Document 2qRGmbqmop2EJ7YydYKvXeDVr

1 SUPERIOR COURT OF TEE DISTRICT OF COLUMBIA Civil Division .X- - - - ' - - - - - - - - - - - - - - - - - - - - - MARY MGNTGOMENY, in her capacity a s t h e Personal Representative of t h e E s t a t e of HENRY LEE BRADLEY, deceased, ... 0 Plaintiff, : CA NO. 90-11383 -V . : Civ. I J. L e v i e TRI- CONTINENTAL INDUSTRIES, INC., ET AI,. , : Cal. 3 ...0 Defendants. --------------------___1___1______1___ MINNIE CARTER, in her capacity a s t h e P e r s o n a l Representative of the Estate of ROOSEVELT CARTER, deceased, Plaintiff, V. TRI-CONTINENTAL INDUSTRIES, INC. , ET AL., X.. . . : CA NO. 90-11384 -: C i v . I J. L e v i e ..: Cal. 3 . . . . . . . . . . . . . . . . . . .D.e.f.e.n.d.a.n.t.s... . . . . . . . . 0 X Deposition of DR. DAVID E. GARABRANT . ... . (Caption continued on Page 2) 1825 R S M MU? syirr I212 W-AC- n s s o e ~ ~ t i sI I C, . (202) 42-11 (mr)4 2 9 - m5 2 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Civil Division STANLEY WARREN TAYLOR, Plaintiff, V. TRI-CONTINENTAL INDUSTRIES, INC., ET AL. , I Defendants. : CA NO. 90-11385 -: Civ. I J. Levie : Cal. 3 Tuesday, May 31, 1994 Washington, D.C. Deposition of DR. DAVID H. GARABRANT The witness, called for examination by counsel for the plaintiff, pursuant to notice, held at the offices of Paulson, Nace, Norwind & Sellinger, 1814 N Street, N.W., Washington, D.C. beginning at 10:15 o'clock a.m., before Elizabeth A . Jones, RPR, when were S H E R R Y ROE & ASSOCIATES, INC. F-o-r--t-h--e-P-l-a-i-n-t-i-f-f-s-:- BARRY J. NACE, ESQ. MARK LIGHTFOOT, ESQ. Paulson, Nace, Norwind & Sellinger 1814 N Street, N.W. Washington, D.C. (202) 463-1999 3 For the Defendant, T. .r.i.-.C.o.n.t. i. .n.e.n.t.a.l. . I. .n.d.u.s.t.r.i.es: JONATHAN STERN, ATTORNEY AT LAW Katten, Muchin, Zavis & Dombroff 1025 Thomas Jefferson Street, N.W. East Lobby, Suite 700 Washington, D.C. 20007-5201 (202) 625-3500 For the Defendant, S-t-e-u-a- r- t- - P-e-t-r-o- l- e-u-m_-: JAMES JORDAN, ATTORNEY AT LAW Jordan, Coyne & Savits 1030 Fifteenth Street, N.W. Washington, D.C. 20005 (202) 371-6358 SHERRY ROE & ASSOCIATES, INC. For the Defendants, BP Exploration and Oil Znc., CITGO Petroleum Corporation Tenneco O i l Company C. .r.o.w.n. .C.e.n. t. .r.a.l. .P.e.t.r. o. .l.e.u.m. .C.o.rp., JOSEPH P. ESPOSITO, ESQ. Akin, Gump, Strauss, Hauer & Feld 1333 New Hampshire Avenue, N.W. Suite 400 Washington, D.C. 20036 (202) 887-4000 4 For the Defendant, M-a-r-a-t-h-o-n--O--i -l :----- BARBARA MILNAMOW, ATTORNEY AT LAW Spriggs & Hollingsworth 1350 I Street, N.W. Washington, D . C . 20005-3305 (202) 898-5820 For the Defendant, M-a-n-s-f-i-e-l-d--O-i-l-:------ MELISSA HOGUE, ATTORNEY AT LAW Lewis, Trichilo, Bancroft & McGavin, P.C. 4 1 1 7 Chain Bridge Road Suite 400 Fairfax, VA 22030 (703) 385-1000 A-l-s-o--P-r-e-s-e-n-t-:- Robert Hilliard, E s q . S H E R R Y ROE & ASSOCIATES, INC. 5 C- O- N- -T E- N- T- S- . . . . . . . . .E.X.A.M. .IN.A. .T.IO.N. . .O.F. .D.R.. . .D.A.V. I.D. .H... .G. .A.R.A.B.R.A.N.T. . . . . . BY MR. NACE BY MR. ESPOSITO *** 6 245 G a r a b r a n t E x h i b i t N o . 1, C . V . . . . , . . . . . . . . , . . . . . . . . . 6 G a r a b r a n t E x h i b i t No. 2 , L i t e r a t u r e List........... .......G a r a b r a n t E x h i b i t No. 3 , D e f e n d a n t s ' E x p e r t s 6 6 Garabrant Exhibit 4, Materials Reviewed............ 6 Garabrant Exhibit 5, Portion o r H e m a t o l o g y Book.... 9 . . . . .G a r a b r a n t E x h i b i t 6 , A k i n , Gump c o r r e s p o n d e n c e 11 G a r a b r a n t E x h i b i t 7, H a n d w r i t t e n S t u d i e s . . . . . . . . . . . . . .G a r a b r a n t E x h i b i t 8 , C a r t e r Med. R e c o r d s Summary . . .G a r a b r a n t E x h i b i t 9 , T a y l o r Med. R e c o r d s Summary 12 12 12 G a r a b r a n t E x h i b i t 1 0 , B r a d l e y Med. R e c o r d s Summary. 1 2 G a r a b r a n t E x h i b i t 11, H a n d w r i t t e n n o t e s . . . . . , . . . . . . 13 Garabrant Exhibit 12, Handwritten notes,,.......... 13 G a r a b r a n t E x h i b i t 13, H a n d w r i t t e n n o t e s . . . . . . , , . . . . 13 Garabrant Exhibit 14, Handwritten notes............ .,....,,.G a r a b r a n t E x h i b i t 15, N o t i c e of D e p o s i t i o n 13 78 Garabrant Exhibit 16, 12/24/91 letter.............. 80 G a r a b r a n t E x h i b i t 1 7 , C u r r e n t C.V................. 122 G a r a b r a n t E x h i b i t 1 8 , B l a c k Book of r e f e r e n c e s , . . . 255 G a r a b r a n t E x h i b i t 19, Gray Book of r e f e r e n c e s . . , . . 255 S H E R R Y ROE & ASSOCIATES, I N C . 6 1 (Garabrant Exhibits 1, 2, 3 and 4 were 2 marked for identification purposes prior to 3 proceedings.) 4 Thereupon, 5 DR. DAVID H. GARABRANT 6 the witness, called for examination by counsel for the 7 plaintiffs, and, after having been sworn by the 8 notary, was examined and testified as follows: 9 EXAMINATION BY COUNSEL FOR THE PLAINTIFFS, 10 MARY MONTGOMERY, MINNIE CARTER, and STANLEY WARREN 11 TAYLOR, 12 BY MR. NACE: 13 Q Give us your full name. 14 A David Hay Garabrant. 15 Q And it's Dr. Garabrant? 16 A Yes. 17 Q I'm going to show you Exhibit 1 and perhaps 18 you could tell us what that is. 19 A That's a copy of my C.V. dated October 1991. 20 Q Is there a more up-to-date C.V.? 2 1 A The most recent version I think is dated 22 December 1993. SHERRY ROE & ASSOCIATES, INC. 7 1 Q D o you have a copy of t h a t w i t h you? 2 A I did not bring one with me. 3 Q Can you t e l l m e what a d d i t i o n s o r 4 c o r r e c t i o n s o r changes you would make? 5 A E s s e n t i a l l y , t h e r e a r e a f e w publications 6 t h a t would b e added t o t h a t , I ' d have t o compare t h e --7 t w o t o g i v e y o u s p e c i f i c - -8 Q L e t m e a s k i t --9 A d e t a i l s . --1 0 Q t h i s way. Have y o u g i v e n a c o p y t o 11 Counsel? 12 A Y e s , I have. 13 Q Obviously, w e ' r e going t o go i n t o t h i s 14 a f t e r n o o n , so I ' d l i k e t o have t h a t a t l u n c h b r e a k , 15 b r i n g t h a t b a c k . Would t h a t b e okay? 16 A C e r t a i n l y . 17 MR. ESPOSITO: I f w e h a v e i t . I d i d n ' t 18 r e a l i z e w e had a more c u r r e n t one, b u t I ' l l g e t it. 19 THE WITNESS: I ' m a l m o s t c e r t a i n y o u d o , 2 0 MR. ESPOSITO: Okay. 2 1 THE WITNESS: And i f you d o n ' t , w e c a n h a v e - -22 o n e f a x e d down - -~~~ ~ S H E R R Y ROE & ASSOCIATES, INC. 8 1 MR. ESPOSITO: Okay. - -2 THE WITNESS: from my office. That's 3 easy enough. 4 BY MR. NACE: 5 Q Let me show you Exhibit 2 that's deen 6 provided to us. Can you tell us what that is? 7 A This is a list of the literature that I have 8 reviewed in preparation for this deposition and in - - 9 to prepare my opinions on the case. 10 Q All right. Now, in addition to that, let me 11 show y o u Exhibit 4. You mentioned materials that you 12 reviewed. Are those the additional materials that you 13 reviewed? 14 MR. ESPOSITO: Is that 4, I think? 15 MR. NACE: 4. 16 THE WITNESS: Yes. 17 BY MR. NACE: 18 Q So between number 2 and number 4, would it 19 be accurate to say that we have everything that you 20 reviewed? 21 A I think so. There might be one or two 22 references that are not listed on Exhibit 2 that I SHERRY ROE & ASSOCIATES, INC. 9 --1 have also reviewed, but that I think this is 2 correct 3 Q Well, I'd like to know what those one or two 4 are, so. --5 A Well, uh 6 Q Rather than find out at the time of trial, 7 I'd like to know today, if you can help me out on 8 that. 9 A A number of chapters from this textbook on 10 Hematoloqy by Ronald Hoffman. 1 1 Q Okay. 12 A I don't know if they're listed chapter by 13 chapter. Yeah, they're not. I know one of them is 14 not listed. So there are, there are a series of 15 chapters from a hematology book. And other than that, 16 I think that's it. 17 MR. NACE: All right. Let me take this 18 Hematoloqy chapter, and have you mark that as number 19 5, if you would. Put it on the back there. 2 0 (Garabrant Exhibit 5 was marked for 2 1 identification purposes.) 22 BY MR. NACE: S H E R R Y ROE & ASSOCIATES, INC. 10 1 Q Okay. Now, if I understand what you have 2 said, Exhibit 5 would be some chapter from a book by 3 Hoffman entitled Hematoloqy. Apparently at least one 4 or more of these are listed on the literature on 5 Exhibit 2, and there's another chapter or so in here 6 that was not listed on Exhibit 2; is that correct? --7 A I don't know if any of them are listed 8 Q Or not listed, but -9 A -- or not listed. 10 Q But this would -- 1 1 A But they are all here. 12 Q They're all here. Okay. We'1f''geta copy 13 of that made. 14 MR. NACE: Does anybody else want copies? 15 We charge about $.30 a page. 16 MR. JORDAN: I do. 17 MR. NACE: 1'11 have a copy attached to 18 that. 19 BY MR. NACE: 20 Q Anything else that you have reviewed that 2 1 you're going to be relying upon? 2 2 A I do not think so. SHERRY ROE & ASSOCIATES, INC. 11 1 Q A l l r i g h t . I n f r o n t of you i s a large g r a y 2 manual and a l a r g e black manual. T e l l us what's i n 3 there. 4 A These are c o p i e s of t h e r e f e r e n c e s t h a t are 5 listed i n Exhibit 2. 6 Q Okay. Have you made m a r k i n g s o n t h o s e ? 7 A Some of t h e m , y e s . 8 Q A l l r i g h t . And you a l s o have n e x t t o it a 9 book b y whom? 10 A Martha L i n e t . T h a t i s l i s t e d on E x h i b i t 2 . 1 1 B A l l r i g h t . And a f e w t a b l e t s a n d so o n . 12 T e l l u s w h a t t h a t is, p l e a s e . 1 3 A A l l r i g h t . I h a v e my c o r r e s p o n d e n c e f r o m 14 A k i n , Gump, w h i c h I w a s i n s t r u c t e d t o b r i n g . 15 MR. NACE: L e t ' s h a v e t h a t marked as E x h i b i t 16 6 . I ' m s u r e t h a t ' s i m p o r t a n t . - -1 7 THE WITNESS: Uh 18 MR. NACE: W a i t a m i n u t e . 19 ( G a r a b r a n t E x h i b i t 6 w a s marked f o r 20 i d e n t i f i c a t i o n p u r p o s e s . ) 21 BY MR. NACE: 22 Q Next? SHERRY ROE & ASSOCIATES, I N C . 12 1 A I have notes on various publications I 2 reviewed, and I have a brief summary of the medical 3 files of Mr. Carter, Mr. Taylor and Mr. Bradley. 4 Q Let's take them one at a time. Let me have 5 the white tablet, which has some of your notes on it 6 which are now six pages in length. 7 MR. NACE: Let's mark this as number 7 and 8 why don't you, so we don't mess this up, put it on the 9 back of the first page, put your label on there. 10 MR. ESPOSITO: Off the record. 11 (A brief discussion was held off the 12 record. ) 13 (Garabrant Exhibit 7 was marked for 14 identification purposes.) 15 BY MR. NACE: 16 Q And now if I could see your other three you 17 had, I think you described as synopsis on the medical 18 backgrounds of Mr. Carter and Mr. Taylor and Mr. 19 Bradley. 20 MR. NACE: And let's have those marked as 8 , 21 9, and 10, in that order. 22 (Garabrant Exhibits 8, 9 and 10 were marked S H E R R Y ROE & ASSOCIATES, INC. 13 1 for identification purposes.) 2 BY MR. NACE: 3 Q And you appear to have a few more notes in 4 front of you. Tell us what that is, please. 5 A 1 have notes that I took from telephone 6 conversations with Martin Hawley, John Spencer, and 7 Scott Strickoff. 8 Q Okay. That's three pages? 9 A Three pages. 10 MR. NACE: Let's have those marked as 11, 12 1 1 and 13. 1 2 (Garabrant Exhibits 11, 12, and 13 were 13 marked for identification purposes.) 14 BY MR. NACE: 15 Q And the notes seem to be multiplying. Are 16 there some more over there? 17 A Yes. 18 Q What is that? 19 A I have notes that I have taken while I was 20 reading the various materials listed on Exhibit 4 . 2 1 Q Okay. There seem to be five pages. 2 2 MR. NACE: Let's have that marked as Exhibit SHERRY ROE & ASSOCIATES, INC. 14 1 14, I believe it is. 2 (Garabrant Exhibit 14 was marked for 3 identification purposes.) 4 BY MR. NACE: 5 Q It seems like you have nothing e se in ,ran- 6 of you. 7 A That's correct. 8 MR. NACE: Let's get a copy of that made 9 while we're going through some of the stuff. 10 MR. LIGHTFOOT: Yeah. 11 MR. NACE: Let's do it now. 12 MR. LIGHTFOOT: Off the record. 13 ( A brief discussion was held off the 14 record. ) 15 BY MR. NACE: 16 Q Let me show you what we've already had 17 marked as Exhibit 3 , which you'll see says Defendants' 18 Designation of Expert Witnesses and you're listed on 19 it as David Hay Garabrant. 20 Have you seen this before? 2 1 A I believe I have. 22 Q Would you take a look at it and make sure. S H E R R Y ROE b ASSOCIATES, INC. 15 1 There's only about two pages there. 2 (The witness perused document.) 3 Okay. Having read it, does that accurately 4 describe what testimony you intend to give in this 5 case? 6 A Yes. 7 Q Okay. Doctor, have you ever testified 8 before? 9 A Yes. 10 Q First of all, let me separate it. 11 In court? 12 A Yes. 13 Q In depositions, like we're doing today? 14 A Yes. 15 Q Any other kind of proceeding? 16 A NO 17 Q I notice you live in Michigan, don't you? 1 8 A Yes. 19 Q I know they have some other different 2 0 proceedings up there. You never testified in any kind 2 1 of arbitration hearing up there? 22 A No. SHERRY ROE & ASSOCIATES, INC. ~ ~~ 16 1 Q All right. One at a time then, Doctor, as 2 far as court, how many times have you testified in 3 court? 4 A Twice. 5 Q And how many times have you testified in 6 depositions? 7 A I would estimate about 20 times. 8 Q The two court cases that you testified in, 9 could you tell us just generally the nature of those 10 cases? 1 1 A Yes. One was a case in which a group of 12 workers who worked in an electronics plant claimed 13 that solvents had caused neurologic problems and other 14 health effects. The other case -- 15 Q Before you get off of that one, who were you 16 testifying for? 17 A For the defendant, one of the defendants. 18 Q And who was that? 19 A I think it was Dow Chemical Company. 20 Q Where was that case located, if you recall? 2 1 A Houston, Texas. 2 2 Q Do you remember the name of the case? SHERRY ROE & ASSOCIATES, INC. J 17 1 A Larkin versus Dow and some other -- I think 2 it was just Larkin versus Dow. 3 Q Okay. How long ago was that, approximately? 4 A I know it was in January of either '90 -- 5 '92, I think. 6 Q And what was the solvent? 7 A 1, 1, l-trichloroethane, I believe. 8 Q Take it a little bit slower for the 9 reporter. I understood everything you said, but. 10 A 1, 1, l-trichloroethane. 11 Q Does that have a more common name? 12 A TCA. 1 3 Q And what was the neurological problem that 14 it was alleged to have caused? 15 A There were a variety of them. Include -- 16 primarily central nervous system abnormalities. 17 Q Was this at a manufacturing plant? 18 A Yes. They had worked in a manufacturing 19 plant. 20 Q Of the product? 2 1 A Of -- no. They were making electronics -- 22 Q Oh, I understand. SHERRY ROE & ASSOCIATES, INC. 18 1 A -- parts using solvents in the process. 2 Q And I take it you then were testifying that 3 the solvent did not cause the problems that they were 4 complaining of; is that correct? 5 A Yes, more or less. 6 Q Do you remember the name of any of the 7 attorneys in that case, specifically the plaintiff's 8 attorney, the claimant's attorney? 9 A Not offhand. It will come to me. 10 Q Well, when it comes to you, would you just 11 blurt it out for us? 12 A I want to say Maloney. 13 Q Okay. Pat Maloney? 14 A I think that's right. 15 Q Okay. And what was the second case? 16 A It was a case of multiple chemical 17 sensitivity in which the plaintiff alleged that 18 exposure to methacrylate had caused him to have 19 multiple chemical sensitivity. 2 0 Q All right. Where was that? A Miami. 2 2 Q Name of the case? S H E R R Y ROE & ASSOCIATES, INC. 19 1 A Camacho versus BASF. 2 Q Plaintiff's attorney? 3 A Defense on that one. 4 Q You were testifying for the defense? 5 A Oh, I was testifying for the defense. 6 Q Right. And who was -- 7 A Do I know the name of the plaintiff's 8 attorney? 9 Q Any chance y o u know that? 10 A I do not remember. 11 Q Okay. And what was the, again, the 12 allegation in that case by the Camacho? --13 A That exposure to methacrylate 14 Q Caused what? --15 A caused multiple chemical sensitivity. 16 Q Okay. Approximately when was that that you 17 testified? 18 A Either '92 or '93. 19 Q Okay. Do you remember what court it was in? 20 Was it a federal court, state court? --2 1 A I think it was either a it was not --22 federal. It was not state. It was either count S H E R R Y ROE & ASSOCIATES, INC. 1 some local court. 2 Q Right in Miami? 3 A Right in Miami. 4 Q Now, the 20 times that you said you 5 testified by way of deposition, were they always for 6 the defense? 7 A No. 8 Q Of those 20, how many were for the 9 plaintiff? 10 A I would say about half. 11 Q Okay. When was the last time you did any 12 work for the plaintiff? 13 A I've been deposed two or three times this 14 year, and I know one or two of them were on behalf of 15 plaintiffs. 16 Q Do you remember the names of any of the 17 plaintiff's attorneys that you've been working with? 18 A Mr. Haadsma, H-A-A-D-S-M-A. I think his 19 first name is James. 2 0 Q Where is he located? 21 A In Michigan. 22 a Anyone else? SHERRY ROE & ASSOCIATES, INC. 21 1 A I can't recall offhand. 2 Q Let's say it was ten of each, you said 3 approximately half. Of the ten for the plaintiff, 4 what products were involved? 5 A A number of them have involved occupational 6 asthma related to isocyanates, I-S-O-C-Y-A-N-A-T-E-S. 7 One of them involved asthma related to cutting fluids 8 in a machining operation. That's all I can recall 9 offhand. 10 Q So to your recollection, they all involved 11 asthma in some form? 12 A I'm sure there were other cases as well. 13 Those are the ones I can remember. 14 Q Okay. Did you testify with respect to the 15 asthma cases that a product was the cause of the 16 asthma? 17 A More that the circumstances at work caused 1 8 the asthma. Not always able to specify a single 19 product. 20 Q Did you ever narrow it down to a particular 2 1 product? 2 2 A There have been instances where we have S H E R R Y ROE & ASSOCIATES, INC. 1 identified a specific chemical or a family of 2 chemicals such as the diisocyanates, TDI or MDI. I --3 can't recall narrowing it down to are you asking one company's specific product? Q No. Just a particular product. A Oh, yes. A specific chemical, yes. Q So you did testify that a specific chemical was probably the cause of the asthma? A I have testified to that, yes. 10 Q Okay. With respect to the defense cases 11 that you testified in, approximately ten, what were 12 the products involved there? 13 Now, let me interrupt you. I assume you don't 14 have a list of these - - 15 A I do not have a list. 16 Q -- cases anywhere? 17 A No. 18 Q Okay. Go ahead then. Tell me what products 19 were involved for the defense. 20 A I have testified on chlorpyrifos. I've 21 testified on solvents, mixtures of solvents. 2 2 Q Including benzene? S H E R R Y ROE & ASSOCIATES, INC. 23 1 A Probably not including benzene. 2 Q Okay. 3 A I've testified on multiple chemical 4 sensitivity where there wasn't any clear exposure, so 5 it's hard to specify a product. That's about the 6 extent of my recollection. 7 Q How about benzene? Any benzene cases? 8 A I don't believe I've ever testified on 9 benzene. 10 Q Or gasoline cases? 11 A I don't believe I've ever testified on 12 gasoline. 13 Q What were some of the manufacturers that you 14 were testifying on behalf of? 15 A Uh -- 16 Q You were saying the chlorpyrifos did not 17 cause something, I take it? 18 A Right. Chlorpyrifos was made by the Dow 19 Chemical Company. 20 Q What were some of the other companies that 21 you would have been testifying on behalf of in those 22 various cases? - ~~~ SHERRY ROE b ASSOCIATES, I N C . 24 1 A To be honest with you, I can't remember any 2 of those specific companies. Those are the products. 3 Q When was the last time that you testified in 4 a deposition? You said you did one or two this year. 5 A I said I've done two -- 6 Q Three -- --7 A or three depositions this year, and one 8 or two of those were for plaintiffs and the other was 9 others would have been defense. 10 Q And who was that, just this year? 11 A I -- 12 Q Don ' t remember? 13 A I don't remember. 14 Q Could you tell us what states you've 15 actually given depositions in? 16 A Mostly in Michigan. We've talked about the 17 one in Houston, the one in Miami. Other than that, I 18 think that's all. I think it's just Michigan, Texas 19 and Florida. 2 0 Q That's all you recall or that's all? 2 1 A No. Actua ly, I remember two in Cal fornia 22 when I was on the faculty at USC. 25 1 Q And were those for the defense or the 2 plaintiff in California? 3 A They were both for plaintiffs. 4 Q Okay. And where in California? 5 A Los Angeles. 6 Q Okay. Do you remember the name of the 7 plaintiff's attorney or the plaintiff or the 8 defendants? 9 A I can remember the issues, but I can't 1 0 remember the names of the people. One of them, the 11 plaintiff, we're going back now probably almost ten 12 years. One of them I want to say Carl Bradley was the 1 3 plaintiff, and the defendant would have been one of 14 the asbestos companies. I don't even know which one. 15 Q Have you testified in asbestos cases on 16 occasion? 17 A I have testified in two asbestos cases. 18 Q For the plaintiff? 19 A One for the plaintiff and one for the 20 defendant. I 21 Q Okay. One was in California? ~ 22 A Yes. S H E R R Y ROE & ASSOCIATES, INC. 26 1 Q And where was the other one? 2 A The other was in Michigan this year, as a 3 matter of fact. Q When you do these cases, 1 take it you get paid, don't you? A Yes. Q How do you get paid? How much? A I charge $350 an hour. 9 Q Okay. For the plaintiff or the defendant? 1 0 A Yes. 11 Q For depositions or in court? 1 2 A For my time no matter what I do. 13 Q Okay. And what would you say your 14 percentage of income is devoted or obtained from 15 testifying and reviewing cases? 1 6 A It's small. I would have to estimate 17 perhaps ten percent, no more than that. 18 Q You're a full-time employee of a university, 19 aren't you? 20 I 21 I I A Yes, I am. Q That's University of Michigan -- 2 2 A Yes. SHERRY ROE & ASSOCIATES, INC. 27 --1 Q S c h o o l of Medicine? 2 A My primary appointment is in the School of 3 Public Health. 4 Q I see. Do you get to keep that money? 5 A Yes, I do. 6 Q So like today, you get to keep the money 7 that you get paid? 8 A Yes. 9 Q It doesn't go back to the school? 1 0 A No. 11 Q Do you take vacation? 12 A I'm sorry? 13 Q Do you take vacation time f o r this? 14 A I take -- do I take vacation time f o r this? 15 Q Right. 16 MR. ESPOSITO: You mean for the deposition? 17 BY MR. NACE: 18 Q For the deposition. 19 A For today? 2 0 Q Yeah. 21 A No. Sometimes I d o - - 22 Q Sick leave? SHERRY ROE & ASSOCIATES, INC. - ~~ 28 1 A -- sometimes I don't. 2 No. 3 Q What do you take? 4 A I take a day of consulting time. 5 Q I see. Are you allowed so many days of 6 consulting time? 7 A Yes. 8 Q About how many are you allowed? 9 A Ten percent of our time. 10 Q Okay. Is this written somewhere that you're 1 1 allowed ten percent of your time f o r consulting 12 purposes? 1 3 A Yes. 14 Q Does that consulting purpose include 15 testimony ? 16 A Uh -- 17 Q As you understand it? 18 A As I understand it, it says we're allowed 19 ten percent of our time for professional consulting. 20 Q I see. And now this is in some sort of a 2 1 document, apparently. Can you tell me what it is? 22 A I think it's in my contract -- SHERRY ROE & ASSOCIATES, INC. 29 1 Q Okay. 2 A -- as I recall. 3 Q All right. Do you have a contract every 4 year, a new one? 5 A I know they tell me how much they're going 6 to pay me every year. I don't know whether that's a 7 formal contract or not but I -- no. I don't think I 8 - - I don't sign a new contract every year. 9 Q Okay. When was the last time you recall 10 signing a contract? 11 A When I joined the University of Michigan. 12 Q Okay. 13 A Which would have been 1988. 14 Q All right. I take it you have a copy of 15 that contract? 16 A I do not know whether I have a copy of that 17 or not. I'm -- when I say I think I signed a 18 contract, I'm not sure I signed a contract. I think I 19 did. I would have to look and see if I have a copy. 2 0 Q Would you have any objection of us getting a 2 1 copy from the University of Michigan? 2 2 MR. ESPOSITO: Well, we might, Barry. I SHERRY ROE & ASSOCIATES, INC. 30 1 think discovery on something like that is passed, so. 2 MR. NACE: I s what? 3 MR. ESPOSITO: Passed. Gone. Over. 4 MR. NACE: I don't understand what you're 5 saying. 6 MR. ESPOSITO: I think that under the order 7 that the Court has established, your opportunity to do 8 that is passed. 9 MR. NACE: My opportunity to get a copy of 1 0 the contract of the man who's testifying today? 1 1 MR. ESPOSITO: (Nodded head.) 12 MR. NACE: A l l right. 1 3 BY MR. NACE: 14 8 Well, then, I ' d like to have you search your 15 records and you come up with a copy of the contract, 16 okay? 17 MR. ESPOSITO: Well, same objection. 18 MR. NACE: H o w could that possibly be the 19 same objection? Forget it. 2 0 MR. ESPOSITO: Okay. We will. 21 BY MR. NACE: 22 Q So you're not going to provide me with a SHERRY ROE & ASSOCIATES, INC. 1 copy of t h a t c o n t r a c t unless ordered t o do so by t h e 2 Court; is t h a t correct? - -3 MR. ESPOSITO: T h a t ' s n o t that's exactly --4 I t h i n k t h e c a s e , t h a t y e a h . 5 BY MR. NACE: 6 Q W e l l , I ' m asking you. 7 A r e y o u w i l l i n g t o p r o v i d e us a c o p y of t h e 8 contract? 9 A I w i l l do whatever t h e Court asks me t o do. a10 A l l r i g h t . C a n y o u t h i n k of a n y w h e r e e l s e 1 1 w h e r e t h e r e may be s o m e t h i n g w r i t t e n a b o u t how much 12 t i m e you c a n t a k e off from y o u r d u t i e s a t t h e --13 u n i v e r s i t y 14 A N o . - -15 9 for c o n s u l t i n g p u r p o s e s ? 16 So i f i t ' s n o t i n t h e c o n t r a c t , it d o e s n ' t e x i s t ; 17 i s t h a t what y o u ' r e s a y i n g ? 18 A T o my k n o w l e d g e , t h a t w o u l d b e t h e o n l y 19 p l a c e . 20 Q A l l r i g h t . I understand you w e r e board 21 certif i d i n i n t e r n a l medicine back i n 1981, I b e l i ve 22 it w a s ? ~~ ~~ SHERRY ROE & ASSOCIATES, I N C . 32 1 A Yes. 2 Q A l l r i g h t . Have y o u p r a c t i c e d i n t h e f i e l d 3 of i n t e r n a l medicine since then? 4 A I w o u l d s a y t h a t my p r a c t i c e i s p r i m a r i l y 5 occupational medicine. There i s some overlap between 6 t h e two f i e l d s , however. 7 Q I see. D o you t r e a t p a t i e n t s now? 8 A I do. 9 Q How f r e q u e n t l y do you treat p a t i e n t s ? 10 A I h a v e c l i n i c e v e r y Monday and I see 11 p a t i e n t s e v e r y Monday and w e p r o v i d e c a r e f o r them. 12 Q A b o u t how many p a t i e n t s d o y o u s e e e v e r y 1 3 Monday? 14 A Two t o t h r e e . 15 Q So you see t w o o r t h r e e p a t i e n t s a week? 16 A Y e s . 17 Q And y o u s a y " w e p r o v i d e c a r e " . What d o y o u 18 mean by " w e p r o v i d e c a r e " ? - -19 A I my c o l l e a g u e s a n d I o n t h e f a c u l t y r u n 20 a residency t r a i n i n g program i n occupational medicine 21 and I see p a t i e n t s with t h e residents, and we, as a 22 t e a m , provide care. SHERRY ROE & ASSOCIATES, INC. 34 1 see 25 or 30 people until a half day. And I'd do that 2 two or three half days a week. 3 Q And since you started with the University of 4 Michigan, it's been two or three a week? 5 A It has fluctuated, but that's what it's been 6 stably now for the past year. 7 Q N o w , have any of those patients that you've 8 seen while at the University of Michigan been patients 9 who had hematological problems? 10 A Yes. 11 Q How frequently does that occur? 12 A That's infrequent. 13 Q Well, what does that mean? 14 A Urn -- 15 Q One a week? One a month? One every year? 16 A Oh, I would say a few a year. 17 Q What's ''a few" mean to you? 18 A Certainly less than ten. 19 Q Less than five? 20 A Could be, could be five, approximately; 2 1 cou d d e a few more. Certainly less than ten. I 2 2 could be, could be three, four, five, six. SHERRY ROE b ASSOCIATES, INC. 35 1 Q Have any of those hematological cases 2 involved patients with leukemia? 3 A I don't think so. 4 Q Now, you're also apparently board certified 5 in preventive medicine in 19821 6 A That's correct. 7 Q And could you tell me exactly what is 8 preventive medicine? 9 A It is the medical specialty that is devoted 10 to the prevention of disease. 1 1 Q You were a150 boarded in occupational 12 medicine in 1982. Did you take two separate exams for 13 the preventive medicine and the occupational 14 medicine -- 15 A Yes. 16 Q -- or is that in one sitting? 17 A It's a two-day examination. The first day, 18 if you pass it, it gives you boards in preventive 19 medicine. And then the second day, if you pass it, it 20 gives you boards in occupational medicine. --21 Q You passed them both the first time 2 2 A Yes. SHERRY ROE & ASSOCIATES, INC. 36 1 Q -- you took them? Okay. 2 Were they oral and written? 3 A Just written. 4 Q Okay. Do you have to be recertified in 5 eit .er of those specialities? 6 A No. 7 Q Is there a recertification program, however, 8 in either of those specialities? 