Document 5DpGw0oZR1M5zGnE2zx82eYGD

KiMo CX 1 STATE OF MINNESOTA DISTRICT COURT 2 COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT 3 Gordon B. Skelly and 4 Judy M. Skelly, Court File CV-07-4527 5 Plaintiffs, 6 vs. 7 3M Company, et al, 8 Defendants. 9 TRIAL TRANSCRIPT VOLUME I ( A.M.) 10 1 1 The above-entitled matter came on for trial before 1 2 Dale B. Lindman, Judge of District Court, at the Ramsey 1 3 County Courthouse, St. Paul, Minnesota, on February 20, 1 4 2009. 15 APPEARANCES 16 Michael Strom, Troyce Wolf, Paul Doolittle and 1 7 Julie Celum, Attorneys at Law, appeared on behalf of Plaintiffs Skelly. 18 Lane Young, Jamie Habeck and Elizabeth O'Neill, 1 9 Attorneys at Law, appeared on behalf of Defendant Scapa Dryer Fabrics. 20 Stephen Foley, Erich Gleber and Christopher 21 Goodman, Attorneys at Law, appeared on behalf of Defendant Flowserve. 22 23 24 25 1 INDEX 2 MOTIONS: 2 3 DONNA RINGO: 4 Cross-by Mr. Wolf 25 5 Redirect-by Mr. Foley 95 6 7 8 9 10 1 1 'k'k'k'k'k'k'k'k 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 (Today's date is February 20, 2009 at nine 2 o'clock a.m.). 3 MS. CELUM: Your Honor, I don't have a copy of 4 my motion, they are printing that now. Basically, your 5 Honor - 6 THE COURT: Would you identify yourself - 7 MS. CELUM: Julie Celum for the plaintiffs. 8 Defendants have filed page and line designations from the 9 discovery deposition of two alleged co-workers of Mr. 1 0 Skelly in this case, James Hill and Steven Block. 1 1 Our objections for the most part rest on Rule 701 1 2 and 403. These guys both started at the mill after Mr. 1 3 Skelly. They were painters and insulators. They 14 testified I never worked with Mr. Skelly. Both of them 1 5 did. And the portions of the deposition that they have 1 6 designated are: Do you recognize this company? No. Did 1 7 you ever see Mr. Skelly work around this product? No. 1 8 And it goes on and on and on. Both of the guys say they 1 9 don't know what he did. Now there are portions, for 20 instance, his brake and clutch work, that they do say 21 they saw him do. I didn't object to that. 22 THE COURT: Wait a minute, I thought you 23 said - 24 MS. CELUM: I'm sorry. 25 THE COURT: I thought you said -- 3 1 MS. CELUM: I did. ' 2. THE COURT: -- the two guys were there after he 3 was. So therefore -- 4 MS. CELUM: They began after him. They began 5 in the '70s and '80s as painters and insulators. 6 THE COURT: They were on the site at the same 7 time. 8 MS. CELUM: They were on the site at the same 9 time. I apologize. 1 0 THE COURT: No. I misunderstood. 1 1 MS. CELUM: That was my bad. We object, number 1 2 one, they're discovery depositions. These are not trial 1 3 preservation depositions. They have not shown 1 4 unavailability. That aside, your Honor, none of the 1 5 testimony that they have designated is relevant. The 1 6 guys say, never worked with Mr. Skelly. This is a little 1 7 bit I saw him do. Then they go into all this other stuff 1 8 that these painters and insulators did, to attempt to 1 9 make the inference that somehow Mr. Skelly worked around 20 all of this insulation that these painters and insulators 21 worked around. And he didn't. That is not the evidence 22 in this case. 23 So we object in total because they are discovery 24 depositions. But then we object to the irrelevant 25 portions because, your Honor, they have no personal 4 1 knowledge of what Mr. Skelly did. And they say it in 2 their depos. 3 THE COURT: But they do have personal knowledge 4 of what the conditions in the plant were like, do they 5 not? 6 MS. CELUM: For themselves personally, yes. 7 THE COURT: Conditions in the plant in general. 8 MS. CELUM: They testified they never saw Mr. 9 Skelly do any of the work that they did. This is work 1 0 that painters and insulators did. You heard Mr. Skelly 1 1 on the stand say we don't cross crafts. 1 2 THE COURT: We have testimony, however, that he 1 3 removed insulation from flanges and pumps. That he 1 4 worked around people that were doing insulating. That he 1 5 worked around people that were doing various sorts of 1 6 jobs in the mill. And if these people are going to come 1 7 in and testify as to what the conditions in the mill were 1 8 like in those areas, I think it's relevant. 