Document 2JVVjy5rjmzrzLLLDE5VZ2RN

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA _________________________________________________________ JO ANN BISHOP, ET AL, Plaintiffs, vs. Case No.:07-2832 SHELL OIL CO., ET AL, Defendants. _____________________________/ VIDEOTAPED TELEPHONE DEPOSITION of JOHN SPENCER, C.I.H, C.S.P., held on July 1, 2009, at 6745 Rock Spring Road, Wilmington, North Carolina, commencing at 9:02 a.m., before Laura L. Van Sandt, a Court Reporter and Notary Public in and for the State of North Carolina. 2 1 J. SPENCER, C.I.H., C.S.P. 2 APPEARANCES: 3 4 On behalf of the Plaintiff: 5 (Telephonically) 6 L. ERIC WILLIAMS, JR. ESQUIRE 7 3021 35th Street, Suite B 8 Metairie, Louisiana 70001 9 (504) 832-9898 10 11 RICHARD J. FERNANDEZ, ESQUIRE 12 3000 West Esplanade Avenue, Suite 200 13 Metairie, Louisiana 7002 14 (504) 834-8500 15 16 On behalf of the Defendants: 17 STAN PERRY, ESQUIRE 18 HAYNES AND BOONE, LLP 19 1221 McKinney Street, Suite 2100 20 Houston, Texas 77010-2007 21 (713) 547-2039 22 Attorneys for Shell Oil 23 24 25 3 1 J. SPENCER, C.I.H., C.S.P. 2 APPEARANCES: (CONT'D.) 3 4 GLENN M. FARNET, ESQUIRE 5 KEAN, MILLER, HAWTHORNE D'ARMOND, 6 McCOWAN & JARMAN, LLP 7 22nd Floor, One American Place 8 Post Office Box 3513 9 Baton Rouge, Louisiana 70821 10 (225-387-0999 11 Attorneys for Shell Oil, Shell Chemical, 12 Marathon Oil, El Paso 13 14 JAMES M. RILEY, ESQUIRE 15 (Telephonically) 16 COATES, ROSE, YALE, RYMAN & LEE, LLC 17 3 E. Greenway Plaza, Suite 2000 18 Houston, Texas 77046 19 (713) 653-7375 20 Attorneys for Radiator Specialty Company 21 22 23 24 25 4 1 J. SPENCER, C.I.H., C.S.P. 2 APPEARANCES: (CONT'D.) 3 4 CHRISTOPHER T. CHOCHELES, ESQUIRE 5 (Telephonically) 6 SHER GARNER LAW FIRM 7 909 Poydras Street, 28th Floor 8 New Orleans, Louisiana 70112 9 (504) 299-2100 10 Attorneys for Murphy Oil 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 1 J. SPENCER, C.I.H., C.S.P. 2 INDEX TO EXHIBITS 3 4 DESCRIPTION MARKED 5 6 Exhibit-1 17 7 Notice of Video-Telephone Deposition 8 9 Exhibit-2 18 10 Disk Containing Items Responsive to Notice 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 1 J. SPENCER, C.I.H., C.S.P. 2 VIDEOTAPED TELEPHONE DEPOSITION OF 3 JOHN SPENCER, C.I.H., C.S.P. 4 JULY 1, 2009 5 THE VIDEOGRAPHER: The videotape 6 recording has commenced and we are now on 7 record. Today is July 1st, 2009. 8 (Whereupon, Interruption by 9 unidentified phone speaker.) 10 We are now on record and today's 11 date is July 1st, 2009. The time is 12 approximately 9:02 A.M. 13 My name is Marty Landau of Overby 14 Reporting 178. I am the legal video 15 specialist for Accurate Court Reporting whose 16 business address is 24650 Sandhill Boulevard, 17 Suite 401, Punta Gorda, Florida 33983. 18 The deposition of John Spencer in 19 the matter of Plaintiff Bishop, Jo Ann versus 20 Shell Oil Company, et al, Defendant; case 21 number 07-2832 pending: United States 22 District Court Eastern District of Louisiana. 23 This deposition is being taken at Hilton 24 Garden Inn, 6745 Rock Spring Road, 25 Wilmington, North Carolina 28405 on behalf 7 1 J. SPENCER, C.I.H., C.S.P. 2 of the Plaintiff/Defendant. The court 3 reporter is Laura Van Sandt. 4 Will counsel please identify yourself 5 for the record stating your name, address and 6 who you represent? 7 MR. WILLIAMS: Yes; Eric Williams 8 and Rick Fernandez for the Plaintiffs. 9 MR. FARNET: Glenn Farnet for the 10 Shell defendants, Marathon Oil and El Paso. 11 MR. PERRY: Stan Perry for the Shell 12 Defendants. 13 THE VIDEOGRAPHER: Then -14 MR. RILEY: Jim Riley for Radiator 15 Specialists. 16 MR. FARNET: Jim, could you say that 17 again? 18 MR. RILEY: Jim Riley for Radiator 19 Specialty Company. 20 THE VIDEOGRAPHER: The notary public 21 and court reporter will stenographically 22 record the testimony today. At this time 23 the court reporter -24 MR. CHOCHELES: This is Chris -25 THE VIDEOGRAPHER: -- will please 8 1 J. SPENCER, C.I.H., C.S.P. 2 swear in the witness. 3 MR. FARNET: Hold on, Chris. 4 Identify yourself. 5 MR. CHOCHELES: Yeah, Chris 6 Chocheles, Sher Garner. 7 MR. PERRY: Representing Murphy Oil. 8 MR. CHOCHELES: Representing Murphy 9 Oil; sorry about that. 10 THE COURT REPORTER: And your last 11 name again, sir? 12 MR. CHOCHELES: Let me spell it for 13 you. C-H-O-C-H-E-L-E-S. 14 THE COURT REPORTER: Thank you. 15 THEREUPON, 16 JOHN SPENCER, CIH, CSP, 17 having been duly sworn, was examined and 18 testified as follows: 19 MR. WILLIAMS: Are we ready? 20 THE COURT REPORTER: Yes. 21 EXAMINATION 22 BY-MR.WILLIAMS: 23 Q. Good morning, Mr. Spencer; could you 24 please state your full name and address for 25 the record? 9 1 J. SPENCER, C.I.H., C.S.P. 2 A. John Spencer, 8805 Columbia 100 3 Parkway in Columbia, Maryland. 4 Q. And what's your date of birth, sir? 5 A. 12 February 1954. 6 Q. And your Social Security? 7 A. I don't want to give that out. 8 Q. You don't want to give that, okay. 9 And say your date of birth again? 10 A. 12 February 1954. 11 Q. 2/12/54? 12 A. Yes. 13 Q. Okay, what degrees have you earned, 14 Mr. Spencer? 15 A. I have a degree in biological 16 sciences from the University of Maryland. 17 Q. Okay, any other degrees? 18 A. No. 19 Q. Okay, did you take any Masters 20 classes? 21 A. Yes. 22 Q. Okay, and did you finish your 23 Masters degree? 24 A. I did not. I did not finish my 25 thesis. 10 1 J. SPENCER, C.I.H., C.S.P. 2 Q. And why not? 3 A. Three kids and starting a new 4 business. 5 Q. Okay, were you asked to leave the 6 school? 7 A. No. 8 Q. Okay, and what curriculum were you 9 studying in your Masters program? 10 A. It was environmental biology. 11 Q. And how many hours did you complete? 12 A. Twenty-six. 13 Q. Do you consider to be an ex -14 yourself to be an expert in biology? 15 A. Certainly as a consultant I work in 16 that area. I've never testified as an 17 expert in biology, however. So if your 18 question is with regards to from a legal 19 standpoint, frankly I've never been put up as 20 a biologist before. 21 Q. Do you consider yourself to be an 22 expert in the field of chemistry? 23 A. Again, it is a significant part of 24 what I do, but I've never been put up as a 25 -- specifically as a chemist. 11 1 J. SPENCER, C.I.H., C.S.P. 2 Q. Do you have any certifications, sir? 3 A. Yes. 4 Q. Which ones? 5 A. I'm a Certified Industrial Hygienist, 6 a Certified Safety Professional and a 7 Certified Indoor Air Quality Consultant. 8 Q. Okay, what does one have to do to 9 become a Certified Industrial Hygienist? 10 A. Well, the same is true for all of 11 them. You have to demonstrate minimum 12 experience of five years in the field. You 13 have to have letters of recognition from 14 other certified individuals in that field and 15 then you have to pass an examination. 16 Q. And what year did you receive your 17 Industrial Hygienist Certification? 18 A. 1987. 19 Q. Are you a peer reviewer for any 20 journals? 21 A. Well, I have done for a variety of 22 journals, yes. I don't do it consistently. 23 I just -- I often receive articles and I'm 24 asked to peer review them. 25 Q. What areas do you consider yourself 12 1 J. SPENCER, C.I.H., C.S.P. 2 to be an expert in? 3 A. Well, exposure assessment; employer 4 health and safety and environmental programs; 5 product warnings; those are the primary ones 6 from -- again from a legal standpoint. 7 Q. Do you consider yourself to be an 8 expert in the field of chemical engineering? 9 A. No, I do not. 10 Q. What about the field of chemical 11 composition of substances? 12 A. Well, again, it is a large part of 13 what I do as an industrial hygienist. 14 Certainly I've had -15 Q. When I say -- let me give you a 16 fairer question; the quantification of 17 chemical compositions of substances? 18 A. I don't know that I'm following what 19 do you mean -- what you mean by 20 quantification. 21 Q. If I gave you a solvent and I said 22 can you tell me what -- what the historical 23 amount of benzene was in that solvent, would 24 you consider yourself to be an expert in 25 that field? 13 1 J. SPENCER, C.I.H., C.S.P. 2 A. I certainly -- I guess I have to 3 think about that. I have reviewed the 4 literature. I'm familiar with the changing 5 benzene content of products through time 6 based on review of various literature sources 7 and other summary documentation. 8 Q. So is that a yes? 9 A. I guess I would say yes. I know 10 more than I'd say most people. I mean I've 11 -- you know, I've been for the last 30-plus 12 years I've been working at this I've 13 certainly collected various hydrocarbon samples 14 and had them analyzed for benzene content in 15 health hazard assessments I was conducting. 16 Q. Have you ever served as an expert in 17 a case where the plaintiff's exposure expert 18 did not have a Masters? 19 A. Yes. 20 Q. Can you tell me his name? 21 A. No. 22 Q. Have you ever served in a case where 23 the plaintiff's exposure expert did not have 24 a Ph.D? 25 A. Yes. 14 1 J. SPENCER, C.I.H., C.S.P. 2 Q. And can you tell me his name? 3 A. I cannot specifically, no. 4 Q. As a general rule, would a expert in 5 a particular field with a Ph.D have more 6 knowledge than someone with a Bachelor's 7 degree? 8 MR. PERRY: Object to form. 9 THE WITNESS: No, I do not think 10 so, no. 11 Q. What classes have you taken at a 12 university regarding exposure calculations? 13 A. I've taken exposure assessment 14 industrial hygiene classes at George 15 Washington University. I've taken similar 16 cases on exposure assessment at the 17 University of Cincinnati when I worked for 18 the National Institute for Occupational Safety 19 & Health. While it was not a university -20 Q. In the -21 A. I'm sorry. I wasn't finished. 22 While it's not a university, I also took 23 two-week classes that involved that in two -24 2 weeks of 40 hour class work from the OSHA 25 Training Institute outside of Chicago where 15 1 J. SPENCER, C.I.H., C.S.P. 2 OSHA inspectors and industrial hygienists are 3 trained. 4 Q. And the exposure assessment class 5 that you spoke about, was that in your 6 undergraduate program? 7 A. No; that was a graduate program. 8 Q. Okay, and you took -- I believe you 9 said you took two classes or -10 A. One was at -11 Q. -- in the graduate program? 12 A. One was at George Washington 13 University and another was at the University 14 of Cincinnati. 15 Q. And were those graduate classes? 16 A. Yes. 17 Q. Okay, what methodology did you use 18 in this case? 19 A. The standard industrial hygiene 20 methods. 21 Q. Can you explain it to us? 22 A. Yes; there -- there is a 23 standardized practice that is defined in the 24 industrial hygiene text. One is the 25 Strategies For Assessing & Managing 16 1 J. SPENCER, C.I.H., C.S.P. 2 Occupational Exposures. The other is the 3 Occupational Environment, its management. And 4 in those books are chapters that define an 5 exposure assessment process. And that 6 process includes evaluation of the work place 7 activities, the tasks, frequency and 8 duration; the work place environment; the 9 products that are at issue and what controls, 10 if any, were being utilized to manage those 11 exposures. 12 Q. And what did you say the name of 13 that textbook was? 14 A. Well, there's two; Strategies for 15 Assessing & Managing Occupational Exposures. 16 Q. And did you bring that with you 17 today? 18 A. I didn't bring the book with me, no. 19 I brought a chapter from that book -20 Q. Okay. 21 A. -- that deals with -22 Q. Let me back up, Mr. Spencer. Did 23 you receive a notice in this case? 24 A. I did. 25 Q. Okay, let's -- tell me what you 17 1 J. SPENCER, C.I.H., C.S.P. 2 brought in response to the notice, and I'd 3 like to mark the notice as Exhibit-1. 4 (WHEREUPON EXHIBIT-1 WAS MARKED FOR 5 IDENTIFICATION) 6 A. I brought my entire file. I brought 7 the references that I have reviewed as part 8 of this case and I brought other materials 9 that I felt were relevant to my evaluation 10 in this case. 11 BY-MR.WILLIAMS: 12 Q. Okay, can you break it down by item 13 what you brought in response to the request? 14 A. Well, we might be here several hours 15 if you want me to read each and every item. 16 MR. FARNET: Eric, so you'll know, 17 this is Glenn, he put it all on a disk -18 MR. WILLIAMS: Okay. 19 MR. FARNET: -- that we are prepared 20 to, you know, submit -- attach to the 21 deposition or send to you. 22 BY-MR.WILLIAMS: 23 Q. Okay, well, Mr. Spencer, I don't 24 want you to take hours. I just want you to 25 briefly tell me did you bring something in 18 1 J. SPENCER, C.I.H., C.S.P. 2 response, you know, to 1, to 2? 3 A. Yes; I mean I brought all the 4 documents I just described including the 5 references that I relied upon. 6 Q. Okay, well, we'll attach the disk as 7 Number 2. 8 MR. PERRY: Just one second, Eric; 9 so the notice -- I had a copy of the notice 10 and I think John's got one electronically, 11 but I have a hard copy of the notice. 12 We'll attach it as Exhibit-1, and it's with 13 the court reporter. And then Exhibit-2 will 14 be the disk that has the items responsive to 15 the deposition notice. 16 MR. WILLIAMS: Fair enough. 17 (WHEREUPON, EXHIBIT-2 WAS MARKED FOR 18 IDENTIFICATION) 19 BY-MR.WILLIAMS: 20 Q. Mr. Spencer, what year was the 21 textbook that you were referring to, 22 Strategies? 23 A. Well, gosh, it was originally 24 published several years ago and there's been 25 at least two, maybe three revisions of it, 19 1 J. SPENCER, C.I.H., C.S.P. 2 the most recent one in 2007-2008. 3 Q. Did you perform a benzene exposure 4 assessment for Mr. Bishop? 5 A. Not per se; one, I felt there was 6 insufficient information. And what I mean by 7 not per se is that I essentially followed 8 the process that your industrial hygiene 9 expert followed and simply made corrections 10 to some of the assumptions that were applied 11 to his process. 12 Q. Well, how do you know Dr. Rando's 13 calculations, let's say for instance for 14 Shell, are incorrect if you didn't calculate 15 an exposure assessment yourself? 16 A. Well, I think we're talking about 17 two different things. I believe that his 18 calculations are incorrect -- actually, we 19 don't know and he -- as he even described he 20 has no knowledge of what specific products, 21 what specific frequency and duration of 22 exposure, or what specific tasks Mr. Bishop 23 did in order to properly calculate an 24 exposure. In the absence of that information 25 you cannot do that type of assessment. 20 1 J. SPENCER, C.I.H., C.S.P. 2 Q. Did you perform -- so you're saying 3 you couldn't sit here and perform an exposure 4 assessment for the Shell facility for Mr. 5 Bishop today, if I asked you to? 6 A. Well, I can't -- I would agree with 7 that. I can't do it specifically for Mr. 8 Bishop. What I can do is better narrow down 9 a range of exposures that a pipefitter 10 working -- such that Mr. Bishop did working 11 at the Shell facility, what his exposures 12 would likely have been, or a range of values 13 that it would fall into or an upper limit 14 value that he would have been exposed to. 15 And that's based on the data, the air 16 monitoring data from the Shell facility, and 17 correlating that with some data that's 18 produced in the literature. 19 Q. But you didn't do that in this case, 20 is that correct? 21 A. Well, no; I did look at that and in 22 my report I do talk about the specific Shell 23 data from that facility. So, yes, I did do 24 that as a means of comparing the process 25 that your industrial hygienist followed and 21 1 J. SPENCER, C.I.H., C.S.P. 2 what I certainly would have done to do such 3 an assessment. 4 Q. Maybe I'm misunderstanding you, Mr. 5 Spencer. Did you calculate a part per 6 million exposure assessment for pipefitters at 7 the Shell Norco facility? 8 A. In our report, yes; in our report I 9 gave an upper-end range -- or an upper-end 10 value and then a range of values as well. 11 Q. What was the upper-end value? 12 A. I believe it was 1.59 parts per 13 million. 14 Q. And that was per day, per year, 15 what? 16 A. That was an average daily exposure. 17 Now I don't believe that was Mr. Bishop's 18 exposure because that included activities that 19 Mr. Bishop would not have been involved in. 20 Q. Thank you; have you ever performed a 21 dermal calculation for benzene? 22 A. I have in the context of litigation 23 cases, yes, but not in my 30-plus years of 24 practice of monitoring benzene. When I 25 worked for NIOSH, when I worked for the U.S. 22 1 J. SPENCER, C.I.H., C.S.P. 2 Coast Guard, that's just not done, never 3 done. The only time I've done is in the 4 context of litigation. 5 Q. Okay, please tell me what 6 qualifications that you believe you have that 7 would qualify you to perform a dermal 8 calculation. 9 A. Well, I know how to plug numbers 10 into a model. I am familiar with the 11 various variables that are associated with 12 the dermal model. I recently just spoke on 13 this issue at a national conference in Canada 14 on the limitations of doing dermal 15 assessments along with European and NIOSH 16 researchers in the same area. 17 Q. Does this type of exposure assessment 18 utilize different math principles? 19 A. Well, there's certainly mathematical 20 formulas that are used to derive estimates of 21 absorbed dose. 22 Q. Okay, earlier I believe you testified 23 that you could plug numbers into a model. 24 Could you do a dermal calculation without a 25 model? 23 1 J. SPENCER, C.I.H., C.S.P. 2 A. I don't know that would be called a 3 calculation. People certainly have produced 4 best guesses, but I -- 5 Q. Well -- 6 A. -- would -- I would say without a 7 calculation -- actually without -- a 8 calculation gives you -- it's an estimated 9 value and you really don't know the accuracy 10 of that valve without further validating that 11 process. That's why in our business that 12 if we are concerned about dermal dose in 13 addition to inhalation dose, we collect 14 biological samples, blood or urine samples 15 and have that evaluated, and that's why we 16 do not use a dermal calculation to determine 17 the significance of exposure. 18 Q. And that's in the present day, 19 correct? 20 A. It -- correct; and it's always been 21 that way. 22 Q. You can't do that for exposures that 23 occurred in the '70s, is that correct? 24 A. That is correct, yes. 25 Q. Okay. 24 1 J. SPENCER, C.I.H., C.S.P. 2 A. I'm sorry, and you're referring to 3 doing the biological exposure indices 4 evaluation? 5 Q. Yes, sir. 6 A. Yes. 7 Q. Did you take any calculus classes in 8 your undergrad degree? 9 A. Yes. 10 Q. I'm sorry. I couldn't hear you. 11 A. Yes, I did. 12 Q. Okay, Mr. Spencer, have you ever 13 been excluded as an expert witness? 14 A. I have not ever been excluded as an 15 expert witness. I was excluded from talking 16 about cumulative dose in a case several years 17 ago, but I was not excluded from the case. 18 Q. Okay, how many times have you been 19 limited as an expert witness by a court? 20 A. Once. 21 Q. Do you recall the name of that case? 22 A. It was Lavender versus Miles, I 23 believe or Mobay. 24 Q. Are you familiar with the case 25 called Adler versus Bear Corporation? 25 1 J. SPENCER, C.I.H., C.S.P. 2 A. The name is somewhat familiar. Bear 3 is -- was -- is the new name for Miles and 4 Mobay. 5 Q. Did the Supreme Court criticize your 6 methodology for exposure assessments in that 7 case? 8 MR. PERRY: Can you clarify which 9 Supreme Court? 10 Q. I'm sorry, Utah Supreme Court. 11 A. Oh, oh, no; I don't know if they 12 did or not. I think that was the one where 13 that case was removed after we did a study 14 there, you know, and summary judgment issues 15 that the case was removed. 16 Q. What do you mean? When you say 17 removed, what did you mean by removed? 18 A. I guess they got summary judgment. 19 The defendants got summary judgment in that 20 case. 21 Q. That's not what we call remove, but 22 in any event let's talk about Lavender versus 23 Bear Corporation. What did the court say 24 about your methodology in that case? 25 A. Well, unfortunately I wasn't there to 26 1 J. SPENCER, C.I.H., C.S.P. 2 know exactly what the court said. In the 3 document that I read one year after it 4 occurred, I wasn't even made aware that there 5 was a hearing, was that -6 Q. Well, let me ask you this -7 A. -- that I used data on electricians. 8 This had to do with pipefitters. I used 9 data on pipefitters, sorry. This was about 10 an electrician. The electrician followed the 11 pipefitters. I used the data on pipefitters 12 because it in my view represented a higher 13 level of exposure. And the judge in that 14 case believed that I did not select an 15 appropriate exposure group because I selected 16 pipefitters, not electricians. And as I 17 understand, that was the basis for the 18 decision. 19 Q. Do you know whether the court found 20 that your methodology was flawed, stating 21 that your estimates were guesstimates that 22 did not simulate the types of exposures 23 experienced by the plaintiff? 