms of what we know, in terms of 19 what we have available to us in the 20 scientific literature. If indeed it could 21 be documented that he was exposed to levels 22 way above those that have ever been studied 23 in the scientific literature, I would say 24 that that's then an unknown. But I believe 25 that his exposure, as they have been 37 1 estimated, fall well within what we have 2 seen in the scientific literature. And I 3 don't believe that his -- and that would 4 say that his non-Hodgkin's lymphoma is not 5 related to the exposures to those 6 chemicals. 7 Q Is there any level of exposure 8 to benzene or other petrochemical 9 hydrocarbon solvents that a person could be 10 exposed to that would increase their risk 11 for development of non-Hodgkin's lymphoma? 12 A Not that I'm aware of. As I 13 said, and again, that's based upon what is 14 available in the scientific literature. 15 Q Are you saying that if someone 16 has high enough level of exposure to 17 benzene, even higher than what's been 18 reported in scientific literature, and they 19 had a non-Hodgkin's lymphoma, you would not 20 know whether or not it was caused by that 21 exposure? 22 A Well, I would say the best 23 information is still that it's not caused 24 by that exposure. However, I would say 25 that it would be preferable to have studies 38 1 that match the exposures that we're talking 2 about so that we can be sure that it wasn't 3 caused. 4 Q Do you have an opinion whether 5 or not benzene, in the abstract, is, in 6 high enough dosages, is capable of causing 7 non-Hodgkin's lymphoma or not? 8 A All I can say is I don't have 9 any indication as far as I can see from the 10 scientific literature that would indicate a 11 causal relationship between benzene 12 exposure and non-Hodgkin's lymphoma. 13 Q Are you able to categorically 14 rule it out? 15 A Well, I think that calls for 16 speculation. 17 Q So is the answer you are not 18 able to categorically rule it out? 19 MS. KAHN: Objection. 20 Misstates the witness' testimony. 21 THE WITNESS: I'm saying that 22 I wouldn't speculate on something that I 23 can't rely upon the scientific and 24 medical literature for. 25 Q Is that to say that you cannot 39 1 categorically rule it out? 2 A That's the best answer I can 3 give you. 4 Q Would you agree that we can 5 categorically rule out the notion that 6 drinking water in whatever amount is not 7 capable of causing non-Hodgkin's lymphoma? 8 Would you agree that as a scientist and a 9 medical doctor and based upon your 10 understanding of what we know about the 11 mechanism of cancer and the affect of 12 drinking water on the human body that 13 regardless of whatever amount in one's 14 life, or acutely or chronically, that you 15 would feel comfortable categorically ruling 16 out the notion that drinking water can 17 cause non-Hodgkin's lymphoma? 18 A Well, I think it would be 19 difficult to study because if you're 20 talking about -21 Q Sir, I'm not asking you about 22 how you might determine that. I'm asking 23 whether you believe you can categorically 24 rule it out or not. If you think you can't 25 categorically rule it out, then that may be 40 1 your answer, or do you believe that, yes, 2 as a scientist we can categorically rule 3 that out? 4 MS. KAHN: Dean, I think you 5 interrupted the witness' answer. 6 MR. HANLEY: That's because 7 I'm trying to get an answer to the 8 question I actually asked. 9 MS. KAHN: Dr. Whysner, do 10 you need to have the question read back? 11 THE WITNESS: No, I don't 12 know what question is on the table right 13 now because there were -14 MR. HANLEY: I'll just ask 15 the court reporter to read it back to 16 you. 17 (The requested portion was read.) 18 MS. KAHN: The question is 19 compound and overly broad. 20 THE WITNESS: Well, first -21 okay. What I can say is I really haven't 22 studied water and non-Hodgkin's lymphoma, 23 and I don't know that anybody has. And I 24 guess one can hypothesize that if you 25 drank a whole bunch of water and since 41 1 people can get a lymphoma of their 2 digestive tract called a MALT type 3 lymphoma, could the irritation of 4 drinking a lot of water over an extended 5 period of time disrupt the lymphoid 6 system in that area to a point where one 7 could get a non-Hodgkin's lymphoma in 8 that area? I think it's unlikely, but 9 could I categorically rule that out, if 10 somebody was indeed stressing their body 11 in such a way that for an extended period 12 of time, I'm not sure I can rule that out 13 categorically. 14 BY MR. HANLEY: 15 Q Is there any degree to which 16 you could or could not rule out benzene as 17 a cause of non-Hodgkin's lymphoma in 18 comparison to something like water? 19 A In what way in comparison to 20 water? I mean I've given you an answer for 21 benzene and I've given you an answer for 22 water. 23 Q Yes. And my question is: Is 24 it any closer of a call or any more 25 difficult to categorically rule out one 42 1 over the other given what we know about the 2 biological plausibility, for example? 3 MS. KAHN: Objection. It's 4 compound, it's overbroad, it's vague and 5 ambiguous. 6 THE WITNESS: I would be 7 speculating if I had to answer that 8 question. 9 BY MR. HANLEY: 10 Q What do you believe is the 11 cause of Mr. Molina's non-Hodgkin's 12 lymphoma? 13 A Well, I don't think we really 14 know what the cause is of his non-Hodgkin's 15 lymphoma. 16 Q Do you consider it to be 17 idiopathic? 18 A Yes. And that's a medical 19 term that's commonly used when we don't 20 know what is the cause of a person's 21 particular disease. 22 Q Do you believe that there is a 23 cause of his cancer but it's unknown or 24 that his cancer has in fact no cause? 25 MS. KAHN: Objection. Vague 43 1 and ambiguous, compound. 2 THE WITNESS: I don't think 3 we really -- I don't think we really have 4 a way of distinguishing between those two 5 possibilities. 6 BY MR. HANLEY: 7 Q Do you believe that his cancer 8 was spontaneous and had no cause at all, it 9 just spontaneously developed in him for no 10 particular reason, or do you believe that 11 there more likely was some cause but we 12 don't know what that is? 13 MS. KAHN: Objection. The 14 question is overly broad, compound, and 15 as to the word, "spontaneous," it's vague 16 and ambiguous. 17 THE WITNESS: I think the -18 obviously when somebody gets a disease 19 there has to be some kind of disruption 20 in the cell. 21 Now, whether or not -- I mean, 22 if you want to use the term, 23 "spontaneous," for example, if a cell is 24 dividing and there's an error in DNA 25 replication that takes place because 44 1 statistically there can be errors in DNA 2 replication, and I guess you would call 3 that a spontaneous error. I think that 4 it's possible that people's diseases are 5 caused by those kinds of spontaneous 6 events, and, therefore, it's possible 7 that Mr. Molina's non-Hodgkin's lymphoma 8 could be caused by such a -- what you 9 could roughly in layman's terms be called 10 a spontaneous event even though it does 11 result in a specific genetic alteration, 12 but the reason for it happening is that 13 every once in a while when there's a 14 replication of DNA, things don't get 15 replicated exactly properly. And that's 16 not because of any interference with any 17 other environmental factor, it's just a 18 statistical probability. 19 Q Do you believe that can happen 20 in a case of development of non-Hodgkin's 21 lymphoma in the absence of any toxic 22 exposure or environmental exposure or some 23 outside environmental exposure to the cell 24 that caused that genetic alteration? 25 MS. KAHN: Objection. The 45 1 question is overly broad, compound, vague 2 and uncertain. 3 THE WITNESS: As I 4 mentioned -- could you read back the 5 question again. I am lost in the train 6 of thought there. 7 (The requested portion was read.) 8 THE WITNESS: Well, I think 9 that it can, because, like I said, there 10 are these errors in replication, and, you 11 know, again, it all depends on what you 12 mean by environmental or toxic exposure. 13 For example, oxygen, which is 14 something that is necessary for life, is 15 actually a toxic substance and there's a 16 lot of oxidative damage of DNA that goes 17 on on a regular basis. 18 Now, would you call that 19 spontaneous? I guess it depends what you 20 mean by spontaneous. But it's been 21 estimated that there are thousands of 22 these events per cell per day that takes 23 place just because we have to breathe 24 oxygen and oxygen happens to be a very 25 reactive chemical and it can damage DNA. 46 1 So there are all kinds of 2 events that can take place that don't 3 have to do with what we normally think of 4 as some kind of an environmental exposure 5 because there are things in the 6 environment like oxygen which can also 7 produce these effects. 8 BY MR. HANLEY: 9 Q Would you agree that oxygen 10 has never been associated with any 11 increased risk of any form of cancer? 12 A Well, I think that it's 13 actually -- oxidative damage is considered 14 in the scientific community to be one of 15 the events that can lead to cancer in 16 general. I mean, there's a lot of interest 17 in antioxidants to prevent this kind of 18 damage in order to prevent cancer. So I 19 think that -- I think the answer is yes, I 20 think that there is a -- there has been 21 postulated, widely as a matter of fact, 22 within the cancer prevention community the 23 fact that people believe that oxygen can 24 lead to cancer. 25 Q Can you point me to any 47 1 scientific or medical study that concluded 2 that oxygen is a risk factor for developing 3 any form of cancer? 4 A Well, it's -- I mean -- I 5 think there are lots of articles in the 6 scientific literature. I don't know that I 7 can point you to any one right now. 8 When I was at the American 9 Health Foundation we did a whole two-day 10 meeting on the issue of antioxidants and 11 the prevention of cancer predicated on the 12 knowledge that oxidative damage can lead to 13 cancer. Now, in our -- our certainty about 14 this is based upon some -- I have to admit 15 some circumstantial evidence. But I think 16 the -- I think it's widely accepted in the 17 medical and scientific community that 18 oxidative DNA damage is potentially a 19 cancer risk. 20 I didn't bring that literature 21 with me, but it certainly is out there. 22 Q Exposure to oxygen in what 23 context? Breathing? 24 A Yes; that's correct. 25 Breathing every day. I mean, oxygen is an, 48 1 unfortunately, a very reactive compound and 2 we -- it is what produces energy because it 3 has these high energy bonds in it, but 4 because of that it is also -- it's 5 technically a free radical and it can 6 produce damage. 7 Q And part of the human body's 8 ability to not succumb to cancer every time 9 there's such errors in replication due to 10 an exposure to whatever, whether it be 11 oxygen or asbestos in the ambient air or 12 any other carcinogen that we're exposed to, 13 the body has a way of dealing with that; 14 and, that is, cells, when they get that 15 genetic damage, more often than not if not 16 all of the time in someone who makes it 17 through life without developing cancer, 18 part of the immune system is that cell 19 dies; correct? 20 MS. KAHN: Objection. The 21 question is overly broad and vague. 22 THE WITNESS: Well, cells 23 that die don't cause cancer. 24 BY MR. HANLEY: 25 Q Right. That's why we don't 49 1 get cancer even though we have genetic 2 damage that occurred to various cells in 3 our body all of time; correct? The cells 4 get a genetic damage, replicate or attempt 5 to replicate, and because of that genetic 6 damage, have a programmed cell death and -7 by ap -8 A Apoptosis. 9 Q -- apoptosis, die; correct? 10 A Well, yes, but that doesn't 11 have a lot to do with the immune system. 12 That has to do with the cell's program, 13 self-program. And, actually, the first 14 line in defense is DNA repair which is not 15 an immune-mediated mechanism. It's, the 16 body has -- and that's the reason that we 17 don't succumb to cancer with all of these 18 oxidative DNA damage events is because 19 there are specific repair mechanisms that 20 are operative that are working to repair 21 that damage, and also there are 22 antioxidants in the body which are -- try 23 to prevent the oxidative damage from taking 24 place in the first place. 25 Q And when someone develops a 50 1 cancer that is in fact due to an 2 environmental exposure, whether it be a 3 mesothelioma from asbestos or a lung cancer 4 from smoking or an AML from benzene 5 exposure, it is because the body has not 6 been able to employ those normal defenses 7 that you're describing and the cell takes 8 that hit from exposure to the toxin, has 9 genetic alteration, has errors in 10 replication, and that is part of the 11 process that ultimately develops into a 12 cancer, and those are individuals who get 13 such a cancer from environmental exposure; 14 correct? 15 MS. KAHN: Objection. The 16 question is overly broad and compound. 17 THE WITNESS: It was an -18 can you make it a little bit -- can we go 19 through that step by step in terms of 20 what you're talking about? That was a 21 lot of material you just covered. 22 BY MR. HANLEY: 23 Q Okay. Well, if we need to 24 read back the question, we will. I would 25 ask you to describe the step by step 51 1 process by which these type of cancers 2 develop in people at a cellular level and a 3 molecular level in the terms that we are 4 discussing? 5 MS. KAHN: I'm going to 6 object to that question to the extent 7 that it exceeds the scope of the witness' 8 retention and designation in this case. 9 Lung cancer and mesothelioma are not 10 issues that we asked Dr. Whysner to look 11 into and are not topics about which we 12 expect him to offer opinions at trial. 13 BY MR. HANLEY: 14 Q We're talking about general 15 carcinogenesis. Do you understand that, 16 sir? 17 A Well, yes, but I'd like to -18 if I can have your question read back bit 19 by bit so I can comment on it. To be quite 20 honest, by the time I got to the end I 21 couldn't remember the beginning of it. 22 MR. HANLEY: Okay. I'll ask 23 the reporter to read it back. 24 (Record read as requested.) 25 THE WITNESS: So you said, 52 1 what I had been talking about. I was 2 talking about oxidative damage. Or at 3 least that's the way I interpret your 4 question. 5 BY MR. HANLEY: 6 Q Well, sir, I would ask you to 7 interpret my question in terms of what I 8 asked which was in an individual who 9 develops a cancer due to a particular type 10 of environmental exposure, and I gave you 11 three examples that I trust you would agree 12 with, of examples where that can happen in 13 people. 14 MS. KAHN: Objection. The 15 question is overly broad, compound, 16 vague, uncertain, argumentative and asks 17 for opinions outside the scope of this 18 witness' retention and expert witness 19 designation. 20 THE WITNESS: Well, you 21 mentioned those three examples, and I 22 really -- I'm not very familiar with 23 mesothelioma in terms of what the current 24 thinking is the way in which cancer is 25 produced. 53 1 And lung cancer from smoking 2 is a huge topic. I don't think we know 3 what the agents are within it. I mean 4 there are so many different agents, and 5 one of things that the American Health 6 Foundation that I used to sit through was 7 seminar after seminar after seminar of 8 people trying to figure out what indeed 9 it was within the cigarette smoke that 10 was causing the lung cancer. I mean 11 there's, you know, there's some good 12 theories. There's a lot of work out 13 there. But it's a very complicated 14 chemical mixture, and I wouldn't want to 15 speculate on trying to figure out what, 16 how cigarette smoking causes lung cancer. 