9 A Not that I'm aware of. 10 Q All right. I also note that you're a member 11 of a group of professional societies. They're listed 12 on page four of your C . V . , which is Exhibit 1, I 13 believe. Tell me which of those y o u had to take exams 14 for, tests? 15 (The witness perused document.) 16 A I didn't have to take tests to join any 17 professional societies. i a Q Some of those say elected to fellowship. 19 Tell me how you're elected, what that process is? 20 A To the best of my recollection, the process 2 1 is that y o u must apply and demonstrate that you have 22 practiced substantially in the field, have SHERRY ROE & ASSOCIATES, INC. 37 1 publications, and have a record of accomplishments in 2 that specialty. 3 Q You fill out an application, submit the 4 application with a fee, and you're accepted; is that 5 correct? 6 A In my case, yes. I don't think that's true 7 for everyone, however. 8 Q I t ' s not true for everyone? 9 A That everyone who asks for fellowship 1 0 gets -- 1 1 Q Right. 12 A -- elected to fellowship? 13 Q Right. 14 A I don't believe so, no. 15 Q Do you know what percentage get elected? 16 A No. 17 Q Have you ever been rejected of any of those 18 professional societies -- 19 A No. --2 0 Q that you listed there? 2 1 A No. 2 2 Q Or any others? SHERRY ROE & A S S O C I A T E S , I N C . 38 1 A No. 2 Q Okay. You indicated that you're seeing now 3 about two or three patients a week, and the clinic is 4 on Monday. 5 A That is correct. 6 Q Is there anything else that you do on 7 Mondays besides see those two or three patients? 8 A Yes. 9 Q What do you do? 10 A Typically on Monday I do office work until 1 1 mid morning, then meet with the other faculty and 12 residents for a seminar, and then go to clinic. 1 3 a Okay. So actually the clinic is a half day? 14 A Yes. 15 Q All right. What about the rest of your 16 week? How do you spend that? 17 A I spend it teaching, doing research, and 1 8 doing administrative activities. 19 Q How much do you teach? Give me an idea of 20 how much teaching you do every week. 2 1 A It's hard to put a number on it. In the 22 past year, I think the school accredited me with SHERRY ROE ti ASSOCIATES, INC. 39 1 teaching about 14 credit hours. 2 Q How many courses would that be? 3 A A credit hour is one hour per week for a 4 semester. 5 Q So you teach an hour a week every semester? 6 A It's not that easy to define it. I teach 7 far more than that. I got 14 credit hours of teaching --8 in the past year, so that's a contact hour a week 9 for one semester is a credit hour of teaching. * 10 Q Well, maybe I just don't understand this. 1 1 How much time do you spend in class on a weekly 12 basis teaching? 13 A In class? 14 Q In a class. 15 A In a classroom? 16 Q Classroom. 17 A Probably averages one to two hours a week. 18 Q Okay. And what else compromises your 19 teaching other than that one or two hours per week? 20 A Direct supervision of residents, supervision 2 1 of doctoral students, supervision of master's 2 2 students. That's primarily it. SHERRY ROE & ASSOCIATES, INC. 40 1 Q How much of your week is filled with that 2 supervision of students and doctoral students? --3 A Including classroom teaching or excluding 4 Q Well ---5 A the classroom teaching? 6 Q -- the classroom teaching, which you told me 7 was an hour or two a week. I want to know how much a more is spent with these students teaching. 9 A Probably in the order of a day and a half a 10 week. 11 Q Okay. And the research, how much of your 12 week is spent on research? 1 3 A It varies, but I would say about half. 14 Q Half a week? 15 A Half of my week. 16 Q Roughly two and a half days a week? 17 A Yes. 18 Q What kind of research do you do? 19 A I do occupational disease epidemiology. - -20 Q Okay. And the which I'm sure we'll get 2 1 into a li tle later - - but how about your 2 2 administrative activities? How much of your week is SHERRY ROE & ASSOCIATES, INC. 41 1 devoted to that? 2 A Whatever is left. I would guess it fills a 3 couple of days a week. --4 Q Okay. What is it and probably a very 5 naive question - - but what do you do for approximately 6 two days a week that's considered administrative 7 duties? I mean -8 A Well, let's see. I'm -9 Q -- about 4 0 percent of your time. I mean, 10 what are you doing? 11 A I'm the director of the occupational 12 medicine program, which means that the administration 13 of our training grant in occupational medicine takes a 14 fair amount of time in terms of getting residents 15 appointed, managing the budget, making sure bills get 16 paid. I recruit residents almost year round, 17 interview residents, review their application 18 materials. I have some duties, some responsibilities 19 in scheduling clinic and making sure the clinic runs. 2 0 Our residents rotate out through industries. I'm 21 responsible for affiliation agreemen-s and contracts 2 2 in the industries and other field rotations clinics, SHERRY ROE & ASSOCIATES, INC. 42 1 UAW, OSHA where the residents rotate. I also direct 2 our occupational health group under which occupational 3 medicine is subsumed. I'm responsible for scheduling 4 the faculty meetings and having the agenda, preparing 5 documents for that meeting. 6 A fairly significant list of chores that result 7 from those meetings are also mine that have to do with 8 administration of staff, making sure we have the right 9 office equipment, promotion of students, review of 10 students' performance, counseling of students who are 11 not doing well. 12 I serve on the departmental executive committee, 13 which meets anywhere from once a month to once a week, 14 depending on where we are in the academic year. That 15 has responsibility for advising the department 16 chairman on administrative decisions, faculty 17 appointments and promotions, student progress, 18 allocating space among the faculty, setting research 19 directions, and long range goals for the department, 2 0 and a variety of other tasks. 2 1 I'm also the director of the Center for 2 2 Occupational Health and Safety Engineering, which is a SHERRY ROE & ASSOCIATES, INC. 43 1 center t h a t spans t h e Schools of Public Health, 2 E n g i n e e r i n g a n d N u r s i n g . And I h a v e t o c o o r d i n a t e 3 among f i v e programs i n o c c u p a t i o n a l m e d i c i n e , 4 industrial hygiene, occupational safety, engineering, 5 occupational health nursing, and hazardous substances 6 academic t r a i n i n g . I ' m r e s p o n s i b l e f o r s u p e r v i s i n g 7 the continuing education activities t h a t are given 8 through t h a t center, budgeting, appointments of 9 t r a i n e e s and a v a r i e t y of o t h e r a c t i v i t i e s . 10 T h a t ' s a p a r t i a l l i s t . 11 Q Okay. Now, you a l s o t o l d m e e a r l i e r t h a t 12 t e n p e r c e n t of your t i m e , approximately, i s s p e n t on 13 c o n s u l t i n g? 14 A I a m a l l o w e d t o s p e n d as much a s t e n p e r c e n t --15 o f my t i m e - -16 Q DO YOU --17 A o n c o n s u l t i n g . 18 Q D o you spend t e n p e r c e n t o r close t o it? 19 A A g a i n , i t v a r i e s . I t h i n k I come i n a 20 l i t t l e below t h a t m o s t years. 21 Q E i g h t p e r c e n t , maybe something l i k e t h a t ? 22 A T h a t ' s a reasonable guess. SHERRY ROE & ASSOCIATES, I N C . 44 1 Q All right. Could you tell me some of the 2 organizations that you consulted for? 3 A Let's see. Well, let's see. We've talked 4 about legal work. I have done a number of projects 5 for industry. I did a mortality study for Uniroyal 6 Goodrich Tire Company. I've been a consultant to the 7 United Auto Workers Ford National Joint Committee for 8 Health and Safety. I wrote a review paper for the 9 Chemical Manufacturer's Association last year. Those 1 0 are some of the things. 1 1 Q What was that review paper on? 12 A The respiratory effects of diisocyanates. 13 Q Is that -- 14 MR. NACE: Diisocyanates, did you get that? 15 THE WITNESS: D-I-I-S-O-C-Y-A-N-A-T-E-S. 16 BY MR. NACE: 17 Q Is that particular paper listed on your 18 bibliography? 19 A No. 20 Q Why not? 2 1 A It's not published. 2 2 Q Okay. So the only thing that's on your SHERRY ROE & ASSOCIATES, INC. 45 1 bibliography is what you published? 2 A That's correct. 3 Q All right. Have you written any papers in 4 the field of gasoline or benzene that are not 5 published? 6 A No. 7 Q You mentioned the industry and you gave me 8 Uniroyal and Goodrich. Any other concerns that you've 9 worked for, industrial concerns? 10 A The answer is yes. The question is trying 1 1 to remember who. There have been a small number of 12 companies that I've done contract work for. 13 Q Such as? 14 A Oh, I'm in the middle of a study for 15 Kimberly Clark, looking at longitudinal study of 16 pulmonary function. 17 Q All right. What else? 18 (The witness perused document.) 19 A I did some work for Alcoa a couple of years 2 0 ago about informing their workers about health hazards 2 1 from hand ing polychlorinatedbiphenyls. That's about 2 2 all I can remember. No, one more. I've done some S H E R R Y ROE & ASSOCIATES, INC. 46 1 consulting for Detroit Edison on electromagnetic 2 fields and cancer. 3 Q Now, you were looking at your bibliography -- A Yes. Q -- to come up with those answers? A Yes. 8 Q Okay. 9 A Well, I should say that -- n o t to come up 10 with the answers, but to jog my memory about the sorts 1 1 of things I've given talks about and that helps me to 12 remember. 13 Q Okay. You've also apparently done some work 14 for Rohm & Haas, R-O-H-M & Haas, H-A-A-S? 15 A That's correct. 16 Q Okay. And Rohr, R-O-H-R, Industry? 17 A Yes. 18 Q Union O i l Company? 19 A Yes. --20 Q Those were one I'm going to say one shot 2 1 deals? 2 2 A If I understand what you mean, I think so. SHERRY ROE & ASSOCIATES, INC. 47 1 Q Yeah. They just gave you a sum of money to 2 do a particular study; is that correct? 3 A That's correct. 4 Q All right. On your curriculum vitae under 5 consulting positions you have "none" on page two. 6 Would you kind of explain why you have "none" down 7 there in view of what you just told me? 8 A I don't have any standing relationships as a 9 consultant with anyone. 10 Q All right. So those organizations that 1 1 you've done some consulting for would be listed where 12 on your C . V . ? Anywhere? 13 A No. They're not listed. I guess I need to 14 ask you what you mean by "consulting". I'm not sure 15 what you're asking -16 Q Well -- 17 A -- me. 18 Q You used the phrase here, "consulting 19 position". What's that mean to you? 20 A Consulting positions mean long-term 21 relationships where there's an agreement to serve as a 22 consultant for someone. SHERRY ROE & ASSOCIATES, INC. 48 1 Q Okay. For a period of time? 2 A Uh-huh. 3 Q As opposed to an individual study? 4 A I don't understand the question. 5 Q Well, I don't understand why if you don't 6 have Rohm & Haas under consulting positions, for 7 example. Just explain that to me. I'm trying to 8 understand your -9 A Oh, oh -- --10 Q your thinking on this. 1 1 A Well, my Rohm & Haas study was a contract 12 through the University of Southern California, and 13 that was a contract between USC and Rohm & Haas. So I 14 don't regard myself as a private consultant to Rohm & 15 Haas. 16 Q Okay. 17 A So it was a research study -- 18 Q I see. --19 A that they paid for. 20 Q Rohm & Haas paid Southern Cal.? 2 1 A That's correct. 2 2 B Which in turn paid you a salary? SHERRY ROE & ASSOCIATES, I N C . 49 1 A That's correct. 2 Q A l l right. 3 A And t h e U n i o n O i l Company s t u d y w a s a l s o a 4 c o n t r a c t and Rohr w a s a c o n t r a c t w i t h USC. 5 Q I s e e . Were a l l t h e s e p i e c e s of w o r k w i t h 6 t h e company t h a t you t o l d m e a b o u t , w e r e t h e y a l l 7 doing epidemiological studies? 8 A Yes. 9 Q A l l right. As f a r as consulting with l a w 10 f i r m s , h a v e y o u e v e r c o n s u l t e d w i t h A k i n , Gump? 11 A Y e s . 12 Q B e f o r e t h i s case? 13 A Y e s . 14 Q A b o u t how many t i m e s ? 15 A The L a r k i n c a s e w a s w i t h A k i n , Gump. T h e r e 16 h a v e b e e n p r o b a b l y two o t h e r s . I d o n ' t know e x a c t l y . 17 Q W e l l , what would t h e y i n v o l v e ? What k i n d of 18 p r o d u c t s ? 19 A M o s t l y s o l v e n t r e l a t e d m a t t e r s . 20 Q I n c l u d i n g benzene? 21 A Um -- 22 Q O r gasoline? SHERRY ROE & ASSOCIATES, INC. 50 1 A I'm trying to think. The answer: I think 2 there's one other one that involves gasoline and I 3 think benzene is an issue in that as well. 4 Q And what case is that? Where is that case 5 located? 6 A I don't even know. 7 Q You don't know? 8 A Yeah. I mean, that hasn't -- that's active 9 now. I don't know -- I don't recall where it's 10 actually - - 1 1 Q What about the other case? I mean, besides 12 the gasoline/benzene, what other products have you 13 consulted with them on? 14 A I consulted with them on a case that 15 involved butadiene. 16 Q Okay. Anything else besides butadiene and 17 gasoline/benzene that you consulted with Akin, Gump 18 on? 19 A That's all I can recall. 2 0 Q Okay. When was the first time that you can 2 1 recall th t you consulted with Akin, Gump? How long 2 2 ago? S H E R R Y ROE & ASSOCIATES, INC. 51 A It would have been related t o t h e Larkin c a s e a n d I w o u l d g u e s s t h a t w a s 1991 o r '92. Q S i n c e t h a t t i m e , have you always had s o m e 4 s o r t of r e l a t i o n s h i p w i t h A k i n , Gump a s , I mean, some 5 case o r s o m e s o r t of c o n s u l t i n g work w i t h them? 6 A I d o n ' t t h i n k so, no. 7 Q Okay. The Larkin case, has t h a t one gone t o 8 t r i a l ? D o you recall? 9 A That w a s t h e one i n Houston. 10 Q Okay. And do y o u r e c a l l a b o u t how much y o u 11 g o t p a i d f o r your c o n s u l t i n g and your t e s t i f y i n g i n 12 t h a t case? 1 3 A I d o n o t know how much I g o t p a i d . 14 Q You r e p o r t e d t h a t s o m e w h e r e , d i d n ' t y o u ? 15 A I w o u l d h a v e r e p o r t e d a l l of my i n c o m e on my 16 t a x r e t u r n , y e s . 17 Q Okay. D o you have any problem c o n s u l t i n g 18 y o u r t a x r e t u r n a n d l e t t i n g u s know how much you g o t 19 p a i d f r o m A k i n , Gump f o r t h a t c a s e ? 20 MR. E S P O S I T O : We'd o b j e c t t o t h a t a s w e l l . 2 1 MR. NACE: W e l l , I d o n ' t r e a l l y - - 2 2 MR. JORDAN: I j o i n i n t h e o b j e c t i o n . ~~ SHERRY ROE & ASSOCIATES, I N C . 52 1 MR. NACE: - - care. 2 BY MR. NACE: 3 Q I mean, do you have any problem? 4 A I ---5 MR. ESPOSITO: I don't know that 6 MR. NACE: Well -- --7 MR. ESPOSITO: Dr. Garabrant does, but we 8 do, because, Barry, you know, as you well know, we're 9 past this and I also have some question as to the 10 relevance of this. We're going to object. 1 1 MR. NACE: You're going to instruct him not 12 to answer? 13 MR. JORDAN: There's no question pending. 14 MR. NACE: Well -- 15 MR. JORDAN: -- you're asking -- go to 16 income tax -- 17 BY MR. NACE: 18 Q Would you provide me with the amounts that 19 you reported on your income tax returns? 20 A If I were ordered to do so by the Court, I 21 would. 22 Q Well, without an order, you wouldn't do so? SHERRY ROE & ASSOCIATES, INC. 53 1 A Uh -- 2 MR. ESPOSITO: I t ' s beyond the time, Barry. --3 We're going around the clock 4 MR. NACE: How could this possibly be after 5 the t me? We're taking his deposition today. 6 MR. ESPOSITO: Uh-huh. 7 MR. NACE: We're entitled to know today. 8 MR. ESPOSITO: You're not entitled to know 9 this. 10 MR. NACE: I ' m not? Based on what? 1 1 MR. ESPOSITO: You're not entitled to have 12 him go back and search records at this point. 13 MR. NACE: Based on what? 14 MR. ESPOSITO: Based on the rules. Based on 15 the court order. --16 MR. NACE: Well, you tell me what 17 enlighten me with the rules you're talking about and 18 what order you're talking about -- --19 MR. ESPOSITO: We - -2 0 MR. NACE: because we're not going to go 2 1 through this all day. 2 2 MR. ESPOSITO: We're just going to object SHERRY ROE & ASSOCIATES, INC. 54 1 and -- 2 MR. NACE: Just going to object? 3 MR. ESPOSITO: Yeah. 4 MR. NACE: And you're going to continually 5 instruct him not to answer those kinds of questions? 6 Is -- 7 MR. JORDAN: He's already answered the 8 question. If the -- 9 MR. NACE: Is this your -- 10 MR. JORDAN: -- Court orders -- 1 1 MR. NACE: Is this your witness, Mr. Jordan? 12 MR. JORDAN: Listen, I'm here - - I'm going 13 to be here for three weeks. I have a right to put in 14 my two cents worth. The witness says he will produce 15 it if he's ordered to. I think we ought to get onto 16 the next subject. 17 MR. NACE: Okay. You gave us your two cents 18 worth. 19 MR. JORDAN: That's right. 2 0 BY MR. NACE: 2 1 Q All right. Now, you do keep your income tax 2 2 forms, don't you? SHERRY ROE & ASSOCIATES, INC. 55 1 MR. JORDAN: Objection. 2 BY MR. NACE: 3 Q They are accessible to you, aren't they? 4 A 1 have copies of my tax returns. 5 Q All right. Can you give us an approximatAon 6 of how much you've been paid by Akin, Gump over the 7 years? 8 A I do not have any idea how much I have been 9 paid by Akin, Gump over the years. 10 Q Okay. With whom at Akin, Gump have you 11 worked? 12 A I've worked with Mr. Esposito. I've worked 13 with Jeff Sherwood, and I have worked with Mark 14 Fitzsimmons. 15 Q All right. Are you still on the editorial 16 board of the Journal of Occupational Medicine? 17 A No. 1 8 Q When did you leave that? 19 A 1 think it was in '92 or '93. 20 Q When was the last time you reviewed 2 1 something for the Journal of the National Cancer 22 Institute? SHERRY ROE & ASSOCIATES, INC. 56 1 A Late last year. 2 Q How many times have you reviewed a 3 scientific manuscript for the Journal of the National 4 Cancer Institute? 5 A I would guess three to five times. 6 Q Over how many years? 7 A Two. 8 Q Okay. And over two years are y o u -- I'm 9 sorry. When was the last time you did that? 10 A Last year. 11 Q Okay. When was the last time you reviewed 12 something for the, scientific manuscript, for the 13 Cancer Research? 14 A A couple of years ago. 15 Q How many times have you done that? 16 A I'd say five or so. 17 Q Okay. And how many times have you reviewed 18 scientific manuscripts for the Journal of Occupational 19 Medicine? 20 A There were a fair number of them. 2 1 Q What's that mean? 2 2 A I was on the editorial board. I used to get ~ ~~ SHERRY ROE & ASSOCIATES, I N C . ~~ 57 1 them fairly often. I don't -- 2 Q How often? 3 A Two, three, five a year. 4 Q Okay. When was the last time you had one 5 from the Journal of Occupational Medicine to review? 6 A I don't think I've reviewed for them in the 7 past year and a half or two years. 8 Q Why did you leave the editorial board? 9 A They got a new editor, and he wanted to 10 bring in new people, and I stepped aside. 11 Q All right. On page four of y o u r C.V. under 12 teaching activities, you have down there that you are 13 a "Ph.D. Thesis Committee Member for J. Krebs." What 14 does that mean? 15 A Jane Krebs is a doctoral student who is 16 working on her doctoral dissertation. 17 Q All right. So each of these "Thesis I 18 Committee Members" means the student is working on 19 their doctoral? 2 0 A Yes. 2 1 Q You are one of several people that are 2 2 working with he or she? SHERRY ROE & ASSOCIATES, INC. 58 1 A Yes. 2 Q Okay. Now, if I understand it, your 3 expertise is, in this case, anyway, is in the field of 4 epidemiology; is that correct? 5 A Yes. 6 Q Do you consider yourself to be an expert in 7 the field of hematology? 8 A No. 9 Q Animal pathology? 10 A No. 11 Q Anything other than epidemiology? 12 A I consider myself to be an expert in --1 3 occupational medicine 14 a Okay. - -15 A and in occupational disease epidemiology. 16 Q What is the difference between occupational 17 disease epidemiology and epidemiology? 18 A Occupational disease epidemiology is the 19 area that focuses on the study of patterns of disease 20 in working populations. Epidemiology is somewhat 2 1 broader. 2 2 Q All right. So just a subset of epidemiology S H E R R Y ROE & ASSOCIATES, INC. 59 1 as far as you're concerned? 2 A Ye5. 3 Q So you still consider yourself an expert in 4 epidemiology? 5 A Ye5. --6 Q And the subset that you mentioned 7 A Yes. --8 Q in occupational medicine? 9 A Ye5. 10 Q Have you had courses in epidemiology? 11 A Yes. 12 Q Approximately how many? 13 MR. STERN: You're asking teaching or 14 taking? 15 MR. NACE: Taking. 16 THE WITNESS: I would guess somewhere 17 between six and eight. 18 BY MR. NACE: 19 Q Okay. You've never taught epidemiology, 2 0 have you? 2 1 A Yes. 22 Q Okay. Where have you taught epidemiology? SHERRY ROE & ASSOCIATES, INC. 60 1 A University of Michigan. 2 Q How often do you teach that? 3 A I teach that course twice a year. 4 Q Okay. To students? 5 A Yes. 6 Q What's their level? Are they medical 7 students? Graduate students? What are they? 8 A They're master's and doctoral students. 9 Q Okay. Now, do you have a Ph.D.? 10 A No. 11 Q All right. And you have a master's, though, 12 right? 13 A Yes. 14 Q Okay. And that's in occupational medicine? 15 A No. 16 Q Phy s iology? 17 A Yes. 18 Q Okay. Well, on your C.V. it says 19 "Physiology (Occupational Medicine)". Why did you say 2 0 no to "occupational medicine'' and yes to "physiology"? 2 1 MR. ESPOSITO: Where are you referring to, 22 Barry? S H E R R Y ROE & ASSOCIATES, INC. 61 1 MR. NACE: I ' m r e f e r r i n g t o e d u c a t i o n , t h e 2 v e r y l a s t s e c t i o n of education. 3 THE WITNESS: The degree i s i n p h y s i o l o g y . 4 Occupational medicine is p u t on t h e r e t o i n d i c a t e t h a t 5 my a r e a o f s t u d y w a s o c c u p a t i o n a l m e d i c i n e . T h e 6 d e g r e e w a s g r a n t e d by -- it w a s t h e d e p a r t m e n t of 7 physiology a t t h e Harvard School of P u b l i c Health. 8 BY MR. NACE: 9 Q A l l r i g h t . W e l l , you have two d e g r e e s t h e n 10 from t h e Harvard School of P u b l i c Health? 11 A Y e s . 12 Q All r i g h t . Number o n e i s t h e MPH? 13 A Y e s . 14 Q Which i s what? 15 A Master's of P u b l i c H e a l t h . 16 Q And t h e o t h e r o n e i s MS, w h i c h i s ? 17 A Master of S c i e n c e . 18 Q Okay. And w e r e t h o s e e a c h o n e - y e a r p r o g r a m s 19 i n a d d i t i o n t o your medical s c h o o l program? 20 A Y e s . 2 1 Q A l l r i g h t . Who w e r e some of y o u r 22 epidemiology teachers a t Harvard? SHERRY ROE & ASSOCIATES, I N C . 62 1 A Phillip Cole, Ken Rothman, Olli Miettinen, 2 M-I-E-T-T-I-N-E-N, Richard Monson, George Hutchinson, 3 I'm blocking out the lady's name who does all the 4 Hodgkin's disease epidemiology. That's all I can 5 recall offhand. 6 Q Do you consider each of them to be experts 7 in the field of epidemiology? 8 A Yes. 9 Q Have you utilized any of their books in your 10 teaching of epidemiology? 1 1 A Yes. 12 Q Whose? 13 A Rothman. 14 Q His most current book? 15 A Yes. 16 Q How many books would you say there are out 17 there in epidemiology? 18 A It would be hard to define. There are 19 certainly at least a few dozen. 2 0 Q Why did you choose Rothman's? 21 A I took his course, and I liked the way ..e 22 taught, and I liked the way he made issues clear. And S H E R R Y ROE & ASSOCIATES, INC. 63 1 it's reflected in his writing as well. 2 Q Now, have you had any courses in 3 biostatistics? 4 A Yes. 5 Q How many? 6 A Seven. 7 Q At the Harvard School of Public Health? 8 A Some. 9 Q Where else? 10 A USC. 11 Q Okay. 12 A And some at Michigan, as well. 13 Q All right. Why did you go into the field of 14 epidemiology? 15 A I enjoy it. 16 Q What is it about it that you enjoy? 17 A The problems are complex. They require 18 mathematics which I enjoy. They relate to the real 19 world. They allow me to solve problems that I think 20 are important. 2 1 Q Now, you said it involves mathematics. You 22 don't have any degree in mathematics, do you? S H E R R Y ROE & ASSOCIATES, INC. 64 1 A No. 2 Q Could you define "epidemiology" for me? 3 A It's the study of patterns of disease in 4 populations. 5 Q Okay. You consider yourself an 6 epidemiologist? 7 A Yes. 8 Q I understand epidemiologists talk in terms 9 of associations, usually, as opposed to causation; is 10 that correct? 11 A I've heard people discuss associations and 12 causation. 13 Q Okay. Well, can you get causation 14 information out of epidemiological studies? 15 A Yes. 16 Q How do you do that? 17 A There are a number of things we l o o k at to i a t r y to interpret whether a pattern of findings is 19 consistent with causation. 20 Q Do you make causation determinations 21 yourself, you personally? 2 2 A Yes. SHERRY ROE & ASSOCIATES, INC. 1 Q Can you tell me, have you ever written in 2 the field of epidemiology where you made causation 3 findings? 4 A Yes. 5 Q Is that on your bibliography? 6 A Yes. 7 Q . Would you just go through it and tell me a some of those articles that you're talking about? 9 A The study of DDT and pancreas cancer: We 10 devoted a fair amount of space to discussing whether 1 1 the associations that we observed were causal or not. 12 (The witness perused document.) 13 Most of the studies that I've listed under 14 publications deal with associations and try to 15 interpret whether the associations are causal. 16 Do you want me to name them one by one? 17 Q Yeah. i a A Um -- 19 Q Just give us a number that you have on 20 there. 21 A All right. Reading from pages seven through 22 ten: Number 3, 5, 6, 8, 9 , 12, 14, 15, 16, 17, 20, SHERRY ROE & ASSOCIATES, INC. 66 1 21, 23, 25, 26, 27, 28, 31, 32, 2 Q While you're on that list there, number 3 five -- 4 MR. JORDAN: I'm just curious, have you 5 finished, sir? 6 THE WITNESS: Yes, I am. Thank you. 7 MR. JORDAN: Thank you. 8 THE WITNESS: Yes. 9 BY MR. NACE: 10 Q What were your findings on that one? 11 A We found a significant excess of bladder 12 cancer among female shoe workers. 13 Q And in that article, then, that you found, 14 what, a statistical association? 15 A We found statistical evidence of an 16 association between working in the shoe industry and 17 bladder cancer among females. 18 Q And then did you go on from that statistical 19 evidence and come up with a conclusion one way or the 20 other about causation? 2 1 A We tried to interpret that finding with 22 respect to causation. SHERRY ROE & ASSOCIATES, INC. 67 1 Q What was your conclusion? 2 A I believe it was that the association was 3 suggestive but the numbers were small and we could not 4 be certain that it represented a causal association. 5 Q What did you use to try to go from the 6 statistical data to causation? --7 A In that one study 8 Q Yeah. 9 A -- or more general? 10 Q In that study. 11 A In that study, I believe we looked at the 12 strength of the association, the statistical 13 significance, whether there was consistency in the 14 other groups studied in that research study, and 15 whether it was consistent with other publications 16 regarding cancer risks in shoe and leather workers. 17 Q Is that specifically how you did it in that 18 case? In general, is there something else that you 19 try to utilize to go from the statistical utilization 20 to a causation? 21 A Urn -- 22 Q What else do you utilize is what I'm after? SHERRY ROE & ASSOCIATES, INC. 68 1 A In general -- 2 Q In general. --3 A the issues that I consider when I try to 4 interpret whether statistical associations represent 5 causal associations include whether the exposure or 6 factor under study is specific and well defined; 7 whether the outcome under study is specific and well 8 defined; whether there's presence of a dose response 9 relationship; whether there is biologic plausibility 10 for the association, how strong the association is, 1 1 whether it achieves statistical significance, how 12 strong the association is; whether there is 13 confounding by other factors and whether that 14 confounding has been examined and excluded as an 15 explanation; whether there is the possibility of bias 16 in the study that might have led to the association; 17 the timing of the exposure to the factor under study 18 and the outcome; whether adequate latency has passed; 19 whether the exposure preceded the outcome; and 20 probably a few other factors. 2 1 Q Sounded like you try to utilize any kind of 22 data that's available. SHERRY ROE & ASSOCIATES, INC. I 69 1 A No. I try to be rigorous in determining 2 whether statistical associations have causal meaning 3 by looking at all the aspects of an association that 4 help to interpret whether it's causal. 5 Q You're trying to say that you use only the 6 statistical data to go from statistical analysis to 7 causation? 8 A I don't think I said that. No. 9 Q Well, I didn't think you did either the 1 0 first time around. I thought you did the second time 11 around. 12 What I'm trying to find out is, given that you use 13 your education, your training, and your experience and 14 there's some judgment involved in what a11 these 15 statistical data mean, correct? 16 A Yes. 17 Q All right. What else do you use in addition 18 to your education, your training, your experience in 19 epidemiology to go from the data that you have, the 20 statistical data to causation, and, f o r example, do 2 1 you use animal data, animal studies? 