24 A. Well, yeah, I think that was -- you 25 know, and it was -- the issue was because I 27 1 J. SPENCER, C.I.H., C.S.P. 2 used data on pipefitters that represented a 3 higher level of exposure than the electrician 4 that was at issue in the case. 5 Q. Did the court also find that you 6 conducted a test under a very poor 7 ventilation and collected data only in the 8 first 15 minutes of exposure? 9 A. I'm not sure what you're talking 10 about because I didn't collect any samples. 11 I was using data from the facility. There 12 were hundreds of sampling data points from 13 the facility. 14 Q. And that's what I'm referring to. 15 A. Yeah, so it sounds like something is 16 being interpreted or read incorrectly. 17 Q. In that case could you have 18 estimated the plaintiff's exposures at the 19 times much longer than your experiment using 20 partial differential equations? 21 A. Again, I think you're confused with 22 somebody else. I didn't do any differential 23 equations. I used the data from the 24 facility on -- from their pipefitters which I 25 believe overstated what the electricians' 28 1 J. SPENCER, C.I.H., C.S.P. 2 exposure was who followed the pipefitters 3 into that -- those process areas. 4 Q. Have you ever done any modeling of 5 exposures? 6 A. Yes. 7 Q. Did you do any in this case? 8 A. No. 9 Q. Can you tell me why? 10 A. Yes; we had air monitoring data. 11 Q. Okay, now did we have air monitoring 12 data for all four facilities? 13 A. Well, I looked at three facilities. 14 Q. And I apologize. Let's get that 15 clear. You did not look at the merger 16 facility, is that correct? 17 A. That's correct. 18 Q. Okay, so for the three facilities 19 you looked at did we have data for all three 20 facilities? 21 A. Yes. 22 Q. And that's why you didn't do 23 modeling? 24 A. Well, correct; and in addition to 25 that, I wasn't really asked to do -- to do 29 1 J. SPENCER, C.I.H., C.S.P. 2 that sort of detailed exposure assessment. I 3 was really asked to evaluate what the 4 plaintiff's industrial hygiene expert had 5 developed and to assess his approach and his 6 outcome. 7 Q. But if you were asked to come up 8 with a part per million year for each 9 facility, you could have done that in this 10 case, is that correct? 11 A. Well, I don't think that would be 12 appropriate to come for each facility. If 13 you mean in terms of Mr. Bishop -14 Q. Yes; contribution from each facility? 15 A. Yes; again, I think if you -- let 16 me back up a minute. I don't believe I had 17 at the time, at least I didn't have data on 18 Marathon's. I didn't have their numbers. I 19 couldn't do an exposure assessment related 20 specifically to Mr. Bishop. I could do an 21 exposure assessment that looked at a range of 22 values or a ceiling value that was 23 representative of the exposure group that Mr. 24 Bishop would have been included in. And in 25 fact I'm going to back up again. I did 30 1 J. SPENCER, C.I.H., C.S.P. 2 have data. I had 12 sampling data points 3 from Marathon as well. 4 Q. What years were those samples from, 5 sir? 6 A. I believe they were from '84 to '97. 7 Q. Mr. Spencer, would you consider 8 yourself to be an expert in determining the 9 amount of benzene in a product? 10 A. I think we touched on this earlier 11 and I'd say -- I mean, yes, due to my 12 experience over the last 30 years of doing 13 those types of evaluations, due to my review 14 of published and unpublished literature 15 that has evaluated the historical levels of 16 benzene in a variety of products. 17 Q. And if there was -- there wasn't any 18 literature that identified the level of 19 benzene in a historical product, how would 20 you determine what levels of benzene were in 21 that product? 22 A. I'm sorry, if you were going back in 23 time in doing that assessment? 24 Q. Yeah. 25 A. Well, I mean I -- the only way to 31 1 J. SPENCER, C.I.H., C.S.P. 2 do that is to look collectively at the 3 literature as to -- you know, as it was 4 reported for those particular products. And 5 there's a lot of summary information that's 6 out there in that regard. I think one has 7 to be careful to try as best you can choose 8 the appropriate or the representative data, 9 that is, data that is representative of the 10 processes that were used to derive those 11 chemicals that properly represent potential 12 benzene content. 13 Q. Do you always accept the benzene 14 content data from the manufacturer is true? 15 A. I can't say always, no. That's too 16 absolute. 17 Q. Have you taken any courses in 18 environmental chemistry? 19 A. Yes. 20 Q. And what -- was that your 21 undergraduate degree? 22 A. Well, I've had a lot of organic and 23 inorganic chemistry. I also worked at the 24 National Institutes of Health in Bethesda, 25 Maryland at the -- in the laboratory of 32 1 J. SPENCER, C.I.H., C.S.P. 2 chemistry synthesizing various chemical 3 products. I've also taken chemistry in my 4 -- in graduate level course work as well and 5 at the OSHA Training Institute. 6 Q. Do you know if Shell had a odor 7 threshold procedure that they used to 8 recreate exposure assessments of their 9 workers? 10 MR. PERRY: Object to form. 11 THE WITNESS: I'm aware of Shell 12 doing a study that included odor but not 13 odor on its own. There were other sensory 14 perception issues that were -- or variables 15 that were included in that particular 16 assessment that they had done. 17 Q. And was this odor threshold 18 methodology submitted to OSHA and NIOSH? 19 MR. FARNET: Object to the form. 20 THE WITNESS: I -- you know, I 21 haven't looked at that in a while. I do 22 recall that perhaps it was, at least the 23 protocol was submitted to NIOSH from what I 24 remember. I don't know the end product was 25 submitted to NIOSH but it was not -- but 33 1 J. SPENCER, C.I.H., C.S.P. 2 again, this was not just on odor as a 3 determinant. 4 Q. Were the results of the exposure 5 assessment that was recreated by the odor 6 threshold submitted to NIOSH and OSHA? 7 MR. FARNET: Object to form. 8 THE WITNESS: Again, it wasn't 9 simply on odor threshold. There was also 10 air monitoring and visual perception and 11 experience by people who'd been in the 12 refineries for some time. And I do not 13 recall whether or not the end product, the 14 report was actually delivered to NIOSH. I 15 think -- what I recall, the protocol was, 16 but I don't remember whether the report 17 itself was. 18 Q. Do you know if this exposure method 19 was validated using actual industrial hygiene 20 data? 21 A. They did include some air sampling 22 data in an attempt to try to validate some 23 of their sensory perception, the visual and 24 -- and odor threshold determinants. 25 Q. Are you familiar with a Dr. 34 1 J. SPENCER, C.I.H., C.S.P. 2 Paustenbach? 3 A. Yes. 4 Q. Are you familiar with his paper or 5 article on dermal calculations. 6 A. I'm not sure which paper you're 7 referring to. 8 Q. Well, one of the ones that Dr. Rando 9 relied on? 10 A. Do you happen to know the year of 11 that paper? 12 Q. No, I don't offhand. It's one of 13 his references. Did you read the dermal 14 calculation reference that Dr. Rando used? 15 A. I mean there are several references 16 and I'm not sure. Are you talking about the 17 Pamela Williams's paper or that she's the 18 lead author, that Paustenbach was a coauthor 19 on, or one that Dr. Paustenbach -20 Q. No; Dr. Williams and Paustenbach I 21 believe -22 A. Yeah, that's the -23 Q. -- the one that Paustenbach authored 24 by himself. 25 A. Yes, poor Pamela always gets left 35 1 J. SPENCER, C.I.H., C.S.P. 2 behind on that. She is the primary author 3 on that paper. I think that's the one 4 you're talking about. 5 Q. Okay. 6 A. I'm -7 Q. Do you disagree with his formula for 8 dermal calculations? 9 A. Oh, no; it's a standardized formula. 10 There's -- there's certainly no problem with 11 that. 12 Q. Do you agree that Dr. Paustenbach 13 himself has used that formula to create 14 dermal calculations for benzene exposure? 15 A. Oh, sure; a lot of people have 16 calculated -- calculated dermal exposures, 17 sure, using that standardized formula. 18 Q. Do you know the levels that Dr. 19 Paustenbach -- the levels of benzene -- let 20 me rephrase that. Do you know if Dr. 21 Paustenbach has written about benzene odor 22 threshold being at levels of 38 parts per 23 million? 24 A. Gosh, he's written so many papers, 25 he may have. I don't know. There is wide 36 1 J. SPENCER, C.I.H., C.S.P. 2 variation. The Shell study that you 3 reference talks about odor thresholds, I 4 think even much lower than that. And 5 there's studies that show it from less than 6 one part per million to over a hundred parts 7 per million so there's -- there's quite a 8 bit of variation in reported odor thresholds 9 for benzene and that's why it's not utilized 10 as a means of evaluating exposure. 11 Q. Mr. Spencer, have you ever testified 12 that you're not an expert in chemistry, but 13 you know more than the average person? 14 A. I don't recall one way or the other 15 honestly. 16 Q. Is the science of chemistry relevant 17 to your opinions in this matter? 18 A. Well, sure; we're dealing with 19 chemical substances, yes. 20 Q. How about analytical chemistry? 21 A. I'm sorry. What's -- what's the 22 question? 23 Q. I said is the science of analytical 24 chemistry relevant to your opinions in this 25 matter? 37 1 J. SPENCER, C.I.H., C.S.P. 2 A. In a sense that I understand the 3 methodologies that were utilized to analyze 4 the samples that -- the air samples that I 5 reviewed, yes. 6 Q. Is the science of chemical 7 engineering relevant to your opinions in this 8 matter? 9 A. I'm not sure what portion of that 10 you're referring to. It's kind of a broad 11 field and I need some more specificity. 12 Q. I'm just asking you if you know one 13 way or the other if chemical engineering is 14 a form of science that you relied on in this 15 case? 16 A. I mean, again I guess I need more 17 specificity to properly answer that question. 18 I mean I understand there's a multitude of 19 processes in a refinery in a chemical plant 20 and some contain benzene streams and some do 21 not. 22 Q. Mr. Spencer, have you ever spoken at 23 a Harris Martin benzene conference? 24 A. Yes; I'm trying to think if that was 25 the one I was invited by the plaintiffs' 38 1 J. SPENCER, C.I.H., C.S.P. 2 attorney to speak at, yes. 3 Q. And did you list your title as 4 doctor on that -- on that program for that? 5 A. No, I did not. 6 Q. Okay, and has your name ever been 7 put on there as Dr. John Spencer? 8 A. I'm not aware that it has. If they 9 did, I get that a lot because of what I do, 10 but I certainly have never held myself out 11 to be a doctor. 12 Q. When you say you get that a lot, 13 people mistake you as a doctor a lot in this 14 area of expertise? 15 A. They do, or I get on the phone like 16 I am with you today and I'm referred to as 17 doctor quite often so it's an occupational 18 hazard. 19 Q. Mr. Spencer, what are exposure 20 pathways? 21 A. Well, they are the routes of 22 exposure. 23 Q. And what routes of exposure would 24 you expect to see in a benzene case? 25 A. Well, it depends. Typically you're 39 1 J. SPENCER, C.I.H., C.S.P. 2 looking at inhalation and depending on the 3 circumstances there's also a dermal route of 4 exposure that's potentially available. 5 There's also an ingestion route of exposure 6 but not as probable. 7 Q. Can benzene enter the body through 8 dermal contact? 9 A. Yes. 10 Q. Can benzene cause blood disorders and 11 blood malignancies through dermal contact? 12 MR. PERRY: Object to form. 13 THE WITNESS: That is a medical 14 question. I don't frankly know whether 15 that's ever been evaluated either in animal 16 or human studies but that's more of a 17 medical question. 18 Q. Well, if benzene enters the body, 19 would you agree with me that it can cause 20 blood disorders? 21 MR. PERRY: Object to form. 22 THE WITNESS: Certainly through 23 inhalation; I'm familiar with that, yes. 24 Q. Would you agree with me that there 25 are several studies that are peer reviewed 40 1 J. SPENCER, C.I.H., C.S.P. 2 and show how to calculate a dermal exposure 3 for benzene? 4 A. Oh, yes, sure, but unfortunately the 5 problem is that they're all done differently. 6 They're based on different studies; life, 7 individuals or cadaver skin or monkey skin, 8 or some other animal or different layers of 9 skin, or skin from different parts of the 10 body so the problem is there's no 11 standardized. You can do it and there's 12 many ways to do it but there is no 13 standardized and accepted and validated method 14 for doing it. 15 Q. Okay, can you tell me the different 16 forms of recreating exposure assessment to 17 benzene? 18 A. The different forms? 19 Q. Forms of data; I apologize. 20 A. Oh; well, there's actual air 21 measurements number one. Two is to -- and 22 you can have air measurements from the 23 facility on the individual, or just from the 24 facility and of the specific exposure groups 25 to which that individual is related to or 41 1 J. SPENCER, C.I.H., C.S.P. 2 included within. Two is to take literature 3 or data from the literature or other studies, 4 that again defines the specific exposure 5 group that individual was part of. And a 6 third mechanism is doing modeling. Near 7 field, far field model is a common example 8 or doing box models, that sort of thing. 9 There are a slue of air modeling techniques 10 that one can utilize. 11 Q. And what about odor threshold? 12 A. No. 13 Q. No, that's never been used as a way 14 to recreate an exposure assessment? 15 A. No, not a quantitative exposure 16 assessment; I guess if one could do that, 17 all the -- all the equipment people would be 18 out of business if one could walk in and 19 sniff the environment. But no, that's -20 it's not an accepted NIOSH or OSHA air 21 sampling method. As far as I know it's not 22 used by anybody in the world to quantify 23 occupational exposures. 24 Q. I don't think I asked you air 25 sampling. I said what are acceptable forms 42 1 J. SPENCER, C.I.H., C.S.P. 2 of data in recreating a exposure assessment? 3 A. Oh; well, I mean I think it's the 4 same sort of thing that I'm looking at from 5 an industrial hygiene standpoint and what I 6 do to assess an exposure, and odor is just 7 too unreliable. 8 Q. Have you ever used an odor threshold 9 in any litigation case? 10 A. Oh, sure; I've talked about odor 11 thresholds quite a bit and benzene is a good 12 example. You know, we touched on it 13 earlier. There's a very broad range of odor 14 thresholds, both what you can detect and 15 recognize for benzene. There's also a study, 16 AS -- ASTM provides a guideline on odor 17 determinants and talks about the very 18 significant intra and inter surveyor 19 variability and utilized to properly assess 20 an odor. 21 Q. Okay, is there a dermal exposure 22 limit for benzene? 23 A. No, there is not. 24 Q. Do you know if OSHA has a skin 25 notation on the regulation for benzene? 43 1 J. SPENCER, C.I.H., C.S.P. 2 A. Oh, sure; many chemicals do. In 3 fact, the talk I just gave was with the -4 NIOSH is developing and updating their skin 5 notations for chemicals. And I also spoke 6 with an individual who's also updating the 7 European union version of the same thing and 8 talked to him specifically about, you know, 9 how these notations work. But these are 10 notations that are used to define whether or 11 not a product can present a systemic effect, 12 or a corrosive effect, or a sensitization 13 effect. It is not a means nor an indicator 14 that you quantity the dose that's absorbed 15 through the skin. It's an indicator of the 16 toxological effect of that product being on 17 the skin. 18 Q. And do the OSHA regulations require 19 the employer or the premise owner to provide 20 safety equipment to avoid dermal contact to 21 benzene? 22 MR. FARNET: Object to form. 23 THE WITNESS: Yes; that's certainly 24 recommended the employer to certainly provide 25 that type of equipment where benzene is 44 1 J. SPENCER, C.I.H., C.S.P. 2 present. 3 Q. Would it be fair to say OSHA expects 4 the protection, personal protective equipment 5 to eliminate any dermal contact with benzene? 6 A. I would say certainly -- I don't 7 know eliminate's the right word. That 8 certainly is a first choice but certainly to 9 reduce or manage that exposure. When OSHA 10 developed the occupational health standard for 11 benzene, they certainly recognized there 12 was a significant amount of dermal contact to 13 workers who handled various solvents. And 14 certainly their intent was to minimize or to 15 eliminate, as you say, dermal routes of 16 exposure. But they certainly recognized that 17 those routes of exposure did occur. 18 Q. What percentage of your work involves 19 litigation? 20 A. That varies pretty significantly on 21 what project I'm working on in a particular 22 week or month. I -- my best guess -- and 23 I just don't keep any records of this but my 24 best guess is it varies from 5 percent to 40 25 percent of my time in a given week or month. 45 1 J. SPENCER, C.I.H., C.S.P. 2 Q. And would these be cases that 3 involve chemical exposures? 4 A. Sure, many of them; some are safety 5 related issues or environmental issues. 6 Q. How many cases have you served as an 7 expert, do you believe, in your career? 8 A. Oh, gosh, I honestly -- I mean how 9 many times have I been listed in a case? 10 Q. Either testified, listed, prepared a 11 report? 12 A. I mean probably the best I can tell 13 you is I've testified at trial in probably 14 20 cases over the last 15 years. 15 Q. Do you have a ballpark figure of how 16 many other cases you served as an expert in? 17 A. I really do not know. 18 Q. Was it more than 200? 19 A. I would say over a 15-year period, 20 yes. And I certainly had been listed in 21 cases and been asked to look at -- it's not 22 that I've testified in that many but that 23 I've -- certainly I probably looked at a 24 number of cases or been asked to look at 25 those cases. 46 1 J. SPENCER, C.I.H., C.S.P. 2 Q. How many have you served for the 3 plaintiff? 4 A. Directly, I don't know, maybe -5 again I'm not real certain. Five to ten 6 times that I've worked directly for the 7 plaintiff. 8 Q. Mr. Spencer, have you ever testified 9 that you, "Routinely testify solely on behalf 10 of defendants because I mean that's who I am 11 able to get to support scientifically and, 12 yes, I mean that's what I look for"? 13 A. Well, did it say routinely and 14 solely? 15 Q. Uh-huh. 16 A. No; well, no; I mean obviously I 17 don't do it solely for. I think routinely 18 is probably correct based on what you just 19 read but obviously not solely. 20 Q. And what did you mean by, "I am 21 able to support scientifically"? 22 A. That there is sufficient information, 23 scientific information to support my position. 24 Q. "And I mean that's what I look for", 25 what did you mean by that? 47 1 J. SPENCER, C.I.H., C.S.P. 2 A. Well, I review literature. I review 3 studies, published and unpublished studies, 4 other government documents that are available, 5 and draw upon my own experience which has 6 been involved, extensive experience in 7 monitoring exposures in a variety of 8 different work places. 9 Q. Have you ever opined in litigation 10 that a plaintiff exposed to benzene was 11 exposed to levels that could have caused his 12 disease? 13 A. Have I opined that? Again, I'm not 14 a medical doctor that opines that. I 15 certainly have presented -- have been 16 presented with and communicated that I 17 believe that the exposures from -- to benzene 18 from a particular product were in excess of 19 occupational health standards. But I'm not a 20 causation person. I don't speak to whether 21 or not that's likely to have caused disease. 22 Q. And I apologize. Let me rephrase my 23 question. Have you ever opined that a 24 plaintiff was exposed to unsafe levels of 25 benzene? 48 1 J. SPENCER, C.I.H., C.S.P. 2 A. Yes. 3 Q. And what case was that in? 4 A. I can't tell you the particular 5 case, but it had to do with a particular 6 paint remover that had -- I don't even 7 remember the percentage of benzene in there 8 but it was being applied to a very wide 9 surface area for extended period of time in 10 -- and the levels were above at least 11 today's occupational health standard. 12 Q. And do paint removers generally have 13 higher than 5 percent benzene content? 14 A. I can't say whether generally or 15 not. This particular one had a formulation 16 that did. 17 Q. Okay, what was the benzene content? 18 A. Again, I'm not sure. I believe to 19 the best of my recollection it was somewhere 20 between 10 and 20 percent. 21 Q. Okay, so if someone was exposed to a 22 product with more than 10 to 20 percent 23 benzene content, you could arrive at a 24 conclusion that they were exposed to unsafe 25 levels of benzene? 49 1 J. SPENCER, C.I.H., C.S.P. 2 MR. PERRY: Object to form. 3 THE WITNESS: Not on -- not on that 4 only of itself; I mean if you're going to do 5 an exposure assessment, you need to evaluate 6 what controls are in place. Was there any 7 ventilation. Were they using respirators. 8 What was the frequency and the duration of 9 that activity. All those contribute to the 10 significance of that exposure so you have to 11 evaluate those components as well. 12 Q. Okay, have you ever served as an 13 expert in a case where someone was exposed 14 to benzene and they -- they contracted 15 multiple myeloma? 