17 I have, in terms of AML, you 18 know I have written on this, it's in the 19 published literature. We talked about 20 that. I have a paper out where I think 21 that the -- my best evaluation of the 22 scientific literature has to do with this 23 inhibition of Topoisomerase 2, and I 24 think that that causes certain genetic 25 alterations which lead to acute 54 1 myelogenous leukemia. And those genetic 2 alterations could be repaired, and 3 sometimes they are not and sometimes they 4 are aren't. And when they are not 5 repaired, then that can lead to the 6 development of acute myelogenous 7 leukemia. 8 BY MR. HANLEY: 9 Q And it takes more than one hit 10 from the toxin getting a single or whatever 11 amount of genetic damage that gets 12 replicated, but it takes more than one 13 exposure for the cancer to develop, 14 correct, in AML? 15 A Well, there's certainly a 16 number of different genetic alterations 17 that take place during the development of 18 AML. I guess the presumption would be that 19 it would require several events to take 20 place, as well as perhaps other kinds of 21 factors such as toxicity to the bone marrow 22 for that to happen. 23 Like I say, nobody in their -24 there are several theories. One of them, 25 by the way, being oxidative damage which 55 1 has been proposed in terms of the 2 development of AML. But without 3 specifically knowing exactly how AML is 4 produced, it would be difficult to provide 5 you with an answer. 6 Q One of the things we know is 7 that enough exposure to benzene over time 8 can cause the particular cancer of the 9 blood forming organs, AML; correct? 10 A If -- it can. If we know 11 this, that people who have been exposed to 12 large amounts of benzene have developed -13 have a -- have developed AML because we 14 know that there is a greater incidence of 15 AML among people who are exposed to high 16 levels of benzene. 17 Q And one of the reasons that it 18 takes exposure to certain levels of benzene 19 over time is because the cancer doesn't 20 develop from a single exposure causing a 21 particular genetic error in a cell that 22 replicates; correct? 23 A Could I ask you just one quick 24 question? Are we going to break pretty 25 soon, because we have been going -- 56 1 Q That's fine. If we can finish 2 this particular area of inquiry, then I'd 3 be happy to take a break. 4 A Okay. 5 Q So do you have my last 6 question in mind? 7 A Could you read me the 8 question, please? 9 MR. HANLEY: I ask the 10 reporter to read it back. 11 (Record read as requested.) 12 THE WITNESS: I guess what 13 I'm having a little trouble with is the 14 last part, "that replicates." The error 15 that a single -- would you explain or -16 BY MR. HANLEY: 17 Q Sir, let's see if we can get 18 on the same page. What I'm getting at is, 19 in basic general terms, that when benzene 20 causes an AML, it's because benzene gets to 21 the target organ and causes genetic damage 22 in a cell. That cell and -- that cell 23 replicates, as in the normal course as it 24 would, and now there are two cells with 25 this genetic damage. In our understanding 57 1 of carcinogenesis, generally, we know that 2 this happens, and in fact perhaps happens 3 all the time. Maybe even every day in the 4 human body. And very often, most of the 5 time perhaps, or virtually all of the time 6 perhaps in most of us if we're lucky, every 7 time that happens those cells with the 8 errors either repair -- repair themselves 9 as you described, or the human body is able 10 to repair them, or the cells die and go 11 through this apoptosis process by which 12 they program themselves to die. But 13 sometimes, and in those who develop a 14 cancer, those cells with that genetic 15 damage or one of them does not die and 16 continues on with that genetic damage and 17 then continues to replicate with that 18 particular genetic error, that itself does 19 not mean that the person gets cancer but 20 that particular cell with that genetic 21 error then has another exposure to the 22 toxin and then has further genetic error 23 and further genetic damage, replicates, 24 perhaps then they die, but maybe one of 25 those cells do not die and then further has 58 1 a further exposure to the toxin like 2 benzene, and then now has more, yet more 3 genetic damage. And over a series of time, 4 through a series of hits on these cells 5 with genetic errors, and then they get 6 increasing genetic error. And we don't 7 know how many hits it takes or over what 8 period of time it will take to develop, but 9 in some people they get enough genetic 10 errors replicated that finally this gets to 11 a -- becomes a cell that is cancerous and 12 has it's own uncontrolled cell growth and 13 replication. Is that -- is that consistent 14 with your understanding of some of our 15 understanding of the basic mechanisms of 16 carcinogenesis including for AML? 17 MS. KAHN: Objection. The 18 question is overly broad, vague and 19 uncertain, and it's an incomplete 20 hypothetical. 21 THE WITNESS: Well, I 22 disagree with your characterization as in 23 certain ways. First of all, you 24 mentioned benzene getting to the target 25 organ, and I think we had a fairly 59 1 extensive discussion the other day that 2 it is not benzene itself it's presumed. 3 Benzene has to be metabolized in the 4 liver by cytosome P450 to form certain 5 hydroxylated metabolites. So that has to 6 take place first, and that's, of course, 7 going to depend upon a person's 8 particular metabolism and so forth. 9 BY MR. HANLEY: 10 Q So benzene itself is not the 11 toxin. It's the by-product from the liver 12 that ends up being the toxin, but with that 13 correction in mind, if could you then 14 continue to answer my question. 15 MS. KAHN: Same objection. 16 THE WITNESS: Well, you know, 17 as I said before, I think that there -18 we don't really know exactly how benzene 19 metabolites produce AML. And it would 20 be -- it was kind of a -- your 21 description, there was some parts of it 22 that were -- but I mean I'd have to go 23 through that description bit by bit to, 24 you know, to know whether or not -- I 25 mean, as we said, we haven't really 60 1 nailed down all of the components of the 2 way in which benzene metabolites produce 3 AML, and so it would be difficult for me 4 to agree with all of that that you just 5 said because I'm -- because in the 6 specific case here of benzene production 7 of AML, I think that we just don't have 8 enough information. 9 BY MR. HANLEY: 10 Q I'm just trying to see if we 11 can agree on the basic mechanisms, the very 12 basic mechanism of carcinogenesis. And is 13 not our general understanding of 14 carcinogenesis that the toxin causing the 15 cancer gets to a cell, causes genetic 16 damage, it replicates, and through a series 17 of continued genetic damage and replication 18 of that cell over a period of time with 19 some number, but multiple numbers, whether 20 it's 10 or 50 or 100, that that process 21 over time through repeated toxic exposures 22 that leads to the development of a cancer? 23 MS. KAHN: Objection. The 24 question is overly broad and compound. 25 BY MR. HANLEY: 61 1 Q Would you agree with that 2 general proposition about how cancer 3 develops? 4 MS. KAHN: Objection. 5 THE WITNESS: Well, I think 6 it ignores the, also the epigenetic 7 events that have to take place. You 8 know, it's not -- and apparently at least 9 for a lot of cancers -- and I'm not sure 10 whether or not this applies to AML or 11 not, but it probably does. 12 For a lot of cancers you also 13 have to have an environment and the 14 target organ that is also conducive to 15 the development of the cancer. You know, 16 sometimes it's a frank, you know, 17 toxicity that takes place. So it's not 18 necessarily just the chemical producing 19 or the chemical's metabolites producing 20 any kind of genetic alteration. There 21 may also be some elements of toxicity 22 involved which alter the environment, the 23 general cellular environment. So it's a 24 very complicated issue and to try to sort 25 of take a generalized scheme and apply it 62 1 to any particular cancer is an -- I think 2 is going to be very speculative. 3 BY MR. HANLEY: 4 Q What do you mean by 5 "epigenetic event"? 6 A Epigenetic events are those 7 that impact general expression. In other 8 words, the genetic material is producing 9 through the -- through messenger RNA and 10 through protein production is -- the gene 11 express themselves. But other things -12 and genetic events can alter gene 13 expression, but you can also alter gene 14 expression through the interaction with 15 hormones and other -- and chemicals. For 16 example, estrogens. 17 In general, estrogens are not 18 thought to produce genetic damage, yet it's 19 widely believed that they are responsibile 20 for increased risk of breast cancer, but 21 they do that through, presumably, some kind 22 of epigenetic mechanism where they actually 23 alter the gene expression rather than 24 altering the genes themselves. 25 Q Are you familiar with the 63 1 multi-hit theory of carcinogenesis -2 MS. KAHN: Objection. 3 Q -- in the context of 4 environmentally caused cancers? 5 MS. KAHN: Objection. Overly 6 broad, vague and ambiguous. 7 THE WITNESS: And I think 8 maybe I even mentioned this last time, 9 that used to be thought to be -- the 10 multi-hit theory came out, I think, in 11 the 1950s, 1960s when we first began to 12 understand that some chemicals could 13 produce mutations, and, of course, that 14 was basis of the Aims Test and so forth. 15 But, I mean, our understanding of the 16 process of cancer production, I think, 17 has gotten a lot more sophisticated than 18 the -- we've gone beyond -- used to be 19 thought that that's all it required, just 20 several genetic events that the chemical 21 caused and that was the multi-hit 22 process. But I think that -- I think 23 that there are a lot of other things 24 involved, like I mentioned all the 25 epigenetic events that can take place. 64 1 Can we take a break? 2 MR. HANLEY: Yes. 3 (At this time a brief recess was held.) 4 BY MR. HANLEY: 5 Q Sir, the 1994 Dosemeci article 6 that is attached as part of Exhibit 1, you 7 have that in mind? 8 A Yes. 9 Q Isn't it true that the 10 exposures that they were assessing and 11 describing and studying in particular were 12 the benzene exposures of those workers? 13 A That's what they were 14 quantifying. 15 Q And that was in fact the focus 16 of their study and the epidemiologic 17 results that they were attempting to find 18 was relating to these workers' benzene 19 exposure; correct? 20 A That was the primary purpose, 21 yes. 22 Q The 1997 Hayes article, 23 benzene and dose related incidents of 24 hematologic neoplasms in China, do you have 25 that report there with you? 65 1 A Yes. 2 Q That study? 3 If you look at the abstract, 4 and in the Results section of the abstract 5 which begins at the bottom of the first 6 page of the article in the abstract and the 7 bottom of the fist column. Do you see 8 where it says "Results: For workers 9 historically exposed to benzene at 10 levels -- at average levels of less than 10 11 parts per million, the relative risk for 12 all hematologic neoplasms combined was 13 2.2." Do you see that? 14 A Yes, I see. 15 Q Do you agree with that 16 statement? 17 A Well, in the sense that it -18 I mean they are, in this particular 19 statement, they are lumping together all of 20 these different neoplasms which would 21 include the acute myelogenous leukemia, so 22 you can't really say what it's due to. And 23 also I want to point out that this 10 parts 24 per million is not 10 parts per million 25 years. This is the actual exposure level. 66 1 And with those explanations, yes, I agree 2 with what the statement, and that's what 3 they found. 4 Q If you go down to -- skip 5 through a couple of sentences, further on 6 in that same abstract, now, about a third 7 of the way down in the second column on the 8 first page, do you see where it says, 9 "Workers with 10 or more years of benzene 10 exposure had a relative risk of developing 11 non-Hodgkin's lymphoma of 4.2."? 12 A As I mentioned before, in 13 terms of all their industries, that's what 14 they found when combining all of these 15 industries. And as I mentioned before, 16 they later in the year 2000 were concerned 17 that some of this might be due to chemical 18 exposures other than benzene. 19 Q Do you agree with the 20 statement that I read? 21 A Well, with the understanding 22 that they weren't -- these people were 23 exposed to more than just benzene. They 24 found, among all of those workers, an 25 increase relative risk for -- I mean, I 67 1 would say there's -- there's benzene 2 exposure plus exposure to other chemicals. 3 Q Do you agree with the 4 statement as stated? 5 A No, because -6 MS. KAHN: Objection. Asked 7 and answered. 8 THE WITNESS: As I said, I 9 believe that they -- because it's an 10 abstract statement, they didn't mention 11 all of the other exposures that these 12 workers had. So if I were writing this, 13 I would say, Benzene with 10 or more 14 years of benzene -- exposure to benzene 15 and other chemicals involved in their 16 industry had a relative risk of 17 developing non-Hodgkin's lymphoma; and, 18 which is what I mentioned that they later 19 pointed out in their 2000 publication. 20 Q Are you prepared to point to 21 anything other than that one sentence you 22 read for me in that 2000 exposure for your 23 argument here that they raised concerns 24 about chemicals other than benzene or other 25 petrochemical hydrocarbon solvents? 68 1 A Well, I think if you look at 2 table one in this paper which is on the 3 next page -- two pages. 4 Q Please refer to which paper. 5 A Hayes, 1997 paper. They list 6 the relative risks for NHL -- sorry. 7 (Interruption.) 8 THE WITNESS: Sorry. They 9 are delivering lunch. We can wait for a 10 while. 11 Can we go off the record for 12 just a second, I may have to do something 13 here. 14 (Discussion was held off the record.) 15 THE WITNESS: The risk, the 16 relative risk for NHL in the various 17 industries, and so I would again say that 18 the -- what they were referring to in 19 their 2000 paper is actually going back 20 to this where you see that for the 21 chemical workers, the relative risks are 22 much higher, twice as high just about, 23 than any of the other industries. And 24 for some of the industries with benzene 25 exposure the relative risks are 1.6, 1.6. 69 1 And, actually, in the rubber industry, 2 even though it's a 4.0, it's only 3 involving one case of non-Hodgkin's 4 lymphoma. So I -- so this would indicate 5 to me that there's a wide variation 6 depending upon the particular industry 7 with the highest being in the people who 8 are in the chemical industry which, as we 9 discussed with this Dosemeci article, the 10 people in the chemical industry were 11 involved in pesticide production and 12 they -- also organic synthesis reactions. 13 BY MR. HANLEY: 14 Q But my question was whether 15 there was any statement, other than the one 16 sentence you read to me from the 2000 17 article which you believe supports your 18 argument that the chemicals at issue are 19 being referred to are anything other than 20 benzene or other petrochemical hydrocarbon 21 solvents? 22 A Other than my interpretation 23 of what they are referring to in the -- I 24 mean, I mean, table one is not exactly a 25 statement, but it is an indication of the 70 1 underlying data that has to do with that 2 statement in their 2000 paper. 