22 A Animal studies are often relevant to that SHERRY ROE & ASSOCIATES, INC. 70 1 interpretation. 2 Q Okay. You may use that; is that what you're 3 saying? 4 A I may use that, yes. 5 Q What else might you use along those lines, 6 in addition to animal studies? 7 A Well, I think I answered that question 8 completely in the list of things I gave you. I can 9 try and be a little more explicit: Other --1 0 epidemiologic studies 11 Q Right. - -12 A animal studies, occasionally invitro 13 studies, meaning not whole animal -- not whole living 14 animals, occasionally toxicologic data that relates to 15 mechanisms. So all of those things may be important 16 in interpreting causality. 17 Q All right. When would you use only the 18 statistical data to come up with an opinion about 19 causality as opposed to the other things you 2 0 mentioned, the chemical, the animal, the invitro? 2 1 When would you just use the epidemiological data? 2 2 A I'm not sure I understand that question. ~ ~~ ~ ~ ~~~~~ SHERRY ROE & ASSOCIATES, INC. 71 1 Q I'm not sure I can make it any more concise, 2 but I'll try. 3 You just got done telling me that you use your 4 statistical data, your epidemiological data, and that 5 sometimes you might use animal data, you might use 6 invitro data, you might use chemical data, you may 7 have said something else that I forgot right now. And 8 my question to you is: When would you exclude 9 everything that might exist and use only your 10 epidemiological data? 1 1 MR. S T E R N : Let me note an objection to the 12 question. I think it misinterprets the previous 13 answer. Either that or it's vague because the list 14 included such things as biological plausibility. And 15 I don't think you would include that in your statement 16 of statistical data, so. 17 THE WITNESS: I'm not sure how to answer it 18 other than to say that I would use all sources of data 19 that I thought were relevant to the issue under 2 0 consideration. I would not exclude data that I 2 1 thought was relevant and fit under one of the 2 2 categories that I listed. SHERRY ROE & ASSOCIATES, INC. 72 1 BY MR. NACE: 2 Q Well, when, under what circumstances would 3 you consider only the epidemiological data to be the 4 only thing that was relevant? 5 MR. ESPOSITO: I'm going to object to 6 that -- 7 MR. JORDAN: I'm going to object. It's 8 asked and answered, but. 9 THE WITNESS: I think I've answered that 10 question. I would use all sources of data that I 1 1 thought were relevant. If animal data existed that 12 was relevant to the issue, I would use it. If 13 mechanistic data existed that w a s relevant to the 14 issue, I would use it. 15 BY MR. NACE: 16 Q All right. Maybe I should ask you then: 1 7 How do you determine whether or not that the animal 18 data is relevant? 19 A There are a number of factors that I look 20 for. One is that it deals with the same factor under 2 1 study, say the same chemical or the same exposure, 2 2 whether the animal model has been demonstrated by S H E R R Y ROE & ASSOCIATES, I N C . 73 1 toxicologists to relate to the human species. You 2 know, some animal species metabolize specific 3 chemicals differently than humans and have different 4 health effects than humans; whether the dosing of the 5 animal had relevance to human exposure levels and 6 factors such as that. 7 Q How would you know that, whether or not the 8 dosing level, for example, was relevant to humans? 9 What in your experience enables you to make that 10 determination? 1 1 A I have studied toxicology. I have taken 12 toxicology courses, and I have read toxicology 13 literature fairly consistently over the past 15 years. 14 Q Do you think you're qualified to determine 15 whether or not an animal study is well done? 16 A I'm qualified to read the literature 17 critically and to make judgments on whether I think 18 that the studies are relevant to humans. 19 Q I guess what I'm trying to get at is: How 2 0 do you make that determination, you personally, as to 2 1 whether or not that study is relevant to human beings, 2 2 the animal studies, relevant to human beings? SHERRY ROE & ASSOCIATES, INC. 74 1 A I think -- 2 Q What criteria do you use? 3 A I think I answered that question. 4 MR. JORDAN: Asked and answered. 5 MR. NACE: I don't think so. Try i, again. 6 I don't think so. 7 MR. ESPOSITO: Well, he's listed at least 8 three things -- 9 MR. NACE: I don't want your answer. I want 10 his answer. 11 MR. ESPOSITO: Well, you've gotten his. 12 MR. JORDAN: He's already said he's answered 13 it. Why should he have to explain it again. He's 14 answered it three times. 15 MR. NACE: I'm just not as smart as you, Mr. 16 Jordan. 17 BY MR. NACE: 18 Q So if you could help me again. 19 A I believe I answered that question. 2 0 Q Can't think of anything else you would add 2 1 to it? 2 2 A Not offhand. SHERRY ROE & ASSOCIATES, INC. 75 1 Q Okay. Have you ever done an invitro study? 2 A Actually, one of my colleagues and I at USC 3 jointly planned and did some invitro studies, yes. 4 Q On what? 5 A C3H10T1/2 cells. 6 Q And what were you doing with that? 7 A We were trying to induce transformation of a those cells with trichloroethylene. 9 Q For what purpose? What were you trying to 10 learn? 1 1 A To see if trichloroethylene would cause them 12 to undergo transformation. 13 Q T o what? Of anything? 14 A To loose the contact inhibition of growth. 15 Q Okay. 16 A That's one of the steps we think is 17 important in carcinogenesis. i a Q Now, there is a specialty in science that 19 does invitro studies, correct? 20 A Which study? 21 Q Cell biologists, developmental biologists? 22 A Yes. SHERRY ROE & ASSOCIATES, INC. 76 1 Q And certainly you don't consider yourself an 2 expert in any of those specialties that do invitro 3 studies, do you? 4 A No. 5 Q And you don't consider yourself an expert in 6 doing animal studies either, do you? 7 A No. 8 Q And you don't consider yourself an expert in 9 doing what you refer to, I believe, as chemical 10 mechanistic studies? 11 A That is correct. 12 Q All right. Whether or not any of those 13 studies that might be reported or well done is 14 something that would be best left to someone other 15 than you; isn't that correct? 16 A I certainly respect the opinions of people 17 who have advance degrees and research experience in 18 those fields. 19 Q Okay. Have you utilized any invitro 20 studies, animal studies, or mechanistic studies to 2 1 come to your conclusions that you will be expressing 22 in this case? SHERRY ROE & ASSOCIATES, INC. 77 1 A Yes. 2 Q Okay. When you say yes, tell me what those 3 studies are. 4 A I need my -- 5 Q By category, 6 A Well, I'd need my notes back. 7 Q Okay. Then we'll have to wait on that. 8 MR. NACE: Let's see if they're ready. 9 MR. LIGHTFOOT: She's still working on them. 10 MR, NACE: All right. 1 1 MR, LIGHTFOOT: Maybe she's done the notes. 12 MR. NACE: All right. 13 BY MR. NACE: 14 Q When you were asked to review the matters 15 involved in this case, what specifically were you 16 asked to do? 17 A I need to see my correspondence with Akin, 18 Gump -- 19 Q Okay. 20 A -- to remember that. 2 1 MR. JORDAN: Why don't we ta.,e a few 22 minutes. SHERRY ROE & ASSOCIATES, INC. 78 Mr. Nace, can we take a few minutes now? I mean, he's been working about an hour and a half here. MR. NACE: Yeah. If you want it, you can certainly -- MR. JORDAN: I don't want to miss anything, --though, SO MR. NACE: I wouldn't think of going ahead a without you -- 9 MR. JORDAN: Thank you. 10 MR. NACE: - - present, Mr. Jordan. 1 1 (A brief recess was taken off the record.) 12 (Garabrant Exhibit 15 was marked for 13 identification purposes.) 14 BY MR. NACE: 15 Q Doctor, I have here also an exhibit I marked 16 as number 15, which is notice of deposition. And you 17 were asked to produce in addition to the things we've - -i a seen so far under number one well, first of all, 19 have you seen this previously, this document? 20 (The witness perused document.) 2 1 A I believe I have. 22 Q Okay. You were asked on number one to SHERRY ROE & ASSOCIATES, INC. 79 1 produce before the deposition the following documents: 2 A list of all proceedings in which he, meaning you, 3 has testified or been deposed as an expert in the past 4 four years and name the parties for whom you testified 5 and whether the case involved allegations of injury 6 from gasoline or benzene exposure. 7 I understand that you haven't done that, 8 A I have no such list. 9 Q Okay. And secondly, number two was: 1 0 Compensation paid for testimony and research in the 1 1 present cases, number of hours worked and the amount 12 billed to date. 13 Do you have that information? 14 MR, ESPOSITO: We provided you on Friday, I 15 believe, the invoices that went over in the packet 16 that you got the literature list and the other 17 materials reviewed list. 18 MR. NACE: We didn't get the compensation 19 paid for testimony and research in the present cases, 20 MR. ESPOSITO: Yeah. Those are the invoices 2 1 that I provided to you. And if you'd like another 22 copy -- S H E R R Y ROE & ASSOCIATES, INC. 80 1 MR. LIGHTFOOT: They weren't in there. 2 MR. ESPOSITO: They were sent. 3 MR. LIGHTFOOT: Well, we got the package, 4 but those weren't in there. 5 MR. NACE: Were not included in it. 6 MR. LIGHTFOOT: It doesn't matter. 7 MR. ESPOSITO: Here's more copies. 8 MR. NACE: Let's have these t w o documents 9 which consist of a total of three pages marked as -10 Exhibit 16 11 MR. ESPOSITO: Are you marking them jointly? 12 MR. NACE: (Shook head.) 13 MR, ESPOSITO: The three pages? 14 MR. NACE: I'm not going to break it down. 15 Just three pages. 16 MR. ESPOSITO: Okay. 17 (Garabrant Exhibit 16 was marked for 1 8 identification purposes.) 19 BY MR, NACE: 20 Q I'm looking at Exhibit 16, which is a total 2 1 of three pages. The first one is dated December 24, 22 1991 to Michael Marcus at Akin, Gump, Strauss, Hauer & SHERRY ROE & ASSOCIATES, INC. 81 1 Feld, and the reference is Carter versus the District 2 of Columbia. 3 Regardless of what it says, Carter versus D.C., 4 does that involve all three of these cases that you're 5 looking at? 6 A I believe so. 7 Q Okay. And the second page l o o k s like it has 8 some sort of printout. Would you just tell me what 9 that is? 10 (The witness perused document.) 1 1 A Yeah. That looks like a spreadsheet in 12 which I tallied up my expenses for my trip. 13 Q Okay. That is something that would have 14 been produced by you? 15 A Yes. 16 Q Okay. What, do you have that on a computer 17 somewhere, that information? 18 A I doubt that I do anymore. That was just a 19 little spreadsheet I would have made up to add the 2 0 expenses -- 2 1 Q And what did you do? Wipe it out after 22 that? SHERRY ROE & ASSOCIATES, INC. 82 --1 A Well, yeah. I usually yeah. I don't 2 keep that. 3 Q You don't keep it? 4 A Not on, not on the machine, no. 5 Q Did you make hard copies? 6 A Yes. 7 Q You keep the hard copy? 8 A I probably have a copy of that attached to 9 my copy of the invoice. 10 Q And then the third sheet has on it - - is 11 stated -- well, it doesn't seem to be dated, but it 12 has on a date of 04/07/94 for the first item and it 13 says Carter v . Tri-Continental. 14 Did something happen to go from Carter versus D.C. 15 to Carter versus Tri-Continental, or was that just a --16 bookkeeping 17 A That's probably what I thought the case was 18 named. 19 Q I see. And, again, that applies to all 20 three cases? 2 1 A Yes. 22 Q Where did you meet with Mr. Marcus on SHERRY ROE & ASSOCIATES, INC. 83 1 December 1 2 1 2 MR. ESPOSITO: What was the question? 3 BY MR. NACE: 4 Q Where did you meet with Mr. Marcus? 5 A From this -- you're talking about this bill 6 from 19911 7 Q Right. 8 A I would guess I met in Washington, because I 9 billed his firm for travel expenses. 10 Q All right. And then there's another meeting 1 1 with Mr. Sherwood. That's also here in Washington, I 12 believe? That's also here in Washington, the meeting? 13 MR. ESPOSITO: You're referring to the last 14 one, right? 15 MR. NACE: Yeah. 16 MR. ESPOSITO: Last page. 17 THE WITNESS: On 04/12/94, I believe that is 18 -- that was a l s o in Washington. 19 BY MR. NACE: 2 0 Q Up until the end of that last bill, I think 2 1 it's the single page that you have here, how much have 22 you already billed Akin, Gump for what you've done on SHERRY ROE & ASSOCIATES, INC. 84 1 these cases? What's your total there, approximately, 2 within 1,0001 3 MR. ESPOSITO: The total of the two bills? 4 MR. NACE: Yeah. 5 THE WITNESS: The total of the two bills, 6 it's approximately $10,800. 7 BY MR. NACE: 8 Q And has there been some time since April the 9 12th that you've also devoted to this case? 10 A Yes. 11 Q Approximately how many hours? 12 A I would estimate 2 5 hours, perhaps. 13 Q At 350 an hour? 14 A Yes. 15 Q And that would be time what, preparing for 16 this deposition? 17 A Reviewing records and preparing for the 18 deposition, yes. 19 Q When was the last time you -- before today - -2 0 that you met with any of the people at Akin, Gump 21 to prepare for this deposition? 22 A Last week. SHERRY ROE & ASSOCIATES, INC. 85 Q Where was that? A In Washington. Q Okay. So that would be on the next statement? 5 A I imagine so. 6 Q Okay. How much was that? A day? 7 A That was a day. 8 Q And the rest of the time was spent reviewing 9 the records and so on? 10 A Yes. 11 Q All right. That's been another $8,750 or 12 so, correct? I just took it 25 and multiply it by 13 350. That's the way you're going to bill him, right? --14 A What's the 15 Q You said about 25 hours and about 350 per 16 hour? 17 A Yes. 18 Q Okay. Doctor, do you subscribe to Lancet? .19 A No 20 Q Do you have it available to you? 21 I 22 I A Yes. Q How about the British Journal of Hematoloqy? SHERRY ROE & ASSOCIATES, INC. 86 1 A What's the question? 2 Q Do you have that available to you? 3 A Yes. 4 Q I take it since you're an employee of the 5 Universi-y of Michigan, you don't subscribe to any 6 journals yourself, do you? 7 A I do subscribe to some journals. 8 Q Oh, which ones do you subscribe to? 9 A I subscribe to the Journal of the American 1 0 Medical Association, the Journal of Occupational 11 Medicine, the Journal of the National Cancer 1 2 Institute, American Journal of Epidemiology, 13 Environmental Health Perspectives. I think my 14 subscription is current on Cancer Causes and Control, 15 but I have missed a couple of issues, so I'm not sure 16 now. There might be one or two more. 17 Q All right. And you do have available to you 18 Lancet? 19 A Yes. 2 0 Q The British Journal of Hematology? 2 1 A Yes. 22 Q The American Journal of Industrial Medicine? SHERRY ROE 61 ASSOCIATES, INC. 87 1 A Yes. 2 Q The Archives Environmental Health? 3 A Yes. 4 Q Environmental Research? 5 A I don't know that journal. 6 Q Okay. Leaving that one aside, the 7 Environmental Research, would you consider the rest a that you either have available to you that you 9 mentioned or the ones that you subscribe to yourself 10 as being authoritative sources in your field of 1 1 epidemiology and occupational medicine? 12 A Some are authoritative in that area. Not 13 all of them. 14 Q Which ones are not authoritative? 15 A In occupational medicine? 16 Q Occupational medicine or epidemiology. 17 A I guess I don't know what you mean by 1 8 "authoritative". Some of them devote very little 19 space to epidemiology and occupational medicine; some 2 0 devote a lot. 2 1 So is "authoritative" based on devoting space -- 22 Q What's it mean to you? S H E R R Y ROE & ASSOCIATES, INC. 88 1 A An authority that is frequently cited by 2 people who are skilled in the field. 3 Q Okay. Does that apply to those that we just 4 mentioned? 5 A To some of them. 6 Q Which ones does that not apply to? 7 A Okay. Archives of Environmental Health 8 sometimes has articles that I have less confidence in. 9 Q Okay. Any other one? 10 A The rest are pretty good journals. 11 B All right. Well, would it be fair to say, 12 then, that you consider all of those that you 13 mentioned to be authoritative, although there may be 14 some articles in each of those publications that you 15 don't agree with? 16 A I think generally they are relied upon to 17 provide reliable literature, although no journal is .18 perfect 19 Q You don't always agree with what's in every 2 0 journal, correct? 2 1 A That's correct. 22 Q All right. I notice you sent us a list of SHERRY ROE & ASSOCIATES, INC. 89 1 l i t e r a t u r e t h a t y o u r e l i e d u p o n i n E x h i b i t 2. 2 A Yes. 3 Q D o you c o n s i d e r a l l of t h o s e p i e c e s of 4 l i t e r a t u r e t o be authoritative? 5 A No. 6 Q Okay. Then why d i d y o u i n c l u d e t h e m o n y o u r 7 list? 8 A I had t w o goals i n mind i n preparing t h a t 9 l i s t . One w a s t o i n c l u d e t h e a r t i c l e s t h a t I do 10 c o n s i d e r a u t h o r i t a t i v e and t h e o t h e r w a s t o i n c l u d e 11 articles t h a t w e r e c i t e d i n materials I read 12 p e r t a i n i n g t o t h i s case t h a t I t h o u g h t I would have t o 13 d i s c u s s . 14 Q Could you go t h r o u g h t h i s l i s t , E x h i b i t 2 , 15 and t e l l me which ones are n o t a u t h o r i t a t i v e i n your 16 f e e l i n g , i n y o u r b e l i e f ? 17 A D o you want a y e s / n o d e c i s i o n on each --18 a r t i c l e 19 Q Yeah. --2 0 A o r c a n w e p u t t h e m o n a c o n t i n u o u s s c a l e ? 21 Q What do you mean by a c o n t nuous scale? 22 A S o r t of ranging from less a u t h o r i t a t i v e t o S H E R R Y ROE SI ASSOCIATES, I N C . 90 1 very authoritative. 2 Q Sure. Do you want t o go through and rank 3 them f o r m e t h a t way? Ten b e i n g m o s t a u t h o r i t a t i v e 4 a n d z e r o b e i n g n o t a u t h o r i t a t i v e . Why d o n ' t w e d o 5 that. 6 A I t h i n k t h a t would be u s e f u l . 7 (The witness perused document.) --8 L e t ' s 9 MR. J O R D A N : Off t h e r e c o r d a s e c o n d . 10 ( A b r i e f d i s c u s s i o n w a s h e l d o f f t h e 11 record. ) 12 MR. NACE: Back on t h e record. 13 MR. ESPOSITO: I s t h e r e a n y t h i n g i n --14 p a r t i c u l a r t h a t c a n 15 MR. NACE: Yeah. I ' d l i k e t o know which o n e 16 he considers a u t h o r i t a t i v e and which ones h e d o e s n ' t . 17 H e w a n t s t o d o it on a scale, I ' m w i l l i n g t o go a l o n g 18 w i t h t h a t , so. 19 THE WITNESS: A l l r i g h t . 2 0 1 BY MR. NACE: 21 Q However you want t o do it, Doctor, is f i n e --22 w i t h m e . I ' l l SHERRY ROE & ASSOCIATES, I N C . 91 1 A I g u e s s w e ' l l have t o go t h r o u g h them. 2 Q A l l r i g h t . W e l l , then, l e t ' s have you do it 3 a t lunch hour. 4 A A l l right. 5 Q Okay. So w e don' t a k e up your t i m e r i g h t 6 now. 7 A r e you f a m i l i a r w i t h t h i s book by Aksoy called 8 Benzene Carcinoqenicity ( i n d i c a t i n g ) ? 9 A I have never read t h a t book. 10 Q W e l l , are you f a m i l i a r w i t h it? 11 A Uh, I -- 12 Q Did you know i t e x i s t e d ? 13 A I t h i n k I have s e e n t h e t i t l e of it i n 14 a d v e r t i s i n g from CRC P r e s s . 15 Q And y o u ' v e n e v e r r e a d i t ? 16 A I have n e v e r r e a d it. 17 Q Even though it d e a l s w i t h t h e s u b j e c t t h a t 1 8 w e ' r e t a l k i n g a b o u t i n t h i s c a s e ? You d o n ' t know 19 t h a t , though, do you, because you n e v e r read i t ? 20 MR. STERN: O b j e c t i o n . 21 MR. NACE: I'll w i t h d r a w t h a t . 2 2 BY MR. NACE: SHERRY ROE & ASSOCIATES, I N C . 92 1 Q Have you ever heard of Muzaffer Aksoy? 2 A Yes. 3 Q Do you consider Muzaffer Aksoy to be an 4 expert in the field of benzene carcinogenicity? 5 A I don't know his credentials. I do know he 6 has published a number of studies on leukemia in shoe 7 workers in Turkey. 8 Q Okay. Well, is he considered to be an 9 expert in the field of benzene carcinogenicity among 1 0 people such as yourself? 1 1 A I guess I'm not sure what you mean by 12 "carcinogenicity". If that refers to animal studies 13 of carcinogenicity related to benzene, it's not -- 14 it's my impression that's not his area. If it has to 15 do with epidemiology of leukemia related to benzene, 16 yes. He is an expert in that area. 17 Q Okay. Are you familiar with this document 18 by the U.S. Department of Health and Human Services 19 entitled Toxicoloqical Profile for Automotive 20 Gasoline? 21 A I believe I have a copy of that. 2 2 Q Have you read it? ~~ SHERRY ROE & ASSOCIATES, INC. 93 1 A I have not read it in its entirety. I think 2 I've looked at sections of it. 3 Q It just came out a few months ago, November 4 of ' 9 3 3 5 A (Witness nodded ,,cad). It's a draft. Yeah, 6 I get those. 7 Q It's a draft, right. 8 Have you commented on it? 9 A Have I commented on it? 10 Q Yeah. It says "for public comment". I 11 wondered if you had taken the time to comment on it to 12 anybody? --13 A Have I given are you asking if I've given 14 written comments back to ATSDR? 15 Q Written, verbal, anything? 16 A N o . 17 Q Okay. D o you intend to? 18 A N o . 19 Q All right. Are there portions of that with 20 which you disagree? 21 A I'm not familiar with all the con-ents of 22 that. SHERRY ROE & ASSOCIATES, I N C . 94 1 Q O k a y . What you've s e e n of it, do you 2 consider t o be w e l l done? 3 MR. E S P O S I T O : D o you w a n t t o s h o w h i m 4 perhaps t h e copy? 5 THE WITNESS: Yeah. Might I j u s t look a t it 6 quickly? 7 MR. NACE: W e l l , I ' m n o t g o i n g t o have you 8 go through my n o t e s t h a t are on there. B u t I j u s t 9 w a n t t o k n o w -- 10 MR. JORDAN: I d o n ' t t h i n k i t ' s f a i r t o 11 q u e s t i o n h i m -- 12 MR. NACE: J u s t i n g e n e r a l . I j u s t asked 13 you i n g e n e r a l . 14 MR. LIGHTFOOT: I ' v e g o t a n o t h e r copy. I ' l l 15 go g e t i t . 16 MR. NACE: I n g e n e r a l . 17 MR. E S P O S I T O : Why d o n ' t w e w a i t u n t i l Mark 18 r e t u r n s w i t h t h e copy. 19 THE WITNESS: I n g e n e r a l , t h e ATSDR 20 toxicologic profiles are w e l l done. 21 MR. NACE: Okay. T h a t ' s a l l I w a n t t o k n o w . 22 BY MR. NACE: SHERRY ROE & ASSOCIATES, I N C . 95 1 Q Now, Doctor, I'm trying to go through some 2 of the things you gave me here. We copied this 3 Hematology book by Hoffman. I assume that there was 4 some reason why you picked a couple of these chapters 5 out, and I'd like to ask you what it is about this 6 book in these chapters that support your position that 7 you're going to give me in this case? a A I chose to read those chapters just to 9 review current knowledge about the leukemias relevant 10 to this case. 11 Q I mean, do you believe that the statistical 12 data that's available indicates that there is a 13 statistically significant association between benzene 14 and leukemia? 15 A There are a number of studies that show 16 statistically significant associations between benzene 17 and leukemia, and there are a number of studies that i a do not show a statistically significant association 19 between benzene and leukemia. 2 0 Q Okay. Do you have an opinion then, with any 21 reasonable degree of certainty as to whether or not 2 2 benzene is capable of causing leukemia? SHERRY ROE & ASSOCIATES, INC. 96 1 A Yes 2 Q And what is that opinion? 3 A It is my opinion that benzene is capable of 4 causing acute myelogenous leukemia- 5 Q AML ? 6 A Yes. 7 Q Anything else that in your opinion it's 8 capable of causing? 9 A I think the evidence is clear for AML. The 10 evidence is not adequate for the other types of 11 leukemia. 12 Q Specifically, is it your opinion, then, that 13 it's not adequate, the evidence is not adequate for 14 chronic lymphocytic leukemia or chronic myelogenous 15 1eukemia? 16 A Yes. 17 Q That would be CLL and CML? 18 A Yes. 19 Q When you say the evidence is not adequate, 20 what does that mean? 21 A The evidence is not adequate to conclude 2 2 that there is a causal association between benzene and SHERRY ROE &I ASSOCIATES, INC. 97 those two diseases -Q And when you ---A or I should say those two categories of -- Q When you say you can't conclude, tell me what that means to you when you can't conclude? Why can't you conclude? 8 A It means that the associations that have 9 been reported don't satisfy all of the considerations 10 that we listed earlier in this deposition regarding 11 consistency across studies, strength of association, 12 dose response, and other considerations. 13 Q Now, for you to draw a conclusion, how, in 14 your mind, how certain must you be that there is a 15 causal relationship before you express an opinion that 16 there is, in fact, a causal relationship? 100 percent 17 certain? 18 A I wouldn't say 100 percent certain. I have 19 to have a high degree of confidence that there is a 2 0 causal relationship before I'd say it. 21 ~ 22 I Q 95 percent? A I can't put a number on it. Certainly SHERRY ROE & ASSOCIATES, INC. ~~ 98 1 better than half. 2 Q How much better than half? 3 A I can't put a number on it. In my view, the 4 evidence has to show a consistent pattern of results 5 that satisfies many of the conditions that we listed 6 earlier in this deposition. 7 Q For you to draw your conclusion that "A" 8 causes I'B", do y o u have to be satisfied that that's 9 more likely than not that "A" causes " B " before you 10 express that opinion, or do you need something more 11 than that? 12 A I think to draw a scientific conclusion, I 13 like better than the more likely than not criteria 14 that you just mentioned. 15 Q You need something more than that? .16 A Yes 17 Q What? i a A I like to see consistency across studies. I 19 like to see studies of dose response. I like to see 2 0 that risk increases with latency. I like to see that 21 the studies that show the association have properly 2 2 excluded the roles of confounding and bias. I like to 99 1 see that the exposure precedes the disease. Those 2 are, those are the important criteria. --3 My support for my opinion is strengthened if I 4 see biological plausibility such as an animal model or 5 a mechanism, although I don't consider those to be 6 essential. a7 Well, I don't think that you answered my 8 question, Doctor, Maybe you did, and I don't mean 9 anything by that. But I wanted to know how much you 10 need above more likely than not. 11 MR, STERN: Objection. Asked and answered. 12 MR, ESPOSITO: He's told you he can't 13 quantify it. 14 BY MR. NACE: 15 Q More likely than not is more than 50 16 percent, right, certainty in your mind? 17 A My interpretation of your term, "more likely 18 than not" means anything greater than 50 percent. 19 Q Okay. You indicated that that wasn't enough 20 for you to express an opinion, more than 50 percent. 21 I want to know what above that you need, in your 22 opinion. I mean, everybody's entitled to their own SHERRY ROE & ASSOCIATES, INC. 100 1 view on it. I just want to know what your view is. 2 A Yeah. My view is it has to be considerably 3 stronger than that. 4 Q And I'm trying to get from what you mean 5 from "considerably stronger". 60, 70 percent? 80 6 percent? 95 percent? What? 7 MR. ESPOSITO: Objection. Asked and 8 answered. 9 MR. NACE: Well, he hasn't answered it yet. 10 MR. ESPOSITO: Yes, he has. 11 MR. JORDAN: Yes, he has. 12 MR, ESPOSITO: He said that he can't put it 13 into the terms that you want, Barry, for this 14 deposition, but that he's answered in a way that an 15 epidemiologist would answer it. 16 MR. NACE: Well, he also told me it has to 17 be more than 5 0 percent. I'm trying to figure out 18 what he means -- 19 MR. JORDAN: That was your definition, 2 0 MR. NACE: Well, it was his definition, 21 originally, if y o u read the record. --22 THE WITNESS: My first off, I think I SHERRY ROE & ASSOCIATES, INC. - 101 1 have answered your question. I will try to answer it 2 again. 3 I don't think that 5 1 percent is adequate to say - -4 for me to conclude that something is causal. It 5 has to be a conclusion that is supported by evidence 6 that comes from a variety of different considerations. --7 And I, and I've listed those considerations 8 BY MR. NACE: 9 Q Yeah. 10 A -- for you twice now. 11 Q Yes, you have. 12 A And there's no way to put a number on how 13 those considerations can be added together. It's not 14 quantifiable. 15 Q In other words, 5 1 isn't enough, but some 16 figure is, but you can't tell us what that figure is; 17 is that what you're saying? 18 A I object to the entire characterization that 19 it can be given a number. It can't be given a number. 20 Q What can't be given a number? 2 1 A The strength of the evidence that an 22 association is causal cannot simply be given a number S H E R R Y ROE Et ASSOCIATES, INC. 102 1 51/49 or 6 0 / 4 0 . 2 Q Well, what does it mean to you when you're 3 asked to express an opinion within a reasonable degree 4 of certainty? --5 A It means 6 Q Well, you've been asked that over the years, 7 haven't you? 8 A Uh, I -- 9 MR. JORDAN: I -- 10 THE WITNESS: -- think so. 1 1 MR. JORDAN: -- object. Let him answer one 12 question at a time. 13 MR. NACE: I'm just trying to help him out 14 on that. 15 BY MR. NACE: 16 Q Y o u have been asked that question before, 17 haven't you, Doctor? 1 8 MR. ESPOSITO: What's the question? 19 MR. STERN: Now there's three questions. 20 MR. NACE: I'll withdraw all of those. 