16 A. I certainly -- yes; I have been in 17 cases. I can't tell you which ones or how 18 many but certainly I've seen at least some 19 cases where multiple myeloma was the disease 20 at issue. 21 Q. Well, would Ben Brown be one of the 22 cases? 23 A. Honestly I'm involved in that case 24 but I but I don't know what the disease 25 process is offhand. It's just not -- I 50 1 J. SPENCER, C.I.H., C.S.P. 2 don't -- I can't answer that question right 3 now accurately. 4 Q. Okay, would you know if Douglas 5 versus Ashland would be another benzene 6 multiple myeloma case? 7 A. Again, without going back and looking 8 specifically at the diagnosis issue I 9 couldn't tell you. 10 Q. Okay, is benzene classified as a 11 known human carcinogen? 12 A. Yes. 13 Q. Mr. Spencer, how many cases have you 14 worked on as an expert for Shell? 15 A. I do not know the answer to that 16 question. I'd be guessing. I just don't 17 know. I mean it's, you know, less than 15 18 and maybe less than 10, but I just do not 19 know the answer to that question. 20 Q. What about Tenneco? 21 A. I think fewer. 22 Q. Murphy? 23 A. I'm not sure that I've ever worked 24 for Murphy before. 25 Q. Marathon? 51 1 J. SPENCER, C.I.H., C.S.P. 2 A. I know I've worked on a few cases 3 for Marathon in the past, but again I do not 4 know a number. 5 Q. Radiator Specialty Company? 6 A. I've worked on -- again, I don't 7 know the answer; less than 15 cases for 8 Radiator Specialty. 9 Q. The cases that you worked on for 10 Radiator Specialty, were they benzene -11 allegations of benzene in blood malignancies? 12 A. Yes. 13 Q. And in the approximate 15 cases, did 14 you ever find that the plaintiff was exposed 15 to unsafe levels of benzene? 16 (Whereupon, Cell phone interruption.) 17 A. I'm sorry, in the Radiator Specialty 18 cases? 19 BY-MR.WILLIAMS: 20 Q. Yes, sir. 21 A. No. 22 MR. PERRY: Hey, Eric, just one 23 second; somebody needs to turn their phone 24 off. 25 THE WITNESS: At least it has a 52 1 J. SPENCER, C.I.H., C.S.P. 2 pleasant ring. 3 MR. PERRY: Go ahead, Eric. You 4 may need to repeat that question. 5 BY-MR.WILLIAMS: 6 Q. Mr. Spencer, what is your hourly 7 rate? 8 A. $285. 9 Q. And how many hours did you put into 10 completing your report? 11 A. I don't -- do not know offhand. I 12 spent a lot of time on this case. There 13 was a lot of information to review. I do 14 not know offhand. 15 Q. Mr. Spencer, if someone is exposed 16 to levels of benzene in excess of the health 17 standard, is it possible that they could 18 contract a blood disorder? 19 MR. PERRY: Object to form. 20 THE WITNESS: Yes, but it's a 21 function of, again frequency and duration and 22 ultimately dose. One has to understand not 23 only the concentration but the time of 24 exposure. 25 Q. For instance, let me give you an 53 1 J. SPENCER, C.I.H., C.S.P. 2 example. If somebody's exposed to above 1 3 part per million on an 8 hour total weighted 4 average for 15 years daily, could one develop 5 a blood disorder? 6 MR. PERRY: Object to form. 7 THE WITNESS: Again, I'm not the 8 medical expert here to define that. As I -9 my understanding as industrial hygienist the 10 occupational health standard for benzene, 11 which is 1 part per million, is based on 45 12 years working lifetime so that would be 45 13 PPM years. So from an industrial hygiene 14 standpoint, I would say no to your question. 15 Q. Okay, do you know the purpose of the 16 8 hour total weighted average 1 part per 17 million standard? 18 A. Yes. 19 Q. Can you tell us? 20 A. To prevent benzene-related disease. 21 Q. How does one get abnormal blood 22 results from benzene exposure? 23 A. Again, I'm not the medical guy, but 24 my understanding is that benzene is 25 metabolized into another chemical which 54 1 J. SPENCER, C.I.H., C.S.P. 2 affects the blood forming system. 3 Q. And would you expect that to occur 4 at certain levels of exposure? 5 A. Certainly I would expect it at high 6 levels of exposure for extended periods of 7 time, yes. 8 Q. Do you know if benzene can cause 9 blood abnormalities at levels below one part 10 per million? 11 A. Again, no; I'm not the medical 12 expert, but as an industrial hygienist, I'm 13 not aware of that. 14 Q. Did you review a document that has a 15 -- is authored by Environmental Health, Inc. 16 regarding benzene exposure? 17 A. I don't specifically recall that 18 document. If there's -- so I can't -- I 19 may have seen it at some point in time, but 20 I don't have any specific recollection of it 21 sitting here. 22 Q. Let me ask you this. The document 23 says, "Chronic benzene exposure can cause 24 multiple myeloma". My question to you is, 25 do you know what levels of benzene that they 55 1 J. SPENCER, C.I.H., C.S.P. 2 have on that document? 3 MR. PERRY: Object to form. 4 THE WITNESS: I do not. I do not 5 know the basis of that. Again, it's more of 6 a medical related issue. I'm not familiar 7 with that particular aspect. 8 Q. Did you review the material safety 9 data sheets in this case? 10 A. I did not. 11 Q. Do you know what levels the material 12 safety data sheets say health effects can 13 occur? 14 A. Well, I didn't review them. 15 Q. Okay. 16 A. Typically a material safety data 17 sheet lists the OSHA and the ACGH 18 occupational health limits. 19 Q. Do you know if pipefitters were 20 exposed to high levels of benzene in the 21 '70s in general? 22 A. It depends. 23 Q. Okay, on what? 24 A. What the pipefitter did; did they 25 work -- number 1) work around a benzene 56 1 J. SPENCER, C.I.H., C.S.P. 2 containing product. If so, what percent 3 benzene was in there. 2) What sort of 4 controls were put in place to either 5 eliminate or reduce those levels of exposure, 6 and what was the frequency and duration of 7 that exposure. 8 Q. Well, would you agree with me that 9 some pipefitters were exposed to high levels 10 of benzene in the '70s? 11 MR. PERRY: Object to form. 12 THE WITNESS: I certainly believe 13 that there could -- in the universe of 14 pipefitters as a large group of tradesmen 15 that there were individuals under certain 16 circumstances doing a line break or doing a 17 tank entry that could have had high levels 18 of exposure to benzene if -- again, if a 19 benzene containing product was there and it 20 was in a sufficient concentration and there 21 were no controls in place to manage it. 22 Q. Would pipefitters in the '70s 23 encounter dermal benzene exposures? 24 MR. FARNET: Object to the form. 25 THE WITNESS: I would say that again 57 1 J. SPENCER, C.I.H., C.S.P. 2 under some circumstances, sure, I would 3 expect that. 4 Q. Inhalation benzene exposures? 5 A. Again under the caveats that I laid 6 out just a moment ago then it is possible, 7 yes. And it's also possible there were none 8 at all. They're working on a boiler, or 9 working on installing a fire suppression 10 system, or bathrooms, then I would say no. 11 Q. What year did Shell Norco hire a 12 full-time industrial hygienist? 13 A. Well, to my knowledge they always 14 had full-time industrial hygienists that were 15 available to that facility. Maybe your 16 question is when did they have one dedicated 17 to that facility? 18 Q. Yes, sir. 19 A. Okay, I do not know the specific 20 date when that occurred. 21 Q. Would that have mattered to you if 22 they didn't have one until 1975? 23 A. No, I don't think that would have 24 mattered to me. I think that Shell 25 certainly had other resources available to 58 1 J. SPENCER, C.I.H., C.S.P. 2 them, other industrial hygienists available to 3 them to help address industrial hygiene 4 issues. They weren't certainly -5 Q. Do you know if Shell had a policy 6 in the '70s that prohibited management from 7 dealing with contractors? 8 MR. PERRY: Object to form. 9 THE WITNESS: I do not know if they 10 had -- would have had such a policy. I 11 mean I don't quite understand that. I mean 12 obviously they were dealing with contractors 13 every day. 14 Q. Would you agree with this statement, 15 "That if employers of contract -- contract 16 workers are not responsible for protecting 17 their workers from benzene exposure if a 18 refinery owner fails to tell the employer 19 that they are exposing their employees to 20 benzene? 21 MR. FARNET: Object to form. 22 THE WITNESS: I'm sorry. Can I ask 23 you to read that again? 24 Q. Yes, sir; I said would you agree 25 with this statement: "If an employer is not 59 1 J. SPENCER, C.I.H., C.S.P. 2 responsible for the employee if the premise 3 owner, such as the refinery, fails to warn 4 the employer that they are exposing their 5 employees to benzene? 6 MR. FARNET: Object to form. 7 THE WITNESS: I'm sorry. I don't 8 think I'm following that. I'll try to 9 answer but an employer always has the 10 responsibility. You can't write that off. 11 And if they're unfamiliar with what 12 particular exposures are in environments, it's 13 employer's responsibility to determine what 14 those potential exposures are to ensure that 15 they're properly managing those exposures. 16 Q. And that's even if the premise owner 17 fails to inform the employer that they're 18 exposing their employees to benzene? 19 A. Well, if they fail to warn them, 20 again there is -- there is an obligation. 21 But I won't take anything away from a 22 premise owner if there is an unknown hazard 23 and they're not conveying that hazard to a 24 contractor on site, then they need to do 25 better in that regard. But even if that 60 1 J. SPENCER, C.I.H., C.S.P. 2 occurs, an employer, a contractor has a 3 responsibility, always has and still does, a 4 responsibility to determine, to seek out that 5 information to assure that there is no 6 significant health hazard present to their 7 employees. 8 Q. Okay, did Mr. Bishop have the 9 potential for dermal benzene exposure while 10 working around crude oil? 11 A. Again, it depends on the 12 circumstances of those activities and whether 13 he was using gloves. And if you're around 14 crude oil, there is a very small percentage 15 of benzene that's present in most crudes. I 16 mean less than one percent. And it's not to 17 say that people didn't get crude oil on 18 their skin working on that related equipment. 19 So if Mr. Bishop did work on that equipment 20 and he worked without gloves and it was a 21 frequent activity, then he could have had 22 some exposure. But again, the percentages 23 are so low I wouldn't consider that being 24 significant. 25 Q. What about gasoline? 61 1 J. SPENCER, C.I.H., C.S.P. 2 A. I think, you know, the same 3 scenario. Now, you know, gasoline is 4 gasoline. It contains 150 plus different 5 chemicals including benzene and it is not 6 associated with any benzene-related diseases. 7 So gasoline, we're talking about a different 8 type of material here. 9 Q. And that's not my question. Would 10 Mr. Bishop have the potential for dermal 11 benzene exposures when exposed to gasoline? 12 A. Again, yes, along with 150 plus 13 other chemicals that are in gasoline. 14 Q. Okay, what about pyrolysis gas? 15 A. I mean I think it's the same for 16 any product that potentially contained 17 benzene. It is a function of the variables 18 associated with that exposure; whether 19 controls are being utilized, gloves, what 20 type of gloves; whether they're using 21 respiratory equipment; or whether that product 22 was in that line at all; whether it had been 23 cleared out prior to Mr. Bishop ever getting 24 there. 25 Q. Can you tell me the benzene content 62 1 J. SPENCER, C.I.H., C.S.P. 2 of pyrolysis gas? 3 A. I can't tell you the specific, 4 because it certainly, it varies from one type 5 of operation to the next. 6 Q. Did Mr. Bishop have sufficient 7 inhalation exposure to benzene when working 8 with crude oil? 9 A. I do not believe he would have had 10 any measurable exposure to benzene. 11 Q. What about gasoline? 12 A. Again, if he's -- you say -- now I 13 guess these are hypotheticals and -14 Q. Yes, sir. 15 A. -- you're saying if he worked just 16 with a bucket of gasoline somewhere? 17 Q. Or worked around a pipe where vapors 18 were coming out from gasoline? 19 A. I mean, well it depends if that line 20 had been purged and cleaned and steamed and 21 benzene is one of the first constituents to, 22 in terms of the aromatics to be volatilized 23 from that line. So he may or may not have 24 had any benzene exposure at all. 25 Q. What about pyrolysis gas? 63 1 J. SPENCER, C.I.H., C.S.P. 2 A. It's really the same sort of 3 scenario. It is a function of the activity. 4 It's a function of how long he got there 5 after the line was purged and cleaned as to 6 whether there would be any measurable 7 exposure to benzene. 8 Q. And this would be the same answer 9 for the Tenneco, Shell and Marathon facility? 10 A. Yes. 11 Q. Did Mr. Bishop have the potential 12 for dermal benzene exposure when working with 13 Liquid Wrench? 14 A. In the period up to 1978 -15 Q. Yes, sir. 16 A. -- I would say yes. It depends on 17 the version of Liquid Wrench that he was 18 using. 19 Q. Right; well, he identified the 20 16-ounce can that has benzol on it. I'm 21 sorry, Mr. Fusand (phonetic) did. Do you 22 know what levels of benzene internal Radiator 23 Specialty documents indicated workers were 24 exposed to when loading cans of Liquid Wrench 25 in 1978? 64 1 J. SPENCER, C.I.H., C.S.P. 2 A. I don't know that I've seen that 3 data. 4 Q. Okay, well, if I told you 24.5 and 5 29 parts per million, would you know that 6 one way or the other? 7 A. No. 8 Q. Okay, do you have anything to 9 disagree with those results for individuals 10 filling cans of Liquid Wrench as you sit 11 here today? 12 A. I don't. I just don't know what 13 the environmental conditions were or the 14 frequency and duration of exposure. I 15 certainly have, you know, done my own studies 16 on using Liquid Wrench as potentially Mr. 17 Bishop used it, and I'm familiar with the 18 literature of another study produced by 19 Williams et al on the use of Liquid Wrench. 20 Q. Yeah, in that study did they show 21 levels that range up to 3.8 parts per 22 million of benzene exposure from Liquid 23 Wrench? 24 A. I believe they did for the 25 short-term samples. It was under the 15 65 1 J. SPENCER, C.I.H., C.S.P. 2 minute STEL. 3 Q. Okay, is the Spear Study that Dr. 4 Rando relied on peer-reviewed? 5 A. To the best of my knowledge, yes. 6 Q. And what about the Verma (phonetic) 7 Study? 8 A. Yes. 9 Q. Did you review the pipefitter 10 industrial hygienist data from the Shell 11 facility? 12 A. Yes. 13 Q. Can you tell me the highest sample 14 result for pipefitters? 15 A. Yes; I -16 Q. If I told you 146.7 parts per 17 million, does that sound familiar? 18 A. For the Shell data? 19 Q. Yes, sir. 20 A. No; I'm sorry. Was that an area 21 sample or a personal sample? 22 Q. I believe it was a personal sample. 23 A. I'm not familiar with any personal 24 samples that were at that level for -- in 25 particular for pipefitters, contract 66 1 J. SPENCER, C.I.H., C.S.P. 2 pipefitters. 3 Q. If I -4 A. There are no levels of -5 Q. -- pipe -6 MR. FARNET: He's not finished, 7 Eric. Let him finish the question you 8 asked. 9 A. I mean there are no levels reported 10 anywhere close to that for contract 11 pipefitters. 12 Q. And I said pipefitters. I didn't 13 say contract pipefitters. 14 A. Okay, well, there's an important 15 distinction there though. You don't want to 16 choose pipefitters that are not contract 17 pipefitters because that's a whole different 18 exposure group. 19 Q. Can you answer the question; were 20 you aware that there were samples that were 21 up to 146.7 parts per million for benzene 22 exposure for pipefitters? 23 MR. FARNET: Objection; he answered 24 the question. You may re-ask it, but he 25 answered the question. 67 1 J. SPENCER, C.I.H., C.S.P. 2 THE WITNESS: I'm not aware of a 3 sample for, again what I would call a 4 contract pipefitters that were up to that 5 level. Most all of them I believe were less 6 than a part per million. 7 Q. Okay, well, for Shell pipefitters 8 were you aware there was a sample that went 9 up to 146.7 parts per million? 10 A. I'd have to go back and look at 11 that whole data set again. I don't 12 specifically recall that one or what the 13 circumstances were; whether that was a 14 blinding operation; they had opened a line 15 and there was pure product in there. Again, 16 that was something that Mr. Bishop did not 17 do. 18 Q. Mr. Spencer, in your report you used 19 the term outliners. Can you define that for 20 us? 21 A. It's a statistical variable or not 22 variable but a statistical determinant of 23 data reliability. 24 Q. Okay, and in laymen's terms, is that 25 a way of saying that samples that are high, 68 1 J. SPENCER, C.I.H., C.S.P. 2 short-term you throw them out the data pool? 3 A. No; you do not throw them out and 4 it's just not high data. It may be low 5 data as well. What it is, is that the data 6 doesn't fall within a range of values that 7 is consistent with the entire data set. So 8 you do the statistical analysis and you're 9 looking at sigma or standard deviation. 10 You're looking at P values. And these tell 11 you whether or not -- or the data falls on 12 a curb. And if it falls so far away from 13 the mean or the median of the data set, then 14 you need to investigate further. You don't 15 just throw them away but you need to 16 investigate further. 17 Q. How many high exposures from Shell 18 or samples did you remove from your analysis? 19 A. Well, it's not that -- I don't know 20 how many I removed. I looked at the data 21 that I could -- that I felt was relevant, 22 and it was -- and it was the contractor -23 they had a lot of contractor pipefitter data. 24 It was 30 some samples. 25 Q. So did you say you removed them or 69 1 J. SPENCER, C.I.H., C.S.P. 2 did not rely on those samples? 3 A. No; those are the ones that I did 4 look at more closely and utilized. I also 5 looked at the pipefitter data collectively, 6 and that's reflect in my report and that's 7 where for Shell I come up with the 1.59 8 parts per million. 9 Q. Okay, did you personally review all 10 the documents in this case that were sent to 11 you? 12 A. Well, I can't say I reviewed every 13 page from every document, but I reviewed most 14 of that, yes. 15 Q. Did any other employees at your 16 company review the document and summarize it 17 for you? 18 A. Well, yes, I certainly had another 19 industrial hygienist, a certified industrial 20 hygienist in my office help me go through 21 this vast amount of information. 22 Q. Have you ever testified that 23 employees in another case have -- the 24 employees that you work with have summarized 25 documents for you in a case? 70 1 J. SPENCER, C.I.H., C.S.P. 2 A. Oh, sure; I often have folks in my 3 office, like do summaries of summaries that 4 I've done or to go back through a data set 5 and do a statistical analysis. And I have 6 more than one of them do that, because I 7 don't work in a vacuum and I want to check 8 and double-check my data. 9 Q. Did you write your entire report in 10 this case? 11 A. No; I mean I did not write the 12 entire report. I had others. I had another 13 industrial hygienist help me working on this 14 report, again analyzing data and double 15 checking -16 Q. What's his name? 17 A. Dale Johnson. 18 Q. And what degrees does he have? 19 A. I don't know his specific degrees. 20 He's a certified industrial hygienist. 21 Q. Does he have a Masters? 22 A. I honestly don't know. 23 Q. Does he have a Ph.D? 24 A. No, he does not. 25 Q. Okay, have you ever testified that, 71 1 J. SPENCER, C.I.H., C.S.P. 2 "I've never been held up to a be a chemistry 3 expert"? 4 A. I think I just said that earlier 5 today. 6 Q. Well, I didn't ask you that exact 7 quote. 8 A. I don't recall whether I've been -9 I testified to that before, but I did 10 testify to it today. 11 Q. That you've never been a chemistry 12 expert? 13 A. That I've never been held out to be 14 a chemistry expert, that's correct. 15 Chemistry is part of what I do as an 16 industrial hygienist, but I've never been 17 asked to be specifically a chemistry expert. 18 Q. Have you ever testified that you are 19 not a chemist or a chemical engineer and 20 that your background is general? 21 A. I don't recall if I specifically 22 said that or not. 23 Q. Have you ever testified, "I know 24 chemicals pretty well having worked at the 25 National Institute of Health in the 72 1 J. SPENCER, C.I.H., C.S.P. 2 laboratory in chemistry while I was in 3 college"? 4 A. I likely said that and I repeated 5 that today. 6 Q. And, Mr. Spencer, earlier you 7 mentioned that you worked at the National 8 Institute of Health in a laboratory. Are we 9 talking about a job while you're in college? 10 A. Correct. 11 Q. Okay, and you feel that qualifies 12 you to be an expert in that field? 13 MR. PERRY: Object to form. 14 MR. FARNET: I object. 