3 Q So the answer is no, other 4 than that sentence and your interpretation 5 of the table, there is no other statement 6 that you would refer to? 7 A Well, I believe that there 8 were some other statements, and I can't 9 find them right now, that talked about 10 other exposures of the people in other 11 industries, but I can't really locate it 12 right now. 13 So sitting right here, as I 14 said, I think in -- I'm not sure whether it 15 was the Hayes paper or whether it was the 16 Dosemeci paper or whether it was a Travis 17 paper or whether it was one of the other 18 papers in this whole series where they 19 discuss this issue. I believe that there 20 was another statement about the -- the 21 different exposure, but I can't locate it 22 right now sitting here. 23 Q And you'll agree that the only 24 chemical that is focused upon, measured and 25 analyzed in terms of its potential 71 1 causative association with any of these 2 cancers of the blood forming organs in all 3 of these studies from this research of the 4 Chinese workers is benzene? 5 A Well, that is the one that 6 they quantify in these studies, and, as you 7 mentioned, the focus of this was to 8 determine the associations between 9 quantified benzene exposure and 10 non-Hodgkin's lymphoma, but obviously there 11 were other chemicals that these people were 12 exposed to. 13 Q Is that a way of saying yes, 14 with that explanation? 15 A It's my way of saying what I 16 did say, which was that this is the 17 quantified benzene exposure, but they did 18 not quantify the exposure to other 19 chemicals and -20 Q Let me ask my original 21 question be read back, and I ask you, sir, 22 for a yes or no with whatever explanation 23 you feel necessary. 24 (Record read as requested.) 25 THE WITNESS: That is what 72 1 they focused on in these papers. 2 BY MR. HANLEY: 3 Q Is that a way of saying yes? 4 A Yes. 5 Q Thank you. 6 Now, going back to the 1997 7 Hayes article. If we continue where I last 8 left off, that sentence continues to say, 9 "And the development of this neoplasm was 10 linked most strongly to exposure that had 11 occurred at least ten years before 12 diagnosis, i.e, distant exposure." 13 Do you agree with that 14 statement? 15 A Well, there's a little more -16 I mean, the relative risk for five to nine 17 years in table one was 3.3, and a greater 18 than 10 was 4.2. So there is a slightly 19 greater risk for greater than 10 compared 20 to less than 10, but it's not great. It's 21 a difference between 3.3 and 4.2. 22 Q Is that a way of saying yes 23 with that explanation? 24 A I think that's what I said. 25 Q So you agree with that 73 1 statement with that explanation? 2 A With that explanation. 3 Q All right. Now, if we go down 4 a little further to the third to the last 5 sentence of the abstract, right after where 6 they state "Conclusions:" 7 A Um-hum. 8 Q They state, "The results of 9 this study suggests that benzene exposure 10 is associated with a spectrum of 11 hematological neoplasms and related 12 disorders in humans." 13 Do you agree with that 14 statement? 15 A I think "suggest" is the right 16 word. Yes, I agree with that. I don't 17 think that they concluded that, or it's a 18 -- it's a -- something that one can say 19 there's a causal relationship, but there's 20 a suggestion from this study. 21 Q The next sentences says, 22 "Risks for these conditions are elevated at 23 average benzene exposure levels of less 24 than 10 ppm and show a tendency, although 25 not a strong one, to rise with increasing 74 1 levels of exposure." 2 Do you agree with that 3 statement? 4 A Again, with -- yes, I do, and 5 with the understanding that we're not 6 talking about ppm years, but we're talking 7 about 10 ppm exposures which they have 8 characterized in the paper of constant ppm. 9 In other words, when people have been 10 exposed to 10 ppm constantly for a given 11 period of time. And that the dose response 12 tendency, I agree, is not very much. 13 Q So you agree with that 14 statement then? 15 A I think that's what I just 16 said. That with those -- with that 17 explanation, that I want to make sure we 18 understand that we're talking about parts 19 per million. Ten parts per million, of 20 course, is ten times the current TOV in the 21 United States. 22 Q And when they refer to the 23 risk for, quote, unquote, these conditions, 24 the conditions they are referring to are 25 the spectrum of hematologic neoplasms and 75 1 related disorders in humans. In other 2 words, cancers of the blood forming organs 3 including various lymphomas and leukemias; 4 correct? 5 MS. KAHN: Objection. Calls 6 for speculation as to what they refer to 7 and it's overly broad and compound. 8 THE WITNESS: Yes, I don't 9 know that I can really -- I mean, from 10 the abstract it's not really clear 11 exactly what they are referring to. 12 BY MR. HANLEY: 13 Q What do you believe that they 14 are referring to in the statement that, The 15 results of this study suggests that benzene 16 exposure is associated with a spectrum of 17 hematologic neoplasms and related disorders 18 in humans. What is the spectrum of 19 hematologic neoplasms and related disorders 20 in humans that they are referring to, sir? 21 A I don't know what "spectrum" 22 means. A variety, but they don't specify 23 which ones particularly, so I really 24 couldn't say. 25 Q In the context of this study 76 1 and in the context of this article in 2 particular, does that spectrum that they 3 refer to not include AML, NHL and other 4 cancers of the blood forming organs? 5 A Well -6 MS. KAHN: Objection. It's 7 overly broad, vague and ambiguous. 8 MR. HANLEY: No, it's not. 9 Go ahead, Doctor. 10 THE WITNESS: I don't exactly 11 know what particularly they are talking 12 about with this spectrum. You know, I 13 would -- I would be reading something 14 into the paper here in their conclusions, 15 but, you know, that's the best answer I 16 can give you. 17 BY MR. HANLEY: 18 Q So your answer is you don't 19 know what spectrum of hematologic neoplasms 20 and related disorders in humans that they 21 are referring to? 22 A I don't know -- for example, I 23 don't know what they mean by "related 24 disorders." 25 Q And reading this -- you've 77 1 read this entire study, I take it, many 2 times? 3 A I would say I've read it. You 4 know, recently I've read it over once and I 5 read it a couple of times, several times in 6 the past, but I don't know what they mean 7 by "related disorders" for example, so it 8 makes me a little bit curious as to what 9 they mean by, "hematologic neoplasms and 10 related disorders." 11 Q So reading this study as many 12 times as you read it, you don't know what 13 they are referring to when they refer to in 14 their abstract as a spectrum of hematologic 15 neoplasms? 16 MS. KAHN: Objection. Asked 17 and answered, argumentative. 18 THE WITNESS: I think I've -19 I think I have answered as best as I can. 20 BY MR. HANLEY: 21 Q Well, you made specific 22 reference to the related disorders and 23 described your nonunderstanding of what 24 they mean by that; is that right? 25 A Well, if you refer me to 78 1 something where they define that, I would 2 be happy to comment on that. 3 Q I'm asking for your opinion 4 based on having read the article, sir. 5 A Which I've given to you. 6 Q Do you know what they mean 7 when they refer to a spectrum of 8 hematologic neoplasms? 9 MS. KAHN: Objection. Asked 10 and answered. 11 THE WITNESS: As I said, I 12 would be speculating if I tried to 13 interpret what they meant by the spectrum 14 of hematological neoplasms in this 15 particular sentence. 16 BY MR. HANLEY: 17 Q Well, what hematologic 18 neoplasms do the results of this study 19 suggest that benzene exposure is associated 20 with? 21 A Well, I mentioned to you the 22 fact that I don't think it's clear, for 23 example, that it includes NHL based upon 24 what they have written in the year 2000 and 25 what I see in the table regarding the 79 1 various industries and how the relative 2 risks for NHL are so inconsistent among the 3 various industries. 4 Q You would agree that their 5 reference to a spectrum of hematologic 6 neoplasms includes AML? 7 MS. KAHN: Objection. Calls 8 for speculation. The article speaks for 9 itself. 10 THE WITNESS: I can't give 11 you a better answer than I already have. 12 I don't know what they mean by spectrum. 13 If they had said what that spectrum is, 14 that would be one thing. I would presume 15 that it includes AML, but the term is -16 the wording that they are using is kind 17 of vague. 18 BY MR. HANLEY: 19 Q Would you presume that it 20 includes anything else? 21 A I don't know. 22 Q Would you agree that it 23 necessarily infers more than one cancer of 24 the blood forming organs? 25 MS. KAHN: Objection. Vague 80 1 and ambiguous. 2 THE WITNESS: Meaning in 3 terms of suggesting something? 4 BY MR. HANLEY: 5 Q Yes, sir. In terms of what 6 they said. 7 A Well, I don't know because, 8 you know, for example, they have on table 9 two, again, they have NHL, they have 10 leukemia, and then they have ANLL and they 11 have ANLL/MDS and then they have other 12 leukemias. And I don't know exactly what 13 they are referring to in terms of that 14 analysis because they've obviously referred 15 to all leukemias, but then they have 16 referred to ANLL, and then they have 17 referred to ANLL/MDS, so it's kind of 18 difficult for me to figure out exactly what 19 they are talking about here. 20 Q And you don't think that the 21 spectrum of hematologic neoplasms that they 22 refer to include all of those? 23 A I don't know. 24 MR. HANLEY: All right. I 25 have a few more questions about this 81 1 article that I want to ask you, if you 2 don't mind, before lunch unless you 3 really feel like you want to take lunch 4 right now, then we can. 5 THE WITNESS: No, we can go 6 on. 7 BY MR. HANLEY: 8 Q If you go to the discussion 9 section of the article itself on page 1068. 10 Now, if you look at the first sentence of 11 that discussion section where it says, 12 quote, "In earlier reports we showed that 13 employment in benzene exposed jobs in 14 China, regardless of the exposure level, 15 was linked to hematologic disease mortality 16 and the incidence of leukemia, NHL, MDS and 17 aplastic anemia" unquote. 18 Do you agree with that 19 statement, sir? 20 A Well, I don't know that I have 21 their earlier reports with me, so I don't 22 know if I can agree with that statement. 23 Q You see that it refers to two 24 studies specifically; correct? 25 A Refers to two. 82 1 MS. KAHN: The reference to 2 the two earlier reports are footnotes 22 3 and 23. 4 MR. HANLEY: You know, I'm 5 not asking you to testify, Counsel. 6 MS. KAHN: Just, the witness 7 doesn't know if he has them with him. It 8 sounded like he wanted to look at them to 9 answer the question. So I just wanted to 10 be helpful and tell him what they are so 11 he can see if they are in his materials 12 or not. He may not be able to answer 13 your question without looking at them. 14 MR. HANLEY: I would 15 certainly think if he was looking at the 16 study he would see the footnotes for 17 himself, Coach. 18 MS. KAHN: Just trying to be 19 helpful. 20 BY MR. HANLEY: 21 Q And my question was, sir, you 22 see the two studies to which he's 23 referring? 24 A Yes, I know the question. I'm 25 looking for the studies. 83 1 Well, I have one of them but I 2 don't have the other one. 3 Q Have you read both of those 4 studies in the past? 5 A I can't recall. And with the 6 Hayes article, Environmental Health 7 Perspectives often republishes the same 8 thing that is in another journal. That's 9 my recollection. And to be quite honest, I 10 can't tell you if the reason I don't have 11 it with me is because it's duplicative of 12 this other paper or not, but I can't really 13 tell you right now. 14 Q The two references they make 15 to footnotes 22 and 23 in the first line of 16 the Discussions section, in the first 17 sentence of the Discussion section, do you 18 know whether or not you have read either or 19 both of those studies? 20 A Well, I have one of the 21 studies with me. I have the Yen paper with 22 me. 23 Q The 22 or 23? 24 A That's 22. 25 Q I take it you have read that 84 1 study? 2 A Yes. 3 Q Have you read it recently? 4 A No, because I focused -- I 5 think I focused on the Hayes because the 6 Hayes '97 and the 2000, I think, were 7 reporting the same study. And they were 8 more recent publications so I focused on 9 those. 10 Q And the study referred to by 11 footnote 23, is that a study that you have 12 read? 13 A I believe so. 14 Q Do you agree that in those two 15 reports that the investigator showed that 16 employment in benzene exposed jobs in 17 China, regardless of the exposure level, 18 was linked to hematologic disease mortality 19 and the incidence of leukemia, NHL, MDS and 20 aplastic anemia? 21 MS. KAHN: Objection. Overly 22 broad, compound, calls for speculation 23 based upon the witness' testimony, and 24 those documents which are not before us 25 speak for themselves. 85 1 THE WITNESS: What I see is 2 they reported the same thing that the 3 Hayes -- I believe they reported the same 4 thing that the Hayes 1980 -- I mean, 5 excuse me, '97 article reported. I don't 6 see any difference except they didn't 7 need -- the non-Hodgkin's lymphoma that 8 they reported here -- well, there's a 9 discrepancy. There's non-Hodgkin's 10 lymphoma data that they reported here 11 they found a relative risk of 3.0 with a 12 confidence limit that it included one 13 which is probably -- wouldn't make it 14 statistically significant. And the same 15 -- for some reason they dropped one of 16 cases of non-Hodgkin's lymphoma, 17 apparently in the '97 report, because 18 there are only 16 cases of NHL versus the 19 17. So, I don't -- I guess I don't 20 understand -- and then the result is not 21 statistic -- clearly not statistically 22 significant in their '97 paper. So 23 there's something different going on. 24 They apparently must have decided that 25 one of these cases of NHL and the exposed 86 1 workers wasn't part -- shouldn't be part 2 of the cohort. 3 BY MR. HANLEY: 4 Q Sir, you haven't answered my 5 question. My question was: Do you agree 6 that those two reports -- that in those two 7 reports they showed that employment in 8 benzene exposed jobs in China, regardless 9 of the exposure level, was linked to 10 hematologic disease mortality and the 11 incidence of leukemia, NHL, MDS, and 12 aplastic anemia? 13 MS. KAHN: Objection. Calls 14 for speculation, overly broad, compound, 15 argumentative, asked and answered. Those 16 documents speak for themselves. 17 THE WITNESS: Well, this is 18 an introductory statement of about what 19 they previously found. But as I said, 20 this is -- this is reporting what this 21 earlier paper -- well, I don't even know 22 if it reports what the earlier paper 23 found because the confidence limit 24 includes one which is usually -- it has 25 to be above one in order to be considered 87 1 statistically significant. And in the 2 '87 article they dropped, apparently, one 3 of the cases, and then it's no longer 4 statistically significant. So maybe what 5 they are saying, we showed this but it's 6 no longer true anymore. I don't know. I 7 would have to -- I wouldn't want to take 8 that statement out of context. 9 BY MR. HANLEY: 10 Q Sir, are you saying that no, 11 you do not agree with that statement? 12 A I don't agree with that 13 statement in the sense that if the 14 earlier -- well, I agree that the earlier 15 report reported that, but the current 16 report that they are talking about here did 17 not report that. Because whereas -- well, 18 it didn't even report that. Because, like 19 I said, the relative risk includes 1.0, and 20 I don't consider that to be a statistically 21 significant finding, especially given the 22 fact that when they apparently -- this 23 later report of this study doesn't even 24 have one of those cases, and now the lower 25 confidence limit is -- now I lost the page 88 1 here. 2 Q Sir, I haven't asked for your 3 analysis, so you're not answering my 4 question. 5 A I think I did answer. 6 Q I simply asked you the 7 question of whether or not you agree with 8 these authors that the two studies that 9 they cite show what they say they showed? 