Document 3NJB44ODnL99wgXE0raroykka

NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION 48 Page 49 Page 51 CASE NUMBER: BC 360274 1 CASE NAME: BARBARA J. O'NEIL, ET AL. 2 VERSUS 3 BUFFALO PUMPS, INC., ET AL. 4 LOS ANGELES, CALIFORNIA MONDAY, JANUARY 7, 2008 5 DEPARTMENT 42 HON. ELIHU M. BERLE, JUDGE 6 APPEARANCES: (AS HERETOFORE NOTED.) 7 REPORTER: LINDA NISHIMOTO, CSR NO. 9147 8 TIME: 1:30 P.M. *** 9 10 (In open court; jury present:) 11 THE COURT: Good afternoon, ladies and gentlemen 12 back on the record in the case of O'Neil versus Buffalo 13 pumps. All members of the jury are present and seated 14 counsel are present. We are still on the opening 15 statements. Do you wish to continue shall Mr. Mo land. MR. MOLLAND: Thank you, your Honor. 16 17 Good afternoon, ladies and gentlemen. I am going to pick up where I left off I am 18 19 almost done with the Yarway equipment but a couple of more 20 minutes on that, five or ten more minutes on some other minutes and then I will pass to the other defense counsel. 21 22 We were talking when we broke for lunch, 23 about insulation and the fact that Yarway didn't make it. I 24 am not going to repea ought that. It's clear Yarway was not 25 insulation manufacturer or supplier. That is not how the 26 insulation got on the Arizona because the Navy require the 27 insulation and required the asbestos in it and bought it 28 Page 50 of them, almost all of them look like this one. Probably a little smaller but they sort of looked like this one and the drawings that we had, the documents that we have show there wasn't any asbestos in them. Now, because everything I have told you, the plaintiffs Navy expert was going to tell you about how the Navy constructed the ships and what was on them has testified and we believe he will testify again that as far as the Oriskany is concerned, he has not seen any documents that show that Yarway when it sold the Navy equipment in the 40s and 50s to put on a ship, put any asbestos on that ship through the equipment it sold the Navy. That is what the plaintiffs' expert has said based on the documents he has reviewed. A couple more subjects, I told you about the Navy and I told you about asbestos use and I told you about what the Navy knew about asbestos and when it knew it. I want to now turn to what the connection between Mr. O'Neil and the Navy and Yarway is. The bottom line is that as far as Yarway is concerned, Mr. O'Neil we believe never worked with any Yarway equipment. He didn't work with -- never took apart a steam trap and never took apart a gauge glass. From time to time he was on -- because he was aboard that ship like hundreds of other officers and sailors he was around equipment when it was repaired and he may have been around some Yarway equipment when it was repaired. That is the connection between Mr. O'Neil and Yarway. Now, I have told you what was in the Yarway products that we know from the documents at any rate, and I Page 52 1 from others like Celotex or Johns Mansville or made it 1 have told you what was on the ship because the Navy required 2 itself out the Amosite from its contract shipyards or Navy 2 it as far as insulation was concerned. Mr. Hart said that 3 ship yards. 4 Steam trap. The drawings that we have for 3 the greater amount of Mr. O'Neil's exposure to asbestos on 4 the Oriskany was from insulation. That is right. In fact, 5 the ex-ex-class destryoer showed there was any asbestos in a 5 we will have evidence that it is the overwhelming part of 6 steam trap but I have to tell you this. Mr. Hart showed you 6 his exposure to insulation that the Navy bought from others 7 flanges there are flanges on the steam trap. The flanges 7 under their requirements and to asbestos containing pads the 8 are right here. These flanges on the steam traps were - 8 Navy pad. 9 gaskets were used on them. And this type of gasket that was 9 Industrial hygienist named professor Nicas 10 used on this type of steam trap, it is metal. It has and 10 will testify in this case and he has done a calculation 11 during the time of Mr. O'Neil was on the Oriskany, this 11 which shows either Mr. O'Neil was exposed to nothing or 12 particular type of gasket was called a metal spiral wound 12 close to nothing from anything inside a Yarway steam trap or 13 gasket. It did have small pieces of asbestos paper in the 13 gauge glass or if there was anything, it was something in 14 rings of this metal gaskets and they fit on the sides of the 14 the order of 1 to 1,000th or one part to 100,000th something 15 steam trap and Yarway didn't make them. And Yarway didn't 15 in that order, a very trivial amount of exposure if anything 16 supply them. The Navy bought them from others. Principally 16 at all. 17 some other companies of names that you will hear. The Navy 17 That is why when we conclude, we will ask 18 put them on. The Navy took them off and when the Navy 18 you to return a verdict that Yarway was not a substantial 19 bought the steam trap from Yarway to puts on the Oriskany, 19 factor in causing Mr. O'Neil's mesothelioma. 20 these didn't come with them. But the Navy put them on and 20 Now, there is just one other subject that I 21 the Navy took them off and if there was asbestos in them, it 22 was because the Navy required it to be there. If there 23 wasn't asbestos in them and sometimes there wasn't, it was 24 because the Navy said it shouldn't be there. That was up to 25 the Navy. 21 need to cover with you because Mr. Hart did and I think the 22 evidence on the subject will be somewhat different than he 23 said so I need to tell you what our evidence will be. That 24 is what he preferred to as the warning issue and the issues 2 5 of what equipment manufacturers could or should have told 26 There are documents in this case for Yarway 27 that show on Essex class destroyers like the Oriskany, what 2 6 the Navy about dangers of asbestos, especially asbestos 2 7 insulation. 28 kind of steam traps it had on that ship. There were -- most 28 The fact and we believe the uncontested 1 (Pages 49 to 52) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION Page 53 Page 55 1 evidence will be -- of all of these hundreds of makers of 1 it. It did so after it made independent decision about the 2 equipment that the Navy purchased and of all of the 2 risks and benefits of asbestos containing insulation aboard 3 manufacturers of the insulation the Navy purchased, in the 3 its warships. It required the sailors to use 4 50s up until the time Mr. O'Neil left the Oriskany, none of 4 asbestos-containing insulation and repair it without 5 those manufacturers and none of those suppliers ever told 5 precautions. This was something the Navy decided as part of 6 the Navy about the dangers of asbestos insulation. 6 its military decisionmaking. It wasn't a decision made by 7 It is true that the six defendants didn't 7 Yarway and with Yarway manufacturing steam traps, it could 8 tell the Navy about the dangers of asbestos insulation, but 8 have told the Navy about asbestos and t would not have 9 no manufacturer of any equipment that we know of that went 9 changed the way that the Navy conducted its business during 10 on that ship did either up until the time Mr. O'Neil left 10 the time of war. 11 it. 11 Ladies and gentlemen I thank you very much 12 We have two witnesses that will testify on 12 for your attention. I am going to conclude my opening 13 the subject, Dr. Hughson and Admiral Sergeant. And perhaps 13 statement now. Several other defense counsel are going to 14 a witness named doctor gomer. They will say that there were 14 follow me and I simply ask that you give them the kind 15 basically four reasons for this. The first is the Navy 15 attention you gave me and Mr. Hart and I look forward to 16 specifically required asbestos when it wanted to use it 16 presenting our case to you. Thank you very much. 17 aboard ship. In other words, the companies didn't have to 17 THE COURT: Thank you. 18 tell the Navy if there was asbestos in their products 18 Who wants to go next. 19 because the Navy told the companies that it would either 19 MR. SLAUGHTER: Your Honor, I would. 20 have to have it there or the Navy was aware it was there 20 THE COURT: You may proceed. 21 because it was part of the rules, part of the 21 MR. SLAUGHTER: Thank you very much. May it please 22 specifications. 22 the court, ladies and gentlemen of the jury, my name is Ed 23 The witnesses will also testify that the 23 slaughter and I represent the Warren pump company. 