1 9 MS. CELUM: Your Honor, they never did that 20 around Mr. Skelly. They never asked these guys: Did you 21 ever see Mr. Skelly around when you were insulating or 22 painting or doing any of this? They never asked that 23 question. They did not, in the depositions, link Mr. 24 Skelly to the work that they were doing in the '70s and 25 in the '80s. This is not -- it has no relevance to what 5 1 Mr. Skelly did. They say they have no personal knowledge 2 of what Mr. Skelly did in the plant as a millwright. 3 MS. HABECK: Your Honor, if I might, Jamie 4 Habeck. I pulled out just a few excerpts from Mr. 5 Block's deposition. Do you know Gordon Skelly? Yes. Do 6 you know him as a co-worker? Yes. You both worked in 7 the maintenance department? Yes. Do you have 8 recollections of seeing with your own eyes, work he was 9 doing near you? Yes. Can you recall seeing him working 1 0 on equipment in the plant? Yes. I saw him working a 1 1 lot. 1 2 MR. FOLEY: If I may follow-up on that. Your 1 3 Honor, Mr. Hill the other witness begins working as an 1 4 insulator in 1975. He says: Question: What I would 1 5 like to know is do you have any personal recollection of 1 6 seeing Mr. Skelly perform work that would have caused him 1 7 to have to disturb the insulation on steam piping in the 1 8 old mill? This is page 37 of the transcript. Answer, 1 9 page 38. You didn't have to disturb it. It was already 20 disturbed. It was rotting away and it should have all 21 been taken off long before it was. We would walk through 22 the basement or anyplace you would find big chunks of 23 asbestos, it had fell off the steam lines and laying on 24 the floor. That is how good the paper mills took care of 25 their people and everything. Could you give me a time 6 1 frame for that? Was that right when you started? Yes. 2 When I started until I got moved out of that department 3 in '03. 4 You take that tomorrow as the court already 5 observed, with Mr. Skelly's testimony and Dr. Holstein's 6 testimony about re-entrainment and that it stays in the 7 atmosphere, it clearly gives the jury information about 8 the conditions in the mill that Mr. Skelly was exposed to 9 and his total asbestos exposure to that 1 0 amosite-containing pipe insulation. 1 1 There is a whole lot more in here where he talks 1 2 about he knows it is asbestos. He knows it's 1 3 Johns-Manville1s asbestos. Quote, how are you familiar 1 4 with that name? Page 22. Because they sent a lot of 1 5 insulation to us to use. We also have the plant and 1 6 sales record that show they are buying Johns-Manville 1 7 thermal insulation containing asbestos, thermal asbestos. 1 8 As to the witness's availability or unavailability, 1 9 plaintiffs were there. They cross examined them. They 20 had the full opportunity to do a cross examination and 21 the witnesses live up in Grand Rapids. They live more 22 than a 150 miles away from the courthouse. They are by 23 definition unavailable. This is a desperate attempt to 24 keep out evidence, which is kind of ridiculous given the 25 status of this case at this point in time, your Honor. 7 1 MS. CELUM: May I respond? 2 THE COURT: Yes. 3 MS. CELUM: Mr. Hill then goes onto say, Mr. 4 Foley so conveniently left out, that he doesn't know 5 whether the insulation was asbestos-containing. That is 6 exactly what he says. I don't know if the Johns-Manville 7 insulation - 8 THE COURT: But we've had plenty of testimony 9 already that it was asbestos-containing. So where is the 1 0 problem? 1 1 MS. CELUM: Your Honor, the problem is these 1 2 guys never link Mr. Skelly with that. They ask all these 1 3 questions about painters and - 1 4 THE COURT: They actually, Ms. Celum, have done 1 5 a better job of linking these people with the asbestos 1 6 insulation than you did in linking it in the beginning. 