10 Do you agree or disagree with these authors 11 when they say that these two articles 12 footnoted and referenced as 22 and 23 13 showed that employment in benzene exposed 14 jobs in China, regardless of the exposure 15 level, was linked to hematologic mortality 16 and the incidence of leukemia, 17 non-Hodgkin's lymphoma, MDS and aplastic 18 anemia, do you agree with that statement or 19 do you disagree with that statement? 20 MS. KAHN: Objection. Asked 21 and answered. 22 MR. HANLEY: It's been asked. 23 It hasn't been answered. 24 THE WITNESS: I guess, based 25 upon what I have just said, I would have 89 1 to disagree with that statement because I 2 don't believe that it shows a 3 statistically significant result, and in 4 their update they have dropped one of the 5 cases which made it even less of a 6 statistically significant result. 7 BY MR. HANLEY: 8 Q Thank you for answering my 9 question. 10 That only took about 15 11 minutes. 12 The next sentence in the 13 Discussion section says, quote, "This 14 investigation provides evidence that 15 benzene may cause hematologic neoplasms and 16 related disorders at average exposures of 17 less than 10 ppm and accumulative exposure 18 of less than 40 ppm years." 19 Do you agree or disagree with 20 that statement? 21 A I think the operative word 22 here is "may." And if you look at the -- I 23 agree -- well, let me just say that the 24 operative word here is -- let me look at 25 the data here for a second. 90 1 ANLL less than 40, there is an 2 increased relative risk but the lower 3 confidence interval is .5. So it may, but 4 as I say it may not because this is not a 5 statistically significant result. 6 Q So you would agree then with 7 that statement as it's phrased? 8 MS. KAHN: Objection. Asked 9 and answered. 10 THE WITNESS: Well, as it's 11 phrased that it may, I agree the 12 statement says that it may. But I want 13 to point out that it's not a 14 statistically significant result, and I 15 want to emphasize the word "may." 16 BY MR. HANLEY: 17 Q Is that to say then that you 18 cannot rule out that benzene causes some 19 number, more than one, of hematologic 20 neoplasms and related disorders at the 21 levels that they describe? 22 MS. KAHN: Objection. 23 Compound, over broad, vague and 24 ambiguous. 25 THE WITNESS: Well, I don't 91 1 think you can ever prove a negative. Is 2 that what you're trying to say? 3 BY MR. HANLEY: 4 Q Yes. I'm asking, you agree 5 that you can't rule out that benzene causes 6 some multiple number of hematologic 7 neoplasms at average exposures less than 10 8 ppm and cumulative exposures of less than 9 40 ppm years? 10 MS. KAHN: Objection. Over 11 broad, compound, vague and ambiguous. 12 THE WITNESS: Based upon this 13 data, I don't think there's any 14 indication one way or the other. 15 BY MR. HANLEY: 16 Q So you agree that it cannot be 17 ruled out? 18 A Well, I think it's -19 MS. KAHN: Objection. 20 Argumentative, overbroad. 21 THE WITNESS: I think that I 22 would have to interpret it that you can't 23 really say. Based upon these numbers, 24 there's not a statistically significant 25 result and it doesn't really provide you 92 1 any information to say one way or the 2 other. 3 BY MR. HANLEY: 4 Q If you go on a little further 5 in that Discussion section to the next 6 column and look at the first full sentence 7 in the last column, do you see where it 8 says, quote, "Risk for NHL increased with 9 duration of exposure and was strongest 10 among workers who had distant greater than 11 or equal to ten years exposure" unquote. 12 Do you see where it says that? 13 A Yes, the first sentence, okay. 14 Q Do you agree with that 15 statement? 16 MS. KAHN: Objection as 17 speculative as to what the statement 18 means. 19 (Witness perusing document.) 20 A Well, I have to say that the 21 relative risks in this -- described in 22 this program, I'm not exactly sure what 23 they mean by risks, because risks sometimes 24 has a -- and I know in California law I've 25 heard it has a particular meaning. So I 93 1 wouldn't -- want to make sure that we're 2 not talking about any kind of legal 3 definition of risk. 4 What they found was that the 5 relative risk was greater -- well, I think 6 I mentioned this before, I don't see a big 7 difference between the 4.2 greater than 10 8 and the 3.3 for five to nine years. There 9 is a small increase, but it's not a great 10 difference between those two for NHL. 11 Q Do you agree or disagree with 12 that sentence? 13 A As I said, I don't agree with 14 the way that they use the word "risk," 15 because I think what they are talking about 16 the relative risks that they have found in 17 this study, I don't think that that implies 18 that there is a true risk. But I think 19 that this is a -- I mean I think it's 20 just -- I think it's just not worded very 21 well because there might be some ambiguity 22 in the way one would interpret the word 23 "risk." 24 Do you think we can take that 25 break now? 94 1 Q This is my last question on 2 this article is this one sentence and then 3 I'm done. I'm just trying to understand 4 your testimony about it. 5 What is ambiguous about their 6 use of the word "risk" in that sentence? 7 A I think I explained that a 8 couple of times. 9 Q Do you agree or disagree that 10 their study shows that the risk for 11 non-Hodgkin's lymphoma increased with 12 duration of exposure? 13 A You know, we had this whole 14 discussion when we were talking about the 15 abstract because they said almost the same 16 thing in the abstract except they used the 17 word RR which is "relative risk," and I 18 think we covered this already when we were 19 talking about the abstract. 20 Q Defining "risk" as you deem 21 appropriate and necessary, do you agree or 22 disagree that the risk for non-Hodgkin's 23 lymphoma increased with the duration of 24 exposure in this study? 25 MS. KAHN: Objection. Asked 95 1 and answered. 2 THE WITNESS: What I think I 3 disagree with -- I think the implication 4 that there's a big difference between 5 five to nine years and greater than 10, 6 one cannot say that. I mean that's where 7 I'm having the difficulty in terms of 8 relative risk, because we're going from 9 .7 to 3.3 and then to 4.2. So, I think 10 the way I would look at this information, 11 it's statistically significant above 10, 12 but between five and nine it's 3.3 versus 13 4.2, and I don't think that -- if the 14 implication is that there's a big 15 dividing line between 10 versus less than 16 10, I'm not sure that one can conclude 17 that from this data. 18 BY MR. HANLEY: 19 Q Then are you saying that you 20 disagree with the statement that the risk 21 for non-Hodgkin's lymphoma increased with 22 the duration of exposure? 23 A The way that -- I think that 24 it's fair to say that the relative risk 25 measured in this study, what they found, 96 1 they found a greater relative risk with 2 duration of exposure, but I think that's 3 all one can say. 4 Q So you agree then that they 5 found increased risk with increased 6 duration of exposure? 7 A Yes, but like I said -8 MS. KAHN: Objection. 9 Mischaracterizes the witness' testimony, 10 vague and ambiguous, argumentative. 11 THE WITNESS: As I said, they 12 found a greater relative risk in terms of 13 what we -- they measured relative risk 14 for non-Hodgkin's lymphoma in the longer 15 duration exposures. 16 BY MR. HANLEY: 17 Q All right. And I believe you 18 started your answer by saying "yes," with 19 that explanation that you just gave; 20 correct? 21 A Well -22 Q I want to make sure we're 23 clear on our record because you were 24 interrupted by counsel's objection. So I 25 want to make it clear that the answer to my 97 1 last question was, yes, with the 2 explanation that you gave following 3 counsel's objection? 4 MS. KAHN: Objection to the 5 extent that mischaracterizes what the 6 witness said. 7 MR. HANLEY: Does not. 8 BY MR. HANLEY: 9 Q Go ahead, Doctor. 10 A What this study showed -11 Q Sir, I didn't ask you -- I 12 asked a very specific question. My 13 question was: In response to my last 14 substantive question your answer was, yes, 15 interruption by counsel, then continuing 16 with your explanation; correct? 17 A I don't know. I've lost 18 the -- I've lost the train of thought here. 19 MR. HANLEY: Then let me ask 20 the court reporter to read back the 21 question that I asked about, your answer, 22 and then my follow-up question. 23 MS. KAHN: For the record, I 24 was not intending to interrupt any 25 testimony. We're doing this deposition 98 1 by telephone. And if one person is 2 speaking, there's no way to know if 3 another person is speaking at the same 4 time. So I apologize if I did interrupt 5 an answer, that certainly was not my 6 intent. 7 THE WITNESS: And I 8 apologize, I did not give my counsel a 9 chance to proffer her objection before I 10 answered the question. 11 (Record read as requested.) 12 BY MR. HANLEY: 13 Q So, Doctor, having had the 14 record read back to you, it's correct that 15 what I asked you if the risk increased for 16 non-Hodgkin's lymphoma when the duration of 17 exposure increased in this study, your 18 answer is yes with the explanation that 19 you've given; correct? 20 A Yes, with the explanation that 21 we're talking about relative risk in this 22 study. We're not talking about an actual 23 risk. 24 Q How do you distinguish a 25 relative risk versus an actual risk? 99 1 A Well, I just -- I think that 2 it's a question of whether or not one can 3 use the results of this information and 4 generalize. I think that the relative risk 5 is a measurement, to me, if -- if in some 6 context, because as I mentioned before I 7 get involved in risk assessment procedures. 8 The question of risk means a sort of 9 generalizable term, and so I want to 10 make -- I just, I just wanted to make clear 11 the distinction between a relative measured 12 risk in a study and something then that one 13 can generalize about. 14 Q Would you agree, sir that 15 relative risk is a term of art in 16 epidemiology? 17 A Term of art. Not exactly sure 18 what you mean by that. 19 Q Would you agree that relative 20 risk is a specific epidemiologic term with 21 a defined meaning in the field of 22 epidemiology? 23 A Yes. 24 Q Would you agree that there is 25 no such term "actual risk" in the field of 100 1 epidemiology? 2 A Actual risk? 3 Q Correct. 4 A I don't know. 5 Q Is there a such a thing as 6 specifically defined term "actual risk" in 7 epidemiology -8 MS. KAHN: Objection. Vague 9 and ambiguous. 10 Q -- in the way that relative 11 risk is? 12 A I have not heard that term 13 used so I really couldn't say. 14 Q And another term, a specific 15 term in epidemiology is "attributable 16 risk", would you agree with that? 17 A I don't know that terminology, 18 what exactly is meant by that. 19 Q Would you be able to describe 20 or define the difference between relative 21 risk and attributable risk as those terms 22 are understood in the field of 23 epidemiology? 24 A If you would like to show me 25 or give me a definition for what you 101 1 understand as attributable risk, I would be 2 glad to try to explain that. 3 Q I'm not the expert here, sir. 4 I'm asking you to. Are you able to 5 distinguish and define the terms "relative 6 risk" compared to "attributable risk" as 7 those terms are understood and used in the 8 field of epidemiology? 9 MS. KAHN: Objection. The 10 question lacks foundation and calls for 11 speculation based on his testimony that 12 he's not familiar with the term 13 "attributable risk" in the field of 14 epidemiology or his use by you in the 15 field of epidemiology. 16 THE WITNESS: I think that 17 was in an answer that I gave to the 18 question. So based upon that, I don't 19 know how I could answer your question. 20 BY MR. HANLEY: 21 Q Is that to say that you don't 22 know the answer to that, you don't know -23 you would not be able to define or 24 distinguish for us the difference between 25 "attributable risk" and "relative risk" as 102 1 those concepts are understood in the field 2 of epidemiology; correct? 3 MS. KAHN: Same objection. 4 THE WITNESS: Could you 5 repeat what I said about attribute risks 6 so that -7 BY MR. HANLEY: 8 Q No, sir, we're not reading 9 back your answers. My question is -10 A We read back my answers 11 several times already. 12 Q Sir, we don't read back 13 testimony so that you can repeat something. 14 We don't need it, it's already written 15 down, sir. 16 My question is this: Are you 17 able to define and distinguish the concept 18 of "relative risk" from "attributable risk" 19 as those terms are understood in the field 20 of epidemiology? 21 MS. KAHN: Objection. The 22 question is argumentative, it's 23 harassing, it's asked and answered, and 24 if the witness wants to read back 25 testimony to refresh his recollection or 103 1 refresh anything as you have asked him to 2 do so many times, it's perfectly okay. 3 THE WITNESS: I think that 4 based upon what I've said before, as I 5 mentioned before, I'm not familiar with 6 the term "attributable risk", so it would 7 be difficult for me to try to speculate 8 how that is different from "relative 9 risk." 10 BY MR. HANLEY: 11 Q So your answer to the question 12 is you are not able to do that; correct? 13 A I think I just answered that 14 question. I said I am not familiar with 15 the term -- the terminology, the specific 16 terminology sitting here. I may have read 17 it in the past, but right now in terms of 18 what you mean by attributable risk, I'm not 19 able to differentiate that from relative 20 risk. 21 Q All right. My last question 22 now on this article, and that is, do you 23 agree or disagree that in this 1997 Hayes 24 study that the risk for non-Hodgkin's 25 lymphoma increased? 104 1 Would you agree that in this 2 1997 Hayes study the authors found that the 3 increased risk for non-Hodgkin's lymphoma 4 was strongest among workers who had a 5 distant exposure to the benzene? 6 MS. KAHN: Objection. As 7 framed the question is vague and 8 ambiguous and undefined. 9 BY MR. HANLEY: 10 Q Distant as in equal to or 11 greater than ten years? 12 MS. KAHN: It's also overly 13 broad. 14 THE WITNESS: I don't think 15 that based upon the data that I see in 16 this paper that one can conclude that. 17 BY MR. HANLEY: 18 Q So you disagree with their 19 conclusion on their point? 20 A No, I am disagreeing with your 21 statement just now. We've already 22 discussed, at length, what they have said 23 in the paper. 24 Q Well, you agree that that is 25 what they said in this last sentence we 105 1 read, and -- but you disagree with what 2 they say; is that correct? 3 A That's not the question you 4 asked me. You asked me what my opinion was 5 about the issue of duration of exposure, 6 and I answered it. I said, what I see in 7 this data -- we've already gone over this, 8 you know, for 10 or 15 minutes about what 9 they said and whether or not I agreed or 10 disagreed with it. But you asked me my 11 opinion. And my opinion is, based upon the 12 information that I see in this paper in 13 table 2, I don't think one can necessarily 14 conclude that the break off point -- you 15 can make a break off point of ten years. 16 Q And my point is, sir, that 17 they said that it did, and you disagree 18 with that; correct? 19 MS. KAHN: Objection as to 20 what they said. The article speaks for 21 itself. 22 THE WITNESS: I've answered 23 this question so many times already, and 24 I'm afraid that each time you're asking 25 me to answer it, you're going to make 106 1 something out of a slight difference in 2 which I've answered it. 3 All I can tell you is what I 4 have said in the past. I've answered 5 that question. And I just answered your 6 question about what my interpretation of 7 the data is. 8 BY MR. HANLEY: 9 Q Sir, this is relatively 10 straight forward, I'm not trying to trick 11 you or anything like that. 12 A Then why do you keep on asking 13 me the same question over and over and over 14 again? 