24 Navy had superior knowledge not just equal knowledge but 24 Obviously there are things in the course of the trial that 25 superior knowledge about the risks of asbestos containing 25 people disagree about. And you will hear the evidence on 26 insulation used aboard ships compared to any equipment 26 the points. It would have been absolutely forbidden for the 27 manufacturer and that is because it was testing and doing 27 Warren pump company or any other defendant in this case to 28 studies on asbestos insulation during World War II, during 28 refuse to manufacture products for the United States Navy Page 54 Page 56 1 the 1950s and in fact, even when Mr. O'Neil was aboard ship 1 during a time of war. In 1943, the products component parts 2 it was testing and working with asbestos containing 2 began to be built for the USS Oriskany, it would have been a 3 insulation to find out whether it was dangerous. 3 felony for Warren pump to refuse to build things for the 4 And I have already mentioned to you it 4 Navy when the Navy asked that it do so. 5 published one the leading studies in the medical literature 5 In fact, the Navy had the ability through 6 on whether or not asbestos containing insulation was 6 the United States government to seize control of Warren 7 dangerous. 7 pumps' plants and put naval officers into the plants and 8 The warning wasn't given to the Navy about force them to make products just like all of the other 9 asbestos containing insulation as far as equipment companies in this case. That is exactly what happened. 10 manufacturers were concerned and certainly as far as Yarway 10 What happened in a time of war is that all 11 was concerned because the Navy wrote the book on it starting 11 of the companies here, but far with the patriotic 12 in the 1940s. 12 obligations and as a matter of law were required to assist 13 Number three, there was nothing in Yarway 13 the war effort. Not only were they required to build those 14 gauge glasses or steam traps which would have required a 14 products, those components, they were required to put 15 warning about asbestos, either there was no asbestos in them 15 asbestos in those products when the Navy called for 16 as far as the steam traps on the Oriskany or if there was 16 asbestos. 17 some small amount it was so small it was far below that 17 You have heard a little bit about military 18 standard, remember the 5 bill particles per cubic foot 18 specifications. What those specifications did was set out 19 standard that was in place in the United States and the law 19 for companies like Warren pumps precisely how components 20 in the Navy that our witnesses will testify no reasonable 20 parts like pumps had to be made. Routinely the Navy wrote 21 scientist could have thought that amount of asbestos could 21 specific military specifications that specifically required 22 be dangerous and would have required a warning. 22 asbestos components. This was not a suggestion. It was not 23 And there is a fourth reason. This will be 23 a recommendation. It was a requirement written in a 24 testified to by Admiral Sergeant. It has to do with 24 document. You are going to see those documents during this 25 military decisionmaking. The military controlled Ensign 25 trial. That direct evidence of exactly what the military 26 O'Neil when he was in the Navy. It gave him his orders and 26 required people like Warren pumps to do during a time of war 27 he gave his orders to the sailors. The Navy required that 27 and the other defendants in in case. 28 the insulation and the pads on the Oriskany have asbestos in 28 I suppose one of the questions is why was 2 (Pages 53 to 56) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION Page 73 Page 75 1 moment. Captain Lowell testifies that in his recollection 1 that were on the ship at the time of Mr. O'Neil's service, 2 these pump governers were insulated. Even if Captain Lowell 2 the risk to Mr. O'Neil of ever contracting any asbestos 3 says there was insulation on the pump governers, it would 3 disease would have been greatly reduced and perhaps 4 have been on the body. Neither on the top cap nor the 4 eliminated. 5 bottom cap. The caps would have insulation on the body of 5 Let me restate that. If the officers on the 6 the governer not the top cap and not the bottom cap. There 6 Oriskany had read the instructions that were on the ship and 7 is a good reason for to manipulate and adjust these pieces 7 followed them as the Navy required, the risk to Mr. O'Neil 8 of equipment you have to have access to the top cap and the 8 would have been greatly reduced and perhaps eliminated. 9 bottom cap. Both the top cap and the bottom cap have 9 Final quick point. You have heard about 10 moveable parts around you can't bind them up in insulation 10 warning. I know in is tough time in the afternoon. Lawyers 11 to interfere with their movement. 11 hate to be the guy to talk at this point in the afternoon. 12 Furthermore, the vast majority of any work 12 Human biology it's time to take a nap. Let me finish up 13 that any sailor would be doing on this piece of equipment 13 quickly and then I will leave you alone. 14 would be done to either the top cap or the bottom cap and it 14 Warnings, you have heard about the Navy's 15 wouldn't require a disturbance of any insulation if it was 15 knowledge of asbestos hazards and that is certainly extended 16 even there. 16 to any risk associated with insulation materials. That was 17 A few more quick point. There isn't going 17 well known and the Navy had instructions not just in general 18 to be any evidence that any of the Leslie pump governers 18 but on the Oriskany about dust from insulation. 19 were made improperly. No witness is going to say that one 19 The evidence is also going to show that at 20 of these pump governers exploded or leaked or broke or 20 the times pertinent to this case certainly in the 40s and 21 malfunctioned. In isn't going to be any evidence that any 21 even into the 4050s and even into the 60s the evidence is 22 of these pump governers failed to meet the design the Navy 22 going to show that medical science, scientists in general 23 dictated. No one is going to say that Leslie provided 23 didn't recognize any health hazard for sailors and other 24 improper materials, made a surface too shallow, didn't 24 workers using gaskets and packing that contained asbestos. 25 manufacture their equipment properly. It functioned as it 25 This is actually from one of plaintiffs' experts doctor 26 was designed to function and it met the design that the Navy 26 Barry Horn. And you will hear that Dr. Horn is a man who 27 required. To a.m. my things you heard from other counsel. 27 has been involved in asbestos research himself. He did some 28 You heard that the Navy knew about asbestos hazards at some 28 research and work in the shipyards in the 70s. He has Page 74 Page 76 1 fashion at various time and issued various instructions and 1 published on the issue and he has testified in many of these 2 orders as to those various hazards. Let me draw that to a 2 cases over the years and he has seen patients of his own 3 finer point. The evidence in this case is going to show 3 with asbestos disease and he is called as an expert on 4 that on Navy ships in general and the Oriskany in 4 behalf of firms like Mr. Hart's in these cases on a regular 5 particular, it was the obligation of the officers and the 5 basis. And Dr. Horn has said that at the time pertinent to 6 crew to maintain certain instructions and orders that were 6 this case in the 40s and 50s and 60s medical science didn't 7 disseminated by the Navy. And the documents are going to 7 even recognize any hazard associated with working with 8 show that the USS Oriskany was inspected several times gaskets and packing. 9 before ensign and Lieutenant O'Neil came on board and that In closing I would like to thank you for 10 the required instructions and orders were in fact maintained 10 your time and attention there are other counsel that may 11 on the Oriskany properly. 11 wish to speak to you briefly and I thank you for your 12 And the evidence is going to show that some 12 attention. 13 more of these instructions and orders were actually 13 THE COURT: Thank you. Who wishes to go next? 14 delivered to the Oriskany while Mr. O'Neil was on board. 14 MR. GILL: I will, your Honor. 15 And the orders and instructions I am talking to you about 15 THE COURT: You have about 12 minutes collectively 16 are orders and instructions that specifically addressed 16 the defendants have 12 minutes. 