15 THE WITNESS: I'm simply saying that 16 I've had -- I've worked in a chemistry lab. 17 I've taken multiple chemistry courses. I've 18 trained at the OSHA Training Institute in -19 with chemistry-related issues, and I've worked 20 with labs over 30-plus years in this business 21 so I am -- I believe I'm very qualified in 22 the area of chemistry. But I've never been 23 held out to be a chemistry expert in a 24 litigation case. 25 BY-MR.WILLIAMS: 73 1 J. SPENCER, C.I.H., C.S.P. 2 Q. Okay, I don't think -- I have one 3 more question. I believe in your affidavit 4 in this case -- did you produce an 5 affidavit? 6 MR. PERRY: A declaration you mean? 7 A. A declaration? 8 Q. Declaration; I apologize. 9 A. Yes. 10 Q. You talk about averages, Benzene? 11 A. Okay. 12 Q. I believe there's some time of 13 acronym, OEM; if I'm not mistaken? 14 A. Or an OEL? 15 MR. PERRY: OEL. 16 Q. OEL? 17 A. Yes. 18 Q. Can you explain that to us? 19 A. It's a standardized term that defines 20 -- it's occupational exposure limit and it 21 encompasses both PEL's and TLV's. 22 Q. Okay, now an average would not 23 indicate that someone was exposed to levels 24 above one part per million, would it? 25 MR. FARNET: Object to form. 74 1 J. SPENCER, C.I.H., C.S.P. 2 THE WITNESS: Well, it may. It 3 depends on -- and you want to -- I think I 4 understand what you're asking. It may or 5 may not. You need to look at not only the 6 mean but you need to look at the range of 7 values. 8 MR. WILLIAMS: Okay, fair enough; I 9 don't think I have any other questions; 10 anybody else? 11 MR. PERRY: No questions here. 12 MR. CHOCHELES: No questions. 13 THE VIDEOGRAPHER: All right, give 14 me just a moment. Now going off record at 15 10:17 A.M. This concluded today's 16 deposition. 17 (WHEREUPON, SIGNATURE RESERVED) 18 (WHEREUPON, THE DEPOSITION OF JOHN 19 SPENCER, C.I.H., C.S.P. CONCLUDED.) 20 21 22 23 24 25 75 1 J. SPENCER, C.I.H., C.S.P. 2 CERTIFICATE 3 4 I, David L. Overby, Notary/Reporter, 5 do hereby certify that John Spencer, CIH, CSP 6 was duly sworn by Laura L. Van Sandt, 7 Notary/Reporter, prior to the taking of the 8 foregoing deposition; and that this deposition 9 was taken and transcribed by Laura L. Van 10 Sandt under my direction and that the 11 foregoing pages which constitute this 12 deposition are a true and accurate transcript 13 of the witness's testimony. 14 I certify that I am not counsel for, 15 or employed by either party in this action, 16 nor am I interested in the outcome of this 17 action. 18 19 20 21 David L. Overby 22 23 DATED: JULY 2, 2009 24 25 76 1 J. SPENCER, C.I.H., C.S.P. 2 CAPTION 3 The Deposition of JOHN SPENCER, taken 4 in the matter, on the date, and at the time 5 and place set out on the title page hereof. 6 It was requested that the deposition 7 be taken by the reporter and that same be 8 reduced to typewritten form. 9 It was agreed by and between counsel 10 and the parties that the Deponent will read 11 and sign the transcript of said deposition. 12 . 13 . 14 . 15 . 16 . 17 . 18 . 19 . 20 . 21 . 22 . 23 . 24 25 1 2 . 77 J. SPENCER, C.I.H., C.S.P. CERTIFICATE 3 STATE OF : 4 COUNTY/CITY OF : 5 Before me, this day, personally 6 appeared, JOHN SPENCER, who, being duly sworn, 7 states that the foregoing transcript of 8 his/her Deposition, taken in the matter, on 9 the date, and at the time and place set out 10 on the title page hereof, constitutes a true 11 and accurate transcript of said deposition. 12 13 JOHN SPENCER 14 . 15 SUBSCRIBED and SWORN to before me this 16 day of , 2009 in the 17 jurisdiction aforesaid. 18 19 My Commission Expires Notary Public 20 . 21 . 22 . 23 . 24 . 25 78 1 J. SPENCER, C.I.H., C.S.P. . DEPOSITION ERRATA SHEET . RE: Accurate Case Caption: VS. SHELL OIL Court Reporting, Inc. JOANN BISHOP, ET AL. COMPANY, ET AL. . DEPONENT: JOHN SPENCER DEPOSITION DATE: July 1, 2009 . To the Reporter: I have read the entire transcript of my Deposition taken in the captioned matter or the same has been read to me. I request that the following changes be entered upon the record for the reasons indicated. I have signed my name to the Errata Sheet and the appropriate Certificate and authorize you to attach both to the original transcript. . _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ . SIGNATURE:_______________________DATE:___________ JOHN SPENCER VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 79 A able 46:11,21 abnormal 53:21 abnormalities 54:9 absence 19:24 absolute 31:16 absorbed 22:21 43:14 accept 31:13 acceptable 41:25 accepted 40:13 41:20 accuracy 23:9 accurate 6:15 75:12 77:11 78:4 accurately 50:3 ACGH 55:17 acronym 73:13 action 75:15,17 activities 16:7 21:18 60:12 activity 49:9 60:21 63:3 actual 33:19 40:20 addition 23:13 28:24 address 6:16 7:5 8:24 58:3 Adler 24:25 affidavit 73:3,5 aforesaid 77:17 ago 18:24 24:17 57:6 agree 20:6 35:12 39:19,24 56:8 58:14,24 agreed 76:9 ahead 52:3 air 11:7 20:15 28:10 28:11 33:10,21 37:4 40:20,22 41:9 41:20,24 al 1:4,7 6:20 64:19 78:5,6 allegations 51:11 American 3:4 amount 12:23 30:9 44:12 69:21 analysis 68:8,18 70:5 analytical 36:20,23 analyze 37:3 analyzed 13:14 analyzing 70:14 animal 39:15 40:8 Ann 1:4 6:19 answer 37:17 50:2,15 50:19 51:7 59:9 63:8 66:19 answered 66:23,25 anybody 41:22 74:10 apologize 28:14 40:19 47:22 73:8 APPEARANCES 2:2 3:2 4:2 appeared 77:6 applied 19:10 48:8 approach 29:5 appropriate 26:15 29:12 31:8 78:17 approximate 51:13 approximately 6:12 area 10:16 22:16 38:14 48:9 65:20 72:22 areas 11:25 28:3 aromatics 62:22 arrive 48:23 article 34:5 articles 11:23 Ashland 50:5 asked 10:5 11:24 20:5 28:25 29:3,7 41:24 45:21,24 66:8 71:17 asking 37:12 74:4 aspect 55:7 assess 29:5 42:6,19 Assessing 15:25 16:15 assessment 12:3 14:13,16 15:4 16:5 19:4,15,25 20:4 21:3,6 22:17 29:2 29:19,21 30:23 32:16 33:5 40:16 41:14,16 42:2 49:5 assessments 13:15 22:15 25:6 32:8 associated 22:11 61:6,18 assumptions 19:10 assure 60:5 ASTM 42:16 attach 17:20 18:6,12 78:18 attempt 33:22 attorney 38:2 Attorneys 2:12 3:6 3:11 4:10 author 34:18 35:2 authored 34:23 54:15 authorize 78:18 available 39:4 47:4 57:15,25 58:2 Avenue 2:7 average 21:16 36:13 53:4,16 73:22 averages 73:10 avoid 43:20 aware 26:4 32:11 38:8 54:13 66:20 67:2,8 a.m 1:14 6:12 74:15 B B 2:4 Bachelor's 14:6 back 16:22 29:16,25 30:22 50:7 67:10 70:4 background 71:20 ballpark 45:15 based 13:6 20:15 40:6 46:18 53:11 basis 26:17 55:5 bathrooms 57:10 Baton 3:5 Bear 24:25 25:2,23 behalf 2:3,9 6:25 46:9 believe 15:8 19:17 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 80 21:12,17 22:6,22 24:23 27:25 29:16 30:6 34:21 45:7 47:17 48:18 56:12 62:9 64:24 65:22 67:5 72:21 73:3,12 believed 26:14 Ben 49:21 benzene 12:23 13:5 13:14 19:3 21:21 21:24 30:9,16,19 30:20 31:12,13 35:14,19,21 36:9 37:20,23 38:24 39:7,10,18 40:3,17 42:11,15,22,25 43:21,25 44:5,11 47:10,17,25 48:7 48:13,17,23,25 49:14 50:5,10 51:10,11,15 52:16 53:10,22,24 54:8 54:16,23,25 55:20 55:25 56:3,10,18 56:19,23 57:4 58:17,20 59:5,18 60:9,15 61:5,11,17 61:25 62:7,10,21 62:24 63:7,12,22 64:22 66:21 73:10 benzene-related 53:20 61:6 benzol 63:20 best 23:4 31:7 44:22 44:24 45:12 48:19 65:5 Bethesda 31:24 better 20:8 59:25 biological 9:15 23:14 24:3 biologist 10:20 biology 10:10,14,17 birth 9:4,9 Bishop 1:4 6:19 19:4 19:22 20:5,8,10 21:19 29:13,20,24 60:8,19 61:10,23 62:6 63:11 64:17 67:16 78:5 Bishop's 21:17 bit 36:8 42:11 blinding 67:14 blood 23:14 39:10,11 39:20 51:11 52:18 53:5,21 54:2,9 body 39:7,18 40:10 boiler 57:8 book 16:18,19 books 16:4 BOONE 2:10 Boulevard 6:16 box 3:5 41:8 break 17:12 56:16 briefly 17:25 bring 16:16,18 17:25 broad 37:10 42:13 brought 16:19 17:2,6 17:6,8,13 18:3 Brown 49:21 bucket 62:16 business 6:16 10:4 23:11 41:18 72:20 BY-MR.WILLIAMS 8:22 17:11,22 18:19 51:19 52:5 72:25 C cadaver 40:7 calculate 19:14,23 21:5 40:2 calculated 35:16,16 calculation 21:21 22:8,24 23:3,7,8 23:16 34:14 calculations 14:12 19:13,18 34:5 35:8 35:14 calculus 24:7 call 25:21 67:3 called 23:2 24:25 Canada 22:13 cans 63:24 64:10 Caption 76:2 78:5 captioned 78:13 carcinogen 50:11 career 45:7 careful 31:7 Carolina 1:13,15 6:25 case 1:6 6:20 13:17 13:22 15:18 16:23 17:8,10 20:19 24:16,17,21,24 25:7,13,15,20,24 26:14 27:4,17 28:7 29:10 37:15 38:24 42:9 45:9 48:3,5 49:13,23 50:6 52:12 55:9 69:10 69:23,25 70:10 72:24 73:4 78:5 cases 14:16 21:23 45:2,6,14,16,21,24 45:25 49:17,19,22 50:13 51:2,7,9,13 51:18 causation 47:20 cause 39:10,19 54:8 54:23 caused 47:11,21 caveats 57:5 ceiling 29:22 Cell 51:16 certain 46:5 54:4 56:15 certainly 10:15 12:14 13:2,13 21:2 22:19 23:3 35:10 38:10 39:22 43:23 43:24 44:6,8,8,11 44:14,16 45:20,23 47:15 49:16,18 54:5 56:12 57:25 58:4 62:4 64:15 69:18 Certificate 75:2 77:2 78:18 Certification 11:17 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 81 certifications 11:2 certified 11:5,6,7,9 11:14 69:19 70:20 certify 75:5,14 changes 78:15 changing 13:4 chapter 16:19 chapters 16:4 check 70:7 checking 70:15 chemical 3:6 12:8,10 12:17 32:2 36:19 37:6,13,19 45:3 53:25 71:19 chemicals 31:11 43:2 43:5 61:5,13 71:24 chemist 10:25 71:19 chemistry 10:22 31:18,23 32:2,3 36:12,16,20,24 71:2,11,14,15,17 72:2,16,17,22,23 chemistry-related 72:19 Chicago 14:25 Chocheles 4:4 7:24 8:5,6,8,12 74:12 choice 44:8 choose 31:7 66:16 Chris 7:24 8:3,5 CHRISTOPHER 4:4 Chronic 54:23 CIH 8:16 75:5 Cincinnati 14:17 15:14 circumstances 39:3 56:16 57:2 60:12 67:13 clarify 25:8 class 14:24 15:4 classes 9:20 14:11 14:14,23 15:9,15 24:7 classified 50:10 cleaned 62:20 63:5 clear 28:15 cleared 61:23 close 66:10 closely 69:4 Coast 22:2 COATES 3:9 coauthor 34:18 collect 23:13 27:10 collected 13:13 27:7 collectively 31:2 69:5 college 72:3,9 Columbia 9:2,3 come 29:7,12 69:7 coming 62:18 commenced 6:6 commencing 1:13 Commission 77:19 common 41:7 communicated 47:16 company 3:11 6:20 7:19 51:5 69:16 78:6 comparing 20:24 complete 10:11 completing 52:10 components 49:11 composition 12:11 compositions 12:17 concentration 52:23 56:20 concerned 23:12 concluded 74:15,19 conclusion 48:24 conditions 64:13 conducted 27:6 conducting 13:15 conference 22:13 37:23 confused 27:21 consider 10:13,21 11:25 12:7,24 30:7 60:23 consistent 68:7 consistently 11:22 constituents 62:21 constitute 75:11 constitutes 77:10 consultant 10:15 11:7 contact 39:8,11 43:20 44:5,12 contain 37:20 contained 61:16 containing 5:10 56:2 56:19 contains 61:4 content 13:5,14 31:12,14 48:13,17 48:23 61:25 context 21:22 22:4 contract 52:18 58:15 58:15 65:25 66:10 66:13,16 67:4 contracted 49:14 contractor 59:24 60:2 68:22,23 contractors 58:7,12 contribute 49:9 contribution 29:14 controls 16:9 49:6 56:4,21 61:19 CONT'D 3:2 4:2 conveying 59:23 copy 18:9,11 Corporation 24:25 25:23 correct 20:20 23:19 23:20,23,24 28:16 28:17,24 29:10 46:18 71:14 72:10 corrections 19:9 correlating 20:17 corrosive 43:12 counsel 7:4 75:14 76:9 COUNTY/CITY 77:4 course 32:4 courses 31:17 72:17 court 1:2,14 6:15,22 7:2,21,23 8:10,14 8:20 18:13 24:19 25:5,9,10,23 26:2 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 82 26:19 27:5 78:4 create 35:13 criticize 25:5 crude 60:10,14,17 62:8 crudes 60:15 CSP 8:16 75:5 cumulative 24:16 curb 68:12 curriculum 10:8 C-H-O-C-H-E-L-E-S 8:13 C.I.H 1:12 6:3 74:19 C.S.P 1:12 6:3 74:19 D daily 21:16 53:4 Dale 70:17 data 20:15,16,17,23 26:7,9,11 27:2,7 27:11,12,23 28:10 28:12,19 29:17 30:2,2 31:8,9,14 33:20,22 40:19 41:3 42:2 55:9,12 55:16 64:3 65:10 65:18 67:11,23 68:2,4,5,5,7,11,13 68:20,23 69:5 70:4 70:8,14 date 6:11 9:4,9 57:20 76:4 77:9 78:9 79:23 DATED 75:23 David 75:4,21 day 21:14 23:18 58:13 77:5,16 dealing 36:18 58:7 58:12 deals 16:21 decision 26:18 declaration 73:6,7,8 dedicated 57:16 Defendant 6:20 defendants 1:8 2:9 7:10,12 25:19 46:10 define 16:4 43:10 53:8 67:19 defined 15:23 defines 41:4 73:19 degree 9:15,23 14:7 24:8 31:21 degrees 9:13,17 70:18,19 delivered 33:14 demonstrate 11:11 depending 39:2 depends 38:25 55:22 60:11 62:19 63:16 74:3 Deponent 76:10 78:8 deposition 1:11 5:7 6:2,18,23 17:21 18:15 74:16,18 75:8,8,12 76:3,6 76:11 77:8,11 78:2 78:9,13 derive 22:20 31:10 dermal 21:21 22:7,12 22:14,24 23:12,16 34:5,13 35:8,14,16 39:3,8,11 40:2 42:21 43:20 44:5 44:12,15 56:23 60:9 61:10 63:12 described 18:4 19:19 DESCRIPTION 5:4 detailed 29:2 detect 42:14 determinant 33:3 67:22 determinants 33:24 42:17 determine 23:16 30:20 59:13 60:4 determining 30:8 develop 53:4 developed 29:5 44:10 developing 43:4 deviation 68:9 diagnosis 50:8 different 19:17 22:18 40:6,8,9,15 40:18 47:8 61:4,7 66:17 differential 27:20 27:22 differently 40:5 direction 75:10 directly 46:4,6 disagree 35:7 64:9 disease 47:12,21 49:19,24 53:20 diseases 61:6 disk 5:10 17:17 18:6 18:14 disorder 52:18 53:5 disorders 39:10,20 distinction 66:15 District 1:2,3 6:22 6:22 doctor 38:4,11,13,17 47:14 document 26:3 54:14 54:18,22 55:2 69:13,16 documentation 13:7 documents 18:4 47:4 63:23 69:10,25 doing 22:14 24:3 30:12,23 32:12 40:14 41:6,8 56:16 56:16 dose 22:21 23:12,13 24:16 43:14 52:22 double 70:14 double-check 70:8 Douglas 50:4 Dr 19:12 33:25 34:8 34:14,19,20 35:12 35:18,20 38:7 65:3 draw 47:5 due 30:11,13 duly 8:17 75:6 77:6 duration 16:8 19:21 49:8 52:21 56:6 64:14 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 83 D'ARMOND 3:3 E E 3:9 earlier 22:22 30:10 42:13 71:4 72:6 earned 9:13 Eastern 1:3 6:22 effect 43:11,12,13 43:16 effects 55:12 either 39:15 45:10 56:4 75:15 El 3:7 7:10 electrician 26:10,10 27:3 electricians 26:7,16 27:25 electronically 18:10 eliminate 44:5,15 56:5 eliminate's 44:7 employed 75:15 employee 59:2 employees 58:19 59:5 59:18 60:7 69:15 69:23,24 employer 12:3 43:19 43:24 58:18,25 59:4,9,17 60:2 employers 58:15 employer's 59:13 encompasses 73:21 encounter 56:23 engineer 71:19 engineering 12:8 37:7,13 ensure 59:14 enter 39:7 entered 78:15 enters 39:18 entire 17:6 68:7 70:9,12 78:12 entry 56:17 environment 16:3,8 41:19 environmental 10:10 12:4 31:18 45:5 54:15 64:13 environments 59:12 equations 27:20,23 equipment 41:17 43:20,25 44:4 60:18,19 61:21 Eric 2:4 7:7 17:16 18:8 51:22 52:3 66:7 Errata 78:2,17 Esplanade 2:7 ESQUIRE 2:4,6,9 3:3 3:8 4:4 essentially 19:7 estimated 23:8 27:18 estimates 22:20 26:21 et 1:4,7 6:20 64:19 78:5,6 European 22:15 43:7 evaluate 29:3 49:5 49:11 evaluated 23:15 30:15 39:15 evaluating 36:10 evaluation 16:6 17:9 24:4 evaluations 30:13 event 25:22 ex 10:13 exact 71:6 exactly 26:2 examination 8:21 11:15 examined 8:17 example 41:7 42:12 53:2 excess 47:18 52:16 excluded 24:13,14,15 24:17 EXHIBITS 5:2 Exhibit-1 5:6 17:3,4 18:12 Exhibit-2 5:9 18:13 18:17 expect 38:24 54:3,5 57:3 expects 44:3 experience 11:12 30:12 33:11 47:5,6 experienced 26:23 experiment 27:19 expert 10:14,17,22 12:2,8,24 13:16,17 13:23 14:4 19:9 24:13,15,19 29:4 30:8 36:12 45:7,16 49:13 50:14 53:8 54:12 71:3,12,14 71:17 72:12,23 expertise 38:14 Expires 77:19 explain 15:21 73:18 exposed 20:14 47:10 47:11,24 48:21,24 49:13 51:14 52:15 53:2 55:20 56:9 61:11 63:24 73:23 exposing 58:19 59:4 59:18 exposure 12:3 13:17 13:23 14:12,13,16 15:4 16:5 19:3,15 19:22,24 20:3 21:6 21:16,18 22:17 23:17 24:3 25:6 26:13,15 27:3,8 28:2 29:2,19,21,23 32:8 33:4,18 35:14 36:10 38:19,22,23 39:4,5 40:2,16,24 41:4,14,15 42:2,6 42:21 44:9,16,17 49:5,10 52:24 53:22 54:4,6,16,23 56:5,7,18 58:17 60:9,22 61:18 62:7 62:10,24 63:7,12 64:14,22 66:18,22 73:20 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 84 exposures 16:2,11,15 20:9,11 23:22 26:22 27:18 28:5 35:16 41:23 45:3 47:7,17 56:23 57:4 59:12,14,15 61:11 68:17 extended 48:9 54:6 extensive 47:6 F facilities 28:12,13 28:18,20 facility 20:4,11,16 20:23 21:7 27:11 27:13,24 28:16 29:9,12,14 40:23 40:24 57:15,17 63:9 65:11 fact 29:25 43:3 fail 59:19 fails 58:18 59:3,17 fair 18:16 44:3 74:8 fairer 12:16 fall 20:13 68:6 falls 68:11,12 familiar 13:4 22:10 24:24 25:2 33:25 34:4 39:23 55:6 64:17 65:17,23 far 41:7,21 68:12 Farnet 3:3 7:9,9,16 8:3 17:16,19 32:19 33:7 43:22 56:24 58:21 59:6 66:6,23 72:14 73:25 February 9:5,10 feel 72:11 felt 17:9 19:5 68:21 Fernandez 2:6 7:8 fewer 50:21 field 10:22 11:12,14 12:8,10,25 14:5 37:11 41:7,7 72:12 figure 45:15 file 17:6 filling 64:10 find 27:5 51:14 finish 9:22,24 66:7 finished 14:21 66:6 fire 57:9 FIRM 4:6 first 27:8 44:8 62:21 five 11:12 46:5 flawed 26:20 Floor 3:4 4:7 Florida 6:17 folks 70:2 followed 19:7,9 20:25 26:10 28:2 following 12:18 59:8 78:15 follows 8:18 foregoing 75:8,11 77:7 form 14:8 32:10,19 33:7 37:14 39:12 39:21 43:22 49:2 52:19 53:6 55:3 56:11,24 58:8,21 59:6 72:13 73:25 76:8 forming 54:2 forms 40:16,18,19 41:25 formula 35:7,9,13,17 formulas 22:20 formulation 48:15 found 26:19 four 28:12 frankly 10:19 39:14 frequency 16:7 19:21 49:8 52:21 56:6 64:14 frequent 60:21 full 8:24 full-time 57:12,14 function 52:21 61:17 63:3,4 further 23:10 68:14 68:16 Fusand 63:21 G Garden 6:24 Garner 4:6 8:6 gas 61:14 62:2,25 gasoline 60:25 61:3 61:4,7,11,13 62:11 62:16,18 general 14:4 55:21 71:20 generally 48:12,14 George 14:14 15:12 getting 61:23 give 9:7,8 12:15 52:25 74:13 given 44:25 gives 23:8 Glenn 3:3 7:9 17:17 gloves 60:13,20 61:19,20 go 52:3 67:10 69:20 70:4 going 29:25 30:22 49:4 50:7 74:14 good 8:23 42:11 Gorda 6:17 gosh 18:23 35:24 45:8 government 47:4 graduate 15:7,11,15 32:4 Greenway 3:9 group 26:15 29:23 41:5 56:14 66:18 groups 40:24 Guard 22:2 guess 13:2,9 25:18 37:16 41:16 44:22 44:24 62:13 guesses 23:4 guessing 50:16 guesstimates 26:21 guideline 42:16 guy 53:23 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 85 H handled 44:13 happen 34:10 hard 18:11 Harris 37:23 HAWTHORNE 3:3 HAYNES 2:10 hazard 13:15 38:18 59:22,23 60:6 health 12:4 13:15 14:19 31:24 44:10 47:19 48:11 52:16 53:10 54:15 55:12 55:18 60:6 71:25 72:8 hear 24:10 hearing 26:5 held 1:12 38:10 71:2 71:13 72:23 help 58:3 69:20 70:13 hereof 76:5 77:10 Hey 51:22 high 54:5 55:20 56:9 56:17 67:25 68:4 68:17 higher 26:12 27:3 48:13 highest 65:13 Hilton 6:23 hire 57:11 historical 12:22 30:15,19 his/her 77:8 Hold 8:3 honestly 36:15 45:8 49:23 70:22 hour 14:24 53:3,16 hourly 52:6 hours 10:11 17:14,24 52:9 Houston 2:11 3:10 human 39:16 50:11 hundred 36:6 hundreds 27:12 hydrocarbon 13:13 hygiene 14:14 15:19 15:24 19:8 29:4 33:19 42:5 53:13 58:3 hygienist 11:5,9,17 12:13 20:25 53:9 54:12 57:12 65:10 69:19,20 70:13,20 71:16 hygienists 15:2 57:14 58:2 hypotheticals 62:13 I IDENTIFICATION 17:5 18:18 identified 30:18 63:19 identify 7:4 8:4 important 66:14 include 33:21 included 21:18 29:24 32:12,15 41:2 includes 16:6 including 18:4 61:5 incorrect 19:14,18 incorrectly 27:16 INDEX 5:2 indicate 73:23 indicated 63:23 78:16 indicator 43:13,15 indices 24:3 individual 40:23,25 41:5 43:6 individuals 11:14 40:7 56:15 64:9 Indoor 11:7 industrial 11:5,9,17 12:13 14:14 15:2 15:19,24 19:8 20:25 29:4 33:19 42:5 53:9,13 54:12 57:12,14 58:2,3 65:10 69:19,19 70:13,20 71:16 inform 59:17 information 19:6,24 31:5 46:22,23 52:13 60:5 69:21 ingestion 39:5 inhalation 23:13 39:2,23 57:4 62:7 Inn 6:24 inorganic 31:23 inspectors 15:2 installing 57:9 instance 19:13 52:25 Institute 14:18,25 32:5 71:25 72:8,18 Institutes 31:24 insufficient 19:6 intent 44:14 inter 42:18 interested 75:16 internal 63:22 interpreted 27:16 interruption 6:8 51:16 intra 42:18 investigate 68:14,16 invited 37:25 involve 45:3 involved 14:23 21:19 47:6 49:23 involves 44:18 issue 16:9 22:13 26:25 27:4 49:20 50:8 55:6 issues 25:14 32:14 45:5,5 58:4 72:19 item 17:12,15 items 5:10 18:14 J J 2:6 JAMES 3:8 JARMAN 3:4 Jim 7:14,16,18 Jo 1:4 6:19 JOANN 78:5 job 72:9 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 86 John 1:11 6:3,18 8:16 9:2 38:7 74:18 75:5 76:3 77:6,13 78:8 79:24 Johnson 70:17 John's 18:10 journals 11:20,22 JR 2:4 judge 26:13 judgment 25:14,18,19 July 1:12 6:4,7,11 75:23 78:9 jurisdiction 77:17 K KEAN 3:3 keep 44:23 kids 10:3 kind 37:10 know 12:18 13:9,11 17:16,20 18:2 19:12,19 22:9 23:2 23:9 25:11,14 26:2 26:19,25 31:3 32:6 32:20,24 33:18 34:10 35:18,20,25 36:13 37:12 39:14 41:21 42:12,24 43:8 44:7 45:17 46:4 49:24 50:4,15 50:17,17,19 51:2,4 51:7 52:11,14 53:15 54:8,25 55:5 55:11,19 57:19 58:5,9 61:2,3 63:22 64:2,5,12,15 68:19 70:19,22 71:23 knowledge 14:6 19:20 57:13 65:5 known 50:11 L L 1:14 2:4 75:4,6,9 75:21 lab 72:16 laboratory 31:25 72:2,8 labs 72:20 laid 57:5 Landau 6:13 large 12:12 56:14 Laura 1:14 7:3 75:6 75:9 Lavender 24:22 25:22 LAW 4:6 layers 40:8 laymen's 67:24 lead 34:18 leave 10:5 LEE 3:9 left 34:25 legal 6:14 10:18 12:6 letters 11:13 let's 16:25 19:13 25:22 28:14 level 26:13 27:3 30:18 32:4 65:24 67:5 levels 30:15,20 35:18,19,22 47:11 47:24 48:10,25 51:15 52:16 54:4,6 54:9,25 55:11,20 56:5,9,17 63:22 64:21 66:4,9 73:23 life 40:6 lifetime 53:12 limit 20:13 42:22 73:20 limitations 22:14 limited 24:19 limits 55:18 line 56:16 61:22 62:19,23 63:5 67:14 Liquid 63:13,17,24 64:10,16,19,22 list 38:3 listed 45:9,10,20 lists 55:17 literature 13:4,6 20:18 30:14,18 31:3 41:2,3 47:2 64:18 litigation 21:22 22:4 42:9 44:19 47:9 72:24 LLC 3:9 LLP 2:10 3:4 loading 63:24 long 63:4 longer 27:19 look 20:21 28:15 31:2 45:21,24 46:12,24 67:10 69:4 74:5,6 looked 28:13,19 29:21 32:21 45:23 68:20 69:5 looking 39:2 42:4 50:7 68:9,10 lot 31:5,22 35:15 38:9,12,13 52:12 52:13 68:23 Louisiana 1:3 2:5,7 3:5 4:8 6:22 low 60:23 68:4 lower 36:4 M M 3:3,8 malignancies 39:11 51:11 manage 16:10 44:9 56:21 management 16:3 58:6 managing 15:25 16:15 59:15 manufacturer 31:14 Marathon 3:7 7:10 30:3 50:25 51:3 63:9 Marathon's 29:18 mark 17:3 MARKED 5:4 17:4 18:17 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 87 Martin 37:23 Marty 6:13 Maryland 9:3,16 31:25 Masters 9:19,23 10:9 13:18 70:21 material 55:8,11,16 61:8 materials 17:8 math 22:18 mathematical 22:19 matter 6:19 36:17,25 37:8 76:4 77:8 78:13 