15 Q Because I'm not getting an 16 answer. 17 A Yes, you did. 18 Q You're not answering my 19 question, sir. And if you answer my 20 question, I can move on. But if you don't 21 answer my question, I will not move on 22 until I get an answer. 23 A You asked me -24 Q I am asking you yes or no 25 questions. So, you can give all the 107 1 explanation you want, but I'm entitled to a 2 yes or no or I don't know, but I'm entitled 3 to straight answer. 4 My question is, is a straight 5 question: Do not the authors of this 6 article find that the risk of non-Hodgkin's 7 lymphoma not only increases with the 8 duration of exposure to benzene but was 9 strongest among the workers who had a 10 distant exposure to that, and that's what 11 they find, and you disagree with that; is 12 that right? 13 MS. KAHN: Objection. The 14 article speaks for itself. The question 15 has been asked and answered. If you 16 don't like the witness' answer, that's 17 not his fault. It's a compound overbroad 18 question and it has been asked and 19 answered. 20 THE WITNESS: If you want to 21 point to a specific statement that they 22 are making in this paper, I will comment 23 on it, because you're asking me if I 24 agree with something that they have said. 25 If you point to the statement, then we'll 108 1 talk about it. 2 BY MR. HANLEY: 3 Q That's fine. You recall that 4 we read the sentence, the last sentence 5 that we read in this Discussion section 6 that says, "The risk for non-Hodgkin's 7 lymphoma increased with duration of 8 exposure and was strongest among workers 9 who had distant exposure greater to or 10 equal to ten years." 11 Do you recall that we've been 12 discussing this sentence; correct? 13 A Absolutely. That's what I've 14 talked about and I thought I answered your 15 question about that. 16 Q Now, we talked at some length 17 about the first statement that they make. 18 And now I'm asking you in that sentence, 19 and I'm asking you now about the second 20 statement that they make. That the 21 association was strongest, or the increased 22 risk, was strongest among workers who had a 23 distant exposure. 24 A Which statement are we talking 25 about? 109 1 Q The second half of the 2 sentence, the part that says that the 3 increase was -- there was -- excuse me, 4 that the risk was strongest among workers 5 who had distance exposure. 6 A Which page are you on? 7 Q 1068. 8 A Okay. What line now? 9 Q The first full sentence of the 10 last column of the page -11 A Yes. 12 Q -- where they state risk for 13 NHL increased with duration of exposure and 14 was strongest among workers who had distant 15 greater to or equal to ten years exposure. 16 My question is: Do you agree 17 or disagree with their statement that risk 18 was strongest among workers who had distant 19 exposure? 20 MS. KAHN: Objection. Asked 21 and answered. 22 THE WITNESS: The relative 23 risk as they found here in their table, 24 and I think -- didn't we go through this 25 with the yes and then the whole answer 110 1 thereafter? 2 BY MR. HANLEY: 3 Q No, sir. Because that was as 4 to the first half of the sentence and the 5 first statement that they make that the 6 risk increases with duration of exposure. 7 I'm now asking you about the second half 8 the sentence where they state that the risk 9 was strongest among workers who had distant 10 exposure. Because it's a compound 11 sentence, makes two statements, so that's 12 what I'm asking you about now. 13 A Well, I think I mentioned the 14 fact that -- I don't know that you can 15 really say that you can differentiate 16 between ten years versus five years in 17 this. And because they didn't do a 18 statistical analysis between those two, the 19 five to nine to greater than 10, so I don't 20 think one can conclude that necessarily 21 from this paper. 22 Q So then your answer is you 23 disagree with their statement on that 24 point; is that right? 25 A Well, to a certain extent. I 111 1 mean I think that the data is a little bit 2 greater for the greater than 10, but I'm 3 not really sure that the difference between 4 the five to nine to the greater than 10 5 would be a statistically significant 6 result. 7 Q Okay. Thank you. Now, this 8 study was funded by The National Cancer 9 Institute; correct? 10 A Are we -- I thought that was 11 the last question. 12 Q I want to finish on this, but 13 then I'm done with this area. 14 MS. KAHN: I'm going to 15 object that the question calls for 16 speculation as to who funded the study. 17 THE WITNESS: I don't think 18 they really say who funded the study in 19 here. 20 BY MR. HANLEY: 21 Q So you don't know? 22 A I don't see it in the paper so 23 I don't know. 24 MR. HANLEY: Okay. Let's go 25 off the record. 112 1 (A discussion was held off the record.) 2 (Thereupon, there was a luncheon recess.) 3 BY MR. HANLEY: 4 Q Sir, could you describe for me 5 all the things that you believe are 6 established risk factors for the 7 development of non-Hodgkin's lymphoma? 8 MS. KAHN: I'm going to 9 object that this was already covered in 10 the first section of Dr. Whysner's 11 deposition. 12 BY MR. HANLEY: 13 Q I'm talking about things that 14 you believe are more likely than not basis 15 to a reasonable degree of medical and 16 scientific certainty are in fact, based on 17 your understanding of the literature, 18 established risk factors? 19 A Certain hereditary 20 immuno-deficiency syndromes that have been 21 described in the literature; certain viral 22 infections; and drugs that induce 23 immuno-deficiency, for example, drugs that 24 are used in -- after somebody has had a 25 kidney transplant in order to prevent the 113 1 rejection of the graft. Those are the 2 ones, the main ones any way, that I believe 3 have been found to be causally related to 4 the development of non-Hodgkin's lymphoma. 5 Q And is it correct that none of 6 those apply to Mr. Molina? 7 A As far as we know, that's 8 true, yes. 9 Q And it's your opinion that 10 Mr. Molina has no particular risk factors 11 that are established to a degree of 12 certainty for non-Hodgkin's lymphoma in his 13 history? 14 MS. KAHN: Objection, to the 15 extent that this has been asked and 16 answered and was covered in the first 17 session of the deposition. 18 THE WITNESS: Well, I think I 19 mentioned the fact that he has things 20 that have been studied in the literature, 21 and I don't know if some people have 22 considered them to be risk factors or 23 established risk factors, but -- and 24 those would be the obesity and the 25 smoking history and the worker as an 114 1 agricultural worker. And we talked about 2 this before, I don't I think that -- I 3 think that there is evidence both ways 4 about those particular issues and I don't 5 think that in sum, from my opinion at 6 least, one can truly say that there's a 7 causal relationship. 8 Oh, the other one I forgot to 9 mention was the use of non-steroidal 10 antiinflammatory drugs. But the -- none 11 of those, at least from my read of the 12 literature, can truly be say -- you can 13 conclude to a reasonable degree of 14 medical and scientific probability that 15 they are causally related. 16 BY MR. HANLEY: 17 Q Do you recall that when we 18 were speaking on April 1st that I asked you 19 to establish with your office the precise 20 number of hours that you had billed for 21 this case? 22 A Yes. 23 Q And did you find that out? 24 A Yes. 25 Q And what was it? 115 1 A Seventy-two and a half. 2 Q And the work that you've done 3 since that day is on top of that; correct? 4 A Yes. 5 Q And how many additional hours 6 would you estimate since then? 7 A I couldn't say. Probably 10 8 to 20, maybe more, but I haven't really sat 9 down and calculated my work to figure 10 everything out for the last month yet. 11 Q Okay. So your -- is it fair 12 to say then that the hours that you have in 13 the case is somewhere between 90 and 100 14 plus in total hours? 15 A Well, I think you asked me 16 before, and you said above 80. It's 17 certainly above 80. Above 90, it may be. 18 I don't know about above 100. 19 Q Now, before you started any 20 investigation in this case, you were 21 already of the opinion that benzene does 22 not cause non-Hodgkin's lymphoma; correct? 23 A Well, I think, as I said when 24 I was retained in this case, which would 25 have been in April, I had already worked on 116 1 several cases and at least at that time, 2 pending the fact that I relooked at the 3 information that was available, I had 4 concluded that non-Hodgkin's lymphoma was 5 not associated with benzene exposure. 6 Now, the issue of solvents was 7 one that it had been longer because the -8 I think the previous cases all were pretty 9 much restricted to benzene exposure. So 10 the issue of solvent exposure, other 11 solvents, I hadn't reviewed that literature 12 maybe for a couple of years, I can't 13 remember exactly. And that's an, in some 14 sense that's a larger literature than the 15 benzene literature. 16 Q Is that why you needed to take 17 so much time to review the literature and 18 the materials in this case because of the 19 expanded question of whether his general 20 exposure to petrochemical hydrocarbon 21 solvents could be considered a cause? 22 MS. KAHN: Objection. Vague 23 and ambiguous and argumentative. 24 THE WITNESS: Well, I looked 25 at -- I certainly looked at the solvents 117 1 as far as I could figure out that are 2 involved in this case, and I would say 3 that a lot of the work that I did had to 4 do with reading Mr. Molina's deposition, 5 co-worker depositions, looking at all of 6 the MSDSes. There were also depositions 7 from toxicologists for the various 8 defendants. There was an awful lot of -9 I have several boxes full of notebooks, 10 and so I don't know that I could 11 characterize the need for the time as 12 being mostly due to the question of 13 solvents and benzene exposure because 14 there are medical records -- and I forgot 15 about the medical records. Just a lot of 16 information that is just specific to this 17 case that had to be reviewed. 18 BY MR. HANLEY: 19 Q Okay. One of the things that 20 I'm getting at is trying to understand why 21 you would need to put in so much time to 22 the case if you start off already having 23 the opinion that benzene or exposure to 24 solvents in that facility, in that Salinas 25 Firestone plant that you so familiar with 118 1 from working on other cases, what is it 2 that you then needed to spend all that time 3 doing and why would you need to do it? 4 What difference would it make what his 5 co-workers had to say, what Mr. Molina had 6 to say about his exposure or what his 7 medical records would show if you already, 8 you know that what he has is non-Hodgkin's 9 lymphoma, if that -- isn't that enough? 10 Don't you know enough there already, he 11 worked at that plant and he had 12 non-Hodgkin's lymphoma, you wouldn't really 13 need to know much else, would you? 14 A Well, I think that it's 15 important to be as familiar as I can with 16 the circumstances of his work environment. 17 The issue of alternative 18 causes, which we just talked about briefly 19 a few minutes ago, again, that is another 20 area which I think I previously testified 21 to the fact that it's a rapidly evolving 22 literature. And some of those other risk 23 factors that we have talked about, the 24 smoking, the potential risk factors I 25 should say, the smoking, and the obesity, 119 1 and non-steroidal antiinflammatory drugs. 2 There is a lot of literature coming out on 3 those. So I had to re-review that 4 literature to see if any of those had 5 reached the level of causal association in 6 terms of Mr. Molina's medical records. 7 And I just feel that it's 8 necessary for me to be familiar with the 9 medical records in any case that I'm 10 involved in because I might be asked to 11 describe his medical conditions, and I feel 12 like I should be prepared to do that. 13 Q Is it fair to say that the 14 reason it's important for you to be 15 familiar with the particulars of the case 16 is specifically to be prepared for your 17 trial testimony? 18 A Trial and deposition, and as I 19 said before, if there were any of these 20 other risk factors that reached the level 21 the causal relationships, I would be able 22 to talk about that. And, obviously before 23 I started out reviewing the medical 24 records, I really wasn't sure that he 25 didn't have some of those conditions which 120 1 I -- which we discussed which are clearly 2 causally related to non-Hodgkin's lymphoma. 3 Q What do you consider to be the 4 most important studies supporting your 5 conclusion in this case that his cancer is 6 not caused by benzene and exposure to other 7 petrochemical hydrocarbon solvents, but, 8 rather, is idiopathic? 9 MS. KAHN: Objection. Vague 10 and ambiguous with respect to the word 11 "important." 12 THE WITNESS: Well, I think 13 the literature has to be seen in its 14 totality. I mean with the Bradford Hill 15 elements of looking at epidemiology 16 studies, for example, one needs to look 17 for consistency. 18 And you know, I think that 19 it's fair to say that there is -- which 20 we spent a lot of time talking about the 21 Chinese study, and earlier there are 22 several studies that don't find any 23 indication or clear indications of any 24 kind of associations even with 25 non-Hodgkin's lymphoma. 121 1 We discussed the reasons why I 2 thought that one study was not -- could 3 be attributed to other chemical 4 exposures, but I don't think there's any 5 one study. 6 I think the Rinsky study is 7 probably the most convincing. The one 8 that Dr. Infante started out back when he 9 first published in 1977, they hadn't 10 published any information on 11 non-Hodgkin's lymphoma, nor in '87, I 12 don't believe. But it was in 2002 when 13 they published the non-Hodgkin's lymphoma 14 results, and, you know, that is a study 15 that has good dose reconstruction data 16 and is clearly people who have been 17 highly exposed to benzene, and that's the 18 study that's used by the Environmental 19 Protection Agency to come up with use and 20 risk assessment for the purposes of 21 addressing the risk of benzene as it 22 relates to acute myelogenous leukemia. 23 So I think that the Rinsky study of the 24 cohort analyses is probably the strongest 25 study. 122 1 In terms of the case-control 2 studies, there are 30-some of them. 3 It's, you know, there are handful of them 4 that show some kind of association with 5 benzene, and the rest of them are in the 6 other side of the balance of not finding 7 association. So, that literature with 8 the case-control studies I think has to 9 be treated -- I wouldn't say that any one 10 particular study there stands out as a 11 lot stronger than the other studies. 12 BY MR. HANLEY: 13 Q When you read the videotaped 14 trial testimony of Dr. Bennett, was there 15 anything in particular that stood out as 16 something that you disagreed with? 17 A Dr. Bennett? 18 Q Yes. 19 A I can't really recall 20 anything. I was mostly looking for, you 21 know, the types of information that you 22 might be looking for. But I -- it would be 23 hard for me to -- hard for me to -- I don't 24 recall anything that I disagreed with. But 25 that's not to say that there might not be 123 1 something but I just, I can't right now 2 remember anything. 3 Q The Bradford Hill criteria 4 that you referred to is a criteria for 5 causal inference. Under epidemiologic 6 guidelines, in other words it's an 7 epidemiologic criteria; correct? 