17 taking precautions regarding asbestos dust. 17 MR. GILL: Good afternoon, ladies and gentlemen. 18 Let me state that again. Before Mr. O'Neil 18 Again re gill on behalf of Crane Co. And obviously we know 19 got on the Oriskany and while Mr. O'Neil was on the 19 that this is a very empathetic case and we all feel for the 20 Oriskany, the Oriskany received orders and instructions from 20 family. As far as the facts are concerned, I just want to 21 the Navy about taking precautions with asbestos dust. The 21 be very clear, there are two key facts in this case. One 22 naval officers are going to testify for you here I think 22 Crane Co valves did not call Mr. O'Neil's tea cease. 23 without exception are going to say it's the obligation of 23 Number two, Crane Co valves were considered 24 the officers in particular on these ships to know those 24 safe at that time the time they were manufactured and sold. 25 orders, to understand those orders, and to see that they are 25 Now, there has been some discussion about 26 followed. And I believe the medical experts in this case 26 what this case is all about. There has been discussion 27 including plaintiffs' expert Dr. Horn will testify for you 27 about the asbestos - 28 that had the officers on the Oriskany followed the orders 28 ALTERNATE JUROR NO. 4: Could you put the poster 7 (Pages 73 to 76) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION Page 89 Page 91 1 Q. You are a doctor, is that correct? 1 study of diseases caused by asbestos? 2 A. I am a PhD. 2 A. Since the middle 70s. 3 Q. And what is your field of specialty, sir? 3 Q. And let me go back to your education. Can 4 THE COURT: Just a second. May I ask the clerk to 4 you give us a brief overview of your education? 5 distribute the notebooks? 5 A. After high school in New Hampshire, I went 6 THE COURT: You may proceed. 6 out to Colorado to do a Bachelor of Science degree in 7 Q. Dr. Brody, what is your field of specialty, 7 zoology. That is the study of animals. Then I went to the 8 sir? 8 University of Illinois where I received a master of science 9 A. It's called cell biology. 9 degree in anatomy. Human anatomy and animal anatomy, how 10 Q. First of all, you said you practice 10 the parts are put together. 11 pathology, is that correct? 11 Then I went back to Colorado to do the PhD 12 A. Experimental pathology. Study of disease, 12 the doctorate in cell biology as I described. Then three 13 pathology. 13 years of post doctoral study at Ohio State University. 14 Q. And you have a doctorate in that area, is 14 Q. And what was the post doctoral study in? 15 that correct. 15 A. That is really where I started interest in 16 A. That's right. 16 lung disease, allergies, and asthma and that sort of thing. 17 Q. And Dr. Brody, have you conducted research 17 Q. And, doctor, can you give us an overview of 18 concerning asbestos and how asbestos causes disease 18 your work experience before moving to North Carolina? 19 including mesothelioma? 19 A. So post doc at Ohio state, I did -- I 20 A. For decades, yes, sir. 20 accepted what is called an assistant professor position. 21 Q. And are you here today to testify about your 21 That was a beginning professor in the pathology department 22 research to this jury? 22 at the University of Vermont. That was in the medical 23 A. That's right. 23 school and I was there for six years. That is again where I 24 Q. And before we get into that, let me get some 24 started studying asbestos disease. 25 information about your background r, please sir. Where do 25 Q. Excuse me. Earlier you developed an 26 you live? 26 interest in lung pathology or how the lung is made up and 27 A. In Raleigh, North Carolina. 27 then when you went to Vermont and you began focusing on 28 Q. What is -- your position in Raleigh? 28 asbestos in the lungs, is that correct? Page 90 Page 92 1 A. I am a professor in the department of 1 A. Right. Because I worked with Dr. Wagner. I 2 molecular biomedical sciences at North Carolina State 2 don't know if you heard about Dr. Wagner yet. 3 University. 3 Q. Not yet. 4 Q. What does that mean? 4 A. I met Dr. Wagner and worked with him and he 5 A. Biomedical means the biology of medicine. 5 introduced me to these diseases and then I was there at 6 Medicine you understand. Biology is the way it works and 6 Vermont for six years and accepted a position at the 7 biomedical sciences deal with how diseases develop and we 7 National Institutes of Health and I was the head of the lung 8 say molecular, that means at the genetic level. What is it 8 pathology laboratory for 15 years at the national institute 9 about our genes that drive disease. 9 of environmental health sciences. Following that, 15 years, 10 Q. And can you give us just an overview of the 10 in 1993, I accepted a position as a full professor at the 11 type of work you do on a day in and day out basis please 11 Tulane university medical school in New Orleans and I was a 12 sir? 12 professor there and then I was promoted to vice chairman of 13 A. Yes, right now we are trying to understand 13 the department so I was vice chairman of the pathology 14 the genes that control various lung diseases like scar 14 department in the medical school at Tulane university for 13 15 tissue formation, certain cancers including mesothelioma, we 15 years. 16 have -- we work with cells, we work with animal models and 16 We had this little storm called Katrina and 17 of course the idea is to understand human disease so we are 17 Katrina changed my life there as well as a lot of others and 18 working with human stem cells. They are called umbilical 18 so right after that, I accepted a position at North Carolina 19 cord stem cells and stem cell derived from umbilical cord 19 State University where I currently am. 20 blood from people and we are trying to use those cells to 20 Q. Now, you mentioned Dr. Wagner, tell the 21 develop treatments for these diseases where currently there 21 ladies and gentlemen of the jury who he is and who he was 22 is no such treatment. 22 excuse me -- and how he affected your study on asbestos? 23 Q. Does some of your research deal with 23 A. In 1974, Dr. Wagner came to very visit the 24 diseases caused by asbestos? 24 University of Vermont. He had discovered in 1960 that 25 A. Exactly. That is what the National 25 asbestos causes mesothelioma. This cancer I know you have 26 Institutes of Health supports my work to understand -- 26 heard about mesothelioma. 27 the -- very many of asbestos induced diseases. 27 He saw the work that I was doing using what 28 Q. And how long have you been engaged in the 28 is called an electron microscope. This is a kind of 11 (Pages 89 to 92) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION Page 93 Page 95 1 microscope that I was using that allows investigators to 1 Q. Teaching at universities? 2 magnify things hundredsd of thousands of times. He had 2 A. That's right. In the medical school and 3 developed an animal model of asbestos disease. And he asked 3 also graduate students and medical doctors, sure. 4 me if I would be interested in coming and working with him 4 Q. And after Tulane you went to North Carolina? 5 Wales, the United Kingdom, which is where he was at time an 1 5 A. That's right I am currently in North 6 developing this model system; and of course I thought that 6 Carolina State University. 7 was fantastic idea and did that and that was really my 7 Q. Are you involved with the medical school 8 introduction to asbestos disease. 8 there? 9 Q. And you worked with Dr. Wagner for how long? 9 A. So at North Carolina State University, we 10 A. It was for summers, about 8 weeks. 10 have a vetinary school and I also regularly associated and 11 Q. Now, you mentioned that you were employed at 11 work with the medical school at University of North Carolina 12 the National Institutes and Environmental Health Sciences, 12 and Duke university, but we have this concept in medicine 13 correct? 13 called one medicine. What is good for your dog and cat is 14 A. That's right. 14 good for us. In other words the medicine is very much the 15 Q. What is that institute? 15 same. 16 A. So that is one of the 15 or so National 16 Q. And is that why sometimes animals are used 17 Institutes of Health. You may have heard of the National 17 for experiments rather than -- helpful in experiments in 18 Cancer Institute. National Heart, Lung, and Blood 18 finding out information about human and human disease? 