21 BY MR. NACE: 22 Q Doctor -- SHERRY ROE & ASSOCIATES, INC. 103 1 MR. ESPOSITO: Why d o n ' t y o u s t a r t w i t h o n e 2 and -- 3 BY MR. NACE: --4 Q h a v e y o u b e e n a s k e d o v e r t h e y e a r s t o 5 give an opinion within a reasonable degree of medical 6 certainty or scientific certainty? 7 A I've been asked questions l i k e t h a t , yes. 8 Q What d o e s t h a t mean t o you? 9 A I i n t e r p r e t t h a t t o mean b a s e d o n my 10 p r o f e s s i o n a l j u d g m e n t , am I r e a s o n a b l y c e r t a i n t h a t my 11 answer i s c o r r e c t . 12 Q Okay. And w h a t d o e s " r e a s o n a b l y c e r t a i n " 13 mean t o you? 14 A R e a s o n a b l y c e r t a i n means t h a t t h e e v i d e n c e 15 t h a t i s d e r i v e d from a v a r i e t y of d i f f e r e n t 16 c o n s i d e r a t i o n s a l l p o i n t s t o w a r d t h e s a m e c o n c l u s i o n . 17 MR. JORDAN: Off t h e r e c o r d . 18 (A b r i e f d i s c u s s i o n w a s h e l d o f f t h e 19 r e c o r d . ) 2 0 BY MR. N A C E : 21 Q So r e a s o n a b l y c e r t a i n t o you i s t h a t 22 e v e r y t h i n g i s p o i n t i n g t o w a r d , i n t h e same d i r e c t i o n ? SHERRY ROE & ASSOCIATES, INC. 104 1 A I t h i n k I've answered t h a t t w i c e . 2 Q Was t h e a n s w e r y e s ? 3 A Reasonable medical c e r t a i n t y means t h a t t h e 4 evidence supporting a causal i n t e r p r e t a t i o n must be 5 derived f r o m a number of d i f f e r e n t c o n s i d e r a t i o n s and 6 they should point toward t h e s a m e conclusion and t h a t 7 c a n n o t be q u a n t i f i e d w i t h a s i n g l e number. 8 Q Do they a l l have t o point t o t h e s a m e 9 c o n c l u s i o n o r do t h e y as a group p o i n t t o a 10 c o n c l u s i o n ? 11 A As a group, t h e y must p o i n t t o t h a t 12 c o n c l u s i o n . They do n o t a l l have t o p o i n t t o t h a t 13 c o n c l u s i o n . 14 Q Okay. So y o u ' r e u n a b l e t o s a y t h a t t h e 15 e v i d e n c e w i t h r e s p e c t t o benzene p o i n t s t o t h e 16 c o n c l u s i o n t h a t i t c a u s e s CLL; i s t h a t c o r r e c t ? - -17 A I i t i s my o p i n i o n t h a t t h e e v i d e n c e 18 r e g a r d i n g benzene and CLL i s n o t a d e q u a t e t o c o n c l u d e 19 t h a t t h e r e i s a c a u s a l a s s o c i a t i o n . 20 Q Now you changed my q u e s t i o n around, Doctor. 21 I j u s t want t o know i f t h e e v i d e n c e -- i f you a n s w e r e d --2 2 my q u e s t i o n if t h e e v i d e n c e , i s t h e f a c t t h a t SHERRY ROE & ASSOCIATES, INC. 105 1 you're unable t o conclude t h a t the evidence points t o 2 t h e d i r e c t i o n of saying t h a t t h e r e i s a causal 3 r e l a t i o n s h i p between benzene and CLL? 4 A I d o n ' t know what you mean by " p o i n t s t o t h e 5 c o n c l u s i o n . 'I 6 Q I ' m using t h e s a m e wording t h a t you used, 7 Doctor, when you said " p o i n t s t o " . T h a t w a s your 8 p h r a s e . Not mine. 9 A I don't recall using that phrase. 10 Q W e l l , you u s e d it s e v e r a l t i m e s so f a r . And 11 I know y o u ' v e f o r g o t t e n where you t e s t i f i e d l a s t a n d 12 t h a t s o r t of t h i n g , b u t I d o n ' t b e l i e v e you've 13 f o r g o t t e n t h a t . 14 MR. STERN: O b j e c t i o n . - -15 MR. NACE: S O 16 MR. ESPOSITO: B a d g e r i n g t h e w i t n e s s . T h i s 17 i s r e a l l y -- --18 MR. NACE: L e t m e --19 MR. ESPOSITO: getting ridiculous, Barry. 20 MR. NACE: L e t t h e record r e f l e c t t h a t h e ' s 21 smiling, too. 22 L e t m e go back, Doctor, and t r y it a g a i n w i t h you. ~ ~- SHERRY ROE & ASSOCIATES, I N C . 106 1 BY MR. NACE: 2 Q Is this an accurate statement, that you are 3 unable to say that the evidence points to a causal 4 relationship between benzene and CLL; yes or no? 5 MR. S T E R N : I ' m going t o object to the basis 6 of the question -- 7 MR. JORDAN: I object. --8 MR. STERN: as vague and ambiguous. And 9 the witness has asked for some clarification as to 10 what one of the phrases in the question means. 11 With that stated, you may go ahead, Doctor. 12 THE W I T N E S S : The evidence regarding benzene 13 and C L L is inconclusive. There are studies that 14 suggest an association. There are many studies that 15 suggest no association. And, therefore, the evidence 16 is not adequate to say that there is a causal 17 association. 18 BY MR. NACE: 19 Q I s it also your opinion that it's not 20 adequate to say that there is not a causal 2 1 association? 2 2 MR. ESPOSITO: A lot of negatives in that SHERRY ROE & A S S O C I A T E S , I N C . 107 1 o n e . More t h a n d o u b l e . Would y o u r e p h r a s e t h a t 2 please, Barry? 3 MR. NACE: N o , I l i k e it t h e way it i s , 4 THE WITNESS: L e t m e b e s u r e I u n d e r s t a n d 5 the question. 6 W a s your question t h a t t h e evidence i s adequate t o --7 s a y t h a t t h e r e i s n o t a c a u s a l a s s o c i a t i o n 8 MR. NACE: C o r r e c t . - -9 THE WITNESS: between CLL and benzene? 10 MR. NACE: C o r r e c t . 1 1 THE WITNESS: Y o u ' r e a s k i n g w h e t h e r t h e 12 evidence is adequate t o prove t h a t something does n o t 13 e x i s t . I t ' s a b a s i c p r i n c i p l e i n s c i e n c e t h a t w e 14 cannot prove t h a t t h i n g s d o n ' t e x i s t . W e can only 15 look f o r them and f i n d t h e m o r f a i l t o f i n d them. The 16 e v i d e n c e i n t h i s case is n o t a d e q u a t e t o s a y t h a t w e 17 have found a causal association between benzene and 18 CLL. 19 BY MR. NACE: 2 0 Q N o . You c a n ' t s a y e i t h e r way w h e t h e r o r n o t 21 b e n z e n e d o e s c a u s e CLL o r d o e s n ' t c a u s e CLL; i s t h a t 22 correct? -~ SHERRY ROE & ASSOCIATES, I N C . 108 1 MR. JORDAN: Objection. He's already given 2 you an opinion on it. --3 THE WITNESS: I can say 4 MR. NACE: I want a yes or no to that 5 question. --6 MR. ESPOSITO: He 7 MR. NACE: Then you can explain all you 8 want. I haven't stopped y o u from explaining at all 9 today, but I'm entitled a yes or no to some of these 10 questions, including that one. - -11 THE WITNESS: I believe I 12 MR. NACE: Do you remember the question? 13 I'll have it read back if you don't remember it. 14 THE WITNESS: I believe I'm entitled to --15 answer your questions fully within my judgment 16 MR. NACE: Absolutely. I have no problem 17 with you answering fully, but I'm also entitled to an 1 8 answer when it's a yes or no question of a yes or no. 19 MR. ESPOSITO: And that one's not. 20 MR. NACE: If you can't answer yes or no, 2 1 you tell me that. I'll accept that, if you can't 22 answer yes or no. -~~~ ~ ~ SHERRY ROE & ASSOCIATES, INC. 109 1 Can you read that question back? 2 MR. JORDAN: You know, Barry, I think it's 3 only fair -- 4 MR. NACE: I think that's as fair as 5 anybody -- 6 MR. JORDAN: Oh, no. Listen to this. I 7 have another point. I want this on the record. I 8 think it's only fair to give the doctor a chance to 9 answer one question at a time. There's now five 10 pending. I think it would be fair to give the 11 gentleman a chance to answer the question responsibly. 12 If he can answer yes or no, let him try. If he can't, 13 he'll tell you. But you can't badger him like you're 14 doing. 15 MR. NACE: Jim, I'm not badgering him. I 16 think you know that. Don't try that. 17 MR. JORDAN: I'm not trying anything. I'm 18 making it for the record, 19 MR. NACE: Read the question back, please. 2 0 (The reporter read back the requested 2 1 material from the record.) 2 2 BY MR. NACE: SHERRY ROE & ASSOCIATES, INC. 110 1 Q Let me add, what I want you to do, Doctor, 2 so we're all clear, I want you to answer that yes, no, 3 I can't answer yes or no. And whatever you do, you 4 can give a complete and full answer, but I want a yes, 5 no, or I can't answer the question. --6 A I in spite of having had the question 7 read back to me, I'm not sure I understand the 8 question. Could you rephrase it. 9 Q I'll try if you'll tell me what you don't 10 understand about it. 11 A The preamble that says something about you 12 know. I'm not sure what that implies. 13 Q Okay. I'll try it. I mean, I'm trying to 14 be as fair with you as I possibly can, despite what 15 Mr. Jordan says over there. And I just want you to 16 answer my question for me, Doctor, yes, or no, or I 17 don't know, and then you can explain. 18 MR. ESPOSITO: Wait, wait, wait. 19 BY MR. NACE: 20 Q Here's the question. 2 1 MR. ESPOSITO: Now you're changing the 2 2 choices again. First it was yes, or no, or I can't SHERRY ROE & ASSOCIATES, INC. 111 1 answer that yes or no, and an explanation. 2 BY MR N A C E : 3 Q Well, I'll give you a fourth one: Yes, no, 4 I don't know, I can't answer yes or no. 5 Here's the question for you: Based on the 6 evidence that's available, is it your opinion that you 7 cannot express an opinion on whether or not there is a 8 causation between benzene and CLL? 9 A It is my opinion that I can express an 10 opinion on the relationship between benzene and CLL. 1 1 And my opinion is that has not been demonstrated to be 12 a causal association. 13 Q And would you agree that that does not mean 14 that benzene does not cause CLL? --15 MR. JORDAN: Are you asking 16 THE WITNESS: I've answered that question. 17 MR. NACE: No, you haven't. 18 BY MR. NACE: 19 Q Well, answer it again for me. Humor me. 20 A I answered that question previously by 21 saying that you were asking to prove the nonexistence 22 of something and a basic principle of science is that SHERRY ROE & ASSOCIATES, INC. 112 1 we can't prove things don't exist. We only get to 2 look to see if they do exist. And if we can't find 3 them, we cannot conclude that they exist. 4 Q Doctor, do you intend to go into court in 5 this case and say that benzene does not cause CLL? 6 A It is my opinion that the evidence is not 7 adequate to conclude that benzene causes C L L . 8 Q We're playing games now, D o c t o r . 9 MR. S T E R N : Objection. 10 MR. JORDAN: Objection. Barry, he's 11 answered the question. 12 MR. NACE: He has not answered the question. 13 MR. JORDAN: He's answered the question, and 14 that's an improper question. --15 MR. NACE: I want you to 16 MR. S T E R N : I don't think the reporter is 17 getting this down. Let's go one at a time. 18 MR. JORDAN: Okay. First of all, he's 19 answered the question and this is not a game here. 20 MR. NACE: I agree it's not a game. But --21 we're playing games here --22 MR. JORDAN: That's your SHERRY ROE & A S S O C I A T E S , I N C . 113 1 MR. NACE: -- on your -- --2 MR. JORDAN: opinion a - -3 MR. NACE: side of the table. 4 MR. JORDAN: That's your opinion, sir. 5 MR. NACE: That's right. It is. 6 Now, Doctor -- everybody said what they want to 7 say? 8 BY MR. NACE: 9 Q Doctor, I just want to know if you intend to 10 go into court in this case as we sit here today, do 11 you intend to go into court and express the following 12 opinion: Benzene does not cause CLL, yes, no? 13 A I intend to go into court and testify as to 14 my opinions regarding causation. And it is my opinion 15 that the evidence is not adequate to conclude that 16 benzene causes CLL. 17 Q That doesn't answer my question. DQ you 18 understand the question? 19 MR. JORDAN: I object. You're badgering the 20 witnesses. He's answered it ten times. 2 1 MR. E S P O S I T O : This is going around the same 2 2 block, Barry. I'd like to suggest that you move on to S H E R R Y ROE & ASSOCIATES, INC. 114 1 something productive. 2 MR. NACE: D o c t o r , let me advise you at this 3 point that I think you're not answering the question. 4 It's a very easy question to answer. It's a yes or 5 no, And if I have to go and get a court order to 6 answer that question, I certainly intend to do so. 7 MR. ESPOSITO: Well, we'll be going to court 8 at the same time to address the badgering of this 9 witness and the wasting of time. 10 MR, NACE: Make sure you understand the 11 question, Doctor. Let's have that last question read 12 back one more time. 13 (The reporter read back the requested 14 information from the record.) 15 MR. ESPOSITO: Objection to the question. 16 MR, JORDAN: Objection. 17 MR. ESPOSITO: Asked and answered. 18 Badgering. 19 BY MR. NACE: 20 Q Can you answer it? 21 A I have answered tha, question at leas22 twice. I intend to go into court and give my opinion SHERRY ROE & ASSOCIATES, INC. 115 regarding the causal relationship between benzene and CLL. And my answer is that the evidence is not adequate to conclude that benzene causes CLL. Q Doctor, do you intend to go into court and express an opinion that benzene does not cause CML? A I intend to express opinions if asked 7 regarding the causation of CML. And it is my opinion 8 that the evidence is not adequate to demonstrate that 9 benzene causes CML. 10 (Someone entered the room.) 1 1 MR. ESPOSITO: Could we perhaps have 12 identified on the record who the new person joining us 13 is? 14 MR. NACE: Yeah. It's Robert Hilliard. 15 MR. ESPOSITO: And does Robert Hilliard have 16 anything to do with this case? 17 MR. NACE: Esquire. 18 MR. ESPOSITO: Esquire. Does Mr. Hilliard 19 have anything to do with this case? ~ I MR. NACE: I don't know. 2 1 MR. ESPOSITO: You haven't named him as a I2 2 witness yet. SHERRY ROE & ASSOCIATES, I N C . 116 1 MR. NACE: It's a public proceeding. 2 MR. E S P O S I T O : I understand that, Barry, 3 but -- 4 MR. NACE: Good, 5 MR. S T E R N : He's advised tha, he's here for 6 lunch with Mr. Nace. 7 MR, E S P O S I T O : Oh. 8 BY MR. NACE: 9 Q Doctor, can you answer that question? I'll 10 give you another chance before I go into court and 1 1 ask, or have you answered the question? 1 2 A What i s the question -13 Q Do you intend -14 A -- again? --15 Q to go into court in this case and testify 16 that benzene does not cause CML, yes or no? 17 MR. ESPOSITO: Objection. 1 8 MR. JORDAN: Objection. 19 MR. E S P O S I T O : Asked and answered. 2 0 Badgering. Time wasting. 2 1 THE WITNESS: I have answered that ques-ion. 22 I f I am asked in court regarding the relationship SHERRY ROE & ASSOCIATES, I N C . 117 1 between benzene and CML, I will answer by saying that 2 it is my opinion that the evidence is not adequate to 3 conclude that benzene causes CML. 4 BY MR. NACE: 5 Q And, again, by "conclude", you mean to what 6 degree? What do you mean by "concludet'? 7 MR. STERN: I'm going to object. --8 MR. ESPOSITO: explain that at length. 9 MR. STERN: That we've certainly been 10 through before. That has been asked and answered. 11 Do you want the same answer again? 12 BY MR. NACE: 13 Q With respect to that particular answer that 14 you just gave me, Doctor, I want to know what do you 15 mean by "conclude". 16 A I mean by "conclude" to reach a conclusion. 17 Q How certain do you have to be with respect 18 to that answer in order to reach a conclusion? 19 A I have answered that question a number of 2 0 times already. 21 Q I confine this one to benzene and CML. 2 2 A Okay. In order to reach a conclusion, the SHERRY ROE & ASSOCIATES, INC. 118 1 evidence derived from a number of different areas must 2 point toward the association between benzene and CML 3 being causal. 4 Q Is it your opinion that there is sufficient 5 evidence t o show that benzene does cause some 6 leukemias? 7 MR. ESPOSITO: Objection. Asked and 8 answered. 9 THE WITNESS: I've answered that and the 10 answer is yes. 1 1 BY MR. NACE: 12 Q Which leukemias? 1 3 A Acute myelogenous leukemia. 14 Q Anything else? 15 A That family of leukemias. 16 Q Which means what? 17 A The leukemias that derive from the 18 myelocytic series of cells. 19 Q Well, name them for me. 2 0 A They would be the leukemias myelogenous, 21 erythroleukemia, the leukemias, the rare leukemias 22 that derive from the platelet series, monecytic SHERRY ROE & ASSOCIATES, INC. 119 1 leukemia, myelomonecytic leukemia, eosinophilic 2 leukemia, E-O-S-I-N-O-P-H-I-L-I-C, and basophilic 3 leukemia, B-A-S-O-P-H-I-L-I-C. 4 Q Doctor, what is the difference between 5 chronic and acute myelogenous leukemia? 6 A There are a number of differences between 7 those diseases. Chronic myelogenous leukemia is -- 8 often has a time course that stretches over years. 9 Whereas acute, if untreated, has a time course to 10 death that lasts weeks to at most a few months. The 1 1 appearance of the peripheral blood is dramatically 12 different. The findings in the bone marrow are 13 different. 14 Q Are different in the bone marrow? 15 A Are different, 16 Q In what way? 17 A In acute myelogenous leukemia, there is 18 typically a predominance of immature myelogenous cells 19 which may partially or almost totally replace the 20 other cellular elements. There may be suppression of 2 1 erythropoeisis and replacement of the lymphocytic 22 series. Whereas in chronic myelogenous leukemia, S H E R R Y ROE & ASSOCIATES, INC. 120 1 typically the cells look somewhat more mature 2 peripherally and there is not as great a predominance 3 in the bone marrow of the myelocytic series. 4 (The reporter changed the audiotape.) 5 BY MR. NACE: 6 Q Doctor, do you have the same cells affected 7 if you're talking about acute or chronic myelogenous 8 leukemia? 9 A You may. 10 Q Well, when may you not? 1 1 A In some cases, it appears not to be the 12 exact same set of cells. 1 3 Q Where did you get that information from? 14 A From reading the scientific literature. 15 Q Like what? 16 A From this textbook, Hoffman, Hematology 17 Basic Principles and Practice. 18 Q All right. Is most of your understanding of 19 the principles involved with CML, AML and CLL derived 20 from this particular book, that's Exhibit 5 1 21 A My knowledge of AML, CML and CLL is derived 22 from my medical education, my training in internal SHERRY ROE & ASSOCIATES, INC. 121 1 medicine, and my readings over the past 22 years, 2 including this textbook by Dr. Hoffman. 3 Q Which I think you've already indicated you 4 consider to be authoritative, correct, in the field of 5 hematology? 6 A I do consider it to be authoritative. I 7 don't know whether I indicated that or not. 8 Q Okay. Well, can you tell me how the cell 9 types differ between A M L and CLL without looking at 10 the textbook? Do you have that knowledge? 1 1 A Well, I do have that knowledge. 12 Q Well, tell me. 13 A I can look at the textbook if I wish, I 14 believe. 15 Q Well, 1'11 let you do that. But I want to 16 know if you can do that without looking at the 17 textbook. 1 8 MR. ESPOSITO: Why don't you let him do 19 that. This isn't a closed book/open book quiz. 20 MR. NACE: Well, it is -- 21 MR. ESPOSITO: This is an expert we're 22 offering for purposes of discussing cell type. SHERRY ROE & ASSOCIATES, INC. 122 1 MR. NACE: It is a little bit, because we're 2 testing his knowledge. 3 BY MR, NACE: 4 Q I want to know if you can do this without 5 looking at the book that you brought. If you can't, 6 that's all right. I'll just use it against you later 7 in trial. You know that, But can you or can't you? 8 A I can. 9 Q All right. Now, if you want to look at 10 that, why don't you look at the textbook -- you said 11 you can't, right? 12 A I said I can. 13 Q Oh, you can. 14 A I can. 15 Q Oh, good. Go ahead and do it. 16 A What was the question again? 17 Q The question is: Tell me the difference 18 between those cells, between the A M L and the CML. 19 A There is some evidence to suggest that the 20 C M L series may have a little bit of overlap with some --21 of the or they may express some of the phenotypic 22 characteristics of the lymphatic series, whereas that ~ ~~ ~ SHERRY ROE & ASSOCIATES, INC. 123 1 is somewhat less common in the AMLs. 2 Q Does that conclude your answer? 3 A Yes , MR. NACE: Let's take a lunch break now. ( A recess was taken o f f the record,) (Garabrant Exhibit 17 was marked for 7 identification purposes.) 8 BY MR. NACE: 9 Q Okay. Doctor, I've been given Exhibit 17, 1 0 which I understand is an up-to-date copy of your C.V.; 11 is that correct? 12 A Yes. 13 Q All right. I want to ask you some questions 14 about the individual cases. Somewhere you have in 15 front of you, I believe, the sheets that dealt with --16 individual cases, which would be exhibits 17 A 8 , 9 and 10. 18 Q Okay. Let's take it one at a time. Exhibit 19 Number 8 apparently applies to Mr. Carter; is that 20 correct? 21 A Yes. 2 2 Q All right, Now, do you agree with me that SHERRY ROE & ASSOCIATES, INC. 124 1 Mr. Carter has AML? 2 A Yes. He has acute myelomonecytic leukemia. 3 Q All right. And you also apparently agree 4 that AML can be caused by benzene, correct? 5 A Yes. 6 Q All right, Are you aware of anything else 7 that causes AML besides benzene? 8 A Ionizing radiation will cause it. 9 Q Anything else? 10 A There is some literature to suggest that 11 chemotherapeutic agents may also cause it. 12 Q Anything else? 13 A Smoking. 14 Q Okay. Anything else? 15 A I think those are the major risk factors 16 that are well established. 17 Q All right. So there are four, correct? 18 A Yes. 19 Q Benzene, ionizing radiation, 2 0 chemotherapeutic agents and smoking, correct? 2 1 A Yes. 22 Q Do you see anything in the record that shows S H E R R Y ROE & ASSOCIATES, INC. 125 1 any exposure to ionizing radiation? 2 A NO 3 Q How about chemotherapeutic agents? 4 A No. 5 Q SmoA n g? 6 A Yes. 7 Q Benzene? 8 A I do not see anything in the records that 9 indicate exposure to benzene. I saw exposure to 10 gasoline but not benzene. 11 Q Well, if you're exposed to gasoline, then 12 you're exposed to benzene, aren't you? 13 A It depends on which types of gasoline and 14 how you use it. 15 Q Explain to me how it depends on how you use 16 it. . 17 A I guess we should go back and define 18 "exposure". What I should have said is people who 19 work near gasoline or in the presence of gasoline may --20 not may actually not have exposure. If you are 2 1 exposed to gasoline that contains benzene and 22 "exposure" meaning that it enters your body, then, SHERRY ROE & ASSOCIATES, INC. 126 1 yes, you would have exposure to benzene. 2 Q All right. In this case, do you believe 3 that the gasoline contained benzene that Mr. Carter 4 was exposed to? --5 A The records I guess my review of the 6 various depositions and records indicates that that is 7 a reasonable presumption that there was a small amount 8 of benzene in the gasoline. 9 Q Well, is there anything you know of that 10 would indicate in this case that there wasn't benzene 1 1 within the gasoline that Mr. Carter or any of these 12 other plaintiffs was exposed to? 13 A To the extent I understand the records, 14 there was benzene in the gasoline. 15 Q Okay. In which case, then, he would have 16 been exposed, Mr. Carter would have been exposed to 17 benzene, correct? 18 A Insofar as he had exposure to gasoline, he 19 would have been exposed to benzene. 20 Q All right. NOW, is it your -- is there any 21 other, as far as you can see, any other possible cause 2 2 of his AML other than exposure to benzene and smoking? SHERRY ROE & ASSOCIATES, INC. 127 1 A I think it's safe to say for the vast 2 majority of cases of AML, there are a set of causes 3 that are yet to be defined. And so we don't know what 4 they are, but the answer is we can only explain a very 5 small proportion of all the cases of AML, and that 6 leads us to conclude there are causes yet to be 7 identified. 8 Q Now, there are studies, I think you 9 indicated earlier, that show that there are 10 statistically significant associations between benzene 11 and AML, correct? 12 A Yes. 13 Q All right. Looking at what you have written --14 on your summary I take it you did this, didn't you? 15 A Yes, I did. 16 Q Okay. Is there anything on your summary 17 that affects your opinion as to what did cause the AML 18 on Mr. Carter? 19 A I'm not sure I understand the question. 20 Q Well, is there anything on this Exhibit 8 21 that you put down as being medical records summary 22 that would assist you in telling you what did cause SHERRY ROE & ASSOCIATES, I N C . 128 1 his AML? 2 A I'm still not sure I understand the 3 question. 4 Q Well, you prepared this, didn't you? 5 A Yes, I did. 6 Q I take it what you put in there was the 7 information that you considered to be significant 8 about his background, his history, his medical 9 history? 10 A I put in there items that would help me to 11 keep in mind the dates and sequences of events that I 12 might need to rely on later. 13 Q Well, is there anything else that you think 14 you need to rely on with respect to Mr. Carter? 15 A You mean with respect to his medical 16 records? 17 Q Yeah. 18 A I think in essence, probably not, although 19 it's conceivable. We'd have to go back to the 20 original records to answer specific questions. 21 Q Well, is there anything, then, that you 22 wrote down here that you typed in that helps you SHERRY ROE & ASSOCIATES, I N C . ~~ 129 1 formulate an opinion as to what did, in fact, cause 2 his AML? 3 A I'm still not sure what you're asking me 4 for, 5 Q Do you have an opinion as to what did cause 6 his AML? 7 A Yes , 8 Q Within a reasonable degree of certainty? 9 A Well, I think within a reasonable degree of 10 certainty, tobacco played a role in his AML and that 1 1 other undefined, or I should say other unspecified 12 factors that probably play a role, that disease 1 3 probably played a role in his. 14 Q I see. Who would be better qualified to 15 express an opinion on the cause of Mr. Carter's AML, 16 you or a hematologist? 17 A It would depend on who the hematologist was. 18 Certainly, with respect to causation in relation to 19 benzene, I think I would be better qualified than most 2 0 hematologists. 21 Q Why is that? 22 A Because I have expertise in the SHERRY ROE & ASSOCIATES, INC. 130 1 interpretation of epidemiologic studies that the 2 average hematologist doesn't have. 3 Q But you've already -- I think you've 4 indicated to me that the epidemiological studies that 5 you reviewed pointed in the direction to indicate that 6 A M L is caused by or can be caused by benzene, correct? 7 A I have said that benzene is a cause of AML. 8 Q Okay. But why not in this case? - -9 A Because why not what in this case? 10 Q Why do you believe that benzene did not 1 1 cause the AML in this case? 12 A Because it's my opinion from reading the 13 records that Mr. Carter's exposure to benzene was 14 extremely small. 15 Q How small? 16 A Down in the parts per billion range. 17 Q How did you come to that conclusion? 1 8 A Urn -- 19 Q Based on what? 20 A Based on my reading of the records of how 21 benzene was use( in the facilities in which he worked, 22 based on my reading of the scientific literature on SHERRY ROE & ASSOCIATES, INC. 131 1 the benzene exposure that are measurable among people 2 who handle gasoline, and based upon my conversations 3 with the other defense experts in this case who have 4 calculated benzene exposures based on Mr. Carter's job 5 and work habits. 6 Q Okay. What is it in the records that 7 enables you to come to that opinion? a A To which opinion? 9 Q That you've expressed that benzene did not 1 0 cause Mr. Carter's AML. --1 1 A There are a number of things. First off 12 Q What are they? 13 A I was just trying to provide that. First 14 off, that he did not handle pure benzene. He did not 15 handle benzene in concentrated form. He handled --16 gasoline which can typically contains a very small 17 percentage of benzene. 18 Secondly, that the circumstances under which he 19 handled the gasoline and the frequency with which he 2 0 handled gasoline and the duration of his work with 2 1 gasoline in conjunction with the low concentration of 2 2 benzene in gasoline would be extremely unlikely to S H E R R Y ROE & ASSOCIATES, INC. 132 1 lead to appreciable exposure. 2 Q Well, when you refer to "records", were you 3 referring to the medical records or some other 4 records? 5 A I'm referring ,o the deposition testimony 6 and -- primarily the deposition testimony. 7 Q Whose deposition testimony? 8 A Mrs. Carter and the depositions of Dr. 9 Schwartz. Let me make sure I get the right names on 10 things. 1 1 (The witness perused document.) 12 Excuse me, yeah. Dr. Schwartz and Walter Taylor. 1 3 I think those are the ones. 14 Q What was it about Mrs. Carter's deposition 15 testimony that enabled you to come to this opinion? 16 Specifically, what did she say? - -17 A She talked about the number of years that 18 I think I don't see her name on here. She talked 19 about the number of years he worked for the D.C. 20 Government, the sorts of tasks he did, that he would 21 go out on the road to fix trucks, that he worked in 22 the garage, that the garage was in disrepair, how he SHERRY ROE & ASSOCIATES, INC. 133 1 handled gasoline. --2 Q Tell me how. Not, you know just state 3 how. What is it on the record that tells you how he 4 handled it? 5 A That he would fix fuel pumps; that he woull 6 wash parts in gasoline occasionally; that he would get 7 it on his clothes sometimes; that he would smell like 8 gasoline sometimes when he came home. 9 Q And that indicated that there wasn't enough 10 exposure? 