8 A Again, I don't want to use the 9 word "criteria." Actually, Bradford Hill 10 specifically warned against using his type 11 of analysis as criteria. Bradford Hill, 12 this was my understanding was that he 13 developed these -- this way of analyzing 14 the literature primarily with regard to 15 looking at smoking and lung cancer. And so 16 it also has, I think has to be seen a 17 little bit historically in the context of 18 that particular endeavor. But he did talk 19 about also, you know, the Percival Pott, 20 the chimney sweep work and so forth. 21 Q Those factors for 22 consideration laid out by the Bradford Hill 23 investigators is an epidemiologic -- those 24 are epidemiologic conclusions and involved 25 the use and deployment of epidemiology; 124 1 correct? 2 A Well, I think it's a little 3 broader than that. First of all, it's a 4 way of looking at a number of studies and 5 it also includes -- I think we discussed 6 this again at some length the other day -7 the issue of -- when you asked me about 8 biological plausibility, and there are 9 other elements that basically say from a 10 biological standpoint is this -- is what 11 we're talking about, sort of coherent with 12 what we understand biologically about the 13 process. And the development of the -14 development of the disease. And I think 15 sort of sums it up because it says the 16 environment and disease association or 17 causation. And I think the primary purpose 18 of this, because some, you know, studies, 19 they are always -- well, there are often 20 studies that show some association between 21 a particular environmental exposure and a 22 disease. And the question is, is that -23 is that an association that is not causal 24 or is that a causal association. Because 25 there are a lot of reasons that 125 1 associations can be there for -- for 2 reasons other than an actual causal 3 association. 4 Q That's an epidemiologic 5 question; correct? 6 A Well, not entirely. I mean, 7 for example, it helps to understand 8 something of the biology. 9 In one of the studies that I 10 was involved with at Washington 11 Occupational Health, although I became 12 involved with them after this study was 13 published, but I wound up doing medical 14 surveillance on the same group of workers. 15 A finding of triglycerides was associated 16 with PCB levels. And it was pretty clear 17 that that was an association, but the fact 18 of the matter is that the -- in the 19 original interpretation was that people had 20 higher PCB levels had an elevation in their 21 triglyceride levels. Well, it turns out 22 that the reason for that was actually that 23 the fact that people who had more fat in 24 their blood tend to partition fat soluble 25 chemicals into the blood more compared to 126 1 the fat tissue. So instead of the PCBs 2 causing the elevated triglycerides, people 3 began to realize it was the elevated 4 triglycerides that was causing the higher 5 level of PCBs in the blood. 6 So there's an example of an 7 association that was found 8 epidemiologically but I would say that the 9 explanation for it not being a causal 10 association was not based upon epidemiology 11 but was based upon what we know about the 12 biology of the system. 13 Q Would you agree that the issue 14 of whether or not benzene or other 15 petrochemical hydrocarbon solvents caused 16 non-Hodgkin's lymphoma is an 17 epidemiological one? 18 A Well, ultimately I think it 19 has to be proven or disproven based upon 20 epidemiological data. I think that there's 21 also an underlying understanding that 22 non-Hodgkin's lymphoma is a separate 23 disease from acute myelogenous leukemia. 24 So I think that both of those elements are 25 important to realize that we have to know 127 1 whether or not benzene is causally related 2 to non-Hodgkin's lymphoma based upon 3 studies that have specifically looked at 4 non-Hodgkin's lymphoma, and that goes 5 beyond epidemiology. That has to do with 6 our understanding of those diseases. And I 7 think we discussed that again at some 8 length the other day. 9 Q I want to be clear on your 10 opinion that this cancer that Mr. Molina 11 has is idiopathic. 12 Are you saying that -- is it 13 your opinion that the cause of his cancer 14 is unknown but there is some cause or are 15 you saying that there is no cause of his 16 cancer? 17 A Well, I guess I hate to 18 quibble, but I think the problem is in the 19 word "cause." Cause seems to imply 20 something happening from outside of the 21 normal process of what happens in living 22 cells. 23 And, you know, one of the 24 theories, for example, and this is not one 25 that I'm -- I have put forward, but other 128 1 people have put forward, has to do with the 2 cause of acute myelogenous leukemia being 3 oxidative DNA damage. And we talked about 4 that earlier today. 5 Now, the fact that oxygen is 6 normally in the body, that it's a part of 7 our normal processes, and if oxidative 8 damage was -- did cause a genetic 9 alteration -- sorry, we're being disturbed 10 a little bit people outdoors. 11 But the fact that oxidative 12 DNA damage may be involved, oxidative DNA 13 damage is an ongoing process, it's normal 14 in the body, it happens to all cells, and 15 it's normally protected against, so, if 16 that would be the reason for his 17 non-Hodgkin's lymphoma, and I'm not saying 18 that happens through benzene exposure, it 19 would be hard for me to say whether there 20 is no cause or there is a cause, because of 21 the fact that that's a normal sort of 22 process. 23 Also, we discussed the fact 24 that just cell replication, which happens 25 all the time in the body, there are errors. 129 1 And the fact that if there's an abnormal 2 form of DNA developed through this process, 3 which is a, you know, that comes about as 4 close to spontaneous or without a cause as 5 I can think of. But is the genetic 6 alteration that happens because of the lack 7 of proper replication of the DNA, that 8 could be considered a cause. And I guess 9 I'm -- the difficulty here is with the word 10 "cause" I think. 11 There are things that happen 12 just because of the normal replication and 13 environment of cells that don't have 14 anything to do with what we would consider 15 to be sort of unusual exposures to 16 anything. And I think those -- that may be 17 the best explanation for his non-Hodgkin's 18 lymphoma. 19 Q Do you have an opinion as to 20 whether or not his non-Hodgkin's lymphoma 21 was caused or contributed to by any 22 environmental exposure, environmental toxic 23 exposure? 24 A You mean -- are you talking 25 about benzene and the solvents or are you 130 1 talking about anything else? 2 Q I'm talking about whether it 3 was caused by anything else, anything at 4 all. 5 A Well. All I can say is there 6 is no indication that there is anything 7 else, that, you know, as I mentioned, 8 the -- I mean if there were in the next 9 five years, if there were a whole bunch of 10 studies that said that smoking was 11 associated with it, we might have a 12 different conversation. But sitting here 13 today, I don't see anything that has been 14 identified in his environment that could 15 have caused his non-Hodgkin's lymphoma. 16 Q What is your understanding of 17 the development of the state of the art or 18 the historical knowledge regarding benzene 19 causing cancers of the blood forming 20 organs? 21 MS. KAHN: I object, only to 22 the extent that this might be outside the 23 scope of the witness' expert witness 24 designation. 25 MR. HANLEY: Well, tell me if 131 1 you're not calling him to ask any of 2 those questions and I won't have to ask 3 them myself. If you're not calling him 4 regarding the historical state of the 5 art, who knew what when about -6 MS. KAHN: I would ask, on 7 the assumption that we will ask him, to 8 express opinions on that. 9 THE WITNESS: Well, my -10 this is really related to the development 11 of leukemia and specifically acute 12 myelogenous leukemia. I think that 13 the -- I think I have in my files, for 14 example, a document from the National 15 Institute of Occupational Safety and 16 Health, and I think that this probably 17 represents the state of the art or the 18 understanding of whether or not benzene 19 could truly be said to cause, well, at 20 that time it was leukemia because they 21 weren't differentiating necessarily among 22 different subtypes of leukemia in 23 studies, but I think Infante's study was 24 the study that really established the 25 fact that benzene was associated with, at 132 1 least some form of leukemia, because the 2 total number of leukemias as they were 3 measuring them in that study went up 4 which later was found to be acute 5 myelogenous leukemia. 6 But in 1974 NIOSH basically 7 said that -- I'm trying to find the 8 particular quote. But in this particular 9 document somewhere they say that the 10 information regarding benzene and 11 leukemia is -- hasn't really been 12 established conclusively. So I think 13 that's about the time frame, I think 14 somewhere between '74 and '76, '77, was 15 when there was -- people concluded that 16 it did cause a form of leukemia. And I 17 think that the IARC came out in 1982 with 18 the conclusion that benzene was a human 19 carcinogen and that AML was the neoplasm 20 which had been specifically identified. 21 BY MR. HANLEY: 22 Q What is your understanding of 23 when it was first reported anywhere in the 24 scientific literature that benzene may be a 25 cause of any kind of cancer? 133 1 A Well, I think there were 2 studies -- and I have a couple of these 3 here from -- in the 1939 studies, that at 4 least reported the effects of benzene, and 5 they discussed some cases of people who had 6 been exposed to benzene who also had 7 leukemia. The problem was, there wasn't 8 any kind of epidemiological study that 9 could say whether or not those findings of 10 leukemia and other diseases were at 11 increased amounts in that population or 12 whether it was coincidental that people who 13 were exposed to benzene, and there were a 14 lot of people exposed to benzene, also had 15 these diseases. 16 That's always the -- that's 17 always the problem with case reports or 18 clinical series like the ones that had 19 been -- had been available before the 20 Infante study. 21 Q When was the first 22 epidemiologic study associating benzene 23 with any form of cancer? 24 MS. KAHN: Objection. Over 25 broad, vague and ambiguous, asked and 134 1 answered. 2 THE WITNESS: Well, I would 3 say the one that was really well 4 conducted was Infante study. 5 Now, there was a study of 6 Turkish shoe workers earlier, but I don't 7 think -- I haven't seen any real 8 statistics as far as I know reported 9 until after that Infante report, although 10 the study was done ongoing and there were 11 earlier reports, but I don't believe that 12 there was any convincing statistically 13 significant data presented. 14 BY MR. HANLEY: 15 Q When was the first 16 epidemiologic study presented, what year? 17 A Well, that depends on what you 18 mean by "epidemiologic study." I mean, if 19 you include case reports -- are you 20 including case reports in epidemiologic 21 studies? 22 When I talk about 23 epidemiologic studies, I usually mean the 24 kind of study where either a case-control 25 study where you have statistics or a cohort 135 1 analysis where you have statistics. I 2 guess there are even descriptive studies 3 where you -- statistics where you compare 4 different population groups. I don't 5 consider things like case reports and 6 clinical series, in other words a doctor or 7 a group of doctors say, We have a group of 8 patients that we've seen who have leukemia 9 and they have been exposed to benzene, but 10 there is no statistical analysis presented. 11 I guess I usually don't think of those in 12 terms of being epidemiological studies. 13 So, again, with that in mind, I would say 14 that the -- there was some indication that 15 there was work being done among the Turkish 16 shoe workers, but the first real 17 publication was the Infante study. 18 Q When was the epidemiologic 19 study on the Turkish shoe workers first 20 published? 21 A You know, I don't have that 22 information with me because it's not 23 something that I usually rely upon. And I 24 think it was -- I think there were some 25 earlier publications before 1987, but I 136 1 couldn't give you the exact details of 2 those. 3 MS. KAHN: I'm sorry, 4 Dr. Whysner, what year did you say? The 5 phone cut out. 6 THE WITNESS: I didn't mean 7 '87, sorry. Whatever I said with Infante 8 should be 1977. 9 BY MR. HANLEY: 10 Q And when was the Turkish shoe 11 study done, approximately, as best you can 12 recall? 13 MS. KAHN: Objection, asked 14 and answered. 15 THE WITNESS: I could 16 actually -- they probably talk about that 17 in that ATSDR talks profile. I can look 18 that up for you if you want me to. 19 BY MR. HANLEY: 20 Q I'm just asking your best 21 recollection of when it was? 22 MS. KAHN: Calls for 23 speculation. 24 THE WITNESS: As I said, in 25 terms of epidemiological evaluation, 137 1 meaning statistical analysis, I think it 2 was after 1977. But the study was 3 ongoing and there were reports, but, 4 again, I believe that prior to 1977 they 5 were just reported as a clinical series. 6 In other words, there was no -- at least 7 that's my best recollection is that there 8 was no statistical analysis to show that 9 the amount of various diseases was any 10 greater in that group than one would 11 expect in the general population. 12 BY MR. HANLEY: 13 Q Is 1939 the first reference in 14 the published literature that you can find 15 to benzene being a potential carcinogen? 16 MS. KAHN: Objection. Over 17 broad, vague and ambiguous. 18 THE WITNESS: Well, as I 19 said, the 1939 paper has described 20 certain cases of leukemia among people 21 who had been exposed. I don't know that 22 there was any -- I can't remember exactly 23 what the authors concluded from the 24 study. 25 I believe there was some 138 1 earlier case reports going back. I think 2 there was one even before the turn of the 3 century that had talked about this, but 4 it might have been just a single case, I 5 can't remember exactly. 6 BY MR. HANLEY: 7 Q Between 1939 and 1997, how 8 many references in a scientific published 9 literature were there to benzene being a 10 potential carcinogen in case reports and 11 the like? 12 MS. KAHN: The question is 13 overbroad, compound. It's vague and 14 ambiguous. 15 THE WITNESS: I don't know 16 that I can give you a number. 17 BY MR. HANLEY: 18 Q Could you give me something 19 approximate? 20 MS. KAHN: Objection. Calls 21 for speculation. 22 THE WITNESS: You're 23 including case-control studies in that, 24 too, I presume? 25 BY MR. HANLEY: 139 1 Q Well, I'm talking about from 2 1939 until the first case-control study was 3 published. 4 MS. KAHN: The question calls 5 for speculation in light of the witness' 6 testimony. 7 BY MR. HANLEY: 8 Q Can you tell me when the first 9 case-control study was published? 10 A Again, a number of questions 11 going. The first question was from 1939 to 12 1997. 13 Q No, 1977. Let me start over. 14 A I think you said '97, that's 15 why I was -16 Q Let me start over. 17 Can you tell me when the very 18 first case-control study relating to 19 benzene as a potential carcinogen was 20 published? 21 MS. KAHN: I object. The 22 question is vague and ambiguous. 23 (Witness perusing documents.) 24 BY MR. HANLEY: 25 Q Are you doing something to 140 1 evaluate -2 A Yes, I am looking through my 3 file here, case-control studies, to tell 4 you which one is the earliest date. 5 Q Well, do you know whether or 6 not it predates the 1977 Infante article? 7 A Well, one of my -- I got 1988. 8 That's -- I don't see any that I have that 9 predate the Infante article. 10 Q Do you know whether or not any 11 epidemiologic study regarding benzene as a 12 potential cause of cancer was published 13 before Infante's 1977, do you know whether 14 or not that's the case? 15 MS. KAHN: Can, I please hear 16 the question again. 