19 Institute. National institute of allergies and infectious 19 A. Sure. You have to absolutely right. I and 20 disease. These are all institutes that make up this 20 thousands of other scientists around the country use animal 21 government agency known as the National Institutes of Health 21 models of human disease. Now, we have to prove to the 22 and they are dedicated to learning sufficient -- 22 scientific community that we have a model that teaches us 23 sufficiently about the diseases to be able to treat them. 23 about human disease, because not everyone one, not all of 24 Q. Is that a branch of our government that is 24 the models do that, but if you have one that does, then you 25 dedicated towards science? 25 can prove to the scientific community that it helps then 26 A. Exactly. 26 sure. 27 Q. And your position there was the director of 27 Q. Doctor, have you had occasions to present 28 pathology? 28 the results of your research to the scientific community for Page 94 Page 96 1 A. No I was the head of the lung pathology 1 them to evaluate? 2 laboratory. 2 A. Many times. 3 Q. Now, you mention the earlier P M.D., are you 3 Q. And how do you normally do that? 4 medical doctor? 4 A. There are a couple ways. The most important 5 A. No. 5 way is to publish your work in the open medical literature. 6 Q. How did you get to be head of that 6 And that is called the peer review science. 7 laboratory of pathology if you are not a medical doctor? 7 Q. What does that mean, peer review? 8 A. The same question could be asked how do you 8 A. So that means if I do a series of experiment 9 get to be the vice chairman of pathology department in the 9 in my laboratory and I think it's that work is ready for 10 medical school and the answer is that it's not unusual for 10 anybody to read, I put together a manuscript, a paper and 11 PhDs to be professor in medical schools. Go to any -- I am 11 send it to the editor of one of 25 or so different bio 12 going to USC tomorrow to give a talk in the department of 12 medicaljournals. You can only send it to one at a time. 13 pull money and critical care medicine and they have. 13 And that journal -- then the editor of that journal sends my 14 Q. That is the school of medicine here? 14 paper to two or three or four of my peers, other scientists 15 A. That's right. And they have a number of 15 anonmyously to review my work and they pass judgment on the 16 PhDs in their department just as I was and we teach the 16 work and send a written review back to the editor. And then 17 basic sciences to the medical students before they go into 17 the editor decides whether or not it needs more work, needs 18 their clinical sciences and things, they need to do bio 18 further writing needs more experiments. And then finally 19 chemistry it's not that usual for a PhD to be vice chair of 19 when that paper finally appears, if it does, then that is 20 a department, but that is what I was. 20 called the peer reviewed literature. 21 Q. That is what you were in Tulane? 21 Q. And what is the purpose of publishing the 22 A. That's right. That's right. 22 research in peer reviewed literature? 23 Q. And you were vice chairman over the 23 A. Well, that is the way you provide new 24 Department in the medical school in Tulane, is that right? 24 information to the world's literature. In other words, you 25 A. That's correct. 25 don't get to redo just what somebody else has done. You 26 Q. And during your professional career, have 26 have to advance our understanding of a disease process. And 27 you been involved in teaching? 27 that is the idea of this work. 28 A. That's right. Regularly, sure. 28 Q. Okay, and does publication of your article 12 (Pages 93 to 96) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION Page 113 Page 115 1 So you can see, I focused the microscope right down on the 1 well. 2 carpet. Here is the carpet and here is the cell with the 2 So what I did was I had the animal model - 3 bumps and there are two other actors. There is this one 3 we know that Dr. Wagner showed that rats when exposed to 4 that is sitting ruffled not going anywhere and there is this 4 asbestos get all of the diseases that people get. So I was 5 cell with the tail end and a front end and this cell was 5 able to use this animal as a model to find where the fibers 6 moving in this direction when I caught it in the act. And 6 go and find out how they injure lungs. 7 these cells right here are called macrophages. Macro mean 7 Q. All right, now doctor, you said asbestos 8 big and phage means eater. They are the big eaters of the 8 fractures and makes tinier fibers. Is asbestos an unusual 9 lung. They patrol our air space surfaces and they can 9 mineral in that respect? 10 detect particles that don't belong our our air space 10 A. It is, sure. 11 surface. 11 So here we are now. Now we are in the lung 12 So this air space once belonged to a person 12 of a rat. And I know it looks the same as I was showing you 13 who was killed in a motorcycle accident. I was on the 13 as the lungs of human. If a rat or mouse went running by 14 medical examiner's autopsy call and I went down and prepared 14 here right now, he would be doing exactly what you are 15 this person's lung so we could look at it. When I was 15 doing, inhaling and exhaling the room air using the same 16 looking through the air space I saw these two cells. This 16 structures that we have been talking about. 17 one and this one going after this pollan grain right here. 17 And here you can see the end of the airway 18 And so this cell was in the act of crawling towards this 18 where it opens out into the gas exchange area. And I have 19 pollen grain and was going to ingest the pollan grain and 19 exposed this particular animal to a single hour of Crysotile 20 digest it and carry the debris up on to the escalator. And 20 asbestos and then after the hour was over I took the animals 21 every time you swallow, in fact you swallow a few of your 21 out and gave them an overdose of anesthetic and of course 22 friends, these macrophages because they are constantly 22 they don't wake up from the overdose and I prepare the lungs 23 searching for things that don't belong in our air space 23 as I have just shown you and I can then if I see the 24 surface. We swallow them and that is what you are supposed 24 asbestos in the lung, I know when it got there. It got 25 to do. 25 there during that hour of exposure. That is the only way it 26 Off course when asbestos lands in the sites 26 can get there. And then if I look at the animal hours 27 they find asbestos and we actually discovered in my 27 later, days later, week later, month later, year later, I 28 laboratory the chemical signal that attracts macrophages to 28 can follow that process of what the asbestos is actually Page 114 Page 116 1 asbestos fibers. 1 doing to the lung. 2 Q. So all of these -- that hairy thing we 2 Q. And doctor, have you found that the action 3 showed earlier, you showed us earlier part of that 3 of asbestos on the rat and -- is it rat lungs here? 4 mucocilliary escalator, the particle fibers or particle 4 A. This is -- we have used rats and mice. 5 cells and macrophages all help protect the body from things 5 Q. Rat and mice lungs are similar to the action 6 that invade the lungs? 6 of asbestos on human lungs? 7 A. Absolutely they are a very effective defense 7 A. You don't get to follow it in people. That 8 mechanisms that can eliminate over 90 percent of whatever we 8 is the thing. By the time the person comes to the clinic 9 are exposed to. That is correct. 9 decades later, you don't get to see what is going on in the 10 Q. All right, what is this slide? 10 lungs. So that is why we use the animal models. 11 A. Now you have seen all the cells that you 11 The question is does the disease develop in 12 need to know or to see or understand what happens when 12 the animals from the same cells as it does in people in the 13 asbestos gets in the air so we can talk about asbestos. And 13 same sites. In the same anatomic spots. The answer is yes 14 you can see now that this says Crysotile asbestos fiber 14 And that means we can use them as models. 15 bundles. You asked me about the asbestos varieties. This 15 Q. Okay? 16 is what Crysotile look like. 16 A. So here now in this particular animal I am 17 Here is the size marker to answer your 17 going to take a picture of this spot right here immediately 18 question how big these fibers can be or how small. There is 18 after this single hour of exposure and I am going to focus 19 a 1 micron bar which you can easily see at a magnification 19 the microscope right here and take this picture right here 20 of 4,300 times. 