11 A That did not indicate to me that he worked --12 with gasoline in a manner that is that would 13 generate exposures that were orders of magnitude 14 higher than that seen among other people who handled 15 gasoline in their jobs. 16 Q What kind of exposure do you believe is 17 necessary? Quantify it for me, in order to have a 18 relationship between benzene in gasoline and AML? 19 A First off, I don't think there's any 20 epidemiologic literature that supports that gasoline 2 1 exposure is related to AML. So I'm not sure I can 2 2 answer the question as you've raised it. SHERRY-ROE &i ASSOCIATES, I N C . 134 1 Q Well, tell me, then, what kind of benzene 2 exposure you think he would have to have in order to 3 have a relationship between AML and exposure to 4 benzene in gasoline? 5 A I think I just answered t--at. The 6 epidemiologic literature doesn't show that people who 7 handle gasoline under any circumstances that have been 8 studied are at increased risk of AML. 9 Q Well, you do believe, don't you, that some 1 0 exposure to benzene can cause AML? 1 1 A Yes. 12 Q Okay. What is that exposure? 13 A In the studies where people handle benzene 14 as a pure or a technical grade chemical or in solvent 15 mixtures where it's in high concentration, typically, 16 exposures up in the range above 50 parts per million 17 have been clearly associated with AML. 18 Q Well, if we have 50 parts per million 19 exposure to benzene, then you would conclude that the 20 AML was probably caused by the benzene? 21 A Let me finish my answer. 22 Q Oh, 1 thought you had. Go ahead. SHERRY ROE & A S S O C I A T E S , I N C . 135 1 A 50 parts per million and above over a period 2 of years. 3 Q How many years? 4 A Certainly more than a few. 5 Q What's that mean? 6 A More than say three or five. 7 Q Six? 8 A I would say in the range greater than five. 9 Q Five years, one day? 10 A That question supposes that epidemiology is 11 done in a different manner than it actually can be 12 conducted. We have to define groups of people to 13 study. And typically groups of people have exposure 14 that are put into categories of range. So we don't 15 have any studies that look at the risk from five years 16 and one day of exposure. 17 Q So if you've got 5 0 parts per million 18 somewhere between three to five years, then you would 19 conclude that there was a probable causation? 2 0 MR. E S P O S I T O : I think that mischaracterizes 21 his testimony. I thought he said a period of more 2 2 than five years, Barry. SHERRY ROE & ASSOCIATES, INC. 136 1 THE WITNESS: Yeah, I believe I said the 2 epidemiology is clearest in showing an association 3 between benzene exposure and AML among groups of 4 people who have had exposure above 50 parts per 5 million for a number of years, typically more than 6 five years. 7 BY MR. NACE: 8 Q More than five? 9 A (Witness nodded head.) 1 0 Q All right. So if you have exposure of 50 11 parts per million for more than five years, you would 12 say that benzene probably caused the AML? 13 A I -- 14 MR. ESPOSITO: Are you asking about one --15 particular --16 MR. JORDAN: Particular person - -1 7 MR. ESPOSITO: individual, Barry, or 18 just -- 19 MR. NACE: Well, in regard to an individual. 20 MR. ESPOSITO: Okay. So you're focusing on 21 an indiv dual. 2 2 THE WITNESS: I would say that under those SHERRY ROE & ASSOCIATES, INC. 137 1 circumstances, benzene would be a risk factor. But to 2 characterize that as saying it's the cause of AML 3 would not be a correct statement. 4 BY MR. NACE: 5 Q Well, in the absence of other risk factors, 6 would you agree, then, that it would probably be the 7 cause? 8 A There is no situation in which the absence 9 of other risk factors can be established. What I've 10 already said is that there are other risk factors for 11 leukemia, including AML, that we cannot specify. And 12 we know that because we can only explain a very small 13 proportion of all the AML that occurs. And that means 14 that there are things yet to be discovered that cause 15 that disease. 16 Q What -17 A Let me -- 1 8 Q Go ahead. 19 A I'm still speaking. 20 And so there is no situation in which a person has 2 1 an absence of all other risk factors. 2 2 Q What I'm trying to say to you: If I came to SHERRY ROE & ASSOCIATES, INC. 138 1 you and I had a client, a patient, who had had 2 exposure of 50 parts per million for more than five 3 years and we had no other evidence of any risk factor 4 being, you know, there the person not exposed to any 5 other risk factors, would you then be able to express 6 an opinion within a reasonable degree of certainty 7 that in that particular case the benzene probably 8 caused the AML? 9 A I think the way you've worded it would 10 mischaracterize the way I would say it. 11 Q Well, Doctor, I'm asking you whether you 12 would say it the way I just phrased it? 13 A I wouldn't say it the way you just phrased 14 it. 15 Q Okay. I know you're dying to tell me how 16 you would say it, so go ahead and tell me. 17 MR. ESPOSITO: No, that's okay. You can 18 wait -- 19 BY MR. NACE: 2 0 Q Tell me how you would say it, Doctor. 2 1 MR. E S P O S I T O : Wait for Mr. Nace to as., a 2 2 real question. SHERRY ROE & ASSOCIATES, I N C . 139 1 THE WITNESS: I s that a question? 2 BY MR. NACE: 3 Q Sure. Tell me how you would say it. 4 A A l l right. I would say in a person who has 5 had at least five years of exposure to benzene in 6 which the exposure levels were above 50 parts per 7 million, that benzene very likely increased their risk 8 of AML. 9 Q Okay 10 A Now that's conditional on appropriate 11 latency between exposure and disease, and the absence 12 of other clearer explanations such as having had 13 anti-ionizing radiation exposure or chemotherapy for 14 another tumor, et cetera, et cetera, 15 Q Can you tell me anything in the literature 16 that suggests that before you can make that causal 17 relationship, that you have to have an exposure for at 18 least five years of 50 parts per million and no other 19 known risk factor? 2 0 A I think that there are a number of studies 2 1 that support that you have to have exposure, or I 2 2 should say support that exposures in that range and in SHERRY ROE & ASSOCIATES, INC. 140 1 that range of duration are associated with increased 2 risk of AML. 3 Q That doesn't answer my question, Doctor. 4 Are you aware of any study that indicates that 5 before you can say that there is a causal relations iP 6 between benzene and AML, that you must have an 7 exposure of at least 5 0 parts per million for at least 8 five years? 9 A I don't understand that question. 10 Q What don't you understand about that 11 question? 12 A I don't understand it. 13 Q Can you tell me what part, and I'll try to 14 enlighten you more? 15 A I don't understand the question. It doesn't 16 make sense to me. 17 MR. STERN: Let me note an objection, 18 because I also don't understand it. 19 Do you mean, Mr. Nace, an expressed statement of 20 that in the study? 2 1 MR. NACE: Do you want to ask? 2 2 MR. STERN: I'm asking or clarification SHERRY ROE & ASSOCIATES, INC. 141 1 because I don't understand the question. 2 MR. NACE: Okay. 3 BY MR. NACE: 4 Q Doctor, let me just try with you one more 5 time. I've got a whole pile of literature here that 6 you brought with you today. Is there anything in that 7 literature, anything else that you're aware of that a indicates that you cannot come to a conclusion that 9 benzene caused AML, if you don't have exposure of at 10 least 50 parts per million for a period of five years? 1 1 A If I understand your question, the answer is 12 yes. There's a huge amount of literature that studies 13 people who have low levels of benzene exposure that 14 fails to show any consistent pattern of increased risk --15 of AML, which means that people who are exposed for 16 to low level of benzene, in other words, substantially 17 below 50 parts per million or for shorter periods of 18 time than five years or both, are at no clearer 19 increased risk of AML. And, therefore, the 2 0 appropriate conclusion is you can't conclude that 2 1 benzene played a role in their leukemia. 2 2 Q Can you tell me what that literature is? SHERRY ROE & ASSOCIATES, INC. 142 1 G i v e m e a couple of articles. 2 A Sure. 3 (The witness perused documents.) 4 Bender Minnesota Highway Maintenance Workers 5 Study, Cancer Mortality from t h e American Journal of 6 I n d u s t r i a l M e d i c i n e i n 1989. 7 Q Okay. 8 A You w a n t more? 9 Q Yeah. 10 (The w i t n e s s perused documents.) 11 ( A b r i e f d i s c u s s i o n w a s h e l d o f f t h e 12 record. ) 13 THE WITNESS: H u r l e y , B r i t i s h J o u r n a l o f 14 I n d u s t r i a l Medicine i n 1991, H- U- R-L-E- Y. 15 Wong, 1993 i n E n v i r o n m e n t a l H e a l t h P e r s p e c t i v e . 16 Okay. T h e r e a r e t h r e e . 17 BY MR. NACE: 18 Q A r e t h e r e m o r e o r are you j u s t s t o p p i n g w i t h 19 t h r e e ? 20 A Those are t h r e e I can name f o r you i n which 21 t h e y s p e c i f y t h e b e n z e n e e x p o s u r e s . T h e r e are many 22 o t h e r s i n which t h e benzene exposures are not SHERRY ROE & ASSOCIATES, I N C . 143 1 specified that involve refinery workers and petroleum 2 distribution workers where the risks of AML are not 3 elevated. 4 Q What kind of exposure do you get when you 5 wash your hands in gasoline to benzene? Do you know? 6 A I'm not sure I understand your question. 7 Q You take your hands and you put your hands 8 in a bucket of benzene and you clean tools -- 9 MR. ESPOSITO: Bucket of benzene or bucket 10 of gasoline? 11 BY MR. NACE: 12 Q I'm sorry. When you put your hands in a 13 bucket of gasoline and you use it to wash tools and, 14 you know, and you get your hands completely exposed to 15 gasoline, how much benzene are you being exposed to? 16 A I can look that up if you want a number. 17 Q Yeah. I'd like to have a number. 18 A It's -- okay. 19 Q Then tell me the source of your number, 2 0 also. 2 1 (The witness perused documents.) 22 A There are three studies that address that. SHERRY ROE & ASSOCIATES, INC. 144 1 And one is by Miabach, M-I-A-B-A-C-H. Well, the 2 reference is Miabach and Anjo 1981 in the Archives 3 Environmental Health. And it's titled, Percutaneous 4 penetration of benzene and benzene contained in 5 solvents used in the rubber industry. 6 So that's one, but I -- 7 Q Well, what's the amount? What's the figure? 8 A Well, I don't seem to have the reference. 9 It was here when I put my notebooks together 10 yesterday, but I can't seem to put my hands on it. So 11 I don't have the number for you. 12 MR. ESPOSITO: Barry, just for the record, 13 we have other experts who are being offered on the 14 levels of exposure who will be coming up later in the 15 deposition schedule. 16 MR. NACE: Does that mean he can't answer 17 that question? 18 MR. ESPOSITO: Oh, no. Not at all. 19 MR. NACE: Well, then I guess I'm still 20 waiting for the answer. 2 1 THE WITNESS: I'll be happy to give you an 2 2 answer as soon as I can locate some of the references. SHERRY ROE & ASSOCIATES, INC. 145 1 If you happen to have a copy of the Miabach article 2 since mine is missing, I could give you an answer on 3 that one. 4 MR, NACE: I didn't take it. Maybe Mr, 5 Esposito took it yesterday. 6 MR. ESPOSITO: Off the record. 7 (A brief discussion was held off the 8 record. ) 9 THE WITNESS: Let's see, Hartle -- OOPS I 10 excuse me. Blank, Penetration of benzene through 11 human skin, in the Journal of Investiqative 12 Dermatoloqy in 1985 gives a diffusion coefficient for 13 benzene in gasoline of 14 times 10 to the minus 9 per 14 centimeter squared per second. And so that works out 15 to, for example, a person with 100 square centimeters 16 of skin in contact with gasoline containing five 17 percent benzene would absorb about 7 microliters of 18 benzene through the skin. And so 7 microliters is 7 19 millionths of a liter. It's a very, very small -- 2 0 Q Over what period of time? 21 A Urn -- 22 (The witness perused document.) SHERRY ROE & ASSOCIATES, INC. 146 1 Have to calculate that out to be sure. They didn't 2 say over what period of time. 3 MR. ESPOSITO: Do you need a calculator? 4 THE WITNESS: (Witness nodded head.) 5 (A brief discussion was held off the 6 record. ) 7 THE WITNESS: At the risk of not having my 8 units right doing this ad hoc, it looks like about .6 9 microliters per minute. 10 BY MR. NACE: 11 Q .6 microliters would be how many 12 milliliters? 13 A Six-ten thousandths. 14 B Now, how did you arrive at that conclusion? 15 A I took the, I took the diffusion --16 coefficient, which is o o p s , I take it back. I 17 forgot to multiply by 14. Maybe we should work 18 through it verbally. --19 Q Have you ever done this before 20 A Actually -21 Q -- calculation? 22 A Actually, I have, yes. SHERRY ROE & ASSOCIATES, INC. 147 1 Q Okay. Go ahead, then. 2 A All right. 3 Q Work through it verbally. 4 A I just don't happen to know the numbers on 5 this paper adequately to do it ad hoc. 6 The diffusion coefficient is 14 times 10 to the 7 minus 9 per centimeter squared per second. And if we 8 assume 100 centimeters squared, that means it's 14 9 times 10 to the minus 7 per second. And if we --10 multiply by 60 to get minutes, I think it should I 11 think it should come out to 8.4 microliters per 12 minute. 13 However, I would say I would have to check these 14 calculations not doing them during a deposition to be 15 confident of them. I think the right conclusion is 16 that the amount of benzene exposure that would occur 17 by dermal absorption to gasoline from immersing a hand 18 in gasoline would be in the microliter range. I don't 19 know whether my exact number is exactly right. 2 0 Q What was your number of microliters? 2 1 A I think 8 . 4 . 22 Q Microliters? SHERRY ROE & ASSOCIATES, INC. 148 1 A Yeah. I would have to check that to be 2 confident of the number. 3 Q So assuming those numbers are right, is that 4 saying, then, that every time you put your hands into 5 gasoline, that over a minute you're absorbing 8 . 4 6 microliters of benzene -7 A Uh -- 8 Q -- into the skin? --9 A That's yes. That's roughly what it's 1 0 saying. 11 Q You indicated you talked to some other 12 experts. 13 A Yes. 14 Q Who did you talk to? 15 (The witness perused documents.) 16 A I spoke with Martin Hawley, John Spencer, 17 and Scott Strickoff. 1 8 Q And what did they tell you as far as whether 19 or not there was sufficient exposure in this case? 20 A 21 by -- 22 Q I'm not sure I understand what you mean Well, did they -- SHERRY ROE & ASSOCIATES, INC. 149 --1 A "sufficient exposure". 2 Q To cause AML. 3 A They did not address the issue of whether --4 there was sufficient exposure to 5 Q Okay. 6 A -- cause AML -- 7 Q What issue did they address? --8 A in my conversation with them. 9 Scott Strickoff calculated the dermal absorption 10 of benzene. 11 Q And what did he come up with? --12 A He came up with he came up with dermal 13 absorption in the range of 200 micrograms per square 14 centimeter per hour. And so we'd have to divide that 15 by 60 to get micrograms per centimeter squared per 16 minute, which would come out to -- 17 MR. ESPOSITO: Let's find out if Mr. Nace 18 wants that. 19 THE WITNESS: Is that -20 MR. NACE: Oh - - 21 THE WITNESS: - - that the answer you want? 2 2 MR. NACE: Yes. Just the key figure, yes. SHERRY ROE & ASSOCIATES, INC. 150 --1 MR. ESPOSITO: I could tell he was 2 THE WITNESS: That would work out 3 . 3 3 micrograms per square centimeter per minute. 4 BY MR. NACE: 5 Q How does that aid you in the conclusion that 6 you're drawing as to whether that is sufficient or not 7 sufficient to exposure? --8 A That a well, an additional thing that 9 Scott Strickoff did was to calculate the equivalent 1 0 air born exposure. I should say the air born exposure 1 1 that would give an equivalent body absorption as that 12 amount of dermal exposure and calculated that over a 13 year to come up with parts per million days per year. 1 4 And his number came up with .39 parts per million days 15 per year. That is a very low exposure that is well 16 below the range of exposure that has been associated 17 with AML. 1 8 Q And the range as associated with AML is 19 what? How low? 20 A What I told you is above 50 parts per 2 1 million for five or more years. 22 Q Okay. S H E R R Y ROE & ASSOCIATES, INC. 151 1 A And so we're talking about 5 0 parts per 2 million on average every day for a working year as 3 being a part per million year. 4 Q In other words, what you're saying is if you 5 don't have all these 5 0 parts per million per day for 6 every day for five years, you can't develop AML from 7 gasoline? 8 A That mischaracterizes what I said. 9 Q I was trying the best I could. 10 A Okay. 11 Q What's wrong with that? Why is that a 12 mischaracterization? 13 A Because it says you can't develop it. I 14 think what I said was more consistent with the view 15 that people studied who have exposure in that range 16 are clearly at increased risk. 17 Q Oh, well, what about below that range? Are 18 they also at increased risk? 19 A It becomes less clear. 2 0 Q Less clear, but they are at increased risk? 2 1 A Well, it's difficult to conclude that they 2 2 are at increased risk. SHERRY ROE & ASSOCIATES, INC. 1 Q Well, how -- 2 A The evidence becomes less clear. 3 Q How clear is it at your increased risk if 4 you have 5 0 parts per million per year? Is that 5 absolutely certain that you're at increased risk? --6 A 50 part per million years for a period 7 Q Five years, yeah. --8 A of five or more years. I think there are 9 a number of studies that would support that that 10 causes a significantly increased risk, and that there 11 is consistently -12 Q Well, what -- --13 A among the studies. --14 Q do you have to have to show that it 15 causes not a significantly increased risk, but just an 16 increased risk? What kind of exposure? 17 A The question can't be answered in that 18 format. 19 Q I thought it was a pretty good question. 20 A 21 1 it -- 22 I'm going to have to ask you to revise Well, I -- SHERRY ROE & ASSOCIATES, INC. 153 --1 A so 1 can answer it. 2 Q I'm just trying to get you to see how far 3 down you can go before you can agree that you have an 4 increased risk. How much part per million? 5 A Okay. There are a number of risk --6 assessments that have been done that the lower 7 limit where I think the data are reliable are down in 8 the range of 50 to 60 parts per million years as 9 a cumulative dose. In other words, so a person who 10 has a 5 part per million exposure for 12 years would 1 1 have 60 parts per million years of exposure. And the 12 quantitative risk assessments I think show that there 13 is evidence of increased risk above that level. 14 Q Five -- --15 A Below --16 Q Five, above the level of five parts per 17 A Well ---18 Q million? --19 A I said 60 parts per million years. In 2 0 other words, so you could say that was six for ten 2 1 years or five for 12 years or 10 for six years. Below 22 that, I don't think that the risk assessments are SHERRY ROE & ASSOCIATES, INC. 154 1 adequate to show that there is any reliable evidence 2 of increased risk of leukemia. 3 Q Yeah. 4 A And so we're in a range where there's clear 5 evidence of excess risk at 50 parts per million and 6 above for five or more years. There are risk 7 assessments that support the interpretation that there 8 is risk above 60 parts per million years, and then 9 below that, I don't think there is any reliable 10 evidence that there's an increased risk of AML. 11 Q What did you get from talking to Spencer 12 about this case? How has that affected your opinions? 13 (The witness perused documents.) 14 A John Spencer quantitated the frequency of 15 various tasks that were done and the benzene 16 concentrations that were likely to be detected in 17 performing those tasks. 18 Q And what did he find? What are the numbers? 19 A He concluded that changing fuel filters 20 occurred between one and three times a day and took a 21 few minutes for each change of fuel filters; that 2 2 changing fuel pumps occurred as I've written it down, S H E R R Y ROE & ASSOCIATES, INC. 155 1 less than one percent of the time; that the men were 2 working, that repairing fuel lines occurred less than 3 one percent of the time that they were working; and 4 that cleaning parts in gasoline occurred only a modest 5 number of days per year. 6 Q And whatever those number of modest days are 7 per year and so on, it doesn't total, I take it, in 8 your opinion doesn't total enough exposure? 9 A My opinion is when you take those 10 frequencies of tasks and come up with reasonable 11 assessments of the benzene exposures in those tasks, 12 you can't come up with any appreciable exposure to 13 benzene. 14 Q Okay. So whether those figures by Strickoff 15 or Spencer are right or wrong, you really don't know, 16 do you? 17 A Uh -- 18 Q You don't know whether the calculations are 19 right or wrong? --20 A I do not have their calculations 21 Q All right. 22 A -- to review. SHERRY ROE & ASSOCIATES, INC. 156 1 Q So you're assuming that what they gave 2 you -3 A However -4 Q -- is correct? 5 A However, their assessmen-s are consistent 6 with my own reading of the scientific literature in 7 which detailed exposure assessments of people who 8 handled gasoline have been conducted. And there is a 9 surprising consistency between Martin Hawley and John 10 Spencer's calculations and what I read in the 11 literature. So I am inclined to think that they are 12 reliable. 13 Q All I'm trying to get at is you didn't make 14 the calculations yourself. You're relying on somebody 15 else to make these calculations about this particular 16 case? 17 A Yes. 18 Q Okay. Now what was it that Harley [sic] 19 gave you? What was his information? 20 A Martin Hawley. 2 1 Q All right, Hawley. 22 A He gave me the benzene concentrations both SHERRY ROE & ASSOCIATES, INC. 157 1 as background levels and in breathing zones in both 2 summer and winter that were modeled based on knowledge 3 of the building sizes and air flows. 4 Q Well, you said that these figures that they 5 were coming up with is basically consistent with 6 what's in the literature, right? 7 A Yes. a Q So even without their information, you still 9 would come to your same conclusions, wouldn't you, 10 about whether or not the AML was caused in this case 11 by benzene? 12 A Uh -- 13 MR. ESPOSITO: You're asking if Mr. Carter's 14 leukemia was caused by benzene? 15 MR. NACE: Yeah. 16 THE WITNESS: I'm not sure I understand the 17 question. 18 BY MR, NACE: 19 Q Well, even if you didn't have that 20 information from Hawley, Spencer or Strickoff, you 21 still would come up with the same conclusion? 2 2 A Well, I have not considered the cases in the SHERRY ROE & ASSOCIATES, INC, 158 1 absence of that information. That information 2 regarding exposures that are estimated from the tasks 3 and circumstances in which these men worked add to my 4 view of the reliability of what I've read in the 5 general -- in the medical literature or the scientific 6 literature. 7 So I, so I think what they're saying is, you know, 8 one of my criteria for judging validity of things I 9 read in the literature is plausibility. And what I 10 read in the literature is consistent with their 11 calculations. So I guess that tells me that what I 12 read in the literature is applicable to these cases. 13 Q That still didn't answer my question. All 14 I'm saying is whether you have their information or 15 not, you would come up with the same conclusion, 16 wouldn't you? Or do you need their work to enable you 17 to come up with your opinion? 18 A The answer is, I think it assists me because 19 it gives me a feeling that the medical literature does 20 apply to these cases. 21 Q And if you didn't have their work, you 22 couldn't come up with a conclusion? S H E R R Y ROE & ASSOCIATES, INC. 159 1 A I would be less confident of my conclusion. 2 Q As it is, you're 100 percent confident? 3 A No. I didn't say that. 4 Q Well, how confident are you? 5 A I am confident to a reasonable certainty 6 that these are the exposures of these men - 7 Q And even -8 A -- that these represent their exposure. 9 Q And even without their data, you'd still be 10 reasonably confident, wouldn't you? --1 1 A You're asking me a hypothetical for 12 Q Yeah. --13 A for a situation that I haven't 14 considered. What would I do if there was no exposure 15 assessment and no modeling of the exposures? I'm not 16 in that situation. 17 Q You mean you -- 18 A I have information that I have considered. 19 I based my conclusions on it. 20 Q You mean you didn't have an opinion as to 2 1 whether or not there was sufficient exposure by Mr. 22 Carter to the benzene until you had this information S H E R R Y ROE & ASSOCIATES, INC. 160 1 from Hawley, Spencer and Strickoff? 2 A I -- 3 Q It's a yes or no. 4 A I think the answer is: I had an opinion. --5 However, my opinion is I am more confident of my 6 opinion having seen their or having discussed their 7 exposure modeling and found it to be consistent with 8 the scientific literature. 9 Q With or without their data, you have the 10 same opinion, didn't you, which was, to wit: Within a 1 1 reasonable degree of certainty, there wasn't 12 sufficient exposure? 13 A I believe the answer is yes but with less 14 confidence. 15 Q Okay. By the way, is there any other, maybe 16 I should say malities other than leukemia that you 17 believe are caused by benzene exposure? 18 A Yes. 19 Q What? 20 A Aplastic anemia. 2 1 Q Okay. What e l s e ? Anyth,ng e l s e ? 22 A Acute central nervous system affects, S H E R R Y ROE & ASSOCIATES, INC. 161 dizziness, disorientation. Q Any other cancers? A No. Q Any other bone marrow diseases? 5 A I don't know how finely you want to split 6 the bone marrow diseases. If you want to make a 7 distinction between aplastic anemia and pancytopenia, --8 you might make that distinction or you might 9 Q Well, would you? 10 A -- consider them. 1 1 I prefer to say aplastic anemia. 12 Q You don't make a distinction between the 13 two? 14 A No. 15 Q Is it your belief, Doctor, that in order to 16 develop AML from benzene, that we're all the same and 17 we all have to have the same amount of exposure or we 18 won't develop AML? 19 A There is no basis f o r concluding anything 2 0 other than that. 2 1 Q Okay. Are you familiar with the Gaussian 22 curve? 162 1 A Are you referring to Gaussian distribution? 2 Q Yes. 3 A Yes. 4 Q Do you think that applies in a situation 5 involv,ng benzene and AML? 6 A I don't understand the question. 7 Q Well, do you believe that there are 8 different susceptibilities to benzene among different 9 individuals? - -10 A There is no basis for concluding that 11 Q And you don't believe -12 A -- to my knowledge. 13 Q And you don't believe that the Gaussian 14 curve alone is a basis for that, for concluding that? 15 A Our knowledge is inadequate to know whether 16 a Gaussian distribution of susceptibility is an 17 appropriate assumption. 18 Q Can you tell me any other diseases that 19 you're aware of that you would say that the Gaussian 2 0 distribution curve would be an inappropriate 2 1 assumption? 22 MR. ESPOSITO: I'm sorry. Inappropriate ~~ ~ S H E R R Y ROE & ASSOCIATES, INC. 163 1 assumption? 2 MR. NACE: Inappropriate assumption. 3 THE WITNESS: Cancer risk, in general. 4 Virtually every cancer site you would say a Gaussian 5 distribution of risk is an inappropriate distribution. 6 BY MR. NACE: 7 Q Is inappropriate or may be inappropriate? 8 A Is inappropriate. 9 Q Okay. Is that a statement that can be found 1 0 in the literature somewhere? 11 A Yes. 12 Q Tell me where. 13 A Breslow & Day, Research Methods in Cancer 14 Epidemiology, Volume I, Case control studies published 15 by IARC in probably 1981. .16 Q Okay 17 MR. NACE: Did you get that? 1 8 THE REPORTER: IARC? 19 THE WITNESS: I-A-R-C, International Agency 20 for Research from Cancer. 2 1 Can I add a couple of things? Usually we think of 2 2 cancer incidence or cancer mortality as rare events ~ ~~ SHERRY ROE & ASSOCIATES, INC. 164 1 and they fit a Poisson distribution better than a 2 Gaussian distribution. So this idea of a Gaussian 3 distribution would fit is clearly wrong for many 4 diseases. 5 BY MR. N A C E : 6 Q Who is the "we" that believes this? You 7 said "we" believe this. 8 A Most people who study cancer incidence and 9 mortality trends. So epidemiologists and 10 statisticians. That's a common assumption. 11 Q I see. All right. Doctor, let me ask you 12 about the Carter record, then, that you point out 13 here. You have such things in here as: He drinks a 14 pint of hard liquor a day, plus a six-pack on 15 weekends. 16 Does that somehow affect your opinion as to the 17 cause of his AML? 18 A Yes. 19 Q Why? 20 A It raises concern that some animal 2 1 litera-ure might apply that indicates that the 22 concurrent dosing of animals with ethanol and benzene SHERRY ROE & ASSOCIATES, INC. 165 1 changes the benzene metabolism and that that may 2 affect the cancer risk. So the difficulty is in 3 applying the animal literature. But it's a concern. 4 So as I was reviewing the records, I wrote it down. 5 Q What you're saying is: If you drink alcohol - -6 or ingest alcohol I guess is a better way of 7 putting it -- if you ingest alcohol and are exposed to 8 benzene, you have a greater chance of developing A M L 9 than if you are exposed to benzene but don't ingest 10 alcohol? 1 1 A What I've said is that the concurrent 12 exposure, at least in animal studies, alters the 13 metabolism of benzene. 