17 (The requested portion was read.) 18 Q Let me start over. Do you 19 know of any epidemiologic study of any kind 20 that was related to the issue of whether or 21 not benzene was a cause of cancer that was 22 published before Infante's 1977 article, do 23 you know whether or not any such study was 24 published? 25 MS. KAHN: Objection. 141 1 Compound, overbroad, vague and ambiguous. 2 BY MR. HANLEY: 3 Q As you sit here today, sir, 4 and you are looking through your 5 materials -6 A Well, I'm looking through this 7 NIOSH 1974 document because I figured that 8 they would have reviewed studies, and I 9 might be able to answer your question at 10 least up to 1974. Okay, epidemiologic 11 studies. 12 (Witness perusing documents.) 13 Q I note that we've been waiting 14 some number of minutes for you to look 15 through your materials. Is it fair to say, 16 sir, that without looking back at the 17 literature, you don't know whether or not 18 there were any such epidemiological 19 studies? 20 A Well, again, as I mentioned 21 before, when I think of epidemiologic 22 studies, I'm thinking about studies that I 23 have actual statistical analyses, and it's 24 my recollection that there weren't any 25 studies before 1977 that were able to say 142 1 that with any kind of reasonable -- what I 2 would consider to be reasonable degree of 3 medical and scientific probability, i.e., 4 statistical analysis, that there was a 5 association between benzene exposure, and 6 in this case it was all leukemias. And 7 that's the earliest study that I can 8 recollect that which I would call a true 9 epidemiologic study as opposed to that '77. 10 As opposed to case reports or just 11 discussions of clinical findings among 12 people exposed to benzene. 13 Q Okay. I would -14 MS. KAHN: For the record, I 15 just want to state the witness was 16 looking through his materials for less 17 than a minute according to my watch, and 18 if there are materials that he wants to 19 look at in order to give a complete 20 answer of a question, I'm going to advise 21 him he has a right to do that. 22 BY MR. HANLEY: 23 Q Sir, my question was a little 24 broader than that. It was whether or not 25 there were any case control or any type of 143 1 epidemiologic investigation into the issue 2 of whether or not benzene was a carcinogen, 3 regardless of whether you find them 4 persuasive or conclusive or determinative 5 on the issue. Were there any such 6 publications in the scientific literature 7 prior to 1977, if you know, as you sit here 8 today, without taking any great length of 9 time to investigate it as you sit here. 10 MS. KAHN: Objection. 11 Argumentative, asked and answered, 12 overbroad, vague and ambiguous. 13 THE WITNESS: What's a great 14 amount of time? 15 BY MR. HANLEY: 16 Q Do you know the answer to the 17 question as you sit here right now? 18 MS. KAHN: Objection. 19 Argumentative. 20 (Witness perusing documents.) 21 THE WITNESS: Well, you 22 talked about, I mean, you mentioned -23 I'm trying to get the wording down of 24 what you wanted. You said case control, 25 which is a certain kind of study I guess 144 1 you know. That would be a study of 2 people who have leukemia. 3 BY MR. HANLEY: 4 Q Yes, sir, or any other kind of 5 epidemiologic investigation. Do you know 6 of any sort of epidemiologic investigation 7 published in the scientific literature 8 relating to the issue of benzene as a 9 carcinogen prior to 1977? 10 MS. KAHN: Please, don't 11 interrupt the witness' answer. Your new 12 question is argumentative. 13 Argumentative, overbroad, compound, vague 14 and ambiguous. 15 BY MR. HANLEY: 16 Q Go ahead, sir, if you please. 17 A Okay. So we discussed those 18 article from 1939. So would you include -19 I have to ask you the question, would you 20 include -- is that within your meaning of 21 epidemiological studies, because I have 22 given those to you previously? 23 Q Do you consider the 1939 24 article an epidemiologic study? 25 A I think it's a case -- a 145 1 series of cases. I would not consider it 2 to be what I -- I think that there -- I 3 mean what I consider to be an 4 epidemiological study would be one that 5 includes statistical analysis. I think I 6 already defined that a couple of times. 7 Q Is there any study in a 8 scientific literature published prior to 9 1977 you that would consider to be an 10 epidemiologic investigation into the issue 11 of benzene as a carcinogen? 12 A If you include case studies 13 and clinical series as within the rubric of 14 epidemiologic studies, then there are 15 studies, and I have mentioned a couple of 16 those. 17 Q Are those -- my question was 18 anything that you considered to be an 19 epidemiologic study. Are you saying that 20 you consider those to be epidemiologic 21 studies? 22 MS. KAHN: Objection. 23 Argumentative. Mischaracterizes the 24 witness' testimony. The question is 25 asked and answered. 146 1 MR. HANLEY: It's asked. 2 It's not answered. 3 THE WITNESS: I don't think I 4 can answer it any better that than. 5 BY MR. HANLEY: 6 Q Sir, do you consider those -7 is there any study in the scientific 8 published literature prior to 1977 that 9 you, sir, Dr. Whysner, consider to be an 10 epidemiologic investigation into the issue 11 of whether or not benzene causes any form 12 of cancer? 13 MS. KAHN: Objection. 14 Argumentative, asked and answered, vague 15 and ambiguous. 16 THE WITNESS: All I can say 17 is this, is that if we consider -- and 18 I'm just trying to define the term 19 epidemiologic right now. 20 Q I've asked, sir -21 A You said -22 Q I asked what you considered to 23 be an epidemiologic study, sir. You 24 defined it, what you considered to be an 25 epidemiologic study, and then you tell me 147 1 if you consider there to be any such study 2 before 1977, an epidemiologic investigation 3 regardless of whether it was determinative, 4 regardless of whether you feel it compels a 5 particular result or not. Was there any 6 such investigation made, published in the 7 literature before 1977, it's a simple 8 question? 9 MS. KAHN: Argumentative, 10 asked and answered, vague and ambiguous. 11 THE WITNESS: Can I define 12 what I'm calling an epidemiologic 13 study -14 BY MR. HANLEY: 15 Q Please. 16 A -- as part of the answer which 17 I think I have done. 18 See, my -- the way I define an 19 epidemiologic study is one that includes a 20 statistical analysis. And the Infante 21 study is the first one that I have seen 22 that includes a statistical analysis. 23 Q All right. Thank you. 24 Now, how many references in 25 the scientific literature of any other 148 1 sort, case studies -- excuse me, case 2 reports or series of cases or any other 3 references in the literature are there, 4 approximately, to your best recollection as 5 you sit here today, prior to 1977? 6 A Okay. 7 (Witness perusing documents.) 8 THE WITNESS: So there's a 9 study by Vigliani, V-I-G-L-I-A-N-I. And 10 then there's the Turkish study by Aksoy, 11 A-K-S-O-Y, published in 1974. There was 12 a case -- well, there's a case of benzene 13 poisoning. There were reports, as I 14 mentioned, by Vigliani, Goguel, 15 G-O-G-U-E-L. Mallory, M-A-L-L-O-R-Y, 16 1939. And we discussed the two other 17 1939 papers which I have in my file. And 18 those are the -- those are the ones that 19 I can -- ones that I can recall that 20 described people who had leukemia and 21 also had benzene exposure and I can 22 consider them neither case reports or 23 clinical series. 24 BY MR. HANLEY: 25 Q And is that all of them that 149 1 you're aware of in the scientific 2 literature? 3 A That's all I can recall right 4 now. 5 Q Thank you. 6 Now, what work have you done 7 in your professional career outside of 8 litigation where you have been called upon 9 to determine the cause of someone's cancer, 10 if at all? 11 A You mean in terms of clinical 12 practice? 13 I've never, you know, worked 14 as a -- as a clinician in the field of 15 cancer, if that's what you're getting at. 16 Q So is it fair to say, outside 17 of litigation, you have never been called 18 upon or involved yourself in the process of 19 trying to determine what any given 20 individual's cancer may or may not have 21 been caused by; is that correct? 22 A Well, probably there is some 23 instances when I was doing my pediatric -24 you mean why it was caused rather than it 25 being diagnosed? 150 1 Q Correct. I'm not talking 2 about diagnosis and treatment, I'm talking 3 about etiology of someone's cancer. 4 A All my work in this area has 5 been as a researcher and not as a 6 practicing clinician. So in terms of 7 research, I've been involved in studies of 8 groups or in terms of, you know, doing 9 experimental research, but I haven't in 10 terms of causation, but I haven't in terms 11 of a clinical analysis, I haven't done 12 that. 13 Q So you haven't done it ever 14 with respect to an individual; is that 15 correct? 16 A You mean as a practicing 17 physician? 18 Q In any context outside of 19 litigation? 20 A Well, not that I can recall 21 right now, no. 22 Q All right. Now, as to 23 generally whether a particular toxin of any 24 sort is a cause or not a cause of any 25 particular kind of cancer, what work have 151 1 you done in that regard outside of the 2 context of consulting and litigation? 3 A Well, in terms of, you know, 4 some of my work had to do with various 5 chemicals which I've published in the 6 scientific literature that have to do 7 with -- I can give you an example. 8 The question came up of 9 whether phenol barbital caused liver cancer 10 in humans, and in that context I was not 11 only involved in doing experimental work in 12 animals looking at genetic -- possible 13 genetic damage caused by phenol barbital 14 but also involved in an epidemiology study 15 where we looked at whether or not people 16 who had been exposed to phenol barbital for 17 long periods of time -- they were being 18 treated as epileptics -- whether there was 19 an indication that there was a higher, 20 greater amount of liver cancer among those 21 individuals. 22 Paradoxically, we did find 23 that there was an increase in non-Hodgkin's 24 lymphoma among these people, but it's a 25 single finding and I don't know that I 152 1 would put a lot of -- we did find an 2 association, but I don't put a lot of 3 credence in that one association. 4 I've done a lot of work in a 5 chemical called acrylonitrile, which, 6 remember we were talking about oxidative 7 DNA damage which this chemical produces 8 brain tumors in rats, and it's pretty 9 potent in doing that. And we found that in 10 conjunction with the doses that produce 11 those brain tumors in rats, there was an 12 increase in oxidative DNA damage in the 13 brain of those rats, and, therefore, that 14 finding might be causally related to the 15 increase in somehow acrylonitrile enhanced 16 oxidative DNA damage in rats and, 17 therefore, produced drain tumors. 18 I've done work on PCBs. I've 19 done work in chlordane. I have done work 20 on an antioxidant that causes forestomach 21 tumors, but it's a widely used antioxidant 22 called butylated hydroxyanisole in terms of 23 forestomach tumor production in animals to 24 see if that was at all relevant in human 25 cancer. 153 1 And of course we talked about 2 my work which was -- it was a little bit of 3 an experimental work, but most of my work 4 on benzene had to do with looking at the 5 results of other people's genotoxicity test 6 to see whether or not they fit within a 7 certain framework of a mechanism that we 8 could say looked like it was responsible 9 for the genotoxicity of benzene. Actually, 10 benzene metabolites as we discussed. 11 Q You described six different 12 areas in which outside of litigation you 13 have been involved in work relating to the 14 determining whether or not a given chemical 15 is a cause of cancer, is that right, those 16 six areas? 17 A Well, I mean I don't know if 18 you include my work with the International 19 Agency for Research on Cancer where I was 20 involved in working groups that produced 21 the IARC monographs. And I was involved in 22 working on those for, I think we probably 23 did somewhere between 40 and 50 chemicals 24 to determine what -- whether or not they 25 were causative of human -- could be 154 1 predicted to be causative of human cancer. 2 But that was not my own experimental work. 3 That was, you know, that was participating 4 in the working groups. 5 Q In all of these areas that 6 you've described, the six areas that you 7 you've done experimental work, were 8 epidemiologists involved in any of that 9 work? 10 MS. KAHN: Objection. Vague 11 and ambiguous. 12 THE WITNESS: I'm trying to 13 remember. I mean obviously the one -14 you're just talking about the 15 experimental work now? 16 BY MR. HANLEY: 17 Q You described the phenol 18 vitatal (sic). 19 A Phenol barbital. 20 Q Phenol barbital as the cause 21 of liver cancer. You discussed the 22 acrylonitrile, the PCBs, the chlordane, the 23 antioxidant, the butylated something. 24 A BHA. 25 Q BHA. And the work relating to 155 1 the benzene metabolite. Did your work in 2 any of those areas involve the assistance 3 of any epidemiologists? 4 A Well, I say we published a 5 paper with Jorgen Olsen who is the head of 6 the Danish Cancer Registry, at least was, I 7 don't know if he is anymore. But that was 8 an epidemiology study on phenol barbital. 9 The -- I published papers with 10 epidemiologists regarding certain issues. 11 Well, this isn't of those six chemicals 12 that had the experimental work, although I 13 have to admit that a lot of my ideas for 14 doing the experimental work came out of the 15 results of epidemiology studies. 16 The work that I did -- I did 17 some other work where we looked at certain 18 issues. And in those cases I worked with 19 epidemiologists analyzing other chemicals, 20 additional chemicals. The one name that 21 comes to mind is Peter Boyle who is now the 22 head of the International Agency For the 23 Research on Cancer. Another name is an 24 epidemiologist named Demetrius 25 Tricolopolous who is at Harvard. And there 156 1 are probably others, but I just can't 2 recall right now, where I've worked with 3 them looking at epidemiological studies and 4 coming to conclusions regarding a 5 particular issue. 6 Q In these studies or 7 investigations where you have worked with 8 epidemiologists, what is the role that you 9 have performed in the investigation 10 compared to the role performed by the 11 epidemiologists that you were working with? 12 A Well, my primary role was -13 my specialty is in the area of mechanism 14 and cancer mechanism in order to determine 15 whether or not findings in experimental 16 animals can be extrapolated to humans, and 17 that has to do with comparative analysis of 18 animal and biological systems. However, 19 often I get involved in doing analysis of 20 the epidemiology studies as well because, 21 for example, in the IARC working groups, 22 one of the four subgroups is the 23 epidemiology group. But even though they 24 come out with a recommendation regarding 25 certain findings, it's still up to a vote 157 1 of all the members of the working group in 2 terms of whether or not, for example, 3 something has been found to be a human 4 carcinogen. And in order to vote as a 5 member of the working group, you have to do 6 your own independent analysis of the 7 literature in order to figure out whether 8 or not that is indeed a human carcinogen. 9 So even though my primary role was as a 10 cancer mechanism person, I'm still required 11 to make a decision about epidemiology 12 studies as to whether or not they do show 13 that something is a human carcinogen. 14 Q And with respect to what sorts 15 or forms of cancer do you consider yourself 16 to be an expert in the mechanisms by which 17 those cancers develop? 18 A In general, you know, I would 19 say, yes, there's some cancers I'm more 20 familiar with than others. 