mattered 57:21,24 McCOWAN 3:4 McKinney 2:10 mean 12:19,19 13:10 18:3 19:6 25:16,17 29:13 30:11,25 34:15 37:16,18 42:3 45:8,12 46:10 46:12,16,20,24,25 49:4 50:17 58:11 58:11 60:16 61:15 62:19 66:9 68:13 70:11 73:6 74:6 means 20:24 36:10 43:13 measurable 62:10 63:6 measurements 40:21 40:22 mechanism 41:6 median 68:13 medical 39:13,17 47:14 53:8,23 54:11 55:6 mentioned 72:7 merger 28:15 metabolized 53:25 Metairie 2:5,7 method 33:18 40:13 41:21 methodologies 37:3 methodology 15:17 25:6,24 26:20 32:18 methods 15:20 Miles 24:22 25:3 MILLER 3:3 million 21:6,13 29:8 35:23 36:6,7 53:3 53:11,17 54:10 64:5,22 65:17 66:21 67:6,9 69:8 73:24 minimize 44:14 minimum 11:11 minute 29:16 65:2 minutes 27:8 mistake 38:13 mistaken 73:13 misunderstanding 21:4 Mobay 24:23 25:4 model 22:10,12,23,25 41:7 modeling 28:4,23 41:6,9 models 41:8 moment 57:6 74:14 monitoring 20:16 21:24 28:10,11 33:10 47:7 monkey 40:7 month 44:22,25 morning 8:23 multiple 49:15,19 50:6 54:24 72:17 multitude 37:18 Murphy 4:10 8:7,8 50:22,24 myeloma 49:15,19 50:6 54:24 N name 6:13 7:5 8:11 8:24 13:20 14:2 16:12 24:21 25:2,3 38:6 70:16 78:16 narrow 20:8 national 14:18 22:13 31:24 71:25 72:7 Near 41:6 need 37:11,16 49:5 52:4 59:24 68:14 68:15 74:5,6 needs 51:23 never 10:16,19,24 22:2 38:10 41:13 71:2,11,13,16 72:22 new 4:8 10:3 25:3 NIOSH 21:25 22:15 32:18,23,25 33:6 33:14 41:20 43:4 Norco 21:7 57:11 North 1:13,15 6:25 notary 1:15 7:20 77:19 Notary/Reporter 75:4 75:7 notation 42:25 notations 43:5,9,10 notice 5:7,10 16:23 17:2,3 18:9,9,11 18:15 number 6:21 18:7 40:21 45:24 51:4 55:25 numbers 22:9,23 29:18 O object 14:8 32:10,19 33:7 39:12,21 43:22 49:2 52:19 53:6 55:3 56:11,24 58:8,21 59:6 72:13 72:14 73:25 Objection 66:23 obligation 59:20 obviously 46:16,19 58:12 occupational 14:18 16:2,3,15 38:17 41:23 44:10 47:19 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 88 48:11 53:10 55:18 73:20 occur 44:17 54:3 55:13 occurred 23:23 26:4 57:20 occurs 60:2 odor 32:6,12,13,17 33:2,5,9,24 35:21 36:3,8 41:11 42:6 42:8,10,13,16,20 OEL 73:14,15,16 OEM 73:13 offhand 34:12 49:25 52:11,14 office 3:5 69:20 70:3 oh 25:11,11 35:9,15 40:4,20 42:3,10 43:2 45:8 70:2 oil 1:7 2:12 3:6,7 4:10 6:20 7:10 8:7 8:9 60:10,14,17 62:8 78:6 okay 9:8,13,17,19,22 10:5,8 11:8 15:8 15:17 16:20,25 17:12,18,23 18:6 22:5,22 23:25 24:12,18 28:11,18 35:5 38:6 40:15 42:21 48:17,21 49:12 50:4,10 53:15 55:15,23 57:19 60:8 61:14 64:4,8 65:3 66:14 67:7,24 69:9 70:25 72:11 73:2,11,22 74:8 Once 24:20 ones 11:4 12:5 34:8 49:17 69:3 opened 67:14 operation 62:5 67:14 opined 47:9,13,23 opines 47:14 opinions 36:17,24 37:7 order 19:23 organic 31:22 original 78:19 originally 18:23 Orleans 4:8 OSHA 14:24 15:2 32:5 32:18 33:6 41:20 42:24 43:18 44:3,9 55:17 72:18 outcome 29:6 75:16 outliners 67:19 outside 14:25 Overby 6:13 75:4,21 overstated 27:25 owner 43:19 58:18 59:3,16,22 P P 68:10 page 69:13 76:5 77:10 pages 75:11 paint 48:6,12 Pamela 34:17,25 paper 34:4,6,11,17 35:3 papers 35:24 Parkway 9:3 part 10:23 12:12 17:7 21:5 29:8 36:6 41:5 53:3,11 53:16 54:9 67:6 71:15 73:24 partial 27:20 particular 14:5 31:4 32:15 44:21 47:18 48:4,5,15 55:7 59:12 65:25 parties 76:10 parts 21:12 35:22 36:6 40:9 64:5,21 65:16 66:21 67:9 69:8 party 75:15 Paso 3:7 7:10 pass 11:15 pathways 38:20 Paustenbach 34:2,18 34:19,20,23 35:12 35:19,21 peer 11:19,24 39:25 peer-reviewed 65:4 PEL's 73:21 pending 6:21 people 13:10 23:3 33:11 35:15 38:13 41:17 60:17 percent 44:24,25 48:13,20,22 56:2 60:16 percentage 44:18 48:7 60:14 percentages 60:22 perception 32:14 33:10,23 perform 19:3 20:2,3 22:7 performed 21:20 period 45:19 48:9 63:14 periods 54:6 Perry 2:9 7:11,11 8:7 14:8 18:8 25:8 32:10 39:12,21 49:2 51:22 52:3,19 53:6 55:3 56:11 58:8 72:13 73:6,15 74:11 person 36:13 47:20 personal 44:4 65:21 65:22,23 personally 69:9 77:5 phone 6:9 38:15 51:16,23 phonetic 63:21 65:6 Ph.D 13:24 14:5 70:23 pipe 62:17 66:5 pipefitter 20:9 55:24 65:9 68:23 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 89 69:5 pipefitters 21:6 26:8,9,11,11,16 27:2,24 28:2 55:19 56:9,14,22 65:14 65:25 66:2,11,12 66:13,16,17,22 67:4,7 place 3:4 16:6,8 49:6 56:4,21 76:5 77:9 places 47:8 plaintiff 2:3 6:19 26:23 46:3,7 47:10 47:24 51:14 plaintiffs 1:5 7:8 37:25 plaintiff's 13:17,23 27:18 29:4 Plaintiff/Defendant 7:2 plant 37:19 Plaza 3:9 pleasant 52:2 please 7:4,25 8:24 22:5 plug 22:9,23 plus 61:4,12 point 54:19 points 27:12 30:2 policy 58:5,10 pool 68:2 poor 27:6 34:25 portion 37:9 position 46:23 possible 52:17 57:6 57:7 Post 3:5 potential 31:11 59:14 60:9 61:10 63:11 potentially 39:4 61:16 64:16 Poydras 4:7 PPM 53:13 practice 15:23 21:24 premise 43:19 59:2 59:16,22 prepared 17:19 45:10 present 23:18 43:11 44:2 60:6,15 presented 47:15,16 pretty 44:20 71:24 prevent 53:20 primary 12:5 35:2 principles 22:18 prior 61:23 75:7 probable 39:6 probably 45:12,13,23 46:18 problem 35:10 40:5 40:10 procedure 32:7 process 16:5,6 19:8 19:11 20:24 23:11 28:3 49:25 processes 31:10 37:19 produce 73:4 produced 20:18 23:3 64:18 product 12:5 30:9,19 30:21 32:24 33:13 43:11,16 47:18 48:22 56:2,19 61:16,21 67:15 products 13:5 16:9 19:20 30:16 31:4 32:3 Professional 11:6 program 10:9 15:6,7 15:11 38:4 programs 12:4 prohibited 58:6 project 44:21 properly 19:23 31:11 37:17 42:19 59:15 protecting 58:16 protection 44:4 protective 44:4 protocol 32:23 33:15 provide 43:19,24 provides 42:16 public 1:15 7:20 77:19 published 18:24 30:14 47:3 Punta 6:17 pure 67:15 purged 62:20 63:5 purpose 53:15 put 10:19,24 17:17 38:7 52:9 56:4 pyrolysis 61:14 62:2 62:25 Q qualifications 22:6 qualified 72:21 qualifies 72:11 qualify 22:7 Quality 11:7 quantification 12:16 12:20 quantify 41:22 quantitative 41:15 quantity 43:14 question 10:18 12:16 36:22 37:17 39:14 39:17 47:23 50:2 50:16,19 52:4 53:14 54:24 57:16 61:9 66:7,19,24,25 73:3 questions 74:9,11,12 quite 36:7 38:17 42:11 58:11 quote 71:7 R Radiator 3:11 7:14 7:18 51:5,8,10,17 63:22 Rando 34:8,14 65:4 Rando's 19:12 range 20:9,12 21:9 21:10 29:21 42:13 64:21 68:6 74:6 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 90 rate 52:7 read 17:15 26:3 27:16 34:13 46:19 58:23 76:10 78:12 78:14 ready 8:19 real 46:5 really 23:9 28:25 29:3 45:17 63:2 reasons 78:16 recall 24:21 32:22 33:13,15 36:14 54:17 67:12 71:8 71:21 receive 11:16,23 16:23 recognition 11:13 recognize 42:15 recognized 44:11,16 recollection 48:19 54:20 recommended 43:24 record 6:7,10 7:5,22 8:25 74:14 78:15 recording 6:6 records 44:23 recreate 32:8 41:14 recreated 33:5 recreating 40:16 42:2 reduce 44:9 56:5 reduced 76:8 reference 34:14 36:3 references 17:7 18:5 34:13,15 referred 38:16 referring 18:21 24:2 27:14 34:7 37:10 refineries 33:12 refinery 37:19 58:18 59:3 reflect 69:6 regard 31:6 59:25 regarding 14:12 54:16 regards 10:18 regulation 42:25 regulations 43:18 related 29:19 40:25 45:5 55:6 60:18 relevant 17:9 36:16 36:24 37:7 68:21 reliability 67:23 relied 18:5 34:9 37:14 65:4 rely 69:2 remember 32:24 33:16 48:7 remove 25:21 68:18 removed 25:13,15,17 25:17 68:20,25 remover 48:6 removers 48:12 repeat 52:4 repeated 72:4 rephrase 35:20 47:22 report 20:22 21:8,8 33:14,16 45:11 52:10 67:18 69:6 70:9,12,14 reported 31:4 36:8 66:9 reporter 1:14 7:3,21 7:23 8:10,14,20 18:13 76:7 78:11 Reporting 6:14,15 78:4 represent 7:6 31:11 representative 29:23 31:8,9 represented 26:12 27:2 Representing 8:7,8 request 17:13 78:14 requested 76:6 require 43:18 researchers 22:16 RESERVED 74:17 resources 57:25 respirators 49:7 respiratory 61:21 response 17:2,13 18:2 responsibility 59:10 59:13 60:3,4 responsible 58:16 59:2 responsive 5:10 18:14 result 65:14 results 33:4 53:22 64:9 review 11:24 13:6 30:13 47:2,2 52:13 54:14 55:8,14 65:9 69:9,16 reviewed 13:3 17:7 37:5 39:25 69:12 69:13 reviewer 11:19 revisions 18:25 re-ask 66:24 RICHARD 2:6 Rick 7:8 right 44:7 50:2 63:19 74:13 Riley 3:8 7:14,14,18 7:18 ring 52:2 Road 1:13 6:24 Rock 1:13 6:24 ROSE 3:9 Rouge 3:5 route 39:3,5 routes 38:21,23 44:15,17 routinely 46:9,13,17 rule 14:4 RYMAN 3:9 S safety 11:6 12:4 14:18 43:20 45:4 55:8,12,16 sample 65:13,21,21 65:22 67:3,8 samples 13:13 23:14 23:14 27:10 30:4 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 91 37:4,4 64:25 65:24 66:20 67:25 68:18 68:24 69:2 sampling 27:12 30:2 33:21 41:21,25 Sandhill 6:16 Sandt 1:14 7:3 75:6 75:10 saying 20:2 62:15 67:25 72:15 says 54:23 scenario 61:3 63:3 school 10:6 science 36:16,23 37:6,14 sciences 9:16 scientific 46:23 scientifically 46:11 46:21 se 19:5,7 second 18:8 51:23 Security 9:6 see 38:24 seek 60:4 seen 49:18 54:19 64:2 select 26:14 selected 26:15 send 17:21 sense 37:2 sensitization 43:12 sensory 32:13 33:23 sent 69:10 served 13:16,22 45:6 45:16 46:2 49:12 set 67:11 68:7,13 70:4 76:5 77:9 sheet 55:17 78:2,17 sheets 55:9,12 Shell 1:7 2:12 3:6,6 6:20 7:10,11 19:14 20:4,11,16,22 21:7 32:6,11 36:2 50:14 57:11,24 58:5 63:9 65:10,18 67:7 68:17 69:7 78:6 Sher 4:6 8:6 short-term 64:25 68:2 show 36:5 40:2 64:20 sigma 68:9 sign 76:11 SIGNATURE 74:17 79:23 signed 78:16 significance 23:17 49:10 significant 10:23 42:18 44:12 60:6 60:24 significantly 44:20 similar 14:15 simply 19:9 33:9 72:15 simulate 26:22 sir 8:11 9:4 11:2 24:5 30:5 51:20 57:18 58:24 62:14 63:15 65:19 sit 20:3 64:10 site 59:24 sitting 54:21 skin 40:7,7,9,9 42:24 43:4,15,17 60:18 slue 41:9 small 60:14 sniff 41:19 Social 9:6 solely 46:9,14,17,19 solvent 12:21,23 solvents 44:13 somebody 27:22 51:23 somebody's 53:2 somewhat 25:2 sorry 8:9 14:21 24:2 24:10 25:10 26:9 30:22 36:21 51:17 58:22 59:7 63:21 65:20 sort 29:2 41:8 42:4 56:3 63:2 sound 65:17 sounds 27:15 sources 13:6 speak 38:2 47:20 speaker 6:9 Spear 65:3 specialist 6:15 Specialists 7:15 Specialty 3:11 7:19 51:5,8,10,17 63:23 specific 19:20,21,22 20:22 40:24 41:4 54:20 57:19 62:3 70:19 specifically 10:25 14:3 20:7 29:20 43:8 50:8 54:17 67:12 71:17,21 specificity 37:11,17 spell 8:12 Spencer 1:12 6:3,18 8:16,23 9:2,14 16:22 17:23 18:20 21:5 24:12 30:7 36:11 37:22 38:7 38:19 46:8 50:13 52:6,15 67:18 72:6 74:19 75:5 76:3 77:6,13 78:8 79:24 spent 52:12 spoke 15:5 22:12 43:5 spoken 37:22 Spring 1:13 6:24 Stan 2:9 7:11 standard 15:19 44:10 48:11 52:17 53:10 53:17 68:9 standardized 15:23 35:9,17 40:11,13 73:19 standards 47:19 standpoint 10:19 12:6 42:5 53:14 starting 10:3 state 1:15 8:24 77:3 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 92 statement 58:14,25 states 1:2 6:21 77:7 stating 7:5 26:20 statistical 67:21,22 68:8 70:5 steamed 62:20 STEL 65:2 stenographically 7:21 Strategies 15:25 16:14 18:22 streams 37:20 Street 2:4,10 4:7 studies 36:5 39:16 39:25 40:6 41:3 47:3,3 64:15 study 25:13 32:12 36:2 42:15 64:18 64:20 65:3,7 studying 10:9 submit 17:20 submitted 32:18,23 32:25 33:6 SUBSCRIBED 77:15 substances 12:11,17 36:19 sufficient 46:22 56:20 62:6 Suite 2:4,7,10 3:9 6:17 summaries 70:3,3 summarize 69:16 summarized 69:24 summary 13:7 25:14 25:18,19 31:5 support 46:11,21,23 suppression 57:9 Supreme 25:5,9,10 sure 27:9 34:6,16 35:15,17 36:18 37:9 40:4 42:10 43:2 45:4 48:18 50:23 57:2 70:2 surface 48:9 surveyor 42:18 swear 8:2 sworn 8:17 75:6 77:6 77:15 synthesizing 32:2 system 54:2 57:10 systemic 43:11 T T 4:4 take 9:19 17:24 24:7 41:2 59:21 taken 6:23 14:11,13 14:15 31:17 32:3 72:17 75:9 76:3,7 77:8 78:13 talk 20:22 25:22 43:3 73:10 talked 42:10 43:8 talking 19:16 24:15 27:9 34:16 35:4 61:7 72:9 talks 36:3 42:17 tank 56:17 tasks 16:7 19:22 techniques 41:9 TELEPHONE 1:11 6:2 Telephonically 2:3 3:8 4:5 tell 12:22 13:20 14:2 16:25 17:25 22:5 28:9 40:15 45:12 48:4 49:17 50:9 53:19 58:18 61:25 62:3 65:13 68:10 ten 46:5 Tenneco 50:20 63:9 term 67:19 73:19 terms 29:13 62:22 67:24 test 27:6 testified 8:18 10:16 22:22 36:11 45:10 45:13,22 46:8 69:22 70:25 71:9 71:18,23 testify 46:9 71:10 testimony 7:22 75:13 Texas 2:11 3:10 text 15:24 textbook 16:13 18:21 Thank 8:14 21:20 thesis 9:25 thing 41:8 42:4 43:7 things 19:17 think 13:3 14:9 18:10 19:16 25:12 26:24 27:21 29:11 29:15 30:10 31:6 33:15 35:3 36:4 37:24 41:24 42:3 46:17 50:21 57:23 57:24 59:8 61:2,15 71:4 73:2 74:3,9 third 41:6 three 10:3 18:25 28:13,18,19 threshold 32:7,17 33:6,9,24 35:22 41:11 42:8 thresholds 36:3,8 42:11,14 throw 68:2,3,15 time 6:11 7:22 13:5 22:3 29:17 30:23 33:12 44:25 48:9 52:12,23 54:7,19 73:12 76:4 77:9 times 24:18 27:19 45:9 46:6 title 38:3 76:5 77:10 TLV's 73:21 today 6:7 7:22 16:17 20:5 38:16 64:11 71:5,10 72:5 today's 6:10 48:11 74:15 told 64:4 65:16 total 53:3,16 touched 30:10 42:12 toxological 43:16 tradesmen 56:14 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 93 trained 15:3 72:18 Training 14:25 32:5 72:18 transcribed 75:9 transcript 75:12 76:11 77:7,11 78:12,19 trial 45:13 true 11:10 31:14 75:12 77:10 try 31:7 33:22 59:8 trying 37:24 turn 51:23 Twenty-six 10:12 two 14:23 15:9 16:14 18:25 19:17 40:21 41:2 two-week 14:23 type 19:25 22:17 43:25 61:8,20 62:4 types 26:22 30:13 typewritten 76:8 Typically 38:25 55:16 U Uh-huh 46:15 ultimately 52:22 undergrad 24:8 undergraduate 15:6 31:21 understand 26:17 37:2,18 52:22 58:11 74:4 understanding 53:9 53:24 unfamiliar 59:11 unfortunately 25:25 40:4 unidentified 6:9 union 43:7 United 1:2 6:21 universe 56:13 university 9:16 14:12,15,17,19,22 15:13,13 unknown 59:22 unpublished 30:14 47:3 unreliable 42:7 unsafe 47:24 48:24 51:15 updating 43:4,6 upper 20:13 upper-end 21:9,9,11 urine 23:14 use 15:17 23:16 64:19 Utah 25:10 utilize 22:18 41:10 utilized 16:10 36:9 37:3 42:19 61:19 69:4 U.S 21:25 V vacuum 70:7 validate 33:22 validated 33:19 40:13 validating 23:10 value 20:14 21:10,11 23:9 29:22 values 20:12 21:10 29:22 68:6,10 74:7 valve 23:10 Van 1:14 7:3 75:6,9 vapors 62:17 variability 42:19 variable 67:21,22 variables 22:11 32:14 61:17 variation 36:2,8 varies 44:20,24 62:4 variety 11:21 30:16 47:7 various 13:6,13 22:11 32:2 44:13 vast 69:21 ventilation 27:7 49:7 Verma 65:6 version 43:7 63:17 versus 6:19 24:22,25 25:22 50:5 video 6:14 VIDEOGRAPHER 6:5 7:13,20,25 74:13 videotape 6:5 VIDEOTAPED 1:11 6:2 Video-Telephone 5:7 view 26:12 visual 33:10,23 volatilized 62:22 vs 1:6 78:6 W walk 41:18 want 9:7,8 17:15,24 17:24 66:15 70:7 74:3 warn 59:3,19 warnings 12:5 Washington 14:15 15:12 wasn't 14:21 25:25 26:4 28:25 30:17 33:8 way 23:21 30:25 36:14 37:13 41:13 64:6 67:25 ways 40:12 week 44:22,25 weeks 14:24 weighted 53:3,16 went 67:8 weren't 58:4 West 2:7 we'll 18:6,12 we're 19:16 36:18 61:7 wide 35:25 48:8 Williams 2:4 7:7,7 8:19 17:18 18:16 34:20 64:19 74:8 Williams's 34:17 Wilmington 1:13 6:25 witness 8:2 14:9 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 94 24:13,15,19 32:11 32:20 33:8 39:13 39:22 43:23 49:3 51:25 52:20 53:7 55:4 56:12,25 58:9 58:22 59:7 67:2 72:15 74:2 witness's 75:13 word 44:7 work 10:15 14:24 16:6,8 32:4 43:9 44:18 47:8 55:25 55:25 60:19 69:24 70:7 worked 14:17 21:25 21:25 31:23 46:6 50:14,23 51:2,6,9 60:20 62:15,17 71:24 72:7,16,19 workers 32:9 44:13 58:16,17 63:23 working 13:12 20:10 20:10 44:21 53:12 57:8,9 60:10,18 62:7 63:12 70:13 world 41:22 wouldn't 60:23 Wrench 63:13,17,24 64:10,16,19,23 write 59:10 70:9,11 written 35:21,24 Y YALE 3:9 yeah 8:5 26:24 27:15 30:24 34:22 64:20 year 11:16 18:20 21:14 26:3 29:8 34:10 57:11 years 11:12 13:12 18:24 21:23 24:16 30:4,12 45:14 53:4 53:12,13 72:20 $ $285 52:8 0 07-2832 1:6 6:21 1 1 1:12 6:4 18:2 53:2 53:11,16 55:25 78:9 1st 6:7,11 1.59 21:12 69:7 10 48:20,22 50:18 10:17 74:15 100 9:2 12 9:5,10 30:2 1221 2:10 146.7 65:16 66:21 67:9 15 27:8 45:14 50:17 51:7,13 53:4 64:25 15-year 45:19 150 61:4,12 16-ounce 63:20 17 5:6 178 6:14 18 5:9 1954 9:5,10 1975 57:22 1978 63:14,25 1987 11:18 2 2 14:24 18:2,7 56:3 75:23 2/12/54 9:11 20 45:14 48:20,22 200 2:7 45:18 2000 3:9 2007-2008 19:2 2009 1:12 6:4,7,11 75:23 77:16 78:9 2100 2:10 22nd 3:4 225-387-0999 3:6 24.5 64:4 24650 6:16 28th 4:7 28405 6:25 29 64:5 299-2100 4:9 3 3 3:9 3.8 64:21 30 30:12 68:24 30-plus 13:11 21:23 72:20 3000 2:7 3021 2:4 33983 6:17 35th 2:4 3513 3:5 38 35:22 4 40 14:24 44:24 401 6:17 45 53:11,12 5 5 44:24 48:13 504 2:5,8 4:9 547-2039 2:11 6 653-7375 3:10 6745 1:12 6:24 7 70s 23:23 55:21 56:10,22 58:6 70001 2:5 7002 2:7 70112 4:8 70821 3:5 713 2:11 3:10 77010-2007 2:11 77046 3:10 8 8 53:3,16 832-9898 2:5 834-8500 2:8 84 30:6 8805 9:2 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 95 9 9:02 1:14 6:12 909 4:7 97 30:6 VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 1 1 2 IN THE UNITED STATES DISTRICT COURT FOR THE 3 EASTERN DISTRICT OF LOUISIANA _________________________________________________________ 1 2 3 4 JO ANN BISHOP, ET AL, 4 5 Plaintiffs, 5 6 vs. 7 Case No.:07-2832 6 SHELL OIL CO., ET AL, 8 Defendants. 7 8 9 _____________________________/ 10 9 11 VIDEOTAPED TELEPHONE DEPOSITION of JOHN 10 12 SPENCER, C.I.H, C.S.P., held on July 1, 2009, at 6745 11 13 12 14 15 Rock Spring Road, Wilmington, North Carolina, commencing at 9:02 a.m., before Laura L. Van Sandt, a Court Reporter 13 14 15 and Notary Public in and for the State of North Carolina. 16 16 17 17 18 18 19 19 20 20 21 22 23 21 22 23 24 24 25 25 Page 3 APPEARANCES: (CONT'D.) GLENN M. FARNET, ESQUIRE KEAN, MILLER, HAWTHORNE D'ARMOND, McCOWAN & JARMAN, LLP 22nd Floor, One American Place Post Office Box 3513 Baton Rouge, Louisiana 70821 (225-387-0999 Attorneys for Shell Oil, Shell Chemical, Marathon Oil, El Paso JAMES M. RILEY, ESQUIRE (Telephonically) COATES, ROSE, YALE, RYMAN & LEE, LLC 3 E. Greenway Plaza, Suite 2000 Houston, Texas 77046 (713) 653-7375 Attorneys for Radiator Specialty Company Page 2 11 2 APPEARANCES: 3 On behalf of the Plaintiff: (Telephonically) 2 3 4 L. ERIC WILLIAMS, JR. ESQUIRE 4 3021 35th Street, Suite B 5 Metairie, Louisiana 70001 (504) 832-9898 5 6 67 7 RICHARD J. FERNANDEZ, ESQUIRE 3000 West Esplanade Avenue, Suite 200 Metairie, Louisiana 7002 8 9 8 (504) 834-8500 10 9 On behalf of the Defendants: STAN PERRY, ESQUIRE 10 HAYNES AND BOONE, LLP 11 12 1221 McKinney Street, Suite 2100 13 11 Houston, Texas 77010-2007 (713) 547-2039 12 Attorneys for Shell Oil 14 15 13 16 14 17 15 16 18 17 19 18 20 19 20 21 21 22 22 23 23 24 24 25 25 Page 4 APPEARANCES: (CONT'D.) CHRISTOPHER T. CHOCHELES, ESQUIRE (Telephonically) SHER GARNER LAW FIRM 909 Poydras Street, 28th Floor New Orleans, Louisiana 70112 (504) 299-2100 Attorneys for Murphy Oil 1 (Pages 1 to 4) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 5 11 2 INDEX TO EXHIBITS 2 33 4 DESCRIPTION MARKED 4 55 6 Exhibit-1 17 6 7 Notice of Video-Telephone Deposition 7 88 9 Exhibit-2 18 9 10 Disk Containing Items Responsive to Notice 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 Page 7 of the Plaintiff/Defendant. The court reporter is Laura Van Sandt. Will counsel please identify yourself for the record stating your name, address and who you represent? MR. WILLIAMS: Yes; Eric Williams and Rick Fernandez for the Plaintiffs. MR. FARNET: Glenn Farnet for the Shell defendants, Marathon Oil and El Paso. MR. PERRY: Stan Perry for the Shell Defendants. THE VIDEOGRAPHER: Then -MR. RILEY: Jim Riley for Radiator Specialists. MR. FARNET: Jim, could you say that again? MR. RILEY: Jim Riley for Radiator Specialty Company. THE VIDEOGRAPHER: The notary public and court reporter will stenographically record the testimony today. At this time the court reporter -MR. CHOCHELES: This is Chris -THE VIDEOGRAPHER: -- will please Page 6 Page 8 11 2 VIDEOTAPED TELEPHONE DEPOSITION OF 2 swear in the witness. 3 JOHN SPENCER, C.I.H., C.S.P. 3 MR. FARNET: Hold on, Chris. 4 JULY 1, 2009 4 Identify yourself. 5 THE VIDEOGRAPHER: The videotape 5 MR. CHOCHELES: Yeah, Chris 6 recording has commenced and we are now on 6 Chocheles, Sher Garner. 7 record. Today is July 1st, 2009. 7 MR. PERRY: Representing Murphy Oil. 8 (Whereupon, Interruption by 8 MR. CHOCHELES: Representing Murphy 9 unidentified phone speaker.) 9 Oil; sorry about that. 10 We are now on record and today's 10 THE COURT REPORTER: And your last 11 date is July 1st, 2009. The time is 11 name again, sir? 12 approximately 9:02 A.M. 12 MR. CHOCHELES: Let me spell it for 13 My name is Marty Landau of Overby 13 you. C-H-O-C-H-E-L-E-S. 14 Reporting 178. I am the legal video 14 THE COURT REPORTER: Thank you. 15 specialist for Accurate Court Reporting whose 15 THEREUPON, 16 business address is 24650 Sandhill Boulevard, 16 JOHN SPENCER, CIH, CSP, 17 Suite 401, Punta Gorda, Florida 33983. 17 having been duly sworn, was examined and 18 The deposition of John Spencer in 18 testified as follows: 19 the matter of Plaintiff Bishop, Jo Ann versus 19 MR. WILLIAMS: Are we ready? 20 Shell Oil Company, et al, Defendant; case 20 THE COURT REPORTER: Yes. 21 number 07-2832 pending: United States 21 EXAMINATION 22 District Court Eastern District of Louisiana. 22 BY-MR.WILLIAMS: 23 This deposition is being taken at Hilton 23 Q. Good morning, Mr. Spencer; could you 24 Garden Inn, 6745 Rock Spring Road, 24 please state your full name and address for 25 Wilmington, North Carolina 28405 on behalf 25 the record? 2 (Pages 5 to 8) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 9 Page 11 11 2 A. John Spencer, 8805 Columbia 100 2 Q. Do you have any certifications, sir? 3 Parkway in Columbia, Maryland. 3 A. Yes. 4 Q. And what's your date of birth, sir? 4 Q. Which ones? 5 A. 12 February 1954. 5 A. I'm a Certified Industrial Hygienist, 6 Q. And your Social Security? 6 a Certified Safety Professional and a 7 A. I don't want to give that out. 7 Certified Indoor Air Quality Consultant. 8 Q. You don't want to give that, okay. 8 Q. Okay, what does one have to do to 9 And say your date of birth again? 