14 Q Well, I know you said that. But can you 15 draw the conclusion that I just gave you? 16 A I think not to a reasonable medical 17 certainty. 1 8 Q All right. 19 A But it raises concern in my mind that this 2 0 may have altered his risk. 2 1 Q So then you can't say with any reasonable 2 2 degree of medical certainty that the ingestion of SHERRY ROE & ASSOCIATES, INC. 166 1 alcohol would have anything to do with his AML? 2 A I cannot say that. 3 Q All right. Well, using the same criteria, 4 is there anything on this Exhibit 8 that you can look 5 at, other than smoking, hold the smoking aside, that 6 you look at and you say, this being hepatomegaly or 7 gouty arthritis or any of those things that you have 8 listed there, in some way within a reasonable degree 9 of certainty increased his risk of developing AML? 10 A No. There's nothing else on there. 1 1 Q Then you believe that tobacco increased his 12 risk of having AML? 13 A Yes. 14 Q Do you have any knowledge as to how much 15 tobacco needs to be ingested over what period of time 16 in order to increase the risk of developing AML? 17 A I could look. Would you like me to do that? 18 Q Well, have you done that before today? 19 A I have reviewed a number of studies that 20 address that issue and I could easily look at them if 21 you would like me to. 2 2 Q Well, okay. Look at them and tell me. SHERRY ROE & ASSOCIATES, I N C . 167 1 (The witness perused documents.) 2 (A brief discussion was held off the 3 record. ) 4 THE WITNESS: The answer to the extent we 5 know it is that the risk is increased in each of the 6 three categories of tobacco use. In one study by 7 Linda Brown in the American Journal of Epidemioloqy, 8 1992, it's roughly a 1.5 fold risk, regardless of the 9 amount of smoking and regardless of the number of 10 years smoked. It is higher in current smokers than 11 ex-smokers, however. 12 So the answer is I can't specify a level below 13 which there is no risk. The data support that any 14 pattern of smoking is associated with increased r i s k 15 of acute nonlymphocytic leukemia. 16 BY MR. NACE: 17 Q Is that statistically significant? 18 A The data on cigarette smoking only, 19 cigarette smoking lumping all smokers together, is 20 when we break them down into smaller groups by 21 intensity of smoking or duration of smoking. The 22 individual strata are not statistically significant. SHERRY ROE & ASSOCIATES, INC. 168 Q What page are you looking at in the article? A Pages 765 and 766. Q Well, does Mr. Carter fall, from what you 4 know, within a group that has a statistically 5 significant increased exposure to developing AML if 6 they've smoked, or doesn't he? 7 A The answer is yes, he does. 8 Q Okay. Because of what? What's the 9 subcategory? 10 A Because people who smoked cigarettes have a 11 risk of acute nonlymphocytic leukemia of 1.6 with a 95 12 percent confidence interval that goes from 1.0 to 2.7. 13 Q 85 percent confidence interval? 14 A I said 95. 15 Q Okay. I thought you said 85. 16 A Excuse me. I thought I said 95. I'm sorry. 17 Q So at 95 percent is 1. what? What's the 18 confidence? 19 A 1.0 to 2.7. Q And that's statistically significant? 21 A Yes. 2 2 Q By whose definition? S H E R R Y ROE & ASSOCIATES, INC. 169 1 A Using the P value of - 0 5 as the limit for 2 statistical significance, that would be statistically 3 significant. 4 Q Even though 1 is within the confidence 5 limits? 6 A Well, the confidence limit is at 1. 7 Q I know. 8 A Which means that the P value is . 0 5 . 9 Q And where is that defined? In Rothman's 10 book? 11 A From the Gaussian distribution. 12 Q No. That's not from the Gaussian 13 distribution. 14 A Y e s , it is. Sure. If you have a two-tailed 15 test of significance such that each tail cuts off two 16 and a half percent, the P value is .05 and those 17 limits are the 9 5 percent confidence interval. 1 8 Q I'm not going to argue with you, Doctor, but 19 you're saying because 1.0 is a lower bound, that it's 20 9 5 percent confidence? 2 1 A I'm saying ---22 Q I'm sorry. Because 1 is the lower bound ~ ~~~~ - SHERRY ROE & ASSOCIATES, INC. ~ 170 1 is 1.0, that is statistically significant of . 0 5 ? 2 A When the lower bound of the 95 percent 3 confidence is 1.0, which tells me that the P value is 4 .05, is .05. That's what it means. 5 Q Was my statement correct? 6 A I don't know what your statement was. Could 7 you say it again. 8 Q Yes. I said if the lower bound is 1.0, 9 you're telling me that the finding is statistically 10 significant at .05? 1 1 A You'll have to state that a little more 12 specifically. 13 Q Why? Why didn't you understand that? 14 A Because I'm not sure what you meant by the 15 lower bound as 1.0. The lower bound of the odds 16 ratio? 17 Q No. Of the ---18 A Of the 95 percent 19 Q Of the 9 5 percent confidence -- 2 0 A -- interval? 21 Q -- interval -- -2 2 A For the odds ratio SHERRY ROE & ASSOCIATES, INC. 171 1 Q -- yes. --2 A when it is 1.0, that says that the odds 3 ratio is significantly different than 1.0 at the .05 - -4 level at with a P value of .05. 5 Q And can you tell me where that's defined 6 that way, in any kind of epidemiological textbook that 7 would define that, define it that way? Rothman? 8 A I can't cite you a page in Rothman. I think 9 any of the introductory statistics books would do -- 10 Q All right. 11 A -- that. 12 Colton, gee, Kleinbaum, and Morganstern I named 13 five or six, Snedecor, Cochran, Armitage. 14 Q Okay. 15 A They would, they would show you that the 16 lower limit of the 95 percent confidence interval is 17 the point at which 2.5 percent of the distribution is 18 cut off. 19 Q All right. Doctor, based on the data that 20 you've given us about smoking and about AML, do you 2 1 have an opinion as to which is more likely the cause 2 2 of the AML in Mr. Carter? SHERRY ROE & ASSOCIATES, INC. 172 1 A It is my opinion that smoking clearly has 2 increased his risk of AML and that his exposure to 3 gasoline has not clearly increased his risk in any 4 way. 5 Q Okay. A l l right. I want to go to Mr. 6 Taylor. 7 Other than the history of smoking, I'm looking at 8 the notes that you took, which are Exhibit 9. Other 9 than the history of smoking, is there anything else 1 0 that you have found that you recorded on your summary 1 1 that y o u believe is significant as to telling us what 12 caused his CML? 13 A No. 14 Q Tell me what you understand the relationship 15 is between the C M L and AML, if any? 16 A I think we've partially discussed that. 17 Q Partially. 18 A Both arise from cells in the myelocytic 19 series. C M L often has a course that lasts for a 20 number of years and then undergoes, and then the 21 patient undergoes what's commonly called the blast 22 crisis or a blast transformation where C M L changes in SHERRY ROE & ASSOCIATES, I N C . 173 1 its clinical appearance and looks like AML. 2 Q Well, is it your view that you have to have 3 CML before you get to AML? 4 A No. 5 Q But CML can change to AML in some instances; 6 is that what you're saying? 7 MR. ESPOSITO: I object. That 8 mischaracterizes his testimony. 9 THE WITNESS: What I said is that CML 1 0 typically has a course of a few years and then the 11 patient undergoes a transformation in which the 12 disease develops many myeloblasts and looks like AML. 13 BY MR. NACE: 14 Q Well, it looks like AML. I s it AML at that 15 point, or don't you know? 16 A Uh -- 17 Q I mean, it may be outside of your expertise. 18 MR. JORDAN: Objection. How many questions 19 are you going to ask him? I f you'd give him a chance 20 to answer, it -- 2 1 MR. NACE: I'm trying to help him all the 2 2 time. You know that. SHERRY ROE & ASSOCIATES, I N C . 174 1 MR. ESPOSITO: In addition, Barry, as you 2 know, we do have experts coming up who you can depose 3 on AML and CML. 4 MR. NACE: Well, are you going to tell me 5 he's not going to testify on - - 6 MR. JORDAN: Give him a chance to answer. 7 We'll find out. 8 MR. NACE: No, I'm asking the attorney here. --9 He's not going to testify 10 MR. ESPOSITO: He's going to testify about 1 1 what's in his 26B-4. 12 MR. NACE: I s he going to testify about the 1 3 relationship between CML and AML? 14 MR. ESPOSITO: From an epidemiological 15 standpoint. 16 MR. NACE: That's all? 1 7 MR. ESPOSITO: (Nodded head.) 18 MR. NACE: Shaking your head yes? 19 MR. ESPOSITO: Yes. MR. NACE: Thank you. 2 1 MR. ESPOSITO: No. Is this way 22 (indicating). SHERRY ROE & ASSOCIATES, INC. 175 1 BY MR. NACE: 2 Q All right. I think you already said from an 3 epidemiological standpoint, you don't believe that 4 there is any statistically significant findings that 5 connect CML with benzene; is that correct? - -6 A I roughly, yes. I think what I said is I 7 don't think that there's any causal association 8 between benzene and CML. 9 Q Oh, well, are there statistically 10 significant studies that show a statistical 11 association between CML and benzene? 12 (The witness perused documents.) 13 A Let me be sure I understand the question. 14 Would you ask it again so I answer it correctly? 15 Q Are there any studies that show a 16 statistically significant association between CML and 17 benzene? 1 8 A Not that I'm aware of and not of the 19 materials I have reviewed. 20 Q Well, while I'm on that line, are there any 2 1 epidemiological studies that show a statistically 2 2 significant association between C L L and benzene? SHERRY ROE & ASSOCIATES, INC. 176 1 (The witness perused documents.) 2 A No. Not among the studies I have reviewed 3 and not to my knowledge. 4 Q Well, you have tried to review a11 the 5 studies, haven't you? 6 A Yes. 7 Q So if there is a study out there that shows a there's a statistically significant association 9 between CLL and benzene, you just plain missed it; is 10 that what you're saying? 1 1 A I guess the answer would be, I missed it and 12 so did all the major reviews of this topic. 13 Q What are the major reviews that you're 14 talking about? 15 A The reviews -- 16 Q Identify them for me, if you would. 17 A Okay. The reviews of the scientific 18 literature regarding benzene and leukemia. 19 Q By name, please. 2 0 A By name, Harlan Austin in 1988. If you need 2 1 more citation than that, I'll have to flip to them. 22 Q Okay. SHERRY ROE & ASSOCIATES, INC. 177 1 A Do you want me to do that? 2 Q Sure. 3 A Okay. 4 MR. ESPOSITO: Off the record. 5 (A brief discussion was held off the 6 record. ) 7 THE WITNESS: Yeah, they're on my index as - -8 well, although the only way I'm sure I've got the 9 right one is to look at it and say, yeah, that's the 10 one I reviewed. 11 BY MR. NACE: 12 Q I want you to be sure. I want you to be 13 confident in what you're doing. 14 A Okay. Harlan Austin, American Journal of 15 Epidemioloqy, March 1988. Brant, B-R-A-N-D-T, 1985 in 16 Medical Oncology and Tumor Pharmico Therapy. Elizabeth Delzell in Occupational Medicine State of 1 8 the Art Reviews in 1988. Phillip Enterline in 19 Environment Health Perspectives Supplements in 1993. 2 0 Malcolm Harrington in the American Journal of --2 1 Industrial Medicine in 1987. Peter Infante in 19 2 2 in the Environmental Health Perspectives in 1983. SHERRY ROE & ASSOCIATES, I N C . 178 1 Peter Infante in Risk Analysis in 1984. Peter Infante 2 in the American Journal of Industrial Medicine in 3 1985. Dennis Paustenbach in Environmental Health 4 Perspective Supplements in 1993. Gerhard Raabe, 5 R-A-A-B-E, in Environmental Health Perspective 6 Supplements in 1993. David Savits in the Journal of 7 Occupational Medicine in 1984. 8 Q Is that 1984 or 1964 for Savits? 9 A 1984. That's a typo. David Savits was a 10 boy in 1964. I don't think he wrote it then. It was 1 1 '84. 12 ( A brief discussion was held off the 13 record. ) 14 THE WITNESS: Let's see, Herman Tyroler -- 15 or, sorry. Gee, I've cut off his first name. Tyroler 16 in Environmental Health Perspectives in 1976. 17 MR. JORDAN: Doctor, what was that last 18 name? 19 THE WITNESS: Tyroler, T-Y-R-0-L-E-R. 20 Vigliani, V-I-G-L-I-A-N-I, in Environmental 2 1 Research in 1976. Otto Wong in the American Journal 22 of Industrial Medicine in 1989. SHERRY ROE & ASSOCIATES, INC. 179 --1 I think that concludes my answer. I 2 BY MR. NACE: 3 Q Why don't you have on this literature Wong's 4 1983 study listed? 5 A I don't know. 6 Q Is it in your book? 7 MR. JORDAN: He's got one of them on there, 8 but maybe not the same year. He's got Wong a couple 9 of times, four times, five times. 10 BY MR. NACE: 11 B I specifically wanted the one in 1983. I 12 wonder why it's not on here. 13 A I have Wong in '89. I've got him in '86, 14 '87, '87, '93. I don't know why it's not on there, 15 and I have forgotten to put it in my book. I believe 16 I have reviewed that study. 17 Q Who -- 18 A My apology. 19 Q Who prepared these books? You? 2 0 A I did. 21 Q Where did you get the literature I mean, 22 did you do the research yourself? ~-~ ~~~ SHERRY ROE & ASSOCIATES, INC. - ~~ 180 1 A Um -- 2 Q Or were they sent to you by somebody else? 3 A Much of it I had on file from my interest in 4 this. Some of it I got from my own medline search and 5 someone sent to me. 6 Q This exhibit that deals with the literature, 7 I forget the number, I think you indicated earlier 8 that that has everything that's in your books? - -9 A I yes, I did. And it was my belief that 10 it did. 11 Q But there were a couple, I just tell you, 12 there were a couple that weren't on our list. 13 A And that's - - 14 Q So I think we're going to have to go through 15 your books, not right this minute, but we'll go 16 through them and see what else might have been 17 inadvertently left o f f , 1 8 A That's an omission on my part if they're not 19 on there. They should be on there. My apology, 20 MR. NACE: Let's take a break. 2 1 ( A brief discussion was held off the 22 record. ) SHERRY ROE & ASSOCIATES, INC. 181 BY MR. NACE: Q Doctor, there's an exhibit, 1 think it's 15, if I can find it, that deals with your testimony, what 4 it's going to be. 5 A Yes. 6 MR. ESPOSITO: Is that the 26-B4? 7 MR. NACE: That's it. You got it. 8 BY MR. NACE: 9 Q I'm going to go over some of that with you. 1 0 It says you're going to testify about the science 11 of epidemiology. 12 MR. ESPOSITO: He doesn't have -- you've got 13 15 as the notice of deposition. 14 MR. NACE: He's got the wrong one. 15 MR. STERN: I think it's number 3. 16 MR. JORDAN: Yes. 17 MR. NACE: There you go. You take it. 18 BY MR. NACE: 19 Q Number 3 there says you're going to testify 20 about the science of epidemiology. I have to ask y o u 2 1 what you're going to testify about. A I'm going to testify as to what epidemiology SHERRY ROE & ASSOCIATES, INC. 182 1 is and the sorts of scientific questions that can be 2 answered by epidemiologic studies; how epidemiologic 3 studies are conducted; the common problems that arise 4 in conducting epidemiology studies; the interpretation 5 of epidemiologic studies; and how to synthesize 6 results from multiple studies. And I guess the last 7 issue would be interpretation of causation from 8 epidemiologic studies. 9 Q Okay. Do you agree that epidemiological 1 0 studies deal with populations as opposed to 11 individuals? 12 A Yes. 13 Q And if you have a statistically significant 14 epidemiological study, that would not necessarily tell 15 you whether or not a particular individual's mality 16 was caused by the statistically significant 17 association; is that correct? 18 A The way you phrased that makes it difficult 19 for me to answer. I don't know how to answer it 20 without asking you to rephrase it. Let me try to 2 1 answer what I think you're asking and if I don't, stop 2 2 me. SHERRY ROE ii ASSOCIATES, INC. 183 1 I take the view, as I think all epidemiologists 2 do, that any disease has multiple causes. And so 3 there's no one cause that makes a person get a 4 disease. There's a set of causes that act in any one 5 person. Epidemiology has, as one of its goals, the 6 specification of what those causes are. The 7 application of epidemiologic science to individuals 8 requires knowledge in addition to epidemiology. 9 I don't know if that answered your question properly. 1 1 8 Uh-huh. So even if you have a positive epidemiological 13 study, that would not tell you that any one individual 14 developed the illness because of the agent that was being studied in the epidemiological study, correct? 16 A Let me try to answer that in my own words. I think the answer is yes. In my own words, a 18 positive association in an epidemiologic study by 19 itself does not allow you to assign causation in an 20 individual. 21 I Q And a lack of a positive study does not 22 enable you to say that that individual did not develop ~ I I S H E R R Y ROE & ASSOCIATES, INC. 184 1 the mality because of the lack of positive 2 epidemiological study; is that correct? 3 A Well, there the answer is somewhat 4 different. The lack of epidemiologic evidence of a 5 causal association argues strongly against the factor 6 being the cause in an individual. 7 Let me try and give you an example of that. If I 8 have no evidence that say aspirin causes brain cancer, 9 there's no epidemiologic evidence that aspirin causes 10 brain cancer, or, in fact, in the hypothetical, if 1 1 there were studies that failed to show evidence of an 12 association, there would be no basis for attributing 13 brain cancer to aspirin use in any individual, or at 14 least no epidemiologic basis, which would be one of 15 the critical lines of reasoning in attributing 16 causation in an individual. 17 So a lack of epidemiologic support for an 18 association is a strong argument against that 19 association in an individual. Whereas, conversely, 20 the presence of a strong association from 2 1 epidemiologic studies supports but is not sufficient 2 2 for the interpretation of causality in an individual. SHERRY ROE & ASSOCIATES, INC. 185 1 Q Are you familiar with an epidemiologist named Mitchell? A Named -- Q Mitchell. A -- Mitchell? 6 Q Uh-huh. 7 A Does that person have a first or last name? 8 Q Yeah. I'll have to think of what it is, but 9 from Harvard. Mitchell? How about Shapiro? Samuel 10 Shapiro from Harvard, do you know him? 11 A No. 12 8 What is a positive epidemiological study? 13 A That term is commonly used to indicate that 14 a study has found evidence of an association between 15 some factor and some disease or -- 16 Q At what level? 17 A -- outcome. 18 Q At what P value? 19 A To my knowledge, there's no agreement on the 20 definition of positive that includes a P value. 2 1 Q So you can have a P value of . 0 5 or .10 or a P value of .15 and as long as you define what your P SHERRY ROE & ASSOCIATES, INC. 186 1 value is, you can decide whether it's a positive study 2 or not, correct? 3 A When epidemiologists talk about studies, 4 they commonly refer to positive studies as ones that 5 show evidence of an association, whether it's 6 significant or not. And, again, the context of how 7 they're talking about it is probably more important 8 than the term "positive study". 9 Q You mean you have a positive study that's 10 not statistically significant? 11 A There are any number of references that I 12 have just reviewed and listed for you that show 13 positive associations between various types of 14 leukemia and various exposure under study which are 15 not statistically significant. 16 So a positive association or a positive study in 17 my experience just means that there is some evidence 18 of an association that -- whether it's statistically 19 significant or not. 20 Q So if I had a study in which the relative 2 1 risk was 2.0, and the confidence interval at .05 was 22 . 9 8 to 5.0, that might be a positive study? SHERRY ROE & ASSOCIATES, INC. 187 1 A I would think epidemiologists might refer to 2 that as a positive study because the odds ratio or the 3 risk ratio is 2.0. That's evidence of an association, 4 even though it's not significant, as you've described 5 it. 6 Q And if you had a 1.5 relative risk on a 7 large number of people in the study, but not 8 statistically significant, that also could be 9 considered positive? 10 A There are people who would discuss that as a 1 1 positive study. 12 Q Would you? 13 A It would depend on the context in which I 14 was discussing it. If we were doing exploratory 15 studies and trying to identify new risks for some 16 disease, we might tally up all the studies in which 17 there was some evidence of a positive association and 18 all the ones in which there was evidence of a negative 19 association, those in which there was no evidence of 20 an association, and talk about ones with the risk of 2 1 1.5 as positive. --22 Q If you have S H E R R Y ROE & ASSOCIATES, INC. 188 1 A The context is important. 2 Q You can have evidence of an association, 3 then, even in the absence of a statistically 4 significant finding? 5 A Of course. 6 Q What's the difference between a relative 7 risk and an odds ratio? 8 A The relative risk is the more general term 9 under which an odds ratio is one type of a measure of 10 relative risk. 11 Q Well, how do they differ? 12 A A relative risk includes many different 13 estimates of risk, such as exposure odds ratio, 14 prevalence odds ratios, SMRs, P M R s , P I R s . All the 15 measures of risk that you see in various epidemiologic 16 studies are collectively referred to as relative risk. 17 Q Okay. Does a type of study in any way 18 effect whether it's called a relative risk or an odds 19 ratio? 20 A Yes. 2 1 Q In w,,ich studies do you have relative risk 2 2 versus odds ratio and explain that for me? SHERRY ROE & ASSOCIATES, INC. 189 1 A Again, the relative risk is the general term 2 that applies to all measures of risk, okay. An odds 3 ratio typically comes from a case control study. --4 Because although it doesn't have to. But in most 5 instances, it's from a case control study, because 6 you're measuring the odds of exposure among cases over 7 the odds of exposure among controls. And that ratio 8 of odds is an odds ratio. 9 Q What does a confidence interval measure, 10 then? 11 A A confidence interval measures the range 12 around your point estimate within which the point 13 estimate would fall if you did the study over and over 14 and over again. 15 So, for example, if you have a point estimate of 16 2.0, and we'll say that that's an odds ratio derived 17 from a case control study, you can calculate the 18 interval within which if you did that study over and 19 over and over again, 9 5 percent of the odds ratios 2 0 would fall by chance alone. That's a confidence 2 1 interval. 2 2 Q Or you could do it for 9 0 percent of the SHERRY ROE & ASSOCIATES, I N C . 190 1 time or 8 5 percent of the time, or whatever? 2 A Or 9 9 or any probability or I should say any 3 interval that you would like to define. 4 Q It's relatively an arbitrary choice as to 5 whether you take 9 5 or 90 or 85; isn't it? 6 A Yes. 7 Q What do you routinely use? 8 A It's customary in the scientific community 9 to use either 99 or 95. And I use one of those. The 10 issue in choosing is how confident one wants to be 11 that the point estimate that you've observed did not 12 occur by chance alone when, in fact, there was no 13 association. a14 Well, if you had a point estimate and you 15 wanted to be 5 1 percent sure, then what confidence 16 interval would you use and what P value would you use? 17 A Let's see. If you wanted to know the range 18 within, the point estimate would fall 51 percent of 19 the time, you'd use a 5 1 percent confidence interval. 20 And what that would tell you is that you were -- 2 1 you had 51 percent confidence that the results you 22 observed did not occur by chance alone when, in fact, S H E R R Y ROE & ASSOCIATES, INC. 191 1 there was no real association. 2 Q And you would say, then, it's more likely 3 than not that it didn't occur by chance alone? 4 A That's correct. 5 Q And you would only be 51 percent sure of 6 that? 7A a time. And you'd only be right 5 1 percent of the 9 Q Right. Okay. - -10 A 49 percent of the time 1 1 Q You'd be wrong. 12 A We're talking about doing studies, whole 13 epidemiologic studies over and over and over again in 14 independent populations, independent trials. If you 15 set a 51 percent confidence interval, 49 percent of 16 the time you would label as statistically significant 17 things that occurred due to chance alone when there 18 was no real association. 19 Q Is that called a type one error, type two 2 0 error? 2 1 A That's a type one error, as I recall. 22 Q Sure? S H E R R Y ROE & ASSOCIATES, INC. 192 1 A Pretty sure. 2 Q Well, I think what you're telling me, I hear 3 you saying, correct me if I'm wrong. If you don't 4 subscribe to the concept that when one does an 5 epidemiological study, it's only, the data is only 6 important if it's statistically significant at the 7 point of a 5 level? 8 A I do not subscribe to the view that 9 statistical significance has some special meaning. 10 Many factors in studies are of equal weight or equal 11 importance in interpreting the meaning of the 12 findings. Statistical significance is one of them. 13 we'd like to be confident that the point estimate we 14 see is unlikely to be due to chance. The question of 15 how confident, we could argue about. 16 Q All right. Do you agree with Ken Rothman 17 that you can take the phrase "statistical 18 significance" out of the lexicon of epidemiology and 19 we'd all be better off? 20 A I think that that statement's a little 2 1 extreme. It still has a use to convey in shorthand 2 2 form our confidence that the results are unlikely to ~ S H E R R Y ROE & ASSOCIATES, INC. 193 1 have occurred by chance alone. 2 Q Yeah. 3 A But basically I agree with his overall 4 opinion that we should not use statistical 5 significance as dividing valid results from those t,,at 6 are unreliable. 7 Q In other words, even though you may not have 8 statistical significance, there still could be a lot 9 of valuable data in that study that can be of help to 10 you in answering the ultimate question that you want 1 1 to answer as to whether or not there is an association 12 between two things -- 1 3 A Yes. 14 Q -- correct? 15 You also say that -- it says here that you're 16 going to testify that, "The medical and scientific 17 literature fails to demonstrate a causal relationship 18 between exposure to gasoline and three leukemias at 19 issue, CML, CLL or AML." 2 0 The medical and scientific literature that you're 21 referring to is what's in these two volumes, these 22 black and gray volumes, correct? -~ SHERRY ROE & ASSOCIATES, INC. 194 1 A Yes. 2 Q And some that you may inadvertently have 3 missed, such as Wong, 1983, correct? 4 A I will accept that that is correct, yes. 5 Q All right. But basically what we're tal-ing 6 about is what you have in these two volumes? 7 A It was my intention to bring everything in 8 those two volumes, yes. 9 Q Is there anything in these two volumes, and 1 0 I haven't sat down and taken a l o o k at it, which I 11 will do, but is there anything in here that is 12 anything other than an epidemiological study? 13 A It is largely epidemiology. There are a few 14 animal studies that I thought were worthy of 15 inclusion, such as the one that shows that ethanol 16 ingestion concurrently with benzene exposure increases 17 the hematologic toxicity of benzene in mice. But --1 8 large it is almost entirely epidemiology. 19 Q So when you refer to the science or to the 20 medical and scientific literature with the exception 2 1 of one or two animal studies, you're really referring 2 2 to epidemiological literature? SHERRY ROE & ASSOCIATES, INC. 195 1 A Let me try to give you as complete an answer 2 as I can from memory. 3 There are a small number of animal studies. I 4 would estimate no more than five. 5 Q Okay. 6 A There are three or four studies on the 7 dermal absorption of benzene that are not 8 epidemiologic studies. There are laboratory studies 9 in either humans or animals. Other than that, I think 10 it's all epidemiology. 1 1 Q All right. 12 A To the best of my recollection, it's a l l 13 epidemiology. And, well, throw in risk assessment as 14 a subset under epidemiology. 15 Q Okay. Then the next section says that: The 16 medical and scientific literature fails to 17 demonstrate, again, the relationship between CML and 18 CLL and benzene exposure. 19 Again, you're talking about this same literature 20 that's in these two, the black and the gray book? 21 A Yes. 22 Q Okay. S H E R R Y ROE b ASSOCIATES, INC. 196 1 A Can I also make sure we include in that 2 discussion the textbook of hematology that we have 3 already labeled. 4 Q Okay. Fine. Now, and you kind of 5 differentiate when you say that the medical and 6 scientific literature fails to demonstrate a causal 7 relationship between low dose exposure to benzene and 8 AML. So I think you agree that it does show a -- 9 well, I guess that's what confuses me a little bit. 10 This is essentially epidemiological? 1 1 A Yes. 12 Q And the epidemiological literature deals 13 with association by definition? 14 A Yes. 15 Q So the epidemiological literature doesn't 16 tell you that there isn't a causal relationship, but 17 you make a deduction from the literature that there 18 isn't a causal relationship because of the 19 epidemiological findings; is that correct? 