1 7 So, I'm not going to -- I'm not sold on that argument at 1 8 all. 1 9 MS. CELUM: Well, your Honor, then we will need 20 to address each individual objection. Because I objected 21 at the deposition to certain questions. And I've drafted 22 those out. I drafted the basis of our objections to each 23 of the designated portions. They designate all the stuff 24 -- they ask: Do you recognize the name Asten? No. Was 25 Asten Dryer Felt at the mill? No. Did you ever see Mr. 8 1 Skelly work with Asten Dryer Felts? No. 2 THE COURT: Those objections are legitimate, if 3 that's what - 4 MS. CELUM: Then we will need to go through 5 those one by one. 6 THE COURT: I guess we will. That is what we 7 have been doing virtually every deposition transcript so 8 far. You're motion to exclude these witnesses is denied. 9 MR. YOUNG: Your Honor, if I might. What we 1 0 had said, if we get to one of these today, since they're 1 1 being read, that you can just rule on the objection as 1 2 the question is asked. 1 3 THE COURT: The problem with that is and I was 1 4 thinking about that as I was reading Hammer's deposition, 1 5 the problem with that is that you make an objection on 1 6 one page and I rule on it, and then you have two or three 1 7 pages that are affected by it. And you are trying to 18 decide at that particular moment whether or not that gets 1 9 read in. And that doesn't work very well. We will have 20 to go through these individually. I don't know when we 21 will do it, but we will have to do it. Probably over the 22 noon hour. 23 MS. CELUM: Thanks, your Honor. 24 MR. HABECK: Thanks, your Honor. 25 MR. YOUNG: Judge, we do want to show this this 9 1 morning. We need to get the video fixed. 2 THE COURT: You do. And I haven't gone through 3 all of the objections. But I can tell you where I'm at 4 with it, I read - 5 MR. YOUNG: How about if - 6 THE COURT: I'm sorry, what? 7 MR. YOUNG: Show the direct -- there weren't 8 any objections to the direct. 9 THE COURT: There were objections to the 1 0 direct. As a matter of fact, that is the basis of most 1 1 of what I'm going to be doing. 1 2 MS. O'NEILL: The plaintiffs didn't designate 1 3 -- didn't indicate they wanted to pursue these other 1 4 obj ections. 1 5 THE COURT: Ms. O'Neill, would you identify 1 6 yourself. . 1 7 MS. O'NEILL: I'm sorry, Elizabeth O'Neill on 1 8 behalf of Scapa. 1 9 THE COURT: All right. Page 19 of Dr. Hammer's 20 deposition. Line three -- I'm sorry not line three, line 21 nine. Ms. O'Neill; at this time we would tender Dr. 22 Hammer as an expert in the area of pathology and in the 23 area of diagnosis and cause of lung disease including 24 asbestos related diseases and mesothelioma. Which I 25 think was perfectly legitimate. 10 1 Mr. Jeckle on behalf of the plaintiff objects and 2 says I would like to voir dire the witness please. And 3 he is allowed to do that. And the first question is: 4 Dr. Hammer, you are not an industrial hygienist, are you? 5 Answer: I am not. No. Question: Are you -- and you 6 are not a material scientist, are you? No. And you are 7 not an expert on paper making process, are you? Answer: 8 No. And you are not an expert in dryer felts, are you? 9 Answer: No. You've never been qualified by a court to 1 0 give an opinion on asbestos-containing products ability 1 1 to release asbestos fibers, have you? There was an 1 2 objection, but the witness's answer was no. You've never 1 3 authored any peer-reviewed literature on 1 4 asbestos-containing products ability to release asbestos 1 5 fibers, have you? No. Out of all of your professional 1 6 time, would you agree with me that none of those was 1 7 spent in the practice of industrial hygiene outside the 1 8 courtroom. Answer: I would agree with that. 1 9 Then he says he does review reports for industrial 20 hygienists but that is the end of it. And then he is 21 offered as an expert -- well, actually what it was Mr. 22 Jeckle said, we have no objection to his qualifications 23 as a pathologist in the diagnosis of asbestos disease. 24 But they continued their objection to his testimony that 25 has to do with any kind of industrial hygiene or the 11 1 release of fibers. 2 We get back then to where Mr. Foley raised his 3 objections. The question was on page 39, line 9. He 4 says, he was stated to have removed and replaced packing 5 and gaskets. Those would be major source -- this is Dr. 6 Hammer testifying. These would be major sources of 7 asbestos that he would have been exposed to while working 8 at the paper mill. 9 Has absolutely no, by his own testimony, has 1 0 absolutely no qualifications to make that opinion. 