9 become a Certified Industrial Hygienist? 10 A. 12 February 1954. 10 A. Well, the same is true for all of 11 Q. 2/12/54? 11 them. You have to demonstrate minimum 12 A. Yes. 12 experience of five years in the field. You 13 Q. Okay, what degrees have you earned, 13 have to have letters of recognition from 14 Mr. Spencer? 14 other certified individuals in that field and 15 A. I have a degree in biological 15 then you have to pass an examination. 16 sciences from the University of Maryland. 16 Q. And what year did you receive your 17 Q. Okay, any other degrees? 17 Industrial Hygienist Certification? 18 A. No. 18 A. 1987. 19 Q. Okay, did you take any Masters 19 Q. Are you a peer reviewer for any 20 classes? 20 journals? 21 A. Yes. 21 A. Well, I have done for a variety of 22 Q. Okay, and did you finish your 22 journals, yes. I don't do it consistently. 23 Masters degree? 23 I just -- I often receive articles and I'm 24 A. I did not. I did not finish my 24 asked to peer review them. 25 thesis. 25 Q. What areas do you consider yourself Page 10 Page 12 11 2 Q. And why not? 2 to be an expert in? 3 A. Three kids and starting a new 3 A. Well, exposure assessment; employer 4 business. 4 health and safety and environmental programs; 5 Q. Okay, were you asked to leave the 5 product warnings; those are the primary ones 6 school? 6 from -- again from a legal standpoint. 7 A. No. 7 Q. Do you consider yourself to be an 8 Q. Okay, and what curriculum were you 8 expert in the field of chemical engineering? 9 studying in your Masters program? 9 A. No, I do not. 10 A. It was environmental biology. 10 Q. What about the field of chemical 11 Q. And how many hours did you complete? 11 composition of substances? 12 A. Twenty-six. 12 A. Well, again, it is a large part of 13 Q. Do you consider to be an ex -- 13 what I do as an industrial hygienist. 14 yourself to be an expert in biology? 14 Certainly I've had -- 15 A. Certainly as a consultant I work in 15 Q. When I say -- let me give you a 16 that area. I've never testified as an 16 fairer question; the quantification of 17 expert in biology, however. So if your 17 chemical compositions of substances? 18 question is with regards to from a legal 18 A. I don't know that I'm following what 19 standpoint, frankly I've never been put up as 19 do you mean -- what you mean by 20 a biologist before. 20 quantification. 21 Q. Do you consider yourself to be an 21 Q. If I gave you a solvent and I said 22 expert in the field of chemistry? 22 can you tell me what -- what the historical 23 A. Again, it is a significant part of 23 amount of benzene was in that solvent, would 24 what I do, but I've never been put up as a 24 you consider yourself to be an expert in 25 -- specifically as a chemist. 25 that field? 3 (Pages 9 to 12) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 13 Page 15 11 2 A. I certainly -- I guess I have to 2 OSHA inspectors and industrial hygienists are 3 think about that. I have reviewed the 3 trained. 4 literature. I'm familiar with the changing 4 Q. And the exposure assessment class 5 benzene content of products through time 5 that you spoke about, was that in your 6 based on review of various literature sources 6 undergraduate program? 7 and other summary documentation. 7 A. No; that was a graduate program. 8 Q. So is that a yes? 8 Q. Okay, and you took -- I believe you 9 A. I guess I would say yes. I know 9 said you took two classes or -- 10 more than I'd say most people. I mean I've 10 A. One was at -- 11 -- you know, I've been for the last 30-plus 11 Q. -- in the graduate program? 12 years I've been working at this I've 12 A. One was at George Washington 13 certainly collected various hydrocarbon samples 13 University and another was at the University 14 and had them analyzed for benzene content in 14 of Cincinnati. 15 health hazard assessments I was conducting. 15 Q. And were those graduate classes? 16 Q. Have you ever served as an expert in 16 A. Yes. 17 a case where the plaintiff's exposure expert 17 Q. Okay, what methodology did you use 18 did not have a Masters? 18 in this case? 19 A. Yes. 19 A. The standard industrial hygiene 20 Q. Can you tell me his name? 20 methods. 21 A. No. 21 Q. Can you explain it to us? 22 Q. Have you ever served in a case where 22 A. Yes; there -- there is a 23 the plaintiff's exposure expert did not have 23 standardized practice that is defined in the 24 a Ph.D? 24 industrial hygiene text. One is the 25 A. Yes. 25 Strategies For Assessing & Managing Page 14 Page 16 11 2 Q. And can you tell me his name? 2 Occupational Exposures. The other is the 3 A. I cannot specifically, no. 3 Occupational Environment, its management. And 4 Q. As a general rule, would a expert in 4 in those books are chapters that define an 5 a particular field with a Ph.D have more 5 exposure assessment process. And that 6 knowledge than someone with a Bachelor's 6 process includes evaluation of the work place 7 degree? 7 activities, the tasks, frequency and 8 MR. PERRY: Object to form. 8 duration; the work place environment; the 9 THE WITNESS: No, I do not think 9 products that are at issue and what controls, 10 so, no. 10 if any, were being utilized to manage those 11 Q. What classes have you taken at a 11 exposures. 12 university regarding exposure calculations? 12 Q. And what did you say the name of 13 A. I've taken exposure assessment 13 that textbook was? 14 industrial hygiene classes at George 14 A. Well, there's two; Strategies for 15 Washington University. I've taken similar 15 Assessing & Managing Occupational Exposures. 16 cases on exposure assessment at the 16 Q. And did you bring that with you 17 University of Cincinnati when I worked for 17 today? 18 the National Institute for Occupational Safety 18 A. I didn't bring the book with me, no. 19 & Health. While it was not a university -- 19 I brought a chapter from that book -- 20 Q. In the -- 20 Q. Okay. 21 A. I'm sorry. I wasn't finished. 21 A. -- that deals with -- 22 While it's not a university, I also took 22 Q. Let me back up, Mr. Spencer. Did 23 two-week classes that involved that in two -- 23 you receive a notice in this case? 24 2 weeks of 40 hour class work from the OSHA 24 A. I did. 25 Training Institute outside of Chicago where 25 Q. Okay, let's -- tell me what you 4 (Pages 13 to 16) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 17 Page 19 11 2 brought in response to the notice, and I'd 2 the most recent one in 2007-2008. 3 like to mark the notice as Exhibit-1. 3 Q. Did you perform a benzene exposure 4 (WHEREUPON EXHIBIT-1 WAS MARKED FOR 4 assessment for Mr. Bishop? 5 IDENTIFICATION) 5 A. Not per se; one, I felt there was 6 A. I brought my entire file. I brought 6 insufficient information. And what I mean by 7 the references that I have reviewed as part 7 not per se is that I essentially followed 8 of this case and I brought other materials 8 the process that your industrial hygiene 9 that I felt were relevant to my evaluation 9 expert followed and simply made corrections 10 in this case. 10 to some of the assumptions that were applied 11 BY-MR.WILLIAMS: 11 to his process. 12 Q. Okay, can you break it down by item 12 Q. Well, how do you know Dr. Rando's 13 what you brought in response to the request? 13 calculations, let's say for instance for 14 A. Well, we might be here several hours 14 Shell, are incorrect if you didn't calculate 15 if you want me to read each and every item. 15 an exposure assessment yourself? 16 MR. FARNET: Eric, so you'll know, 16 A. Well, I think we're talking about 17 this is Glenn, he put it all on a disk -- 17 two different things. I believe that his 18 MR. WILLIAMS: Okay. 18 calculations are incorrect -- actually, we 19 MR. FARNET: -- that we are prepared 19 don't know and he -- as he even described he 20 to, you know, submit -- attach to the 20 has no knowledge of what specific products, 21 deposition or send to you. 21 what specific frequency and duration of 22 BY-MR.WILLIAMS: 22 exposure, or what specific tasks Mr. Bishop 23 Q. Okay, well, Mr. Spencer, I don't 23 did in order to properly calculate an 24 want you to take hours. I just want you to 24 exposure. In the absence of that information 25 briefly tell me did you bring something in 25 you cannot do that type of assessment. Page 18 Page 20 11 2 response, you know, to 1, to 2? 2 Q. Did you perform -- so you're saying 3 A. Yes; I mean I brought all the 3 you couldn't sit here and perform an exposure 4 documents I just described including the 4 assessment for the Shell facility for Mr. 5 references that I relied upon. 5 Bishop today, if I asked you to? 6 Q. Okay, well, we'll attach the disk as 6 A. Well, I can't -- I would agree with 7 Number 2. 7 that. I can't do it specifically for Mr. 8 MR. PERRY: Just one second, Eric; 8 Bishop. What I can do is better narrow down 9 so the notice -- I had a copy of the notice 9 a range of exposures that a pipefitter 10 and I think John's got one electronically, 10 working -- such that Mr. Bishop did working 11 but I have a hard copy of the notice. 11 at the Shell facility, what his exposures 12 We'll attach it as Exhibit-1, and it's with 12 would likely have been, or a range of values 13 the court reporter. And then Exhibit-2 will 13 that it would fall into or an upper limit 14 be the disk that has the items responsive to 14 value that he would have been exposed to. 15 the deposition notice. 15 And that's based on the data, the air 16 MR. WILLIAMS: Fair enough. 16 monitoring data from the Shell facility, and 17 (WHEREUPON, EXHIBIT-2 WAS MARKED FOR 17 correlating that with some data that's 18 IDENTIFICATION) 18 produced in the literature. 19 BY-MR.WILLIAMS: 19 Q. But you didn't do that in this case, 20 Q. Mr. Spencer, what year was the 20 is that correct? 21 textbook that you were referring to, 21 A. Well, no; I did look at that and in 22 Strategies? 22 my report I do talk about the specific Shell 23 A. Well, gosh, it was originally 23 data from that facility. So, yes, I did do 24 published several years ago and there's been 24 that as a means of comparing the process 25 at least two, maybe three revisions of it, 25 that your industrial hygienist followed and 5 (Pages 17 to 20) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 21 Page 23 11 2 what I certainly would have done to do such 2 A. I don't know that would be called a 3 an assessment. 3 calculation. People certainly have produced 4 Q. Maybe I'm misunderstanding you, Mr. 4 best guesses, but I -- 5 Spencer. Did you calculate a part per 5 Q. Well -- 6 million exposure assessment for pipefitters at 6 A. -- would -- I would say without a 7 the Shell Norco facility? 7 calculation -- actually without -- a 8 A. In our report, yes; in our report I 8 calculation gives you -- it's an estimated 9 gave an upper-end range -- or an upper-end 9 value and you really don't know the accuracy 10 value and then a range of values as well. 10 of that valve without further validating that 11 Q. What was the upper-end value? 11 process. That's why in our business that 12 A. I believe it was 1.59 parts per 12 if we are concerned about dermal dose in 13 million. 13 addition to inhalation dose, we collect 14 Q. And that was per day, per year, 14 biological samples, blood or urine samples 15 what? 15 and have that evaluated, and that's why we 16 A. That was an average daily exposure. 16 do not use a dermal calculation to determine 17 Now I don't believe that was Mr. Bishop's 17 the significance of exposure. 18 exposure because that included activities that 18 Q. And that's in the present day, 19 Mr. Bishop would not have been involved in. 19 correct? 20 Q. Thank you; have you ever performed a 20 A. It -- correct; and it's always been 21 dermal calculation for benzene? 21 that way. 22 A. I have in the context of litigation 22 Q. You can't do that for exposures that 23 cases, yes, but not in my 30-plus years of 23 occurred in the '70s, is that correct? 24 practice of monitoring benzene. When I 24 A. That is correct, yes. 25 worked for NIOSH, when I worked for the U.S. 25 Q. Okay. Page 22 Page 24 11 2 Coast Guard, that's just not done, never 2 A. I'm sorry, and you're referring to 3 done. The only time I've done is in the 3 doing the biological exposure indices 4 context of litigation. 4 evaluation? 5 Q. Okay, please tell me what 5 Q. Yes, sir. 6 qualifications that you believe you have that 6 A. Yes. 7 would qualify you to perform a dermal 7 Q. Did you take any calculus classes in 8 calculation. 8 your undergrad degree? 9 A. Well, I know how to plug numbers 9 A. Yes. 10 into a model. I am familiar with the 10 Q. I'm sorry. I couldn't hear you. 11 various variables that are associated with 11 A. Yes, I did. 12 the dermal model. I recently just spoke on 12 Q. Okay, Mr. Spencer, have you ever 13 this issue at a national conference in Canada 13 been excluded as an expert witness? 14 on the limitations of doing dermal 14 A. I have not ever been excluded as an 15 assessments along with European and NIOSH 15 expert witness. I was excluded from talking 16 researchers in the same area. 16 about cumulative dose in a case several years 17 Q. Does this type of exposure assessment 17 ago, but I was not excluded from the case. 18 utilize different math principles? 18 Q. Okay, how many times have you been 19 A. Well, there's certainly mathematical 19 limited as an expert witness by a court? 20 formulas that are used to derive estimates of 20 A. Once. 21 absorbed dose. 21 Q. Do you recall the name of that case? 22 Q. Okay, earlier I believe you testified 22 A. It was Lavender versus Miles, I 23 that you could plug numbers into a model. 23 believe or Mobay. 24 Could you do a dermal calculation without a 24 Q. Are you familiar with the case 25 model? 25 called Adler versus Bear Corporation? 6 (Pages 21 to 24) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 25 Page 27 11 2 A. The name is somewhat familiar. Bear 2 used data on pipefitters that represented a 3 is -- was -- is the new name for Miles and 3 higher level of exposure than the electrician 4 Mobay. 4 that was at issue in the case. 5 Q. Did the Supreme Court criticize your 5 Q. Did the court also find that you 6 methodology for exposure assessments in that 6 conducted a test under a very poor 7 case? 7 ventilation and collected data only in the 8 MR. PERRY: Can you clarify which 8 first 15 minutes of exposure? 9 Supreme Court? 9 A. I'm not sure what you're talking 10 Q. I'm sorry, Utah Supreme Court. 10 about because I didn't collect any samples. 11 A. Oh, oh, no; I don't know if they 11 I was using data from the facility. There 12 did or not. I think that was the one where 12 were hundreds of sampling data points from 13 that case was removed after we did a study 13 the facility. 14 there, you know, and summary judgment issues 14 Q. And that's what I'm referring to. 15 that the case was removed. 15 A. Yeah, so it sounds like something is 16 Q. What do you mean? When you say 16 being interpreted or read incorrectly. 17 removed, what did you mean by removed? 17 Q. In that case could you have 18 A. I guess they got summary judgment. 18 estimated the plaintiff's exposures at the 19 The defendants got summary judgment in that 19 times much longer than your experiment using 20 case. 20 partial differential equations? 21 Q. That's not what we call remove, but 21 A. Again, I think you're confused with 22 in any event let's talk about Lavender versus 22 somebody else. I didn't do any differential 23 Bear Corporation. What did the court say 23 equations. I used the data from the 24 about your methodology in that case? 24 facility on -- from their pipefitters which I 25 A. Well, unfortunately I wasn't there to 25 believe overstated what the electricians' Page 26 Page 28 11 2 know exactly what the court said. In the 2 exposure was who followed the pipefitters 3 document that I read one year after it 3 into that -- those process areas. 4 occurred, I wasn't even made aware that there 4 Q. Have you ever done any modeling of 5 was a hearing, was that -- 5 exposures? 6 Q. Well, let me ask you this -- 6 A. Yes. 7 A. -- that I used data on electricians. 7 Q. Did you do any in this case? 8 This had to do with pipefitters. I used 8 A. No. 9 data on pipefitters, sorry. This was about 9 Q. Can you tell me why? 10 an electrician. The electrician followed the 10 A. Yes; we had air monitoring data. 11 pipefitters. I used the data on pipefitters 11 Q. Okay, now did we have air monitoring 12 because it in my view represented a higher 12 data for all four facilities? 13 level of exposure. And the judge in that 13 A. Well, I looked at three facilities. 14 case believed that I did not select an 14 Q. And I apologize. Let's get that 15 appropriate exposure group because I selected 15 clear. You did not look at the merger 16 pipefitters, not electricians. And as I 16 facility, is that correct? 17 understand, that was the basis for the 17 A. That's correct. 18 decision. 18 Q. Okay, so for the three facilities 19 Q. Do you know whether the court found 19 you looked at did we have data for all three 20 that your methodology was flawed, stating 20 facilities? 21 that your estimates were guesstimates that 21 A. Yes. 22 did not simulate the types of exposures 22 Q. And that's why you didn't do 23 experienced by the plaintiff? 23 modeling? 24 A. Well, yeah, I think that was -- you 24 A. Well, correct; and in addition to 25 know, and it was -- the issue was because I 25 that, I wasn't really asked to do -- to do 7 (Pages 25 to 28) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 29 Page 31 11 2 that sort of detailed exposure assessment. I 2 do that is to look collectively at the 3 was really asked to evaluate what the 3 literature as to -- you know, as it was 4 plaintiff's industrial hygiene expert had 4 reported for those particular products. And 5 developed and to assess his approach and his 5 there's a lot of summary information that's 6 outcome. 6 out there in that regard. I think one has 7 Q. But if you were asked to come up 7 to be careful to try as best you can choose 8 with a part per million year for each 8 the appropriate or the representative data, 9 facility, you could have done that in this 9 that is, data that is representative of the 10 case, is that correct? 10 processes that were used to derive those 11 A. Well, I don't think that would be 11 chemicals that properly represent potential 12 appropriate to come for each facility. If 12 benzene content. 13 you mean in terms of Mr. Bishop -- 13 Q. Do you always accept the benzene 14 Q. Yes; contribution from each facility? 14 content data from the manufacturer is true? 15 A. Yes; again, I think if you -- let 15 A. I can't say always, no. That's too 16 me back up a minute. I don't believe I had 16 absolute. 17 at the time, at least I didn't have data on 17 Q. Have you taken any courses in 18 Marathon's. I didn't have their numbers. I 18 environmental chemistry? 19 couldn't do an exposure assessment related 19 A. Yes. 20 specifically to Mr. Bishop. I could do an 20 Q. And what -- was that your 21 exposure assessment that looked at a range of 21 undergraduate degree? 22 values or a ceiling value that was 22 A. Well, I've had a lot of organic and 23 representative of the exposure group that Mr. 23 inorganic chemistry. I also worked at the 24 Bishop would have been included in. And in 24 National Institutes of Health in Bethesda, 25 fact I'm going to back up again. I did 25 Maryland at the -- in the laboratory of Page 30 Page 32 11 2 have data. I had 12 sampling data points 2 chemistry synthesizing various chemical 3 from Marathon as well. 3 products. I've also taken chemistry in my 4 Q. What years were those samples from, 4 -- in graduate level course work as well and 5 sir? 5 at the OSHA Training Institute. 6 A. I believe they were from '84 to '97. 6 Q. Do you know if Shell had a odor 7 Q. Mr. Spencer, would you consider 7 threshold procedure that they used to 8 yourself to be an expert in determining the 8 recreate exposure assessments of their 9 amount of benzene in a product? 9 workers? 10 A. I think we touched on this earlier 10 MR. PERRY: Object to form. 11 and I'd say -- I mean, yes, due to my 11 THE WITNESS: I'm aware of Shell 12 experience over the last 30 years of doing 12 doing a study that included odor but not 13 those types of evaluations, due to my review 13 odor on its own. There were other sensory 14 of published and unpublished literature 14 perception issues that were -- or variables 15 that has evaluated the historical levels of 15 that were included in that particular 16 benzene in a variety of products. 16 assessment that they had done. 17 Q. And if there was -- there wasn't any 17 Q. And was this odor threshold 18 literature that identified the level of 18 methodology submitted to OSHA and NIOSH? 19 benzene in a historical product, how would 19 MR. FARNET: Object to the form. 20 you determine what levels of benzene were in 20 THE WITNESS: I -- you know, I 21 that product? 21 haven't looked at that in a while. I do 22 A. I'm sorry, if you were going back in 22 recall that perhaps it was, at least the 23 time in doing that assessment? 