20 and now you can see sitting on the carpet cells. There are 21 Now you can see if you lay this bar along 21 the carpet cells down here in the air space. You can see 22 side the fibers, you can see that some of them may be 22 sort of a short asbestos fiber here. This is 10 micron bar. 23 hundreds of microns long, some of them 5 or 6 microns long. 23 So that means this fiber is about 10 micron long some of 24 Some of them extremely thin. Tenths of one micron. That is 24 them are shorter. Some of them are longer. Some of them 25 the point that asbestos can reach huge variability in size 25 are straight and some of them curled. That is the point you 26 and shape. Infinite variety of sizes and shapes. And it's 26 saw earlier when I showed you the fiber. Now they are 27 constantly breaking down. Fibers not only fracture off of 27 sitting on the carpet of this animal's long. The lung. 28 these bundles outside of the lung but inside the lung as 28 What I found was the carpet cells respond 17 (Pages 113 to 116) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION Page 117 Page 119 1 very quickly to the presence of asbestos. They actually 1 lung. Most of it is covered. There is fiber down here that 2 come over the top of the fibers and you can see some of that 2 is completely covered and you can just see a little bit of 3 happening right here and the fibers disappear from view. 3 end of it poking through, almost through the cell. 4 They disappear from view within that first hour of exposure 4 Maybe you have noticed these characters look 5 and they get shoved under the carpet. 5 kind of like doughnuts. Obviously you don't have doughnut 6 Now, I don't know if you heard about 6 in your lungs. This is what your red blood cells look like. 7 background asbestos. 7 Your red blood cells. This is the lung of a rat. But our 8 Q. We haven't heard. You are the first witness 8 red blood cells look exactly like mouse accurate blood cells 9 in the case, doctor. 9 and they are the same size and do exactly the same thing. 10 A. So we all are exposed to a little bit of 10 They carry oxygen and carbon dioxide. And they look like 11 asbestos every day. A few fibers floating around in the 11 doughnuts because they have a depression in the center not a 12 air. And so as a result, we all have some asbestos in our 12 hole but a depression. And so notice that these red blood 13 lungs. Not enough to cause disease, but enough so that if 13 cells are marching through the lung in single file through 14 you measured it as we have, you can find some asbestos -- a 14 the small vessels called capillaries. Capillaies are the 15 little bit of asbestos in everybody. And that little bit of 15 smallest blood vessels and they carry blood through the lung 16 asbestos is sitting under our carpet cells. And the way it 16 and all the blood in our bodies versus to run through our 17 got there was by being inhaled and going back past the 17 lungs because wherever we are making carbon dioxide in our 18 escalator landing on the carpet getting picked up and shoved 18 brain and fingertips and toes we have to give off the carbon 19 under the carpet. And that is what you expect and that is 19 dioxide in the lung and pick up the oxygen from the room air 20 normal and that is what you see in just about everybody's 20 and that happens right across this membrane right here right 21 lungs. 21 across this membrane where we are exchange oxygen and carbon 22 Now, when it happens in sufficient numbers 22 dioxide. 23 to cause diocese, then that is the process that we are 23 Wherever blood flows in the body there is a 24 trying to understand, we are trying to follow. If it 24 fluid call lymphatics. Lymphatics are clear fluids that run 25 happens in sufficient numbers for mesothelioma, that means 25 head to toe in our bodies. Wherever the flood flows there 26 that some proportion of those fibers that got under the 26 are lymphatic flow around the blood. 27 carpet have gone to the pleura because that is where the 27 Now the lymphatic flow in the lung flows to 28 target cell is. I don't know if I used that term. Target 28 the pleura. I can show you that in the next slide. Page 118 Page 120 1 cell is the cell from which that disease develops. 1 Q. All right. 2 If there is mesothelioma, that means that 2 A. So this you can see is a Netter diagram. 3 sufficient fibers have reached the target cell to cause 3 Dr. Netter was a physician who has fortunately for us 4 genetic damage. In the next few slides I am going to show 4 produced Atlas in the human body in health and disease. And 5 you how the fibers get from the site on the carpet out to 5 this particular diagram from Dr. Netter shows the 6 the target cell. 6 distribution of lymphatic vessels in the lung. 7 Q. What kind of asbestos did you use in this 7 They are small half moon of which end that 8 experiment? is the pleura and that is this network that you can see Dr. 9 A. This is Crysotile. Netter has provided us with a picture of out at the surface 10 Q. That is the top one I have written here? 10 of the pleura. 11 A. That's right. 11 Now, you may -- you can also see these 12 Q. And when you mentioned when the greater 12 little green blobs here. And these little green blobs 13 amounts accumulate, is that you are referring to dose there 13 represent what are called lymph nodes. Lymph nodes filter 14 when somebody has a greater does of asbestos in the 14 lymphatic fluid. And you may have felt your lymph nodes on 15 background level? 15 the side of your neck or your arm pits or groin. Sometime 16 A. That is right. Whatever the person is 16 they get swollen or uncomfortable because the lymph fluid 17 exposed to is their dose. 17 can carry cells of the immune system of so if you are 18 Q. Okay. 18 fighting a cold like I am or if you have some kind of an 19 A. Whether it's the few fibers at a time 19 infection, you may feel your lymph nodes responding to the 20 outside or whether it's something that has been in an 20 presence of that infection. 21 occupational environmental setting. That is the dose. 21 Now, the point here is that we go back to 22 So let's follow the fiber and let's go to 22 the previous picture that I am showing you here is the entry 23 another experiment. Another animal. Here is the air space 23 way of fibers that have been inhaled to the lymphatics. So 24 there is another air space and another one here. You can 24 you are in an atmosphere, someone is in an atmosphere where 25 see that there a little fiber bundle right here. This is 25 there is asbestos. Some proportion lands down to the 26 several hours after exposure and you can see some of the 26 carpet. The carpet picks those cells up and shoves them 27 fibers here, but most of them are covered by the carpet 27 under the carpet and some proportion of those can get into 28 cell. There is a little bit of a fiber on its way in to the 28 the lymphatic system and we know that because carpet) some 18 (Pages 117 to 120) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION Page 121 Page 123 1 scientists study the lymph nodes and they said, "Well, if 1 holds the stomach and intestines. 2 asbestos in fact gets into the lymph, then we should be able 2 Q. What is this one? 3 to find it in the lymph nodes which filters all of the 3 A. So -- 4 lymphs" and in fact that is what happened. 4 Q. Can you go back to previous slide and I just 5 So we know that the fibers get into the 5 want to ask you: So the thickened area represents the 6 lymph and here is how they get into the lymph. And there is 6 mesothelioma? 7 one more diagram that we can look at here that explains that 7 A. That's right. 8 a little further. This is from a diagram from a chapter in Q. That is the cancer? 9 a book and it actually shows the fibers so here is the end A. That is the cancer. 10 of the airway. Asbestos getting down into the airways and 10 Q. And that is normally as thick as a piece of 11 landing in the lung as I showed you and here is a single 11 saran wrap in a healthy human being? 12 fiber with a little bit of a sticking out into the air space 12 A. Is that what it should be, that's right. 13 and then down into the lymphatics and the artist called this 13 Q. And can you describe for the ladies and 14 lymphatic fiber transport to the pleura. 14 gentlemen of the jury, how fast or aggressive this cancer is 15 So what the artist didn't know or he was 15 once it's diagnosed compared to other cancers? 