1 1 Accordingly, that objection will be sustained. And 1 2 practically everything that follows after that has to do 1 3 with him testifying to what fibers he would have been 1 4 exposed to and how they would have contributed to his 1 5 mesothelioma. The second half of that is legitimate. 1 6 But the first half of that is not. 1 7 MS. O'NEILL: Your Honor, if I may. 1 8 THE COURT: Yes. 1 9 MS. O'NEILL: Dr. Hammer was taken out of 20 order. And the questions that I asked him about the 21 thermal insulation are hypotheticals. Which are proper 22 to ask him. I'm asking him to assume the evidence is 23 going to be in the record and it will be through my 24 industrial hygienist. 25 THE COURT: But that doesn't solve the problem 12 1 that he is not qualified to talk about fiber release and 2 whether or not being around packing and gasket work would 3 have resulted in free fibers that might have been 4 breathed in by Mr. Skelly. 5 MS. O'NEILL: Maybe I misunderstood Your 6 Honor's comments. If you could look for me, just for 7 clarification please, on page 40 at line 14. I ask him a 8 question about; that is not gasket and packing that is 9 transite. That is a hypothetical. And I'm telling him 1 0 I'm going to be putting this evidence into the record. 1 1 Nothing to do with gaskets and packing. Nothing to do 1 2 with fiber release. I'm asking him a medical causation 1 3 question. 1 4 THE COURT: What I'm saying, Ms. O'Neill, maybe 1 5 I have haven't made it clear, that if your asking simply 1 6 a medical question about mesothelioma or about the fibers 1 7 that he breathed in, causing the disease or whatever, 1 8 that is fine. But if you are asking about whether or not 1 9 it came from packing and gaskets, or you are asking 20 whether it came from dryer felt or any other place, he 21 doesn't have the qualifications to testify to that. 22 MS. O'NEILL: Then I don't believe I asked any 23 of those questions, your Honor. So I think - 24 THE COURT: I think the problem is that you 25 did. One question. And that was the one that led to all 13 1 the rest of it. It's the question on page 38 - 2 MS. O'NEILL: Page 38. Based upon your review 3 do you have a reasonable degree of medical certainty as 4 the cause -- as to the source of the asbestos that did 5 cause his mesothelioma. 6 THE COURT: Right. Then you ask about specific 7 activities. 8 MS. O'NEILL: So is Your Honor's ruling that I 9 need to take out that question that starts on line 18 and 1 0 the whole answer? 1 1 THE'COURT: Yes. 1 2 MS. O'NEILL: All right. Just so I'm clear can 1 3 I show you what I think I'm marking out so I do this 1 4 correctly? 1 5 THE COURT: Yeah. 1 6 MS. O'NEILL: I apologize for leaning over the 1 7 bench. Starting right here and going through here. 1 8 THE COURT: You are on page 38? 1 9 MS. O'NEILL: That is where my question starts. 20 THE COURT: Right. 21 MS. O'NEILL: Going through to 39, line 13, all 22 that is coming out? 23 THE COURT: It's further then that. Then 24 unidentified speaker objects. Was that you Mr. Foley? 25 MS. O'NEILL: So to 19? 14 1 MR. FOLEY: That was me, your Honor. 2 THE COURT: At least to 19. 3 MS. O'NEILL: Then we get into my hypotheticals 4 where I'm asking him to assume the things in the case. 5 And those would be okay because they are causation 6 questions? 7 THE COURT: They are okay, unless they are 8 asking you the jury to assume that he was breathing in 9 fibers from packing. 1 0 MS. O'NEILL: No, your Honor. It's all thermal 1 1 insulation. 1 2 THE COURT: I can tell you there are spots 1 3 there - 1 4 MS. O'NEILL: Correct, your Honor. The next 1 5 question -- my examination only goes through to page 42. 1 6 My remaining questions are only thermal insulation 1 7 questions. All the other questions about gaskets and 1 8 packing are these questions. 1 9 THE COURT: It isn't just gaskets and packing, 20 it's dryer felts and the whole bit. 21 MR. FOLEY: And thermal too. 22 THE COURT: Right. 