23 protocol was submitted to NIOSH from what I 24 Q. Yeah. 24 remember. I don't know the end product was 25 A. Well, I mean I -- the only way to 25 submitted to NIOSH but it was not -- but 8 (Pages 29 to 32) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 33 Page 35 11 2 again, this was not just on odor as a 2 behind on that. She is the primary author 3 determinant. 3 on that paper. I think that's the one 4 Q. Were the results of the exposure 4 you're talking about. 5 assessment that was recreated by the odor 5 Q. Okay. 6 threshold submitted to NIOSH and OSHA? 6 A. I'm -- 7 MR. FARNET: Object to form. 7 Q. Do you disagree with his formula for 8 THE WITNESS: Again, it wasn't 8 dermal calculations? 9 simply on odor threshold. There was also 9 A. Oh, no; it's a standardized formula. 10 air monitoring and visual perception and 10 There's -- there's certainly no problem with 11 experience by people who'd been in the 11 that. 12 refineries for some time. And I do not 12 Q. Do you agree that Dr. Paustenbach 13 recall whether or not the end product, the 13 himself has used that formula to create 14 report was actually delivered to NIOSH. I 14 dermal calculations for benzene exposure? 15 think -- what I recall, the protocol was, 15 A. Oh, sure; a lot of people have 16 but I don't remember whether the report 16 calculated -- calculated dermal exposures, 17 itself was. 17 sure, using that standardized formula. 18 Q. Do you know if this exposure method 18 Q. Do you know the levels that Dr. 19 was validated using actual industrial hygiene 19 Paustenbach -- the levels of benzene -- let 20 data? 20 me rephrase that. Do you know if Dr. 21 A. They did include some air sampling 21 Paustenbach has written about benzene odor 22 data in an attempt to try to validate some 22 threshold being at levels of 38 parts per 23 of their sensory perception, the visual and 23 million? 24 -- and odor threshold determinants. 24 A. Gosh, he's written so many papers, 25 Q. Are you familiar with a Dr. 25 he may have. I don't know. There is wide Page 34 Page 36 11 2 Paustenbach? 2 variation. The Shell study that you 3 A. Yes. 3 reference talks about odor thresholds, I 4 Q. Are you familiar with his paper or 4 think even much lower than that. And 5 article on dermal calculations. 5 there's studies that show it from less than 6 A. I'm not sure which paper you're 6 one part per million to over a hundred parts 7 referring to. 7 per million so there's -- there's quite a 8 Q. Well, one of the ones that Dr. Rando 8 bit of variation in reported odor thresholds 9 relied on? 9 for benzene and that's why it's not utilized 10 A. Do you happen to know the year of 10 as a means of evaluating exposure. 11 that paper? 11 Q. Mr. Spencer, have you ever testified 12 Q. No, I don't offhand. It's one of 12 that you're not an expert in chemistry, but 13 his references. Did you read the dermal 13 you know more than the average person? 14 calculation reference that Dr. Rando used? 14 A. I don't recall one way or the other 15 A. I mean there are several references 15 honestly. 16 and I'm not sure. Are you talking about the 16 Q. Is the science of chemistry relevant 17 Pamela Williams's paper or that she's the 17 to your opinions in this matter? 18 lead author, that Paustenbach was a coauthor 18 A. Well, sure; we're dealing with 19 on, or one that Dr. Paustenbach -- 19 chemical substances, yes. 20 Q. No; Dr. Williams and Paustenbach I 20 Q. How about analytical chemistry? 21 believe -- 21 A. I'm sorry. What's -- what's the 22 A. Yeah, that's the -- 22 question? 23 Q. -- the one that Paustenbach authored 23 Q. I said is the science of analytical 24 by himself. 24 chemistry relevant to your opinions in this 25 A. Yes, poor Pamela always gets left 25 matter? 9 (Pages 33 to 36) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 37 Page 39 11 2 A. In a sense that I understand the 2 looking at inhalation and depending on the 3 methodologies that were utilized to analyze 3 circumstances there's also a dermal route of 4 the samples that -- the air samples that I 4 exposure that's potentially available. 5 reviewed, yes. 5 There's also an ingestion route of exposure 6 Q. Is the science of chemical 6 but not as probable. 7 engineering relevant to your opinions in this 7 Q. Can benzene enter the body through 8 matter? 8 dermal contact? 9 A. I'm not sure what portion of that 9 A. Yes. 10 you're referring to. It's kind of a broad 10 Q. Can benzene cause blood disorders and 11 field and I need some more specificity. 11 blood malignancies through dermal contact? 12 Q. I'm just asking you if you know one 12 MR. PERRY: Object to form. 13 way or the other if chemical engineering is 13 THE WITNESS: That is a medical 14 a form of science that you relied on in this 14 question. I don't frankly know whether 15 case? 15 that's ever been evaluated either in animal 16 A. I mean, again I guess I need more 16 or human studies but that's more of a 17 specificity to properly answer that question. 17 medical question. 18 I mean I understand there's a multitude of 18 Q. Well, if benzene enters the body, 19 processes in a refinery in a chemical plant 19 would you agree with me that it can cause 20 and some contain benzene streams and some do 20 blood disorders? 21 not. 21 MR. PERRY: Object to form. 22 Q. Mr. Spencer, have you ever spoken at 22 THE WITNESS: Certainly through 23 a Harris Martin benzene conference? 23 inhalation; I'm familiar with that, yes. 24 A. Yes; I'm trying to think if that was 24 Q. Would you agree with me that there 25 the one I was invited by the plaintiffs' 25 are several studies that are peer reviewed Page 38 Page 40 11 2 attorney to speak at, yes. 2 and show how to calculate a dermal exposure 3 Q. And did you list your title as 3 for benzene? 4 doctor on that -- on that program for that? 4 A. Oh, yes, sure, but unfortunately the 5 A. No, I did not. 5 problem is that they're all done differently. 6 Q. Okay, and has your name ever been 6 They're based on different studies; life, 7 put on there as Dr. John Spencer? 7 individuals or cadaver skin or monkey skin, 8 A. I'm not aware that it has. If they 8 or some other animal or different layers of 9 did, I get that a lot because of what I do, 9 skin, or skin from different parts of the 10 but I certainly have never held myself out 10 body so the problem is there's no 11 to be a doctor. 11 standardized. You can do it and there's 12 Q. When you say you get that a lot, 12 many ways to do it but there is no 13 people mistake you as a doctor a lot in this 13 standardized and accepted and validated method 14 area of expertise? 14 for doing it. 15 A. They do, or I get on the phone like 15 Q. Okay, can you tell me the different 16 I am with you today and I'm referred to as 16 forms of recreating exposure assessment to 17 doctor quite often so it's an occupational 17 benzene? 18 hazard. 18 A. The different forms? 19 Q. Mr. Spencer, what are exposure 19 Q. Forms of data; I apologize. 20 pathways? 20 A. Oh; well, there's actual air 21 A. Well, they are the routes of 21 measurements number one. Two is to -- and 22 exposure. 22 you can have air measurements from the 23 Q. And what routes of exposure would 23 facility on the individual, or just from the 24 you expect to see in a benzene case? 24 facility and of the specific exposure groups 25 A. Well, it depends. Typically you're 25 to which that individual is related to or 10 (Pages 37 to 40) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 41 Page 43 11 2 included within. Two is to take literature 2 A. Oh, sure; many chemicals do. In 3 or data from the literature or other studies, 3 fact, the talk I just gave was with the -- 4 that again defines the specific exposure 4 NIOSH is developing and updating their skin 5 group that individual was part of. And a 5 notations for chemicals. And I also spoke 6 third mechanism is doing modeling. Near 6 with an individual who's also updating the 7 field, far field model is a common example 7 European union version of the same thing and 8 or doing box models, that sort of thing. 8 talked to him specifically about, you know, 9 There are a slue of air modeling techniques 9 how these notations work. But these are 10 that one can utilize. 10 notations that are used to define whether or 11 Q. And what about odor threshold? 11 not a product can present a systemic effect, 12 A. No. 12 or a corrosive effect, or a sensitization 13 Q. No, that's never been used as a way 13 effect. It is not a means nor an indicator 14 to recreate an exposure assessment? 14 that you quantity the dose that's absorbed 15 A. No, not a quantitative exposure 15 through the skin. It's an indicator of the 16 assessment; I guess if one could do that, 16 toxological effect of that product being on 17 all the -- all the equipment people would be 17 the skin. 18 out of business if one could walk in and 18 Q. And do the OSHA regulations require 19 sniff the environment. But no, that's -- 19 the employer or the premise owner to provide 20 it's not an accepted NIOSH or OSHA air 20 safety equipment to avoid dermal contact to 21 sampling method. As far as I know it's not 21 benzene? 22 used by anybody in the world to quantify 22 MR. FARNET: Object to form. 23 occupational exposures. 23 THE WITNESS: Yes; that's certainly 24 Q. I don't think I asked you air 24 recommended the employer to certainly provide 25 sampling. I said what are acceptable forms 25 that type of equipment where benzene is Page 42 Page 44 11 2 of data in recreating a exposure assessment? 2 present. 3 A. Oh; well, I mean I think it's the 3 Q. Would it be fair to say OSHA expects 4 same sort of thing that I'm looking at from 4 the protection, personal protective equipment 5 an industrial hygiene standpoint and what I 5 to eliminate any dermal contact with benzene? 6 do to assess an exposure, and odor is just 6 A. I would say certainly -- I don't 7 too unreliable. 7 know eliminate's the right word. That 8 Q. Have you ever used an odor threshold 8 certainly is a first choice but certainly to 9 in any litigation case? 9 reduce or manage that exposure. When OSHA 10 A. Oh, sure; I've talked about odor 10 developed the occupational health standard for 11 thresholds quite a bit and benzene is a good 11 benzene, they certainly recognized there 12 example. You know, we touched on it 12 was a significant amount of dermal contact to 13 earlier. There's a very broad range of odor 13 workers who handled various solvents. And 14 thresholds, both what you can detect and 14 certainly their intent was to minimize or to 15 recognize for benzene. There's also a study, 15 eliminate, as you say, dermal routes of 16 AS -- ASTM provides a guideline on odor 16 exposure. But they certainly recognized that 17 determinants and talks about the very 17 those routes of exposure did occur. 18 significant intra and inter surveyor 18 Q. What percentage of your work involves 19 variability and utilized to properly assess 19 litigation? 20 an odor. 20 A. That varies pretty significantly on 21 Q. Okay, is there a dermal exposure 21 what project I'm working on in a particular 22 limit for benzene? 22 week or month. I -- my best guess -- and 23 A. No, there is not. 23 I just don't keep any records of this but my 24 Q. Do you know if OSHA has a skin 24 best guess is it varies from 5 percent to 40 25 notation on the regulation for benzene? 25 percent of my time in a given week or month. 11 (Pages 41 to 44) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 45 Page 47 11 2 Q. And would these be cases that 2 A. Well, I review literature. I review 3 involve chemical exposures? 3 studies, published and unpublished studies, 4 A. Sure, many of them; some are safety 4 other government documents that are available, 5 related issues or environmental issues. 5 and draw upon my own experience which has 6 Q. How many cases have you served as an 6 been involved, extensive experience in 7 expert, do you believe, in your career? 7 monitoring exposures in a variety of 8 A. Oh, gosh, I honestly -- I mean how 8 different work places. 9 many times have I been listed in a case? 9 Q. Have you ever opined in litigation 10 Q. Either testified, listed, prepared a 10 that a plaintiff exposed to benzene was 11 report? 11 exposed to levels that could have caused his 12 A. I mean probably the best I can tell 12 disease? 13 you is I've testified at trial in probably 13 A. Have I opined that? Again, I'm not 14 20 cases over the last 15 years. 14 a medical doctor that opines that. I 15 Q. Do you have a ballpark figure of how 15 certainly have presented -- have been 16 many other cases you served as an expert in? 16 presented with and communicated that I 17 A. I really do not know. 17 believe that the exposures from -- to benzene 18 Q. Was it more than 200? 18 from a particular product were in excess of 19 A. I would say over a 15-year period, 19 occupational health standards. But I'm not a 20 yes. And I certainly had been listed in 20 causation person. I don't speak to whether 21 cases and been asked to look at -- it's not 21 or not that's likely to have caused disease. 22 that I've testified in that many but that 22 Q. And I apologize. Let me rephrase my 23 I've -- certainly I probably looked at a 23 question. Have you ever opined that a 24 number of cases or been asked to look at 24 plaintiff was exposed to unsafe levels of 25 those cases. 25 benzene? Page 46 Page 48 11 2 Q. How many have you served for the 2 A. Yes. 3 plaintiff? 3 Q. And what case was that in? 4 A. Directly, I don't know, maybe -- 4 A. I can't tell you the particular 5 again I'm not real certain. Five to ten 5 case, but it had to do with a particular 6 times that I've worked directly for the 6 paint remover that had -- I don't even 7 plaintiff. 7 remember the percentage of benzene in there 8 Q. Mr. Spencer, have you ever testified 8 but it was being applied to a very wide 9 that you, "Routinely testify solely on behalf 9 surface area for extended period of time in 10 of defendants because I mean that's who I am 10 -- and the levels were above at least 11 able to get to support scientifically and, 11 today's occupational health standard. 12 yes, I mean that's what I look for"? 12 Q. And do paint removers generally have 13 A. Well, did it say routinely and 13 higher than 5 percent benzene content? 14 solely? 14 A. I can't say whether generally or 15 Q. Uh-huh. 15 not. This particular one had a formulation 16 A. No; well, no; I mean obviously I 16 that did. 17 don't do it solely for. I think routinely 17 Q. Okay, what was the benzene content? 18 is probably correct based on what you just 18 A. Again, I'm not sure. I believe to 19 read but obviously not solely. 19 the best of my recollection it was somewhere 20 Q. And what did you mean by, "I am 20 between 10 and 20 percent. 21 able to support scientifically"? 21 Q. Okay, so if someone was exposed to a 22 A. That there is sufficient information, 22 product with more than 10 to 20 percent 23 scientific information to support my position. 23 benzene content, you could arrive at a 24 Q. "And I mean that's what I look for", 24 conclusion that they were exposed to unsafe 25 what did you mean by that? 25 levels of benzene? 12 (Pages 45 to 48) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 49 Page 51 11 2 MR. PERRY: Object to form. 2 A. I know I've worked on a few cases 3 THE WITNESS: Not on -- not on that 3 for Marathon in the past, but again I do not 4 only of itself; I mean if you're going to do 4 know a number. 5 an exposure assessment, you need to evaluate 5 Q. Radiator Specialty Company? 6 what controls are in place. Was there any 6 A. I've worked on -- again, I don't 7 ventilation. Were they using respirators. 7 know the answer; less than 15 cases for 8 What was the frequency and the duration of 8 Radiator Specialty. 9 that activity. All those contribute to the 9 Q. The cases that you worked on for 10 significance of that exposure so you have to 10 Radiator Specialty, were they benzene -- 11 evaluate those components as well. 11 allegations of benzene in blood malignancies? 12 Q. Okay, have you ever served as an 12 A. Yes. 13 expert in a case where someone was exposed 13 Q. And in the approximate 15 cases, did 14 to benzene and they -- they contracted 14 you ever find that the plaintiff was exposed 15 multiple myeloma? 15 to unsafe levels of benzene? 16 A. I certainly -- yes; I have been in 16 (Whereupon, Cell phone interruption.) 17 cases. I can't tell you which ones or how 17 A. I'm sorry, in the Radiator Specialty 18 many but certainly I've seen at least some 18 cases? 19 cases where multiple myeloma was the disease 19 BY-MR.WILLIAMS: 20 at issue. 20 Q. Yes, sir. 21 Q. Well, would Ben Brown be one of the 21 A. No. 22 cases? 22 MR. PERRY: Hey, Eric, just one 23 A. Honestly I'm involved in that case 23 second; somebody needs to turn their phone 24 but I but I don't know what the disease 24 off. 25 process is offhand. It's just not -- I 25 THE WITNESS: At least it has a Page 50 Page 52 11 2 don't -- I can't answer that question right 2 pleasant ring. 3 now accurately. 3 MR. PERRY: Go ahead, Eric. You 4 Q. Okay, would you know if Douglas 4 may need to repeat that question. 5 versus Ashland would be another benzene 5 BY-MR.WILLIAMS: 6 multiple myeloma case? 6 Q. Mr. Spencer, what is your hourly 7 A. Again, without going back and looking 7 rate? 8 specifically at the diagnosis issue I 8 A. $285. 9 couldn't tell you. 9 Q. And how many hours did you put into 10 Q. Okay, is benzene classified as a 10 completing your report? 11 known human carcinogen? 11 A. I don't -- do not know offhand. I 12 A. Yes. 12 spent a lot of time on this case. There 13 Q. Mr. Spencer, how many cases have you 13 was a lot of information to review. I do 14 worked on as an expert for Shell? 14 not know offhand. 15 A. I do not know the answer to that 15 Q. Mr. Spencer, if someone is exposed 16 question. I'd be guessing. I just don't 16 to levels of benzene in excess of the health 17 know. I mean it's, you know, less than 15 17 standard, is it possible that they could 18 and maybe less than 10, but I just do not 18 contract a blood disorder? 19 know the answer to that question. 19 MR. PERRY: Object to form. 20 Q. What about Tenneco? 20 THE WITNESS: Yes, but it's a 21 A. I think fewer. 21 function of, again frequency and duration and 22 Q. Murphy? 22 ultimately dose. One has to understand not 23 A. I'm not sure that I've ever worked 23 only the concentration but the time of 24 for Murphy before. 24 exposure. 25 Q. Marathon? 25 Q. For instance, let me give you an 13 (Pages 49 to 52) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 53 Page 55 11 2 example. If somebody's exposed to above 1 2 have on that document? 3 part per million on an 8 hour total weighted 3 MR. PERRY: Object to form. 4 average for 15 years daily, could one develop 4 THE WITNESS: I do not. I do not 5 a blood disorder? 5 know the basis of that. Again, it's more of 6 MR. PERRY: Object to form. 6 a medical related issue. I'm not familiar 7 THE WITNESS: Again, I'm not the 7 with that particular aspect. 8 medical expert here to define that. As I -- 8 Q. Did you review the material safety 9 my understanding as industrial hygienist the 9 data sheets in this case? 10 occupational health standard for benzene, 10 A. I did not. 11 which is 1 part per million, is based on 45 11 Q. Do you know what levels the material 12 years working lifetime so that would be 45 12 safety data sheets say health effects can 13 PPM years. So from an industrial hygiene 13 occur? 14 standpoint, I would say no to your question. 14 A. Well, I didn't review them. 15 Q. Okay, do you know the purpose of the 15 Q. Okay. 16 8 hour total weighted average 1 part per 16 A. Typically a material safety data 17 million standard? 17 sheet lists the OSHA and the ACGH 18 A. Yes. 18 occupational health limits. 19 Q. Can you tell us? 19 Q. Do you know if pipefitters were 20 A. To prevent benzene-related disease. 20 exposed to high levels of benzene in the 21 Q. How does one get abnormal blood 21 '70s in general? 22 results from benzene exposure? 22 A. It depends. 23 A. Again, I'm not the medical guy, but 23 Q. Okay, on what? 24 my understanding is that benzene is 24 A. What the pipefitter did; did they 25 metabolized into another chemical which 25 work -- number 1) work around a benzene Page 54 Page 56 11 2 affects the blood forming system. 2 containing product. If so, what percent 3 Q. And would you expect that to occur 3 benzene was in there. 2) What sort of 4 at certain levels of exposure? 4 controls were put in place to either 5 A. Certainly I would expect it at high 5 eliminate or reduce those levels of exposure, 6 levels of exposure for extended periods of 6 and what was the frequency and duration of 7 time, yes. 7 that exposure. 8 Q. Do you know if benzene can cause 8 Q. Well, would you agree with me that 9 blood abnormalities at levels below one part 9 some pipefitters were exposed to high levels 10 per million? 