20 A I think the question is a variation on 2 1 questions we discussed this morning about trying to 22 prove that something doesn't exist. SHERRY ROE b ASSOCIATES, INC. 197 1 The epidemiology has looked for and has failed to 2 find consistent evidence of an association between 3 benzene and three types of leukemia, CML, ALL and CLL. 4 The epidemiologic literature also has looked for 5 and does find evidence of an association between 6 benzene exposure and AML, but that literature supports 7 that that association exists only above certain 8 cumulative amounts of exposure. And that amount is in 9 the range of 60 parts per million years. 10 Q Well, maybe it was a bad question. That 11 wasn't the thrust of my question to you. 12 A I'm sorry. --13 Q That's I'm sure it was my fault, Doctor. 14 All I'm trying to establish here is that -- I think 15 you will eventually agree with me. The phrase that is 16 used here "medical and scientific literature" would --17 indicate that there's I think it would indicate 18 that there's a lot of things out there in the field of 19 science in addition to epidemiology. 20 A There certainly are many fields of science 21 that exist in the literature outside of the field of 22 epidemiology. S H E R R Y ROE & ASSOCIATES, I N C . 198 1 Q Right. And yet really what you're relying 2 on is not all of those other fields in the world of 3 science, but you're really relying upon epidemiology 4 to express your opinions? 5 A In essence, yes. However, I didn't want to 6 word this in a manner where I would be unable to use 7 industrial hygiene surveys that described exposure 8 because it could be argued those are not epidemiology, 9 or that I would be unable to use dermal absorption 10 studies in humans because those are the laboratory 11 investigations, not epidemiology. 12 So the issue was how to describe that my area is 13 primarily concerned with the epidemiologic literature, 14 but there are issues on the periphery of that that 15 means I need to be allowed to consider industrial 16 hygiene literature, toxicology literature, clinical 17 medical literature, you know, and areas that are, that 18 are not strictly epidemiologic science. 19 Q Well, there aren't any invitro studies 20 included in your book, are there? 2 1 A I do not think so. 22 Q Have you done any research and tried to SHERRY ROE & ASSOCIATES, INC. 199 1 determine the effect of benzene or gasoline on cells 2 from an invitro standpoint? 3 A I have not -- first off, I have done no such 4 research, personally, if that's your question. 5 Q Right. 6 A Are you asking about whether I reviewed that 7 literature? 8 Q Yes. That's what -- 9 A No. I have not reviewed that literature, 10 no. 11 Q Have you even looked to see if there is such 12 literature? 13 A My answer is somewhere between no and not in 14 a systematic way. I may have seen one or two 15 articles. But in essence that's not my area and I 16 don't h o l d myself out to be an expert in the area of 17 the invitro literature on the toxicity of benzene. 18 Q And if there are studies out there that deal 19 with the mechanism, the chemical mechanism of how 20 benzene or gasoline were to affect cells, you haven't 2 1 looked at that either, have you? 2 2 A No, I have not. ~~ ~~ SHERRY ROE & ASSOCIATES, INC. - 200 1 Q Okay. So when we talk about the medical and 2 scientific literature, we're really being very 3 specific in referring to the medical and scientific 4 literature that you have in these two books? 5 A Yes. With the exception that I may have 6 forgotten to list or stick in one or two or three 7 articles. 8 Q That we've already talked about? 9 A Yes. 10 Q I'm not trying to -- 11 A The intention is yes. Everything that I 12 have reviewed was intended to be in these books. 13 Q And all of the literature that you believe 14 indicates that there is not a causal relationship 15 between low dose exposure to benzene and AML is also 16 included in those books? 17 A Yes. 18 Q And that would include the literature, the 19 epidemiologic literature, correct? 2 0 A Yes. 2 1 Q And what other literature? 22 A Epidemiologic literature. I don't think S H E R R Y ROE & ASSOCIATES, INC. 201 1 there is any other literature that would comment on 2 that issue. 3 Q So when we refer to the medical and 4 scientific literature, really it should say that the 5 epidemiological literature failed to demonstrate a 6 causal relationship between low dose exposure to 7 benzene and AML, correct? 8 A Say that again, please. 9 Q Yeah. I'm just -- okay. 10 Where it says here that, "the medical and 11 scientific literature fails to demonstrate a causal 12 relationship between low dose exposure to benzene and 13 AML", really the words "medical and scientific" should 14 be replaced with the word "epidemiological"? 15 A I think that's reasonable. 16 Q And I'm just trying to be reasonable. 17 A Yes. Thank you. 18 Q All right. And when you say there that, 19 "The scientific evidence does not support the 20 proposition that the three leukemias at issue were 2 1 caused by gasoline or benzene exposures from work as 22 mechanics with DPW," we could replace the word SHERRY ROE & ASSOCIATES, I N C . 202 1 "scientific" with "epidemiological"? 2 A Yes. 3 Q Correct? .4 A Y e s 5 Q Now l e t m e as,, you w h e r e i t s a y s .,ere t h a t 6 you w i l l " e x p l a i n t h e meaning of c a n c e r c l u s t e r s . " 7 What a r e c a n c e r c l u s t e r s ? - -8 A C a n c e r c l u s t e r s a r e 9 Q May I i n t e r r u p t y o u ? 10 A Y e s . 11 Q And t h e n I'll g o b a c k t o t h i s . 12 Is t h e r e a d i f f e r e n c e between " cancer c l u s t e r s " 13 and " c l u s t e r s " ? - -1 4 A Disease i f you mean disease c l u s t e r s and 15 c a n c e r c l u s t e r s , n o . I t ' s t h e same c o n c e p t . 16 Q Maybe I s h o u l d a s k you f i r s t of a l l w h a t a 17 c l u s t e r i s a n d t h e n you c a n t e l l m e what a c a n c e r 18 c l u s t e r i s . Can you d o i t t h a t way? 19 A Y e s . 20 Q Okay. Thank you. 21 A A disease c l u s t e r i s an occurrence of - -2 2 d i s e a s e t h a t p e o p l e r e g a r d a s b e i n g l e t m e go b a c k . -~ ~ ~ S H E R R Y ROE 61 ASSOCIATES, I N C . 203 1 It's an occurrence of disease in space and time that 2 people regard as being unusual or unlikely to have 3 occurred by chance. 4 So in other words, a bunch of people who live on 5 the same block who all came down with a disease, the 6 same disease, is commonly regarded as a cluster of 7 that disease. 8 Q So if you had 2 0 people on a block, I'm 9 going to use your example, and 12 of them came down 10 with a disease, you might not be able to get a very 1 1 good epidemiological study out of that, correct, wit_12 just 20 people in it, but you would have a cluster 1 3 that would help you decide whether or not there's a 14 cause and effect relationship, is that correct? 15 A That's a compound question. I'll try to 16 answer it. If 12 out of 20 people all came down with 17 the same disease, you probably would get a good 1 8 epidemiologic study out of it. 19 Q I was trying to give you an example where --2 0 you could. Maybe go ahead. 2 1 A However, if you had two people with the same 2 2 disease or three people on the same block where the SHERRY ROE & ASSOCIATES, INC. ~ 204 1 number of people who got the disease is very small, it 2 is difficult, somewhere between difficult and 3 impossible to do meaningful epidemiology to study 4 that -5 Q If you ---6 A because the number of observations is 7 simply too small. 8 Q So if you have a disease that occurs once 9 every 10,000 but suddenly you've got two or three out 10 of ten people on a block, that might indicate a 11 cluster? 12 A That would be regarded as a cluster by most 13 lay people and some scientists. 14 Q Okay. N o w follow that through to cancer 15 cluster. Same thing? 16 A Ye5 17 Q All right. Well, how common is CLL in the 18 population? 19 A How would y o u like to know? Age adjusted 20 incidence? 21 Q As quickly as possible, 22 A Age adjusted incidence? S H E R R Y ROE & ASSOCIATES, INC. 205 1 Q Age adjusted incidence? No. I ' d j u s t l i k e - -2 t o know how w h a t p e r c e n t a g e o r how many p e o p l e o u t 3 of 1 0 , 0 0 0 i n t h e United S t a t e s develop CLL. 4 MR. ESPOSITO: The r e p o r t e r I t h i n k w a n t s t o 5 change her tape. 6 MR. NACE: O h , y o u w a n t t o c h a n g e i t now? 7 I ' m sorry. Change your t a p e and then he can be 8 t h i n k i n g of t h a t complex answer f o r m e . 9 (The reporter changed t h e audiotape.) 10 BY MR. NACE: 11 Q Go ahead, Doctor. 12 A A l l r i g h t . I ' l l t r y t o answer y o u r - -1 3 q u e s t i o n . T h e w e l l , l e t m e a s k y o u a c o u p l e o f 14 q u e s t i o n s b e f o r e I answer. D o you want t h i s i n b l a c k 15 m a l e s ? 16 Q I n what? 17 A Black m a l e s . --18 Q Oh, i n w h a t , b l a c k m a l e s , a s o p p o s e d t o 19 A White males. --2 0 Q C a u c a s i a n m a l e s o r b l a c k women o r 21 anything. 22 A l l r i g h t . L e t ' s t a k e b l a c k m a l e s . T h a t ' s f i n e . SHERRY ROE & ASSOCIATES, I N C . 206 1 A Okay. 2 Q Tell me what you're looking at to get this 3 information. --4 A I'm looking at the book by Martha Linet 5 Q Okay and page? --6 A called The Leukemias page 40. 7 Q Okay. And this is for black males, the 8 prevalence of CLL in the population? 9 A I was not going to give you prevalence. I 10 was going to give you age adjusted incidence. 11 Q What does that mean? 12 A It means the number of new cases occurring 13 adjusted to a standard population. Let me try to 14 answer that fully. As I assume you know, the 15 incidence rate of CLL rises dramatically with age 16 starting as almost negligible at about age 3 0 in adult 17 males and females and becoming an appreciable -- being 18 a not uncommon disease by the time we reach our 80s. 19 And if I were to give you an age specific rate 2 0 from that curve, that number two vary dramatically 2 1 depending on which age group I picked, okay. Now, as 22 the population of this country ages, the overall rate, S H E R R Y ROE & ASSOCIATES, INC. 207 1 incidence rate, changes because the population is 2 aging. In other words, we are older on average than 3 Americans were 20 years ago. So the overall rate, the 4 crude rate now, is higher than it was 20 years ago. 5 To compensate for that change, we adjust back to a 6 standard population, and that's called age adjustment. 7 So that if I compare the rate in 1990 to the rate in 8 1970, I can compare them as though they came from a 9 population that had the same age structure, okay. So 1 0 it removes time trends that are due to the aging of 1 1 the population. 12 Q Okay. Let's do it that way. --13 A Okay. And so the answer is .9 oops. 14 Sorry. 2.9 cases per 100,000 black males per year. 15 Q All right. Do you have the figure there for 16 AML? 17 A For AML 2.0. 18 Q Per 100,000 again? 19 A Per 100,000 black males. 20 Q Okay. And CML? 2 1 A 1.7 per 100,000. And excuse me, I gave you 2 2 males and females combined. So itls not black males -~~ SHERRY ROE & ASSOCIATES, INC, 208 1 alone. It's black males and females. 2 Q Okay. For all three of those groups? 3 A For those three diseases, yes. 4 Q Okay. How about for the broad category of 5 leukernla? Can you do that? 6 A Forgive me. 7 Q You messed it up. You want to do it again? 8 A I messed it up. Those numbers were for 9 males alone. 10 Q They were, okay. 11 A I read it right the first time. 12 Q How about for leukemia in black males? 13 A All leukemia? 14 Q Yeah. 15 A Well, for a l l leukemia, it would simply be 16 the sum of those four -- those three numbers plus that 17 for ALL. So it would be .9 plus 2.9 plus 2.0 plus 1.7 18 is 7.5 cases per 100,000 black males per year. 19 Q Okay. 20 A Actually, that's not exactly accurate. We 2 1 -- that misses whatever types of leukemia do not get 2 2 classified into those four headings, but it's a rough SHERRY ROE & ASSOCIATES, INC. 1 approximation. The true number will be slightly 2 higher for all leukemia. 3 Q Okay. Now 7.9 per 100,000 strikes me as - -4 rare. Is that I mean, as a layman. Is that rare? 5 Is that a common occurrence? How would you categorize 6 that? 7 A Rare is a reasonable adjective, yeah. 8 Q All right. Now, what would you then call a 9 cluster of leukemias? Say if you had a population of 10 50, what would be a cluster? 11 A I think a lay person's impression is that 12 two rare events together in space or time is a 13 cluster, is an unusual event. Whereas to an 14 epidemiologist -- 15 Q I'm asking you. 16 A One rare event in any one place is not a 17 cluster. Two rare events in o n e place or in close 18 timing in one place is not a cluster, because it's 19 simply too small, too few observations, to be able to 20 comment in any reliable way whether it's unlikely to - -2 1 be d u e to c h a n c e a l o n e or yeah. That's the right 22 way to say it. SHERRY ROE ti ASSOCIATES, INC. 210 1 Q Speaking hypothetically of a population of 2 50, would three be a cluster, three leukemias out of 3 50 in the population? 4 A It's still too small to be able to say much 5 about. I think you have to get more cases, more 6 observations to be able to say anything meaningful, 7 more like five or six or seven before you can say 8 anything other than: Well, we have a couple of rare 9 events or three rare events in one spot. 10 Q Five or six out of 50 is about ten percent. 11 Now, you would agree with that ten percent, five or 12 six out of 50, as you increase the number. Let's say 13 you went from 50 to 300. You wouldn't have to have 30 14 to have a cluster, would you? 15 A No. 16 Q What would you have? I mean, let me 17 interrupt you because I think what you're saying is 18 that as the numbers grow bigger, the clusters don't 19 have to grow proportionately bigger? 20 A That's correct. 2 1 Q When you get to about 300, then I'm going -0 22 ask you maybe 1,000, I'm trying to get an idea around S H E R R Y ROE & ASSOCIATES, INC. ~-~ ~ 211 1 300 what would you expect to see for a cluster for 2 leukemias? 3 A I'm not sure I agree with the line of 4 reasoning. The real -- I think the essence of what 5 we're discussing is a calculation of the number of 6 events you would expect to occur in this little 7 population from which the observed cases have arose 8 and comparing the observed to the expected. And I'm 9 not sure that you -- 10 Q I'm following you. 11 A Okay. You are. 12 Q Can I ask you a question now? 13 A Yes. 14 Q All right. What would you expect of 15 leukemias in a population of 300 black males? 16 A You would have to know the ages of the 300 17 black males or at least the age distribution. 1 8 Q Well, you told me that. You said that 19 the -- 20 A No. In the males under -- let's try and 2 1 def s hypothetical that we're coming up with. 22 We have a population of 300 black males. ~ ~_-____ ~ ~~ SHERRY ROE & ASSOCIATES, INC. 212 1 Q Right. 2 A Among whom t h r e e c a s e s o f l e u k e m i a h a v e 3 occurred, okay. I n order t o c a l c u l a t e t h e expected 4 number o f cases of l e u k e m i a , w e would n e e d t o know a 5 number of a d d i t i o n a l t h i n g s . F i r s t i s over what 6 p e r i o d of t i m e d i d w e o b s e r v e t h i s p o p u l a t i o n of 300 7 men, If w e observed them over one y e a r and s a w t h r e e 8 cases, t h a t i s very d i f f e r e n t than observing t h r e e 9 cases over 20 y e a r s , simply because t h e number of 10 person y e a r s of o b s e r v a t i o n varies by 20 f o l d . 11 I f w e s a w t h r e e cases of c h r o n i c l y m p h o c y t i c 12 l e u k e m i a among men u n d e r age 3 0 , t h a t would b e v e r y 13 d i f f e r e n t t h a n among men age 7 0 t o 8 0 . So i n o r d e r t o 14 c a l c u l a t e e x p e c t e d number, w e n e e d t o know t h e a g e 15 s t r u c t u r e of t h e p o p u l a t i o n and t h e p e r i o d of 16 o b s e r v a t i o n o f t h a t p o p u l a t i o n . --17 Now, w e i f you gave me t h a t , we could c a l c u l a t e 18 t h e e x p e c t e d n u m b e r , And t h e r i g h t way t o do t h a t i s 19 t o assume t h a t c a n c e r i n c i d e n c e o c c u r s u n d e r t h e 20 Poisson d i s t r i b u t i o n , and w e c a n a p p l y t h a t formula 21 and a c t u a l l y c a l c u l a t e t h e e x p e c t e d number of e v e n t s . 22 And l e t ' s a s s u m e t h a t i n a p o p u l a t i o n o f 3 0 0 men SHERRY ROE & ASSOCIATES, I N C . 213 1 observed for five years, the expected number is 2 appreciably less than one case of leukemia and the 3 observed number is three, You might say, gee, that 4 three is unlikely to have occurred by chance. 5 Now, what I have been trying to say in my previous 6 four or five answers is that even though you might 7 make that calculation and say this is unlikely to have 8 occurred by chance, there is very little one can do to 9 further investigate three events to analyze whether 10 the risk was related to exposure or not related to 11 exposure or related to previous service in the Army or 12 whatever factors you might want to study simply 13 because the number of observations is very small. 14 Q Sounds pretty subjective, deciding whether 15 or not there's a cluster. 16 A I think the point I'm trying to make is that 17 while lay people might regard that as a cluster, I 18 think as an epidemiologist, my view would be that this 19 is too small a number of events to call this a cluster 2 0 where the calculation of a probability that this could 2 1 have occurred by chance has much meaning. It's simply 2 2 a small number of events, SHERRY ROE & ASSOCIATES, INC. 2 14 1 Q How many CLLs would you expect to find in a 2 population let's say of 300 black males under the age 3 of 60? 4 (The witness perused book.) 5 A I can't give you anything close to an exact 6 answer. I can give you an estimate that by chance 7 alone, we would expect to see l e s s than 10 per 1 0 0 , 0 0 0 8 per year. So if we had a population of 300 men 9 followed for ten years, that's 3,000 person years 10 times 10 over 100,000, point, say . 3 , but certainly 11 less than 1.; . 3 could be wrong. It could be .2. It 12 could be .5. 13 Q Well, obviously, you can't have . 3 of a 14 person. 15 A But you can have an expected number -- 16 Q Okay. 17 A -- of .3. 18 Q All right. So if you saw, obviously, you 19 saw one, you can't call that a cluster? 2 0 A That's -- that has been the point of my 21 previous -- 22 Q Okay. But what if you saw two? SHERRY ROE & ASSOCIATES, INC. 215 1 A You still can't call it a cluster. 2 Q Three? 3 A I think that's still not enough to call it a 4 cluster. 5 Q Four? 6 A You're in a gray area where you could start 7 to say that's very unlikely to have occurred by 8 chance. Five, yes, that's very, very unusual. That 9 is a cluster of cases. 10 Q Uh-huh. 11 A And so to try to give you a full answer, the 12 decision of whether it's a cluster is based not only 13 on the probability that it could have occurred by 14 chance alone, but also on the absolute number of 15 events. And, you know, for some diseases where the 16 expected number might be .Ol, a very, very rare 17 disease. Seeing two would have a very low likelihood 18 of occurring by chance alone, but it's still only two 19 observations. In fact, they're incidents where the 20 probability of seeing one event is extraordinarily 2 1 unlikely for a very rare disease. But when you see 22 one event, you don't say the P value is .0001. You SHERRY ROE & ASSOCIATES, INC. 216 1 say it's only one event. That's not a cluster. 2 So this decision is based not only on probability, 3 but on the number of observations. 4 Q Let me broaden it out to be leukemias in 5 general, which you said, according to your book there, 6 is 7.5 per 100,000. 7 A That is an approximation. 8 Q Okay. How many black males with leukemia 9 would you expect to find in a population of 300 say 10 over a 20-year period? 11 MR. ESPOSITO: All forms of leukemia? With 12 all forms of leukemia? 13 MR. NACE: Yes. 14 (The witness perused book.) 15 THE WITNESS: I'm having difficulty coming 16 up with an overall incidence rate for all leukemia. 17 BY MR. NACE: 18 Q Well, I think you said 7.5 per 100,000. 19 A We'll have to use that as a rough approximation. 2 1 Q All right. 22 A About .4 or 5 cases would be - - let me back ~-~~ ~~ ~~ SHERRY ROE & ASSOCIATES, INC. 217 1 up. If that rate of 7 . 5 is correct and if we followed 2 a group of 300 men for 20 years, we would expect to 3 see . 4 or 5 cases of leukemia occur in that group. 4 Q Less than one? 5 A Yes. Roughly a half of one. 6 Q Okay. What would be a cluster, in your 7 view? 8 A I think I've answered that. I don't think 9 two cases or three cases would constitute a cluster. 10 Q Well, what would? 11 A Again, there is some judgment in that. I 12 would not be terribly suspicious about observing a 13 number of cases until we got to certainly five, 14 perhaps four at the most. I don't think three cases 15 is enough to -- 16 Q If I were to say bingo, at four you'd be 17 waiting for one more number, right? 18 A At four I'd be concerned. At five I'd say 19 this is clearly something very unusual. 20 Q Do you know how many mechanics work for the 21 Distric of Columbia over a 20-year period of time? 22 A No. ~ ~~~~ SHERRY ROE & ASSOCIATES, INC. 218 1 Q Well, your conclusion is that this case 2 doesn't involve a cancer cluster. According to what's 3 in the 26-B4 answers that's in front of you, how can 4 you come to that conclusion if you don't know how many 5 people worked at that department at DPW as a mechanic? 6 A Because I think I've already answered that 7 that conclusion is based not only on the probability 8 that it could occur by chance, but the number of 9 events observed. And three events observed for a l l 10 leukemia lumped together, I do not regard as that 11 unusual an occurrence, even if there had been only a 12 small number of people from within which those three 13 events arose. 14 Q So the three, the Bradley, Taylor and 15 Carter, three cases that we're dealing with here, you 16 look at those three and you say that's not enough, but 17 if we had a fourth one, it might be enough and if we 18 had a fifth one of leukemia, then we would be saying: 19 Bingo. I'm very suspicious; we have a cluster? 20 A Certainly the more cases there were, the 21 higher my suspicion would get. - -2 2 Let I've neglected to give part of my answer to S H E R R Y ROE & ASSOCIATES, INC. 219 1 the question. The three cases that we are discussing 2 are different diseases. These are not the same 3 disease. 4 Q They're all leukemias, aren't they? --5 A They are all leukemias, but 6 Q And you're not an expert in hematology, are 7 you? 8 A I was in the middle of my answer. 9 Q Well, I thought you were going on to 10 something else. 11 MR. JORDAN: Why don't you let him answer 12 the question. 13 MR. NACE: Oh, don't get so nervous, Mr. 14 Jordan. 15 MR. JORDAN: I'd like to hear the answer. --16 MR. NACE: Gosh, you get you're getting 17 old, you know that. You're getting crotchy in your 1 8 old age. 19 MR. JORDAN: Listen, let the witness answer, 20 Barry. 21 MR. NACE: My goodness. I can't bel e v e how 22 you jump in here -- ~~ ~~~ ~ -~ SHERRY ROE & ASSOCIATES, INC. 220 1 MR. JORDAN: Let the witness finish the 2 answer. 3 MR. NACE: G o ahead and answer the question. 4 THE W I T N E S S : If I might finish giving my 5 answer -- 6 MR. NACE: You certainly may, as I've 7 allowed you to do all day, right, Doctor? 8 MR. J O R D A N : I'll take exception to that, 9 but that's okay. 10 BY MR. NACE: 11 Q Go ahead. 1 2 A AML, CML and C L L are different diseases, and 13 they cannot be lumped together as one disease, any 14 more than can all types of cancer be lumped together 15 as one disease. We make distinctions among different 16 types of cancer because the epidemiology of the 17 different types of cancer is different and the causes 18 of those different types of cancer are different. The 19 same is true for the leukemias. The epidemiology of 2 0 these diseases differs dramatically. 2 1 A L L is a disease that is most common in children. 2 2 AML is a disease that is most common in young adults; SHERRY ROE & A S S O C I A T E S , I N C . 1 2 adults. They are different diseases. 3 To the extent we have been able to define risk 4 factors, they have different sets of risk factors. 5 And s o it is not scientifically defensible to put 6 these all into this same disease category and say 7 these are three events of the same disease. 8 These are three events of three different 9 diseases. And it is my view that seeing three events 10 11 12 Q Have you completed your answer for Mr. 13 Jordan? 14 A I have -- 15 MR. JORDAN: Thank you, Doctor. - -16 THE WITNESS: completed my answer. --17 MR. NACE: Okay. Now 18 MR. JORDAN: Not for Mr. Jordan, but for the 19 question. ~ I 20 MR. NACE: That was for Mr. Jordan. I 2 1 BY MR. NACE: 22 Q You indicated that you can't lump them SHERRY ROE & ASSOCIATES, INC. 222 1 all together. You just did that for me. You said 2 that there were 7.5 leukemias per 100,000 in black 3 males, didn't you? 4 A You might have noted that in the textbook I 5 was using, which is widely viewed as an authoritative 6 textbook, the author does not lump them together and, 7 in fact, provides no overall incidence or mortality 8 rates for all leukemia. She makes the distinction 9 that these are different diseases, which should not be 1 0 lumped together, and, therefore, gives no data based 11 on all of them combined. 12 Q She says that? 13 A She doesn't say that -- 14 Q Oh. --15 A but, in fact, that's why I couldn't find 16 summary rates for all leukemia, because it's not in 17 here. 18 Q Do all the leukemias that exist appear on 19 the same page on the same table? 2 0 A The four major types are presented in a 2 1 series of tables so that their incidence rates may be ~ 22 compared and contrasted. They are also presented in a ~ SHERRY ROE & ASSOCIATES, INC. 223 series of graphs so that their incidence rates may be compared and contrasted. Q You said that the epidemiological studies that are done are very different for each of the types --of leukemias, correct A I said -- 7 Q -- didn't you? 8 A I believe I said that the set of risk 9 factors differ for the different types of leukemias. 10 Q Well, you did say that, but I think you also 11 said that the epidemiological studies are different 12 for each of the leukemias. 13 A I think we'll have to have my answer read 14 back. 15 Q Well, is it -- 16 MR. ESPOSITO: That wasn't in the last 17 series of answers. 18 BY MR. NACE: 19 Q Let me just ask you again. Maybe it's the 20 same answer. If it's not the same answer, then so be 2 1 it. 2 2 Do the epidemiological studies vary for the SHERRY ROE & ASSOCIATES, INC. 1 leukemias? 2 A I don't understand that question. 3 Q Okay. A What do you mean "vary"? Q Well, that's what I was going to ask you. I thought you said that. But, Doctor, the same techniques are used in all 8 of the studies, right? 9 A The same techniques are often applicable, 1 0 but the findings varied. 11 Q So the epidemiological studies that you've 12 been relying upon differentiate by cell type? 13 MR. E S P O S I T O : Cell type or disease type? 14 MR. NACE: Cell type. 15 THE W I T N E S S : They differentiate among the 16 four major clinical types, which are acute myelocytic, 17 chronic myelocytic, acute lymphocytic and chronic 1 8 lymphocytic. 19 BY MR. NACE: 20 Q Okay. But are the cell types the same in 2 1 any of those four groups? 22 I I A I don't know what you mean by the "cell SHERRY ROE & ASSOCIATES, I N C . 225 1 types". 2 Q The type of cell that you get when you have 3 any one of these four leukemias, are they the same for 4 any of the groups, any of the four groups? 5 MR, E S P O S I T O : Again, when you say that, Dr. 6 Garabrant isn't being offered as an expert 7 specifically on cell types, Barry, and that you will a be deposing people who are. 9 BY MR. NACE: 1 0 Q What don't you know? 11 A I ' m having difficulty understanding the 12 question. 13 Q Okay. 14 A I think I know the answer, but I'm not sure 15 what the question is. 16 Q Well, then try to give me the question with 17 your answer, that you think you can answer. i a MS. MILNAMOW: Objection. Pose a question 19 and he'll answer. 2 0 MR. NACE: G o ahead, Doctor. 2 1 MR. E S P O S I T O : No. We're not going to play 2 2 that game , ~~ ~ ~ SHERRY ROE ti A S S O C I A T E S , I N C , ~ 226 1 BY MR. NACE: 2 Q Have you met any of the other individuals 3 who are listed as experts in this case besides Hawley, 4 Spencer and Strickoff, or whatever his name is? 5 MR. ESPOSITO: Objection. Mischaracterizes 6 the prior testimony. 7 THE WITNESS: I do not believe I've met any 8 of the experts -- 9 MR. NACE: I'll go through them. 10 THE WITNESS: - - in the case, including the 11 three you've just mentioned. 12 BY MR. NACE: 1 3 Q Do you know Dr. Bush, Harris Bush? 14 A I know of him. I have never met him. 15 Q Do you know whether or not you've ever 16 testified in a case in which he was also testifying? 17 A I do not know that. I have a vague 18 recollection he may have testified in Larkin, but I'm 19 not even sure of that. 20 Q How about Dr. Peter Castloth [phonetic]? Do 2 1 you know him? 2 2 A No, I do not. SHERRY ROE & ASSOCIATES, INC. 227 1 Q You n e v e r h e a r d of h i m b e f o r e ? 