16 drawing a picture of exactly what I showed you here with 16 A. Well, typically it grows very quickly. 17 this little fiber sticking out into the air space and then 17 Unfortunately it's unusual to have a person live as long as 18 the rest of it on its way into the lymphatics. 18 18 months. That would be a long time. 19 Q. Doctor, let me ask you: Can Crysotile 19 Q. And can the cancer although it beginning in 20 fibers go into the lymphatic system and reach the pleura? 20 the pleura travel to other areas of the body? 21 A. Absolutely that has been shown. Some 21 A. Exactly and you can see that here as well. 22 investigators actually looked at the pleura and collected 22 Q. And do doctors have methods of determining 23 the fibers that were -- that had reached the pleura. In 23 if they find a cancer elsewhere determining where that 24 other words, they actually digested the pleura and asked 24 cancer originated, where it began? 25 what kinds of fibers were there and they found predominantly 25 A. Sure because there are special stains that a 26 Crysotile. All the asbestos varieties certainly can reach 26 pathologist, a diagnostic pathologist can say where these 27 the pleura. 27 mesothelial cells are and go back and see if in fact where 28 Q. But in the scientists who have studied and 28 the mesothelioma originated. Page 122 Page 124 1 this and examined humans they found the majority are 1 Q. And at the bottom are just some picture of 2 Crysotile that reach the pleura? 2 slides that would be looking at cancer cells under the 3 A. That's right. 3 microscope, is that correct? 4 Q. All right. 4 A. That's correct. 5 A. I'm sorry. I just wanted to show you these 5 Q. And then to the right of that is a picture 6 macrophages are trying to clean up. Here are a few of them. 6 of an X-ray? 7 1, 2, 3, 4, 5. They are sharing fibers with one another. 7 A. That's correct. 8 And it's a constant process where the macrophages are trying 8 Q. And what is shown on that X-ray? 9 to clear the lung of what is deposited in the lung. 9 A. Well, it's dramatically thickened. This is 10 I can spend the rest of time I have five or 10 just a lit bit of normal lung that you can just barely see. 11 six more slides. 11 Most of it is surrounded by dramatically advanced tumor. 12 Q. I don't think we are going to use this. 12 Q. Doctor, do you know as a consequence of 13 A. Just for one second. 13 mesothelioma in the pleura is to have pleural fluid gather 14 Q. Let's skip this one and this is a slide of 14 in that area? 15 what, sir? 15 A. That is usually an early response. That is 16 A. This is mesothelioma. 16 one the earlier signs that there has been abnormal growth in 17 Q. Okay, and again is this by the same Dr. 17 the pleura. 18 Netter who drew the earlier picture? 18 Q. Thank you, sir. Go ahead. 19 A. That's right. 19 A. So I am going to spend the rest of the time 20 Q. Tell the ladies and gentlemen of the jury 20 explaining how asbestos can act as a carcinogen. That is a 21 what Dr. Netter has depicted in this slide? 21 cancer causing agent. And I will start with this slide 22 A. Remember that the normal pleura -- I can 22 which is from a proceedings of a meeting that I was at a few 23 show that for one second. This is normal pleura, thin 23 years ago. I gave a talk at this meeting. And the topic of 24 shiney but with mesothelioma it becomes dramatically 24 this meeting was how fibers cause cancer and you can see the 25 thickened with cancer cells. And so Dr. Netter is 25 big word carcino, cancer, and genesis means formation. 26 demonstrating the distribution of the tumor when it is grown 26 So this is cancer formation and I talked to 27 out along the surface of the lung can invades the lung as 27 you today about cells and I showed you cells can pick up 28 well as peritoneal cavity which is the body cavity which 28 fibers. 19 (Pages 121 to 124) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION Page 125 Page 127 1 THE COURT: Don't repeat. Just go ahead. 1 division. The chromosomes have formed and now they are 2 Q. Okay. Is this photograph here one that you 2 duplicating. They are making perfect copies of one another. 3 took, doctor? 3 That is exactly what you hope for. If that happens, then 4 A. No, this is from -- similar to some 4 you get what are called daughter cells. And those daughter 5 experiments I have done but that is on the cover of the 5 cells are then copies of the original, that is what you 6 proceedings and it shows an important part of this kind of 6 expect every time. 7 process. 7 Q. And there are certain genes that control how 8 Q. And what does it show, sir? 8 often that replication or that growth occurs? 9 A. So this is dealing with what is called the 9 A. Exactly. And there is a very tight command 10 molecular aspects and you can see it here. Molecular 10 of that by a set of genes, and for cancer to develop you 11 aspects meaning your genes because cancer is a genetic 11 have to have damage in those growth control genes. 12 disease. For example, we can take cells like these and you 12 Q. Go ahead. 13 can see I am outlining a cell for you. We can take cells 13 A. So let me show you an experiment from my 14 like these and take them out of human or out of animal and 14 laboratory and then I will show you one -- another example 15 put them in a dish and add fibers to those cells. And you 15 of that. 16 can see some fibers have been added and those fibers collect 16 Over here in panel A we took some of these 17 around the center circle in the cell and that center circle 17 cells out. So here are two of millions of cells that we did 18 is call the nucleus and it contains all our genes. Every 18 in this experiment. The panel A there is a cell with no 19 cell in our body has a nucleus that contains all of our 19 fibers, half of the chromosomes went to one side. Half to 20 genes. And cancer is the loss of control of cell growth. 20 the other. That is exactly what you expecgt. 21 That is the simplest definition of cancer. 21 Q. Everything normal is A? 22 Cancer is the loss of control of cell 22 A. Everything is on its way to normal. 23 growth. 23 A. Over here in panel B there are fibers 24 Q. Doctor, that means when you have cancer, the 24 introduced and there is a long fiber here about 30 microns 25 cells just keep growing without any regulation? 25 long. There is a 20 micron fiber. There are some 5 micron 26 A. That's correct. And we have about -- humans 26 fibers and you can see that some of the DNA is bound to the 27 have been 20,000 genes. And of those 20,000 genes 27 surface of the fibers. That means that not all of the DNA 28 approximately 100 of them are dedicated to controlling cell 28 is reaching its normal position in the newly forming cells. Page 126 Page 128 1 growth. If there are a series of errors or what are called 1 Q. What is the consequence of that doctor? 2 gene damage, genetic damage to those genes that control cell 2 A. That leads to at that condition called 3 growth that opens the door to cancer and that is what I will 3 aneuploidy in the upper right hand corner aneuploidy means 4 show you. 4 abnormal chromosome separation. This is not cancer. These 5 Q. Go ahead. 5 are not cancer cells. These are cells that are more likely 6 A. So this is now normal cell division. And 6 to become cancer if the -- if there are additional errors 7 that means the cell -- there are three cells here 1, 2, 3. 7 because a single error is not sufficient to produce cancer. 8 The two cells on the outside are normal and are not growing. 8 Q. By error, you mean damage to genes or DNA? 9 The nucleus with all of the genes is intact. The DNA has 9 A. That's correct. And in fact it takes 10 been stained blue so you can see it. The cell in the center 10 multiplers. I can't tell you exactly how many. I would 11 received a signal to divide. It could be skin cell that 11 like to be able to tell you just how many and exactly what 12 needs to be replaced or for whatever reason, that cell is 12 genes have to be damaged. Nobody can tell you that and that 13 dividing. When cells divide, all of the DNA gets 13 is very important area of research. And it's different for 14 incorporated, condensed into these white threads called 14 different people. A lot has to do with susceptibility, 15 chromosomes. Chromosomes are bands of condensed DNA. 15 whether or not a person is more or less likely to get 16 Let me show you what the chromosomes like 16 disease. This is from experiments in which mesothelioma 17 like. We have 23 pairs of chromosomes, one from your mothe 17 cells were used. 18 one from your father. These light and dark bands on the 18 Here is a mesothelioma cell with normal 19 chromosome represent where your genes are. In each one of 19 fiber in it. Half of the chromosomes going to one side. 20 these dark bands, it could be ten genes for a thousand 20 Half to the other. We will get two new daughter cells. 