10 of benzene in the '70s? 11 A. Again, no; I'm not the medical 11 MR. PERRY: Object to form. 12 expert, but as an industrial hygienist, I'm 12 THE WITNESS: I certainly believe 13 not aware of that. 13 that there could -- in the universe of 14 Q. Did you review a document that has a 14 pipefitters as a large group of tradesmen 15 -- is authored by Environmental Health, Inc. 15 that there were individuals under certain 16 regarding benzene exposure? 16 circumstances doing a line break or doing a 17 A. I don't specifically recall that 17 tank entry that could have had high levels 18 document. If there's -- so I can't -- I 18 of exposure to benzene if -- again, if a 19 may have seen it at some point in time, but 19 benzene containing product was there and it 20 I don't have any specific recollection of it 20 was in a sufficient concentration and there 21 sitting here. 21 were no controls in place to manage it. 22 Q. Let me ask you this. The document 22 Q. Would pipefitters in the '70s 23 says, "Chronic benzene exposure can cause 23 encounter dermal benzene exposures? 24 multiple myeloma". My question to you is, 24 MR. FARNET: Object to the form. 25 do you know what levels of benzene that they 25 THE WITNESS: I would say that again 14 (Pages 53 to 56) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 57 Page 59 11 2 under some circumstances, sure, I would 2 responsible for the employee if the premise 3 expect that. 3 owner, such as the refinery, fails to warn 4 Q. Inhalation benzene exposures? 4 the employer that they are exposing their 5 A. Again under the caveats that I laid 5 employees to benzene? 6 out just a moment ago then it is possible, 6 MR. FARNET: Object to form. 7 yes. And it's also possible there were none 7 THE WITNESS: I'm sorry. I don't 8 at all. They're working on a boiler, or 8 think I'm following that. I'll try to 9 working on installing a fire suppression 9 answer but an employer always has the 10 system, or bathrooms, then I would say no. 10 responsibility. You can't write that off. 11 Q. What year did Shell Norco hire a 11 And if they're unfamiliar with what 12 full-time industrial hygienist? 12 particular exposures are in environments, it's 13 A. Well, to my knowledge they always 13 employer's responsibility to determine what 14 had full-time industrial hygienists that were 14 those potential exposures are to ensure that 15 available to that facility. Maybe your 15 they're properly managing those exposures. 16 question is when did they have one dedicated 16 Q. And that's even if the premise owner 17 to that facility? 17 fails to inform the employer that they're 18 Q. Yes, sir. 18 exposing their employees to benzene? 19 A. Okay, I do not know the specific 19 A. Well, if they fail to warn them, 20 date when that occurred. 20 again there is -- there is an obligation. 21 Q. Would that have mattered to you if 21 But I won't take anything away from a 22 they didn't have one until 1975? 22 premise owner if there is an unknown hazard 23 A. No, I don't think that would have 23 and they're not conveying that hazard to a 24 mattered to me. I think that Shell 24 contractor on site, then they need to do 25 certainly had other resources available to 25 better in that regard. But even if that Page 58 Page 60 11 2 them, other industrial hygienists available to 2 occurs, an employer, a contractor has a 3 them to help address industrial hygiene 3 responsibility, always has and still does, a 4 issues. They weren't certainly -- 4 responsibility to determine, to seek out that 5 Q. Do you know if Shell had a policy 5 information to assure that there is no 6 in the '70s that prohibited management from 6 significant health hazard present to their 7 dealing with contractors? 7 employees. 8 MR. PERRY: Object to form. 8 Q. Okay, did Mr. Bishop have the 9 THE WITNESS: I do not know if they 9 potential for dermal benzene exposure while 10 had -- would have had such a policy. I 10 working around crude oil? 11 mean I don't quite understand that. I mean 11 A. Again, it depends on the 12 obviously they were dealing with contractors 12 circumstances of those activities and whether 13 every day. 13 he was using gloves. And if you're around 14 Q. Would you agree with this statement, 14 crude oil, there is a very small percentage 15 "That if employers of contract -- contract 15 of benzene that's present in most crudes. I 16 workers are not responsible for protecting 16 mean less than one percent. And it's not to 17 their workers from benzene exposure if a 17 say that people didn't get crude oil on 18 refinery owner fails to tell the employer 18 their skin working on that related equipment. 19 that they are exposing their employees to 19 So if Mr. Bishop did work on that equipment 20 benzene? 20 and he worked without gloves and it was a 21 MR. FARNET: Object to form. 21 frequent activity, then he could have had 22 THE WITNESS: I'm sorry. Can I ask 22 some exposure. But again, the percentages 23 you to read that again? 23 are so low I wouldn't consider that being 24 Q. Yes, sir; I said would you agree 24 significant. 25 with this statement: "If an employer is not 25 Q. What about gasoline? 15 (Pages 57 to 60) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 61 Page 63 11 2 A. I think, you know, the same 2 A. It's really the same sort of 3 scenario. Now, you know, gasoline is 3 scenario. It is a function of the activity. 4 gasoline. It contains 150 plus different 4 It's a function of how long he got there 5 chemicals including benzene and it is not 5 after the line was purged and cleaned as to 6 associated with any benzene-related diseases. 6 whether there would be any measurable 7 So gasoline, we're talking about a different 7 exposure to benzene. 8 type of material here. 8 Q. And this would be the same answer 9 Q. And that's not my question. Would 9 for the Tenneco, Shell and Marathon facility? 10 Mr. Bishop have the potential for dermal 10 A. Yes. 11 benzene exposures when exposed to gasoline? 11 Q. Did Mr. Bishop have the potential 12 A. Again, yes, along with 150 plus 12 for dermal benzene exposure when working with 13 other chemicals that are in gasoline. 13 Liquid Wrench? 14 Q. Okay, what about pyrolysis gas? 14 A. In the period up to 1978 -- 15 A. I mean I think it's the same for 15 Q. Yes, sir. 16 any product that potentially contained 16 A. -- I would say yes. It depends on 17 benzene. It is a function of the variables 17 the version of Liquid Wrench that he was 18 associated with that exposure; whether 18 using. 19 controls are being utilized, gloves, what 19 Q. Right; well, he identified the 20 type of gloves; whether they're using 20 16-ounce can that has benzol on it. I'm 21 respiratory equipment; or whether that product 21 sorry, Mr. Fusand (phonetic) did. Do you 22 was in that line at all; whether it had been 22 know what levels of benzene internal Radiator 23 cleared out prior to Mr. Bishop ever getting 23 Specialty documents indicated workers were 24 there. 24 exposed to when loading cans of Liquid Wrench 25 Q. Can you tell me the benzene content 25 in 1978? Page 62 Page 64 11 2 of pyrolysis gas? 2 A. I don't know that I've seen that 3 A. I can't tell you the specific, 3 data. 4 because it certainly, it varies from one type 4 Q. Okay, well, if I told you 24.5 and 5 of operation to the next. 5 29 parts per million, would you know that 6 Q. Did Mr. Bishop have sufficient 6 one way or the other? 7 inhalation exposure to benzene when working 7 A. No. 8 with crude oil? 8 Q. Okay, do you have anything to 9 A. I do not believe he would have had 9 disagree with those results for individuals 10 any measurable exposure to benzene. 10 filling cans of Liquid Wrench as you sit 11 Q. What about gasoline? 11 here today? 12 A. Again, if he's -- you say -- now I 12 A. I don't. I just don't know what 13 guess these are hypotheticals and -- 13 the environmental conditions were or the 14 Q. Yes, sir. 14 frequency and duration of exposure. I 15 A. -- you're saying if he worked just 15 certainly have, you know, done my own studies 16 with a bucket of gasoline somewhere? 16 on using Liquid Wrench as potentially Mr. 17 Q. Or worked around a pipe where vapors 17 Bishop used it, and I'm familiar with the 18 were coming out from gasoline? 18 literature of another study produced by 19 A. I mean, well it depends if that line 19 Williams et al on the use of Liquid Wrench. 20 had been purged and cleaned and steamed and 20 Q. Yeah, in that study did they show 21 benzene is one of the first constituents to, 21 levels that range up to 3.8 parts per 22 in terms of the aromatics to be volatilized 22 million of benzene exposure from Liquid 23 from that line. So he may or may not have 23 Wrench? 24 had any benzene exposure at all. 24 A. I believe they did for the 25 Q. What about pyrolysis gas? 25 short-term samples. It was under the 15 16 (Pages 61 to 64) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 65 Page 67 11 2 minute STEL. 2 THE WITNESS: I'm not aware of a 3 Q. Okay, is the Spear Study that Dr. 3 sample for, again what I would call a 4 Rando relied on peer-reviewed? 4 contract pipefitters that were up to that 5 A. To the best of my knowledge, yes. 5 level. Most all of them I believe were less 6 Q. And what about the Verma (phonetic) 6 than a part per million. 7 Study? 7 Q. Okay, well, for Shell pipefitters 8 A. Yes. 8 were you aware there was a sample that went 9 Q. Did you review the pipefitter 9 up to 146.7 parts per million? 10 industrial hygienist data from the Shell 10 A. I'd have to go back and look at 11 facility? 11 that whole data set again. I don't 12 A. Yes. 12 specifically recall that one or what the 13 Q. Can you tell me the highest sample 13 circumstances were; whether that was a 14 result for pipefitters? 14 blinding operation; they had opened a line 15 A. Yes; I -- 15 and there was pure product in there. Again, 16 Q. If I told you 146.7 parts per 16 that was something that Mr. Bishop did not 17 million, does that sound familiar? 17 do. 18 A. For the Shell data? 18 Q. Mr. Spencer, in your report you used 19 Q. Yes, sir. 19 the term outliners. Can you define that for 20 A. No; I'm sorry. Was that an area 20 us? 21 sample or a personal sample? 21 A. It's a statistical variable or not 22 Q. I believe it was a personal sample. 22 variable but a statistical determinant of 23 A. I'm not familiar with any personal 23 data reliability. 24 samples that were at that level for -- in 24 Q. Okay, and in laymen's terms, is that 25 particular for pipefitters, contract 25 a way of saying that samples that are high, Page 66 Page 68 11 2 pipefitters. 2 short-term you throw them out the data pool? 3 Q. If I -- 3 A. No; you do not throw them out and 4 A. There are no levels of -- 4 it's just not high data. It may be low 5 Q. -- pipe -- 5 data as well. What it is, is that the data 6 MR. FARNET: He's not finished, 6 doesn't fall within a range of values that 7 Eric. Let him finish the question you 7 is consistent with the entire data set. So 8 asked. 8 you do the statistical analysis and you're 9 A. I mean there are no levels reported 9 looking at sigma or standard deviation. 10 anywhere close to that for contract 10 You're looking at P values. And these tell 11 pipefitters. 11 you whether or not -- or the data falls on 12 Q. And I said pipefitters. I didn't 12 a curb. And if it falls so far away from 13 say contract pipefitters. 13 the mean or the median of the data set, then 14 A. Okay, well, there's an important 14 you need to investigate further. You don't 15 distinction there though. You don't want to 15 just throw them away but you need to 16 choose pipefitters that are not contract 16 investigate further. 17 pipefitters because that's a whole different 17 Q. How many high exposures from Shell 18 exposure group. 18 or samples did you remove from your analysis? 19 Q. Can you answer the question; were 19 A. Well, it's not that -- I don't know 20 you aware that there were samples that were 20 how many I removed. I looked at the data 21 up to 146.7 parts per million for benzene 21 that I could -- that I felt was relevant, 22 exposure for pipefitters? 22 and it was -- and it was the contractor -- 23 MR. FARNET: Objection; he answered 23 they had a lot of contractor pipefitter data. 24 the question. You may re-ask it, but he 24 It was 30 some samples. 25 answered the question. 25 Q. So did you say you removed them or 17 (Pages 65 to 68) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 69 Page 71 11 2 did not rely on those samples? 2 "I've never been held up to a be a chemistry 3 A. No; those are the ones that I did 3 expert"? 4 look at more closely and utilized. I also 4 A. I think I just said that earlier 5 looked at the pipefitter data collectively, 5 today. 6 and that's reflect in my report and that's 6 Q. Well, I didn't ask you that exact 7 where for Shell I come up with the 1.59 7 quote. 8 parts per million. 8 A. I don't recall whether I've been -- 9 Q. Okay, did you personally review all 9 I testified to that before, but I did 10 the documents in this case that were sent to 10 testify to it today. 11 you? 11 Q. That you've never been a chemistry 12 A. Well, I can't say I reviewed every 12 expert? 13 page from every document, but I reviewed most 13 A. That I've never been held out to be 14 of that, yes. 14 a chemistry expert, that's correct. 15 Q. Did any other employees at your 15 Chemistry is part of what I do as an 16 company review the document and summarize it 16 industrial hygienist, but I've never been 17 for you? 17 asked to be specifically a chemistry expert. 18 A. Well, yes, I certainly had another 18 Q. Have you ever testified that you are 19 industrial hygienist, a certified industrial 19 not a chemist or a chemical engineer and 20 hygienist in my office help me go through 20 that your background is general? 21 this vast amount of information. 21 A. I don't recall if I specifically 22 Q. Have you ever testified that 22 said that or not. 23 employees in another case have -- the 23 Q. Have you ever testified, "I know 24 employees that you work with have summarized 24 chemicals pretty well having worked at the 25 documents for you in a case? 25 National Institute of Health in the Page 70 Page 72 11 2 A. Oh, sure; I often have folks in my 2 laboratory in chemistry while I was in 3 office, like do summaries of summaries that 3 college"? 4 I've done or to go back through a data set 4 A. I likely said that and I repeated 5 and do a statistical analysis. And I have 5 that today. 6 more than one of them do that, because I 6 Q. And, Mr. Spencer, earlier you 7 don't work in a vacuum and I want to check 7 mentioned that you worked at the National 8 and double-check my data. 8 Institute of Health in a laboratory. Are we 9 Q. Did you write your entire report in 9 talking about a job while you're in college? 10 this case? 10 A. Correct. 11 A. No; I mean I did not write the 11 Q. Okay, and you feel that qualifies 12 entire report. I had others. I had another 12 you to be an expert in that field? 13 industrial hygienist help me working on this 13 MR. PERRY: Object to form. 14 report, again analyzing data and double 14 MR. FARNET: I object. 15 checking -- 15 THE WITNESS: I'm simply saying that 16 Q. What's his name? 16 I've had -- I've worked in a chemistry lab. 17 A. Dale Johnson. 17 I've taken multiple chemistry courses. I've 18 Q. And what degrees does he have? 18 trained at the OSHA Training Institute in -- 19 A. I don't know his specific degrees. 19 with chemistry-related issues, and I've worked 20 He's a certified industrial hygienist. 20 with labs over 30-plus years in this business 21 Q. Does he have a Masters? 21 so I am -- I believe I'm very qualified in 22 A. I honestly don't know. 22 the area of chemistry. But I've never been 23 Q. Does he have a Ph.D? 23 held out to be a chemistry expert in a 24 A. No, he does not. 24 litigation case. 25 Q. Okay, have you ever testified that, 25 BY-MR.WILLIAMS: 18 (Pages 69 to 72) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 73 Page 75 11 2 Q. Okay, I don't think -- I have one 2 CERTIFICATE 3 more question. I believe in your affidavit 3 4 in this case -- did you produce an 4 I, David L. Overby, Notary/Reporter, 5 affidavit? 5 do hereby certify that John Spencer, CIH, CSP 6 MR. PERRY: A declaration you mean? 6 was duly sworn by Laura L. Van Sandt, 7 A. A declaration? 7 Notary/Reporter, prior to the taking of the 8 Q. Declaration; I apologize. 8 foregoing deposition; and that this deposition 9 A. Yes. 9 was taken and transcribed by Laura L. Van 10 Q. You talk about averages, Benzene? 10 Sandt under my direction and that the 11 A. Okay. 11 foregoing pages which constitute this 12 Q. I believe there's some time of 12 deposition are a true and accurate transcript 13 acronym, OEM; if I'm not mistaken? 13 of the witness's testimony. 14 A. Or an OEL? 14 I certify that I am not counsel for, 15 MR. PERRY: OEL. 15 or employed by either party in this action, 16 Q. OEL? 16 nor am I interested in the outcome of this 17 A. Yes. 17 action. 18 Q. Can you explain that to us? 18 19 A. It's a standardized term that defines 19 20 -- it's occupational exposure limit and it 20 21 encompasses both PEL's and TLV's. 21 David L. Overby 22 Q. Okay, now an average would not 22 23 indicate that someone was exposed to levels 23 DATED: JULY 2, 2009 24 above one part per million, would it? 24 25 MR. FARNET: Object to form. 25 Page 74 Page 76 11 2 THE WITNESS: Well, it may. It 2 CAPTION 3 depends on -- and you want to -- I think I 3 The Deposition of JOHN SPENCER, taken 4 understand what you're asking. It may or 4 in the matter, on the date, and at the time 5 may not. You need to look at not only the 5 and place set out on the title page hereof. 6 mean but you need to look at the range of 6 It was requested that the deposition 7 values. 7 be taken by the reporter and that same be 8 MR. WILLIAMS: Okay, fair enough; I 8 reduced to typewritten form. 9 don't think I have any other questions; 9 It was agreed by and between counsel 10 anybody else? 10 and the parties that the Deponent will read 11 MR. PERRY: No questions here. 11 and sign the transcript of said deposition. 12 MR. CHOCHELES: No questions. 12 . 13 THE VIDEOGRAPHER: All right, give 13 . 14 me just a moment. Now going off record at 14 . 15 10:17 A.M. This concluded today's 15 . 16 deposition. 16 . 17 (WHEREUPON, SIGNATURE RESERVED) 17 . 18 (WHEREUPON, THE DEPOSITION OF JOHN 18 . 19 SPENCER, C.I.H., C.S.P. CONCLUDED.) 19 . 20 20 . 21 21 . 22 22 . 23 23 . 24 24 25 25 19 (Pages 73 to 76) VIDEOTAPED TELEPHONE DEPOSITION OF JOHN SPENCER, C.I.H., C.S.P., JULY 1, 2009 Page 77 Page 79 11 2. CERTIFICATE 2 _________________________________________________ 3 STATE OF : 3 _________________________________________________ 4 COUNTY/CITY OF : 4 _________________________________________________ 5 Before me, this day, personally 5 _________________________________________________ 6 appeared, JOHN SPENCER, who, being duly sworn, 6 _________________________________________________ 7 states that the foregoing transcript of 7 _________________________________________________ 8 his/her Deposition, taken in the matter, on 8 _________________________________________________ 9 the date, and at the time and place set out 9 _________________________________________________ 10 on the title page hereof, constitutes a true 10 _________________________________________________ 11 and accurate transcript of said deposition. 11 _________________________________________________ 12 12 _________________________________________________ 13 JOHN SPENCER 13 _________________________________________________ 14 . 14 _________________________________________________ 15 SUBSCRIBED and SWORN to before me this 15 _________________________________________________ 16 day of , 2009 in the 16 _________________________________________________ 17 jurisdiction aforesaid. 17 _________________________________________________ 18 18 _________________________________________________ 19 My Commission Expires Notary Public 19 _________________________________________________ 20 . 20 _________________________________________________ 21 . 21 _________________________________________________ 22 . 22 . 23 . 23 SIGNATURE:_______________________DATE:___________ 24 . 24 JOHN SPENCER 25 25 Page 78 1 2. DEPOSITION ERRATA SHEET 3. 4 RE: Accurate Court Reporting, Inc. 5 Case Caption: JOANN BISHOP, ET AL. 6 VS. SHELL OIL COMPANY, ET AL. 7. 8 DEPONENT: JOHN SPENCER 9 DEPOSITION DATE: July 1, 2009 10 . 11 To the Reporter: 12 I have read the entire transcript of my 13 Deposition taken in the captioned matter or the 14 same has been read to me. I request that the 15 following changes be entered upon the record for 16 the reasons indicated. I have signed my name 17 to the Errata Sheet and the appropriate 18 Certificate and authorize you to attach both to 19 the original transcript. 20 . 21 _________________________________________________ 22 _________________________________________________ 23 _________________________________________________ 24 _________________________________________________ 25 _________________________________________________ 20 (Pages 77 to 79)