2 A NO 3 Q How a b o u t Morton Corn? 4 A I do know D r . Corn. 5 Q How d o y o u know D r . Corn? 6 A H e is t h e d i r e c t o r of t h e e d u c a t i o n a l 7 resource c e n t e r a t John's Hopkins and I ' m t h e d i r e c t o r 8 a t Michigan, and we m e e t t w i c e a year with a l l t h e 9 o t h e r d i r e c t o r s of t h e R C s . 10 Q To your knowledge, have you ever t e s t i f i e d 11 i n t h e s a m e case? 12 A N o , w e never have. 13 Q D o y o u know D r . H a r v e y Golomb, G-O-L-O-M-B? 14 A I know of h i s name. I h a v e n e v e r m e t him. 15 Q Have y o u e v e r t e s t i f i e d i n t h e s a m e c a s e , t o 16 y o u r knowledge? 17 A N o . 10 Q Do y o u know D r . H a r l e y ? 19 A N o . 20 Q R i g h t up t h e r e i n Michigan S t a t e , r i g h t 21 arounc t h e c o r n e r f r o m y o u ? You d o n ' t know him? 22 A I do n o t . S H E R R Y ROE ti ASSOCIATES, I N C . 228 1 Q Do you know Dr. Mayer, Robert Mayer? 2 A No. 3 Q Dr. Jerome Page? 4 A No. 5 Q Other than what you read ,n t,,e deposit,ons 6 of Daum, Infante, Schwartz, Welsh and Taylor, do you 7 have any understanding about the actual exposure to 8 the benzene and the gasoline in these cases? 9 A Uh -- 10 MR, ESPOSITO: Other than what he's already 11 testified about? 12 MR. NACE: Well, I just want to know if 13 there's anything else in addition to this. 14 MR. ESPOSITO: He already testified about 15 talking to some of our experts on exposure. Are you 16 asking in addition to that in what he's reviewed? 17 MR. NACE: Well, I don't know that they know 1 8 about it. 19 BY MR, NACE: 2 0 Q But in addition to those people that you 21 talked about earlier, Hawley, Spencer, and Strickoff 2 2 or whatever his name is, do you have any other ~- SHERRY ROE & ASSOCIATES, INC. 229 1 knowledge about the exposure in these cases? 2 A My knowledge about the exposure in these 3 cases is based on my review of the materials listed in 4 the Exhibit 4 and my discussions over the telephone 5 with the other defense experts, Hawley, Spencer, and 6 Strickoff, and my reading of the scientific literature 7 on the uses of gasoline and the typical exposures that 8 occur in the handling and use of gasoline. 9 Q Doctor, do you consider leukemia to be a 10 bone marrow disease? 11 A The -- yes. I -- 12 Q If you were going to design a study to 13 determine whether or not there was an association 14 between bone marrow disease and gasoline, how would 15 you do it, an epidemiological study? 16 A An epidemiological study. First off, I 17 would try to define the disease or diseases I wished 18 to study. And as I have already mentioned, I do not 19 consider all leukemias to be a single disease. 20 So when we say leukemia is a bone marrow disease, 2 1 that's an incorrect statement. The correct statement 2 2 is the leukemias arise from the bone marrow. These ~~ ~~ SHERRY ROE & ASSOCIATES, INC. 230 1 are different diseases. 2 Now, to answer your question, if I were going to 3 study the relationship between gasoline and leukemia, --4 I would define which 5 Q No, no, no, no. We're going to do it, 6 Doctor. The hypothetical I gave you was bone marrow 7 diseases and gasoline. That's my hypothetical. How 8 would you do it? 9 A Okay. Bone marrow diseases, if I can ask 10 you a question, then, we are going to study a number 1 1 of different diseases? 12 Q Correct. 13 A Okay. There are two basic approaches that 14 are both theoretically valid. The choice of which is 15 more economically and logistically favorable can only 16 be based on events in the real world. 17 Let me outline the two hypothetical approaches. 1 8 The two approaches are a cohort approach and a case 19 controlled approach. In a cohort approach, we would 20 seek to identify a population of people who had 2 1 exposure to benzene over a range of concentrations anc 2 2 a range of durations, and to follow them forward in S H E R R Y ROE & ASSOCIATES, INC. 231 1 time, and then to observe as time passed what happened 2 to each individual, and to count up the number of 3 people who got each of the diseases under 4 study. 5 Q That's a cohort? 6 A As a cohort, 7 Q Prospective? 8 A Well, I've described that the sequence of 9 events has to go from exposure forward to outcome, 10 that, in fact, could be done retrospectively. 11 Q Okay 12 A Okay. But still the sequence of events has 13 to go forward from defining who's exposed to then 14 observing who has what outcome. 15 We could then analyze the relationship between 16 benzene exposure and each of those diseases using one 17 or a number of different statistical methods, The 18 most commonly used one would be the standardized 19 mortality ratio or SMR analysis. 2 0 MR. ESPOSITO: I think Mr. Nace's 2 1 hypothetical involved gasoline, did it not? 2 2 MR. NACE: It did. S H E R R Y ROE & ASSOCIATES, INC. 232 1 THE WITNESS: Excuse me. I misunderstood. 2 Where I said "benzene", please substitute "gasoline". 3 MR. NACE: I understood that. 4 BY MR. NACE: 5 Q Whether it's gasoline or benzene, you're 6 going to set up the same way, aren't y o u ? 7 A Yes. 8 Q Okay. Go ahead. 9 A All right. And so we could analyze those 10 data using an SMR approach in which we calculate the 1 1 incidence rate for each disease in various segments of 12 the cohort under study. So we might pick a high 13 exposure group and calculate the -- actually, I 14 shouldn't have said mortality -- the standardized 15 incidence rate, the SIR for: each disease, pick a low 16 exposure group, calculate the SIRs for each disease, 17 and pick a nonexposed segment of the cohort and 1 8 calculate the SIRs for each disease. 19 If we saw evidence that the standardized incidence 20 ratios were varied across exposure, we might wish to 21 infer or I should say that would support the 22 conclusion that exposure was associated with whichever SHERRY ROE & ASSOCIATES, INC. 1 disease we were looking at. 2 Q You got away from what I wanted you to do, 3 Doctor. I just wanted you to do it f o r bone marrow 4 disease, not bone marrow diseases. 5 A I do not know what you mean by "bone marrow 6 disease". 7 Q Well, there are a lot of bone marrow 8 diseases, aren't there? 9 A There certainly are and they include -- 1 0 Q Aplastic anemia? - -1 1 A Aplastic anemia, tuberculosis 12 Q Okay. --13 A various leukemias. It would make no 14 sense to me to study -- 15 Q That's okay. 16 A -- bone marrow tuberculosis and aplastic 17 anemia because they probably have little, if anything, 18 in common -- 19 Q That may be another study. We're just doing 20 one study now, Doctor. We're just doing bone marrow 2 1 disease and gasoline. That's all I want. Just the 2 2 one simple little study. SHERRY ROE & ASSOCIATES, INC. 234 1 A I would not do a study of a disease that was 2 that poorly defined. I would want to specify what 3 disease we were studying before I would undertake to 4 do a study. 5 Q But, Doctor, I'm giving you a hypothetical 6 and I'm setting the terms, and I'm the one that's 7 paying you for it. And I come to you and I say, 8 Doctor, I'm willing to pay to have you do a study 9 here, and I want you to do an epidemiological study on 10 bone marrow disease and gasoline. --11 MR. STERN: I'm going to 12 MR. JORDAN: He doesn't want your money. 1 3 MR. ESPOSITO: Unlike a lot of people, Dr. 14 Garabrant would tell you that you were misspending 15 your money -- 16 MR. NACE: Well -- - -1 7 MR. ESPOSITO: and to correct it, you 18 should focus on a particular disease. And if you want 19 a valuable answer here, I would suggest focusing that 2 0 way, if you want to continue on this. 2 1 MR. NACE: Well, whether it's valuable or 2 2 not is a matter of judgment, and I'm not getting into SHERRY ROE & ASSOCIATES, INC. 235 1 that. 2 BY MR. NACE: 3 Q I just want you to give me how you would 4 structure, how you would do it. 5 MR. ESPOSITO: I don't hink t at's a 6 possible thing to be done. 7 MR. NACE: Oh, he can do it, gentlemen. 8 Come on. 9 He knows you can do it. 10 MR. ESPOSITO: You're a lawyer. He's an 1 1 epidemiologist. Why don't you listen to him on that. --12 MR. STERN: I want to 13 MR. ESPOSITO: And I don't think we're going 14 to continue on that. 15 MR. NACE: Sure we are. --16 MR. S T E R N : May I take a turn to note my 17 MR. ESPOSITO: Sure. - -1 8 MR. STERN: objection for the record. 19 I think the question is unanswerable. The witness 20 has said that several times he would not design a 2 1 study in the way you want him to. And I think the 2 2 question is objectionable -- SHERRY ROE & ASSOCIATES, INC. 236 1 MR. NACE: That's why -- --2 MR, STERN: for that reason. 3 MR. NACE: That's why we have hypothetical 4 questions. 5 MR. STERN: No. That's not why. 6 BY MR. NACE: 7 Q Go ahead, Doctor. How would you do that? 8 A I would not undertake to do a study that I 9 felt could not reach any reliable conclusion or any 1 0 meaningful conclusion. To undertake a study of all 1 1 bone marrow diseases lumped into one category would be 12 to undertake something that could not have any 13 meaningful interpretation. 14 Q How do you know that? 15 A Because I know enough about various bone 16 marrow diseases to think that they have very diverse 17 risk factors and some of them have no shared risk 18 factors whatsoever. 19 Q Well, how do you know, Doctor? You haven't 2 0 done this before. Now we're starting over from 2 1 scratch, This is the first time this has been done. --2 2 How do you know that you haven't got if you get a S H E R R Y ROE & ASSOCIATES, INC. 237 1 relative risk of 20 from bone marrow diseases, that 2 that might not be real? 3 A First off, we don't exist in a vacuum of 4 medical knowledge. We do know something about the 5 risk factors for many of the bone marrow diseases. To 6 ignore that knowledge and to simply combine them would 7 be a methodologic error - 8 Q When is that knowledge -9 A - - that would be ill advised. 10 Q When did that knowledge become available? 11 You said: We know. You said: We have knowledge 12 about some of these bone marrow diseases. When did 13 that become available? 14 A We'd have to go disease by disease and talk 15 about the risk factors that we know and when we knew 16 them. 17 Q When was the first time that we knew this 18 information of any one of these individual bone marrow 19 diseases? 10 years ago? 20 years ago? 50 years ago? 2 0 A Bone marrow, I should say tuberculosis of 21 the bone, Bott's disease goes back easily 100 years, 2 2 maybe 200. I don't know. It goes way back. ~ SHERRY ROE & ASSOCIATES, INC. 238 1 The effects of ionizing radiation on bone marrow 2 function certainly go back to the 1940s and possibly 3 well before that. 4 The knowledge of the various leukemias certainly 5 goes back in some cases 30 or 40 years with suspicions 6 regarding causal associations sometimes going back to 7 before that. So as we go down disease by disease, we 8 know different things and have known them for varying 9 lengths of time. We know enough to say that it would 10 -- that the various bone marrow diseases are different 11 diseases and should not be lumped together in one 12 study that is designed to examine their causes. 13 Q Well, if I told you that I want to know 14 everything there was to know about bone marrow 15 diseases and their relationship to gasoline, how would 16 you do the study? 17 A I would advise you to do a cohort study in 18 which you could study many separate outcomes. 19 Q Okay. 2 0 A And I have already given you the essential 2 1 design el ments of that study. 2 2 Q How many people would you have in the study? S H E R R Y ROE & ASSOCIATES, INC. 239 1 A That would depend on the incidence rate of 2 each of the diseases we wished -- of each of the 3 outcomes that we wished to study. And for a very 4 common disease, we might get away with a few hundred 5 people. For a very uncommon disease, we might need 6 many tens of thousands or hundreds of thousands. 7 Q Well, for rare diseases that you've told me 8 leukemias are, how many would you need in the study? 9 A I have to make ballpark estimates since I 10 can't do those calculations here as we sit. 11 The published cohort mortality studies suggest 12 that to have reasonably stable SMRs for each of the 13 major types of leukemia, we certainly need at least a 14 few hundred thousand person years of observation. So 15 that's some tens of thousands of people followed for 16 2 0 or so years. 17 Q A few hundred thousand? 18 A Person years of observation. 19 Q Person years? 20 A That's the product of the number of people 21 times t,,e number of years they're observed. 22 Q Give me an estimate of the number of people SHERRY ROE & ASSOCIATES, INC. 240 1 that that would include. 2 A I think I've answered that. I said some 3 tens of thousands followed for 10 to 20 years. 4 Q Okay. Has such a study been done with 5 respect to CLL and CML? 6 (The witness perused documents.) 7 A Yes. a Q Okay. What's the name of the study? 9 A "An Epidemiological Survey of Eight Oil 10 Refineries in Briton", by Rushton and Alderson. 11 Q Rushton, R-U-S-H-T-O-N? 12 A Yes. 1 3 Q Okay. Any other ones? 14 (The witness perused documents.) 15 A That is by far the largest and to my 16 knowledge, there is not another one that's even close 1 7 in size. 18 B Okay. Could I see that one, please? 19 (The witness handed document to Mr. Nace.) 20 You gave me two different articles, didn't you? 21 I 22 A They both pertain to the same study. Q Okay. S H E R R Y ROE & ASSOCIATES, INC. 241 1 A In fact, if I might add, a third here is the 2 most recent update on that study. It's a study of 3 almost 35,000 men followed for almost 4 0 years. 4 Q Okay. And is this third one that you just 5 gave me going to be an accumulation of the other two? 6 A It is derived from that same population of 7 35,000 people followed for 4 0 years. 8 Q Doctor, if I'm looking at this right, what 9 it's telling you is that 9 5 percent confidence, either 10 the people that worked in the refinery either were 11 protected because they worked in the refinery, or they 1 2 had relatively increased risk if they worked in a 13 refinery, and that's all you can get out of that; 14 isn't that true? I'm looking at what you highlighted. 1 5 (The witness perused document.) 16 A To what are you referring? 17 Q The orange highlight. Right here, for 18 example, it looks like all lymphatic. If he was a 9 5 19 percent confidence, if the figure is .48, that means 2 0 if you worked at the refinery, you're protected from 2 1 getting leukemia. But if the actual answer is, 1.31 22 then you're at risk of getting leukemia. S H E R R Y ROE & ASSOCIATES, INC. 242 1 A Well, I think you misinterpreted the 2 findings. 3 Q Tell me why. 4 A Well, the SMR is 83 for all lymphatic 5 leukemia mortality. And w,,at that says is that triere 6 was a slight deficit of mortality due to that type of 7 leukemia. The confidence interval tells us that we 8 have little confidence that that is different from no 9 association whatsoever. 1 0 Q Little confidence that it's different from 11 no association? 12 A Right. In other words, that's -- basically, 13 there's no association at all. There's no evidence of 14 increased risk. The SMR is slightly less than 100, 15 meaning it looks like a slight protective effect, but 16 I have no confidence that that's not due to chance 17 alone. 18 So the proper interpretation of that finding is 19 there is no evidence of increased risk of lymphatic 2 0 leukemia mortality in those refinery workers. 2 1 Q Would you agree with me that it's just as 22 likely that the truth is that the 9 5 percent -~ S H E R R Y ROE & ASSOCIATES, INC. 243 1 confidence range is .48 to 1.31, that - 4 8 could be the 2 real finding and 1.31 could be the real finding? 3 A I don't understand that question. 4 Q Well, how do you know that the lower bounds 5 or the upper bounds is more likely to be correct? 6 A I still don't understand the question. 7 Q A l l right. Why don't you put these back in 8 there so you don't lose them. 9 Excuse me, I have one more question on that. Did 1 0 that break down leukemias into CLL and CML? 11 A Yes, it did. 12 Q What table are you looking at? 13 A Well, you were looking at table six. Let me 14 look to see if there's a more appropriate table to 15 look at. In refinery workers, the correct table is 16 table six. And it does give you S M R s for each of the 17 four major categories of leukemia, A L L , CLL, AML and 18 CML. 19 Q Well, okay. Can you tell us what the 2 0 exposure was'I 2 1 A This s a study of roughly 35,000 workers 22 who were employed in eight o i l refineries in the S H E R R Y ROE 61 ASSOCIATES, INC. 244 1 United Kingdom. They would have had exposures t o t h e 2 chemicals t h a t are handled i n o i l refineries. 3 Q Can you t e l l i f t h e y w e r e washing t h e i r 4 tools i n gasoline? 5 A I cannot t e l l you t h a t . 6 MR. NACE: I ' m g o i n g t o w a n t t o make a c o p y 7 of b o t h of t h e s e books. 8 MR. ESPOSITO: W e c a n make t h e m f o r you a n d 9 send them t o you. 10 MR. NACE: W e l l , I t h i n k I ' l l l e t h e r 11 ( i n d i c a t i n g ) make them f o r m e . A c o u p l e have a l r e a d y 12 b e e n l e f t o u t , so I t h i n k I'll l e t h e r ( i n d i c a t i n g ) 13 make them f o r m e . 14 MR. ESPOSITO: W e c a n make t h e m so t h a t h e 15 c a n -- 16 MR. NACE: W e l l , I know you c a n , b u t I w a n t 17 t o have them marked as e x h i b i t s , i f I have t o do it 18 t h a t w a y a n d have them make it f o r m e . 19 S o why d o n ' t y o u f i g u r e o u t how y o u w a n t t o do i t . 20 I ' m going t o t a k e a quick break. I ' m probably done. 21 ( A break w a s t a k e n o f f t h e r e c o r d . ) 22 BY MR. NACE: SHERRY ROE & ASSOCIATES, I N C . 245 1 Q It strikes me that some of these risk 2 factors that we've been talking about for the various 3 diseases were even known before Mr. Jordan was born. 4 A I don't know when he was born -- 5 MR. JORDAN: You'll be lucky if you live 6 this long. 7 THE WITNESS: -- so I can't answer that. 8 MR. NACE: Okay. All right. That's really 9 a l l I have. I want to get these taken to her. 10 MR. ESPOSITO: We'll -- off the record. But 11 I do have a couple of questions, so why don't we take 12 care of that. 13 MR. NACE: Okay. Go ahead. 14 EXAMINATION BY COUNSEL FOR THE DEFENDANTS, 15 BP EXPLORATION AND OIL INC., CITGO PETROLEUM 16 CORPORATION, TENNECO OIL COMPANY, 17 AND CROWN CENTRAL PETROLEUM CORP., 18 BY MR. ESPOSITO: 19 Q Dr. Garabrant, Mr. Nace asked you some 20 questions concerning your 26-B4 statement and 21 specifically references to medical and scientific 2 2 literature. And he asked you whether the term -~ ~~ SHERRY ROE & ASSOCIATES, INC. 246 1 "epidemiological literature" should be substituted for 2 "medical and scientific". Is there anything beyond 3 purely epidemiological literature that you are 4 considering or using in reaching these conclusions? --5 A Yes. My the materials upon which I re Y 6 in forming my opinions include the epidemiologic 7 literature, the exposure assessment literature, 8 meaning industrial hygiene surveys, and other 9 assessments of exposure to gasoline and benzene. A 10 few toxicology references that discuss the uptake 11 distribution and metabolism of benzene and references 12 that could arguably called medical but 13 non-epidemiological in that they represent case 14 reports of various types of leukemia among benzene 15 workers. 16 And so all of those areas of literature are within 17 the things I reviewed. And almost everything I 18 reviewed is in my two notebooks of references. 19 Q And the other item that Mr. Nace asked you 2 0 about is a statement that the scientific evidence does 21 not support the proposition that the three leukemias 2 2 at issue were caused by gasoline or benzene exposure S H E R R Y ROE & ASSOCIATES, INC. 247 1 from work as mechanics with the DPW. Mr. Nace asked 2 if the word "scientific" might be replaced by the word 3 "epidemiologic". 4 Is there anything beyond epidemiologic evidence 5 that you looked at or considered in drawing that 6 conclusion3 7 A Yes. My review of the literature included 8 the exposure assessment literature because that is a 9 critical part of understanding disease risks related 10 to exposure, and it included some of the literature 1 1 that deals with dermal absorption as well as 12 inhalation absorption of hydrocarbon vapors. 13 I'm not sure if that fully answers your question. 14 Q Well, beyond the literature, did you also 15 consider anything that was provided to you by other 16 experts? 17 A Yes, I did. I considered the opinions of 18 Martin Hawley, John Spencer, and Scott Strickoff in 19 reaching my conclusions. 20 MR. ESPOSITO: That's all I have. 2 1 Is that it? 22 MR. NACE: Well, if I ask any more S H E R R Y ROE & ASSOCIATES, INC. 248 1 questions, you'll probably come back and try to give 2 him some more answers. So I won't ask any more 3 questions. 4 No. The final thing I want to do is I want these 5 taken into the custody of ,he Court through the court 6 reporter. I want to have a set made, and she'll have 7 it, not me. Just make sure we have a complete set. 8 MR. ESPOSITO: Well, we're happy to do that. 9 MR. NACE: Well, I know you're happy to do 10 it. 11 MR. ESPOSITO: You can trust us. 12 MR. NACE: I have a client to represent -- 13 MR. JORDAN: Is there some hint of 14 impropriety here? --15 MR. NACE: I don't know. I don't --16 MR. ESPOSITO: We're not 17 MR. NACE: I'm not saying anything like 18 that, but I also have a client and I want to do the 19 right thing for my client which is have these taken by 20 the court reporter around marked and made a copy of 21 it. 22 MR. ESPOSITO: It's fine that you mark it. ~ ~ ~~ S H E R R Y ROE & ASSOCIATES, INC. 249 1 I don't have any problem with'her marking it. 2 MR. NACE: And I want them to make a copy. 3 MR ESPOSITO: Why? 4 MR NACE: Because I'm not going to sit here 5 and go throug--everything today, unless you want me to 6 sit here and go through them all today. I'll do that. 7 MR. ESPOSITO: No. But I've never had an 8 experience, Barry, in my career, and I realize it's --9 not as long as some, but 10 11 me -- 12 MR. JORDAN: You guys are picking on MR. ESPOSITO: -- we're -- 13 MR. NACE: Well, let me just put it this 14 way. Is there something wrong with the way I want to 15 do it under the court rules? 16 MR. ESPOSITO: Well, it's primarily a cost 17 oriented thing, so are you going to pick up the 18 freight on that? 19 MR. NACE: I am for my copy. If you don't 2 0 want a copy, you don't have to have it. It's up to 21 you * 2 2 MR. ESPOSITO: Well, we do want to have it. SHERRY ROE & ASSOCIATES, INC. 250 1 I think everybody in this room wants a copy. 2 MR. NACE: Well, then they'll pick up their 3 own copy. Is there anything wrong under the court 4 rules with the way I want to do it? 5 MR. ESPOSITO: I don't think there's -6 well -- 7 MR. NACE: I mean, the rules are the rules 8 are the rules, and that's the way I want to do it. 9 And that's not reflecting on anybody. I just want to 10 have the court reporter do it. 11 MR. STERN: I don't think the court rules 12 reflect whether or not you can take documents that 13 belong to a witness. --14 MR. JORDAN: Just because 15 MR. ESPOSITO: I mean, you're entitled to 16 have copies of them, and we're happy to do it for you. 17 MR. JORDAN: There's nothing in the court 18 rules that say the court reporter will take custody of 19 everything and copy it because there was two names 20 left off a literature bibliography. I mean, it 21 doesn't make any difference to me. I don't know why 22 I'm defending -- SHERRY ROE &I ASSOCIATES, INC. 251 1 MR. NACE: I don't know why you were either. 2 MR. JORDAN: But I think it's important that 3 there is no court rule that I know of that says the 4 court reporter has to take custody of everything. 5 MR. NACE: Mark them as an exhibit. Then 6 she takes custody of them. Make it exhibit 18 and 19. --7 MR. ESPOSITO: Well, I think we'll do as 8 we stated. She can mark them. We'll copy them, and 9 we'll get you copies -- 10 MR. NACE: No. - -1 1 MR. ESPOSITO: in the original, 12 MR. NACE: No. 13 MR. ESPOSITO: You can say no, and I can say 14 yes, and we can be here a long time. 15 MR. NACE: We'll be here a long time, 16 because I'm going to have her take what he brought in 17 here and make copies of it. 18 MR. ESPOSITO: I am totally unclear as to 19 why. 2 0 MR. NACE: Because that's the way I want to 2 1 do it. I don't have to explain everything to you. 2 2 I ' m sorry. SHERRY ROE & ASSOCIATES, INC. 252 1 MR. ESPOSITO: O n s o m e t h i n g l i k e t h a t , I 2 t h i n k you do. I t h i n k you do. I mean, I t h i n k 3 t h a t -- 4 MR. NACE: I d o n ' t t h i n k I do. --5 MR. ESPOSITO: W e c a n we brought this. 6 W e brought copies, o r we can -- 7 MR. NACE: You d i d n ' t b r i n g a n y c o p i e s . 8 MR. ESPOSITO: N o . W e c a n p r o v i d e y o u w i t h 9 c o p i e s -- 10 MR. NACE: If you p r o v i d e d -- --11 MR. ESPOSITO: a list. 12 MR. NACE: I f you p r o v i d e d m e w i t h c o p i e s , 13 w e would have sat h e r e and compared them. But as it 14 s t a n d s now, I want h e r , t h e c o u r t r e p o r t e r , t o mark 15 t h e s e E x h i b i t 18 a n d 1 9 a n d t a k e c u s t o d y of them. --16 MR. J O R D A N : I p e r s o n a l l y 17 MS. MILNAMOW: A f t e r t h e c o u r t r e p o r t e r 18 makes c o p i e s , c a n D r . Garabrant have h i s o r i g i n a l s 19 b a c k ? 20 MR. NACE: A b s o l u t e l y . 21 THE WITNESS: I j u s t w a n t my o r i g i n a l s b a c k . 22 MR. ESPOSITO: R i g h t . I u n d e r s t a n d . SHERRY ROE & ASSOCIATES, I N C . 253 1 MR. JORDAN: Madam Court Reporter, how do 2 you do this? He wants you to take those with you and 3 copy them. 4 THE REPORTER: I can take them and take them 5 to my office. They copy them. They're supposed to be 6 attached to the original, but if you wanted special 7 arrangements for them to be returned to someone, I'm 8 sure we could do it that way. 9 MR. STERN: Why don't we stipulate that the 10 originals will be returned to the deponent. 1 1 MR. NACE: I have no problem with that. I 12 said that already. 13 THE WITNESS: Can I ask you a question? Can 14 I tear out the pages that have writing and keep the 15 pads of paper? Do you have a stapler? 16 MR. ESPOSITO: You're entitled to keep 17 those. 18 MR. JORDAN: They've already been copied. 19 THE WITNESS: Oh, you mean I can keep, just 2 0 keep these exhibits? 2 1 MR. JORDAN: Yes. 2 2 THE WITNESS: Oh. I thought I was giving SHERRY ROE & ASSOCIATES, INC. 254 1 t h e s e up. 2 MR. NACE: L e t m e make i t c l e a r on t h e 3 r e c o r d . I want h e r t o keep a copy of a l l of t h e 4 e x h i b i t s t h a t w e ' v e had c o p i e d so f a r , The o r i g i n a l 5 t h a t t h e w i t n e s s h a s c a n go w i t h him r i g h t now. I 6 d o n ' t have any t r o u b l e with t h a t . A t t a c h a copy t h a t 7 you h a v e b e e n g i v e n h e r e t o t h e d e p o s i t i o n . And I 8 want you t o do t h e s a m e t h i n g w i t h t h e s e two new 9 e x h i b i t s , 18 a n d 19. Make a c o p y . A t t a c h a c o p y t o 10 t h e d e p o s i t i o n and r e t u r n t h e o r i g i n a l t o c o u n s e l . 11 MR. JORDAN: Madam C o u r t R e p o r t e r , d o you 12 c h a r g e a n y t h i n g t o c o p y ? You j u s t c o p y them a n d j u s t 13 charge a page copy? 14 THE REPORTER: Charge a page copy. 15 M S . MILNAMOW: And how much i s t h a t ? 16 THE REPORTER: I t ' s $1.00 P e r p a g e f o r t h e 17 i n i t i a l copy, which would be b i l l e d t o you --18 ( i n d i c a t i n g ) , a n d i t would b e $ . S O a l l of o u r 19 e x h i b i t s a r e $ . 5 0 a copy. 2 0 MR. ESPOSITO: W e l l , why d o n ' t w e j u s t h a v e 21 a l l t h a t b i l l e d t o M r . N a c e , i f h e ' s going t o be 22 i n s i s t e n t on t h a t . SHERRY ROE & ASSOCIATES, I N C . 255 1 MR. JORDAN: $1.00 a page? 2 THE REPORTER: For him. $ . 5 0 a page for the 3 rest of you. 4 MR. JORDAN: $ . 5 0 a page. I mean, that's 5 highway robbery. 6 MS. MILNAMOW: Yeah, but if he's got -- for 7 us, he'll get the originals back. We won't order a copies of these. 9 (A brief discussion was held off the 10 record. ) 11 (Garabrant Exhibits 18 and 19 were marked 12 for identification purposes.) 13 (Thereupon, proceedings concluded at 5:35 14 15 * * * 16 I have read the foregoing pages 1 to 2 5 5 which 17 contain a true and correct transcription of the 1 8 answers made by me to the questions therein 19 recorded. 20 2 1 DR. DAVID HI GARABRANT 22 SHERRY ROE ti ASSOCIATES, INC. CERTIFICATE OF NOTARY PUBLIC 256 I, Elizabeth A. Jones, the officer before whom the foregoing deposition was taken, do hereby certify that the witness whose testimony appears in the foregoing deposition was duly sworn by me; that the testimony of said witness was taken by me in stenotype and thereafter reduced to typewriting under my direction; that said deposition is a true record of the testimony given by said witness; that I am neither counsel for, related to, nor employed by any of the parties to the action in which this deposition was taken; and, further, that I am not a relative or employee of any attorney or counsel employed by the parties hereto, nor financially or otherwise interested in the outcome of the action. My Commission Expires: Notary Public in and for the District of Columbia S H E R R Y ROE & ASSOCIATES, INC.