21 genes, but they all must be on the correct chromosome in the 21 On this side the daughter cells have formed 22 right place on that gene. 22 but there is some DNA stuck to this Crysotile fiber and that 23 No mixing and matching allowed. 23 again has resulted in the condition of aneuploidy. 24 Q. So this is the blueprint of the 24 Q. And this slide here shows mesothelial cells 25 characteristics of a person? 25 that have been damaged merely because Crysotile has been 26 A. Exactly. And so you must have what is 26 introduce into this area? 27 called faithful replication. In other words, here now let's 27 A. That's correct. And in fact we and others 28 finish this process of cell division. Here is normal cell 28 have produced cancers right in the dish by producing these 20 (Pages 125 to 128) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION Page 133 Page 135 1 Q. Doctor, in terms of the potential to cause 1 to speak there tomorrow, did I offer to pay your expenses 2 cancer, are you familiar with the term potency? 2 today to come here for your time in testifying before this 3 A. Sure. 3 jury today? 4 Q. Is asbestos a potent carcinogen? 4 A. Of course. 5 A. It is, sure. 5 Q. And have you testified in court before on 6 Q. What does that mean? 6 similar matters? 7 A. That means it has a high likelihood of 7 A. Many times. 8 causing the genetic errors that are required. 8 Q. And is it customary for you and other 9 Q. Okay, does dose have a role in the potency 9 doctors and scientists to request payment for their time and 10 of the ability of asbestos to cause cancer? 10 expenses in appearing before juries? 11 A. Yes, sure. 11 A. Certainly. 12 Q. And so the greater the dose, the greater the 12 Q. And have you in fact testified for other 13 potency, is that the fair? 13 persons, families who have had mesothelioma? 14 A. Well, potency -- you would have to do by 14 A. Many times. 15 looking at the individual fibers. They are all potent 15 Q. And have you testified upon request for 16 carcinogens. The likelihood that the cancer is going to 16 certain companies who have been defendants in cases brought 17 occur is certainly dependent on the dose. 17 by families with mesothelioma? 18 Q. Looking at the individual fiber here, the 18 A. Exactly. They have asked -- as long as they 19 three type that I have put up there, are each of those 19 have asked me to give the exact same testimony you asked me 20 potent causes of mesothelioma? 20 to give today, sure I have done it. 21 A. Yes. 21 Q. No matter who asks you to testify you will 22 Q. And the Crysotile, Amosite and Crocidiolite? 22 certainly give the same testimony and likewise you expect 23 A. Yes. 23 that your expenses and time to be reimbursed to you? 24 Q. Are any of those more potent than the 24 A. Of course. 25 others? 25 Q. Doctor, thank you very much for your time. 26 A. Yes. 26 That is all my questions, your Honor? 27 Q. And can you tell us the order please, sir? 27 THE COURT: Thank you. Defendants who wishes to go 28 A. Right, so there interest different numbers, 28 first. Page 134 Page 136 1 so I have never developed any numbers. I have not tried to 1 MR. MOLLAND: If it please the court. 2 make those kinds of comparisons, but those who do the kinds 2 THE COURT: Mr. Molland. 3 of comparisons say Crocidiolite is more potent than Amosite. 3 4 Amosite is more potent than Crysoltile. I don't know any 4 + CROSS-EXAMINATION 5 basis for saying Amosite is more potent than Crocidiolite. 5 MR. MOLLAND 6 I don't know where they would be any different. 6 Q. Good afternoon, Dr. Brody. It's late in the 7 Q. Your opionion is they are equal in potency? 7 day I will try to be as brief as I can. 8 A. That is my opinion, but you can make 8 Mr. Hart asked you about the number of times 9 arguments. 9 you have testified in cases. Would it be fair to say you 10 Q. Others have other opinions? 10 have testified in many mesothelioma cases in the last five 11 A. My opinion is Crocidiolite and Amosite are 11 or six years for plaintiffs' attorneys like Mr. Hart? 12 equally potent and both of them are more potent than 12 A. Sure. 13 Crysotile. That is on a fiber per fiber basis. So you need 13 Q. And about how many times a year do you 14 to know what the person is exposed to. If they were exposed 14 testify in mesothelioma cases for plaintiffs' attorneys like 15 largely to Cyrsoltile, it doesn't matter how much Amosite or 15 Mr. Hart? 16 Crocidiolite they were exposed to. 16 A. Maybe once a month, once every or month 17 Q. Is it important for the fiber to reach the 17 something like that. 18 pleura in order to be potent in cautioning mesothelioma? 18 Q. About ten? 19 A. No question. 19 A. Yes. 20 Q. And in terms of usage in the United States 20 Q. I want to make sure we understand what you 21 you mentioned Crysotile was used 95 percent of the time? 21 have done in the case. You looked at medical records? 22 A. That's correct. 22 A. Rgith 23 Q. And can you give us in order the other time? 23 Q. And you haven't looked at any work records? 24 A. I am not really sure. 24 A. I wasn't asked to do that. 25 Q. But they would combine to be approximately 5 25 Q. You really know nothing ab out the plaintiff 26 percent? 26 and plaintiffs' family in this case? 27 A. That is what I understand. That's right. 27 A. I was asked to assume there was exposure and 28 Q. And doctor, although you are coming to USC 28 he has mesothelioma. 22 (Pages 133 to 136) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION Page 137 Page 139 1 Q. You don't even know the name of the 1 A. Sure as I discussed. 2 plaintiffs' family in this case? 2 Q. You don't know any responsible scientist who 3 A. I don't.. 3 would say that Amosite is the same -- on a fiber per fiber 4 Q. So really would it be fair to say you know 4 basis has the say potency as Crysotile, correct? 5 nothing about the facts of this case and the testimony you 5 A. I don't know anyone who would say that. 6 have given to the jury is what you generally say to all the 6 Q. And when you say 95 percent of the asbestos 7 juries that you talk to for plaintiffs' lawyers in 7 used in this country was Crysotile, you don't have any idea 8 mesothelioma? 8 how much of the asbestos used about by the United States 9 A. It's the generic understanding of how 9 Navy used Crysotile as opposed to Amosite do you? 10 asbestos causes disease, that's right. 10 A. I do not. 11 Q. That is all I wanted to establish. I will 11 Q. In fact, you know that insulation, 12 move on. 12 especially the insulation workers that were studied by Dr. 13 Let's talk first of all dose response. You 13 Selikoff used asbestos insulation that contained high 14 are the first witness in the case and I don't want to put 14 quantities of Amosite, correct? 15 too heavy a burden on you. Let's talk a little bit about 15 A. I can't tell you how much but that is what I 16 dose response. 16 understand that they were exposed to that, to Amosite, yes. 17 You mentioned three diseases that are -- you 17 Q. Now, although all three diseases that are 18 believe are caused by asbestos, correct, asbestosis, lung 18 associated with asbestos are dose response diseases, some of 19 cancer, and mesothelioma, right? 19 those diseases are caused only by a very high dose, correct? 20 A. That's right. 20 A. You mean asbestosis and lung cancer? 21 Q. Asbestosis is a dose response disease, 21 Q. Yes. 22 right? 22 A. Sure. 23 A. Sure they all are. 23 Q. So as to lung cancer and asbestosis only 24 Q. They all are. That means the more asbestos 24 very thigh doses of asbestos cause those diseases, right? 25 you are exposed to, the more likely it is you will get one 25 A. Correct. 26 of those diseases, right? 26 Q. And mesothelioma is different because a 27 A. Yes. 27 lower dose will cause the disease, correct? 28 Q. And it also means the less asbestos you are 28 A. Exactly. Page 138 Page 140 1 exposed to, the less likely it is that you will get a 1 Q. But they are all dose response diseases even 2 mesothelioma, for example, correct? 2 mesothelioma meaning -- the more you are exposed to the more 3 A. Brilliant. Right. 