21 Q Which forms of cancer do you 22 consider yourself to be the expert in the 23 mechanisms by which those cancers develop? 24 A Well, I'm certain we spent a 25 fair amount of time with acute myelogenous 158 1 leukemia and benzene, and, therefore, the 2 underlying mechanism by which benzene 3 produces those effects. I've looked 4 at issues of relating to benzene toxicity 5 in terms of, you know, the mechanism by 6 which it could produce aplastic anemia or 7 myelodysplastic syndrome. I think I'm -8 so I'm generally familiar with 9 hematological and lymphatic cancers because 10 of that interest of mine. 11 I would consider myself an 12 expert in brain cancer development. 13 I've done work with breast 14 cancer development. 15 I've done work with 16 gastrointestinal development. And you 17 know, there are probably some others that I 18 can't recall right as we're sitting here 19 right now. 20 Q What work have you done 21 determining whether any given toxins are a 22 cause of cancers of any blood forming 23 organs? 24 A I think I just answered that 25 about benzene and acute myelogenous 159 1 leukemia. 2 Now, when you say, "work," I 3 guess you're talking about experimental 4 work or literature reviews or -5 Q No. I'm talking about any 6 experimental work. 7 A Well, I did some work on 8 benzene and DNA binding in terms of benzene 9 mechanism. 10 Q Anything else? 11 A In terms of experimental 12 studies? 13 Q Any published research 14 relating to the issue of determining 15 whether any given toxins can cause cancers 16 of the blood forming organs? 17 MS. KAHN: Well, that's a 18 different question. 19 THE WITNESS: I've published 20 a fair number of papers. I'm probably 21 going to forget some. But, I think 22 benzene has been the one that I've looked 23 at the most. 24 BY MR. HANLEY: 25 Q Would you agree that 160 1 Mr. Molina was exposed to benzene and other 2 petrochemical hydrocarbon solvents in his 3 work at the Firestone Salinas plant both by 4 inhalation and dermal absorption? 5 MS. KAHN: Objection. 6 Overbroad, compound, vague and ambiguous. 7 THE WITNESS: I guess I don't 8 know the answer -- I mean I haven't 9 really looked into his exposure. I know 10 what other people have, in this case, 11 have -- have developed. And that was 12 a -- I'd have to look at the studies 13 right now, but I think it's somewhere 14 between four and 11 ppm years of exposure 15 to benzene. And I don't have any reason 16 to disagree with those, but I haven't 17 been asked specifically to look into that 18 issue. 19 BY MR. HANLEY: 20 Q I'm just asking you as a 21 general qualitative, and not necessarily a 22 quantitative analysis, but qualitatively, 23 having reviewed his deposition testimony, 24 his description of his work, his coworkers 25 testimony, the conclusions drawn by 161 1 Dr. Reiss and Dr. Nicas, would you agree 2 with me that that Mr. Molina was indeed 3 exposed to benzene and other petrochemical 4 hydrocarbon solvents in his work at the 5 Firestone Salina plant? 6 MS. KAHN: Objection. Overly 7 broad, compound, vague and ambiguous. 8 THE WITNESS: Well, I think 9 that there is indication that he was 10 exposed to benzene and these other 11 solvents, but how much, I really couldn't 12 say. 13 BY MR. HANLEY: 14 Q Now, you would agree that 15 smoking cigarettes can cause lung cancer? 16 A Yes. 17 Q And would you agree that it is 18 the totality of the chemicals in the 19 cigarette smoke that is properly associated 20 with an increased risk of lung cancer from 21 smoking as opposed to the individual 22 chemicals in the smoke? 23 MS. KAHN: Objection. 24 Overbroad, vague and ambiguous. 25 THE WITNESS: I think I 162 1 mentioned before that I don't think we 2 really understand which or how many of 3 the chemicals in cigarette smoking is 4 responsible for causing lung cancer. So 5 that would be a difficult question for me 6 to answer, and I've never really -- I 7 mean, like I said, I used to go to 8 seminars at the American Health 9 Foundation because there was a lot of 10 research going on to try to figure out 11 those answers, but I really don't have an 12 opinion about that right now. 13 BY MR. HANLEY: 14 Q Would you agree that it is the 15 totality of the chemicals in cigarette 16 smoke that are properly considered to be 17 the carcinogen rather than any of the 18 particular individual chemicals themselves? 19 MS. KAHN: Objection. Asked 20 and answered, lack of foundation, calls 21 for speculation. Beyond the scope of the 22 witness' assignment and beyond the scope 23 of his designation in the case. 24 THE WITNESS: Sorry, I just 25 don't know the answer to that. It's not 163 1 an area that I'm -- that I've really kept 2 up with the literature on. 3 BY MR. HANLEY: 4 Q Do you recall my questions of 5 Dr. Bennett relating to the Shell study 6 that he was involved with? 7 A I remember there being some 8 mention about it, but I don't remember your 9 questions. 10 Q Have you ever read that study 11 that was referred to? 12 A I don't recall. 13 Q Would you agree that if you 14 are comparing a would be exposure cohort to 15 a control group in an epidemiologic study 16 that it is important to have data relating 17 to the exposure that you are attempting to 18 evaluate? 19 MS. KAHN: Objection. It's 20 an incomplete hypothetical, the question 21 is overbroad, compound, vague and 22 ambiguous. 23 THE WITNESS: Sorry, do you 24 mean quantitative information or 25 qualitative information? 164 1 BY MR. HANLEY: 2 Q Either one. 3 MS. KAHN: Same objection. 4 THE WITNESS: Well, all I can 5 say is I think that -- I think that it's 6 probably better to have quantitative 7 information in terms of being able to 8 define the parameters of the study in 9 terms of what you're actually -- you're 10 actually looking at. But, you know, I 11 don't -- for example, we talked a bit 12 previously about some of these older -13 some of the epidemiology studies, and, 14 for example, the original Infante study. 15 I don't think -- I'm looking at it right 16 now. I was looking to see whether or not 17 they had actually some quantitative 18 exposure information in that study. I 19 think they did have some information. I 20 don't know that it was -- and certainly 21 to they did dose reconstructions later in 22 terms of their study. 23 BY MR. HANLEY: 24 Q Are you done with your answer? 25 A I'm just looking here. 165 1 (Witness perusing document.) 2 I think that there are 3 certainly studies in the literature where 4 there hasn't been quantitative information 5 that -- some of these studies in my file 6 here on benzene exposures, these 7 case-control studies for example, I don't 8 think they have quantitative information 9 because they're just asking people whether 10 or not they have been exposed to benzene. 11 And yet, you know, there are plenty of 12 these studies published in the scientific 13 literature, so I don't think it's an 14 absolute requirement to publish an 15 epidemiology study. 16 Q Would you agree that it's 17 important to have in your would be exposure 18 group some information as to whether or not 19 the people were actually exposed to the 20 chemical being evaluated? 21 MS. KAHN: Objection. 22 Overbroad, vague and ambiguous. 23 THE WITNESS: Well, it's 24 probably better if you do. I don't know 25 that it's -- as I mentioned, a number of 166 1 these studies that we've got in our files 2 here, and I think that Dr. Infante had 3 his files and Dr. Weisenburger had in his 4 files, are studies where -- and they said 5 they relied upon them, are studies where 6 there actually wasn't verification. I 7 mean it was based upon people 8 self-reports of whether or not they had 9 been exposed to benzene. I think 10 those -- I think studies where there is 11 quantitative information about benzene 12 may be better studies but not necessarily 13 so because there may be other 14 difficulties with those studies. 15 BY MR. HANLEY: 16 Q Would you agree that if you 17 have a would be exposure cohort that has 18 non-exposed people mixed into it that you 19 will dilute the findings in terms of 20 establishing whether or not there's an 21 association between the chemical being 22 evaluated and the disease being looked for? 23 MS. KAHN: Objection. 24 Incomplete hypothetical, overly broad, 25 vague and ambiguous. 167 1 THE WITNESS: Well, I think I 2 would have to actually be -- in order to 3 give you an opinion on something like 4 that, I would have to actually be looking 5 at a particular study to see, you know, 6 what the number of people, how that was 7 determined that they weren't exposed. It 8 sort of depends upon the study. I mean 9 my guess is that -- well, I know that 10 people in cohort studies have a wide 11 range of exposures, and I don't know 12 any -- many epidemiology studies or maybe 13 any epidemiology studies where there 14 isn't a fairly wide range of exposure 15 levels including some people who don't -16 probably don't have any exposures. So I 17 think it's -- so I think it's the nature 18 of doing an epidemiology study that you 19 can't be certain that everybody within 20 that so-called exposed cohort has truly 21 been exposed to the chemical. 22 BY MR. HANLEY: 23 Q Would you agree as a general 24 proposition that to the extent that you 25 have non-exposed people in a would be 168 1 exposed cohort that you will necessarily 2 dilute your findings relating to causation? 3 MS. KAHN: Objection. Overly 4 broad, vague and ambiguous. 5 THE WITNESS: Well, I think 6 you have to predicate that on the fact 7 that the thing you're studying is truly 8 caused by that particular chemical. I 9 mean, obviously, if it's something that 10 isn't caused by that exposure, then it 11 wouldn't make any difference. But I 12 would say that if you do have a -- if you 13 are studying something that truly is 14 related, causally related to a particular 15 chemical exposure, and you had a 16 significant number of people -- and I 17 don't know what that would be -- who were 18 not exposed, it could dilute the findings 19 and decrease the SMRs of the study or the 20 relative risks I guess, since you're 21 talking about a control group. But I 22 don't know whether it would -- it would 23 all depend on the details within that 24 study about whether or not it would 25 significantly do so. 169 1 MR. HANLEY: Okay. All 2 right. Thank you, sir. I have been on 3 the record with you four hours now, and 4 we'll send you a check for that time. 5 And those are all of my questions at this 6 time. 7 MS. KAHN: You also owe 8 Dr. Whysner an hour from April 1st. 9 MR. HANLEY: Yes. That check 10 should have gone out by now. Have you 11 gotten that? 12 THE WITNESS: Yes, I got that 13 and I got your check increasing the 14 amounts from 450 to 550. 15 MR. HANLEY: All right. So 16 I'll send you now 550 times four. 17 THE WITNESS: Okay. 18 MR. HANLEY: Thank you, sir. 19 THE WITNESS: Okay. 20 MS. KAHN: Thank you, Madam 21 Reporter. 22 THE REPORTER: Ms. Kahn, I 23 wanted to ask you on the record, you 24 wanted to order a copy of today's 25 transcript? 170 1 MS. KAHN: Yes, I do. It's 2 fine with me if you send the original of 3 the transcript -- actually, you probably 4 should send it to my office so I can send 5 it to the witness to make corrections, if 6 that's all right with Mr. Hanley, and 7 then I will retain custody and control of 8 that. And if changes are made, I'll 9 notify Mr. Hanley of those changes within 10 a reasonable period of time or let him 11 know that no changes were made. And if 12 no changes are made, a certified copy 13 will be used for any admissible purpose, 14 if changes were made, those changes need 15 to get taken into account in using any 16 copy of the transcript. 17 MR. HANLEY: I'm fine with 18 that agreement, Ruth, as long as we 19 understand that any such changes will 20 need to be timely under the California 21 code, and that if any such changes are 22 made, I would be immediately notified. 23 And by immediately I mean with 24 hours 24 of those changes being submitted to the 25 record court reporter. 171 1 MS. KAHN: I'm not sure what 2 "timely" means in terms of the California 3 code. 4 MR. HANLEY: Well, the time 5 within which someone has to review and 6 make corrections to their deposition is 7 controlled by the code, as I recall it. 8 MS. KAHN: I think it's like 9 30 days, which I'm not sure has any 10 applicability here since trial is set for 11 Tuesday, but, you know, and I don't know 12 how quickly the transcript is going to be 13 ready. I don't know if you're expediting 14 it or not. But -15 MR. HANLEY: All that being 16 as it may, whatever the time limitations 17 may be, they are, you will choose to make 18 any changes, you know, at whatever point 19 you choose to do that. And my only 20 request with that is that I get the 21 immediate advisement of those changes as 22 opposed to, you know, delaying my being 23 advised of that. 24 MS. KAHN: Of course. We'll 25 let you know within 24 hours of our 172 1 receipt of changes that the changes have 2 been made and what they are. 3 MR. HANLEY: Very good. 4 THE WITNESS: Let me just 5 say something. I have two changes from 6 the previous testimony just -- should I 7 just wait until I get today's testimony 8 to incorporate those or send them all at 9 once? 10 MR. HANLEY: No, why don't 11 you state what the changes are on the 12 record now, if you don't mind. 13 THE WITNESS: On page 74 14 line 16, instead of it being CLL, should 15 be lymphoma. And the answer was -- the 16 answer was, "the type of NHL that we 17 talked about, the small cell" -- and then 18 it says "CLL represents less than 10 19 percent," it should be, "small cell 20 lymphoma." 21 MR. HANLEY: Okay. 22 THE WITNESS: And the other 23 change is page 92, line 15, and it should 24 -- instead of being pulmonary, it should 25 be hepatic. So the sentence, instead of 173 1 reading, "I can't remember if it's 2 directly off the aorta, but it comes 3 eventually from the aorta into the" and 4 it should be "hepatic artery" instead of 5 the "pulmonary artery." 6 MR. HANLEY: Okay. Thank 7 you, sir. 8 With that I think we can go 9 off the record and conclude the 10 deposition. 11 (Time noted: 4:00 p.m.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 174 1 2 3 4 5 6 7 8 9 I, DR. JOHN WHYSNER, Ph.D., DABT, do hereby 10 declare under penalty of perjury that I have read the 11 foregoing transcript; that I have made any corrections 12 as appear noted, in ink, initialed by me, or attached 13 hereto; that my testimony as contained herein, as 14 corrected, is true and correct. 15 EXECUTED this________day of______________, 16 20___, at_________________________, _______________. (City) (State) 17 18 19 20 ________________________________ DR. JOHN WHYSNER, Ph.D., DABT 21 22 23 24 25 175 1 INDEX 2 EXAMINATION CONDUCTED BY 3 7 3 MR. HANLEY 4 The Travis article and 4 22 5 Dosemeci article were marked as Plaintiff's 6 Exhibit No. 1 7 Article entitled "Benzene 26 9 and Lymphohematopoietic 8 Malignancies in China" published in Journal of 9 Toxicology and Environmental Health, 10 year 2000, was marked as Plaintiff's Exhibit No. 2 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 176 1 STATE OF NEW YORK ) ) Ss: 2 COUNTY OF PUTNAM ) 3 4 I, Christy J. Rockower, a 5 Shorthand Reporter and Notary Public 6 within and for the State of New 7 York, do hereby certify: 8 That the witness whose 9 examination is hereinbefore set 10 forth, was duly sworn by me, and 11 that the transcript of said 12 examination is a true record of the 13 testimony given by the witness. 14 I further certify that I am 15 not related to any of the parties to 16 this action by blood or marriage and 17 that I am in no way interested in 18 the outcome of this matter. 19 IN WITNESS WHEREOF, I have 20 hereunto set my hand this 18th day 21 of April, 2008. 22 23 __________________________ 24 Christy J. Rockower 25 177