3 likely you are to get the disease, correct? 4 Q. And dose means to you two things. First it 4 A. True. 5 means the number of fibers you inhale, correct? 5 Q. For that reason asbestosis was discovered to 6 A. Pright. 6 be connected with asbestos long before mesothelioma, 7 Q. And it also means the potency of the fiber 7 correct? 8 you inhale, correct? 8 A. I think that is right. 9 A. Well, I mean, you know -- each fiber has its 9 Q. And in fact, the studies of asbestosis 10 own potency -- 10 generally took place in 1940s, 1950s, correct? 11 Q. Correct. 11 A. Well, that is when it was established that 12 A. But the dose is what the person gets. 12 those high exposures cause disease, right. 13 Q. Correct? 13 Q. And it wasn't until Dr. Wagner published his 14 A. Whatever the fiber type. 14 research in 1960 that asbestos was discovered to be the 15 Q. And if somebody has twice as much Amosite as 15 cause of mesothelioma, correct? 16 than Crysotile, they would have a heavier dose of asbestos, 16 A. Right. 17 correct? 17 Q. And up until that time, scientists were not 18 A. No, that is not true. That is just not the 18 aware that doses of asbestos would cause mesothelioma, 19 definition of dose. 19 unless Dr. Wagner pointed that out, correct? 20 Q. I just don't know how you define dose. You 20 A. I would say they were not sure. In other 21 don't regard potency as part of dose? 21 words there were indications from case studies and others 22 A. I didn't say that. All I am saying is you 22 but he established that link. 23 can't say here the person was exposed to something is more 23 Q. And Dr. Selikoff then four years later 24 potent and therefore they got a bigger dose. You just can't 24 established that persons who were pipe coverers or 25 say that. 25 insultators also were at higher risk of getting 26 Q. I don't want to argue with you. You don't 26 mesothelioma, correct? 27 regard the differences in asbestos fibers as significant in 27 A. Right. 28 causing disease at lease mesothelioma? 28 Q. And that was the first study of insultators 23 (Pages 137 to 140) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION Page 149 Page 151 1 million. You just can't tell? 1 times more likely to cause mesothelioma than Crysotile, 2 A. You can't tell. 2 correct? 3 Q. Your opinion -- just to follow it 3 A. On a fiber per fiber basis, sure. 4 logically -- your opinion about causation is based upon dose 4 Q. And if 99 percent of the asbestos was 5 response, isn't it? 5 Amosite and 1 percent was Crysotile, that means that Jack's 6 A. Okay, yes. 6 asbestos would actually be almost a thousand times more 7 Q. You agree with that, don't you? 7 likely to cause mesothelioma than Jill's under this 8 A. Why. 8 analysis, correct? 9 Q. That same person exposed to asbestos for a 9 A. First of all, I have never heard it done 10 couple of years 1960s and we will say it was Jack's source 10 that way. I am not an epidemiologist or industrial 11 of asbestos and there was Jill's source of asbestos. 11 hygienist, but I wouldn't try to do it that way. I don't 12 And 99 percent of the asbestos this person 12 know if you can do it that way. 13 breathed for those two years came from Jack's asbestos. 13 Just the simple numbers make that 99 percent 14 1 percent came from Jill's asbestos. 14 from the Navy when it's Amosite even more potent no 15 Your opinion based upon what you just told 15 question. 16 the jury is that Jack's asbestos would have 90 percent of 16 Q. And if it was 100 times, it would be 100 17 the cause of the mesothelioma, right? 17 times and 2 times, it would be 2 times? 18 A. Yeah, I mean that is the source that is more 18 A. I can't -- I have never done it before. I 19 likely to send more fibers to the pleura. 19 don't know why I would start now. I have never tried to 20 Q. I am following and trying to get your logic. 20 fool with the numbers that way. There is no question that 21 1 percent of the cause would be Jill's asbestos? 21 Amosite is more potent. 22 A. Sure. 22 Q. You don't disagree with the proposition that 23 Q. And 99.9 percent Jack's asbestos and 1 tenth 23 Amosite has been shown by respected scientists to be a 24 of a percent Jill's asbestos, Jack's asbestos would be 99 24 hundred times more potent in causing mesothelioma than 25 percent of the cause in your opinion of that mesothelioma 25 Crysotile, do you? 26 and Jill's would be one tenth of a percent, right? 26 A. That is correct. There is one paper that 27 A. Right. 27 has come up with those kinds of numbers. I don't argue with 28 Q. And we could go on and make this what? 28 those numbers. They may be right, but what that means is Page 150 Page 152 1 Million and this one and this was a million you believe that 1 for every 1 Amosite fiber, you need a hundred Crysotile 2 Jack's asbestos was a million times more likely to cause a 2 fibers to be the same potency, and if that is what you mean, 3 mesothelioma than Jill's right? 3 that is fine. 4 A. Although you wouldn't do it that way. Jill 4 Q. One question about the term susceptibility. 5 still is putting some fibers into the system so you couldn't 5 Could you tell the jury what you mean when you use the word 6 say it's more likely to because they are all doing it. But 6 susceptibility? 7 what you say about the 99 percent cause, sure. 7 A. That means one's likelihood of developing 8 Q. And if we change Jack to Navy your opinion disease, more or less susceptible. 9 wouldn't change, would it? Q. And I believe it's your opinion that because 10 A. I don't know about the name making a 10 mesothelioma is a rare cancer, that if somebody actually 11 different.. 11 develops mesothelioma, they had a genetic predisposition 12 Q. The name doesn't make any difference in your 12 that caused that, correct? 13 opinion? 13 A. Well, that is not what caused the disease. 14 THE COURT: That is argumentative. Do you have 14 They had a genetic predisposition to developing an asbestos 15 another question? 15 induced mesothelioma, sure. 16 Q. I just have one other series of questions on 16 Q. And the fact that the mesothelioma occurred 17 this and then I think maybe I can sit down and you can go to 17 is proof of that, is that your opinion? 18 USC. 18 A. Right. That is fine. 19 Let's assume -- this assumes however in your 19 MR. MOLLAND: I am going to stop. I am finished 20 causation opinion or contribution opinion that all of the 20 with my cross-examination. 21 asbestos is the same potency, doesn't it? 21 THE COURT: Any other defendants have any 22 A. Yes. 22 cross-examination of Dr. Brody? 23 Q. And now, if the asbestos was different 23 MR. WALLACE: Yes, but it's going to take a while. 24 potency, this analysis would be different, wouldn't it? 24 THE COURT: How long? 25 A. It could, sure. 25 MR. WALLACE: I am guessing at least 30 minutes. 26 Q. Let's assume that Jack's asbestos was 26 THE COURT: Okay, well in that case Dr. Brody will 27 Amosite and Jill's asbestos was Crysotile. Do you know of 27 have to come back. 28 responsible scientists who believe that Amosite is a hundred 28 Let me remind the jury once again not to 26 (Pages 149 to 152) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION Page 153 1 discuss the case with anyone or allow anyone to discuss the 2 case with you, not to discuss the case among yourselves, and 3 not to form any opinions or come to any conclusions. 4 We will be in recess until tomorrow morning 5 at 9:30 have a pleasant evening. 6 Please make sure everyone is here on time. 7 Leave your notebooks. You are not allowed to take any of 8 the notebooks out of the courtroom. 9 (Jury not present.) 10 THE COURT: Still on the record outside of the 11 presence of the jury. When will Dr. Brody be available to 12 return? 13 MR. HART: It will be next week and consult with 14 Dr. Brody and defendants will work out something agreeable. 15 THE COURT: Who is going to testify tomorrow? 16 MR. HART: Dr. Horn. 17 THE COURT: Dr. Horn? 18 MR. HART: Yes. 19 THE COURT: And how long is that testimony going to 20 take? 21 MR. HART: I expect it will take the day. Well, to 22 the extent we get through direct and cross we would want to 23 use the depositions we have tendered to your Honor. 24 THE COURT: Depositions and Dr. Horn, you think 25 that will consume the entire day? 26 MR. HART: Yes. 27 THE COURT: I will see all counsel tomorrow morning 28 at 9 o'clock. 1 (Adjourned) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 (Pages 153 to 154) NONCERTIFIED TRANSCRIPT 1 24 08 P.M. SESSION