23 MS. O'NEILL: I believe he just told me, 24 because I asked him this question. Question, on page 39, 25 line 25, I want you to assume for me -- I start by 15 1 saying, because we are taking your testimony a little bit 2 out of order, I'm going to ask for you to assume for me 3 that the record in the case will show certain things. 4 Okay. He says okay. Last line on 39, I want you to 5 assume the record in this case is going to show that in 6 1990 there were 2573 square feet of transite at the 7 Blandin Mill. I want you to assume for me that Mr. 8 Skelly has already told the ladies and gentlemen of the 9 jury that he personally cut transite and was around 1 0 others when he did that. Assuming those factors to be 1 1 correct, would that transite be an substantial factor, 1 2 substantial contributing factor to the development of his 1 3 mesothelioma. 1 4 And the part about Mr. Skelly is in the record. And 1 5 the part about the 2573, I'm going to put in the record. 1 6 THE COURT: You're right, that is all in the 1 7 record. That doesn't overcome the problem. The problem 1 8 is that you're asking him to give an opinion on whether 1 9 or not there would be free fibers in the air as a result 20 of that activity. And he disqualified himself from 21 rendering that opinion. 22 MS. O'NEILL: Your Honor, we are not asking him 23 about the free fibers. We are asking him about - 24 THE COURT: You can ask him if -- no, you 25 can't. I don't know how you get by this because -- 16 1 MS. O'NEILL: Your Honor 2 THE COURT: You asked if his work around 3 transite - 4 MS. O'NEILL: There wasn't even an objection at 5 the time, your Honor. That is the problem. And that is 6 the problem - 7 THE COURT: And the objection is back on the 8 previous page. 9 MS. O'NEILL: No. Your Honor, the objection on 1 0 the previous page is about gaskets and packing 1 1 specifically. There is no objection to this transite 1 2 question. This is the difficulty. This witness was 1 3 suppose to come at the end of next week in the original 1 4 trial schedule. So this would have been dealt with in 1 5 the context of the trial. 1 6 THE COURT: Ms. O'Neill, what I'm trying to say 1 7 with what he testified to at the beginning about what he 1 8 knew about fiber release and the whole process he 1 9 disqualified himself from any of that testimony. 20 MS. O'NEILL: Your Honor, there is already 21 evidence in the record. And there will be more that he 22 breathed in that dust. I have an industrial hygienist 23 who will come and talk about that. 24 THE COURT: He can testify that he breathed in 25 the dust. That doesn't mean he breathed in asbestos 17 1 because 2 MS. O'NEILL: I have an industrial hygienist 3 who will come in and say that. My industrial hygienist 4 cannot give a medical causation through me. All the 5 evidence will be in the record - 6 THE COURT: You would have needed to add 7 another hypothetical to this. Assuming he breathed in 8 this dust and assume that this dust contained crocidolite 9 or whatever. That assumption isn't there. 1 0 MS. HABECK: Your Honor, if I could add 1 1 something. Dr. Holstein, Brody and Ms. Ringo have all 1 2 testified that there is fiber release from thermal 1 3 insulation products. Sorry, I'm just trying to - 1 4 MS. O'NEILL: Dr. Ringo testified that there 1 5 would be work with -- who is this? 1 6 MS. HABECK: Dr. Hammer. 1 7 MS. O'NEILL: Dr. Hammer's testimony, I said I 1 8 want you to assume that Mr. Skelly worked around 1 9 crocidolite containing amosite board. 20 THE COURT: And that is a legitimate question. 21 MS. O'NEILL: Dr. Ringo and Mr. Carlson who is 22 going to come, are going to say that the work Mr. Skelly 23 described releases asbestos fibers in the air. 24 THE COURT: That is fine. But the question 25 that you've asked here doesn't contain that hypothesis. 18 1 MS. O'NEILL: Your Honor, it will be in the 2 record. And the witness has testified -- Dr. Hammer is 3 one of the -- as you can tell from his qualifications, he 4 is one of the top pathologists in the country with 5 respect to the issue of medical causation of 6 mesothelioma. And while he is not an expert on 7 industrial hygiene, he relied on Mr. Carlson's report 8 which does say that. 9 THE COURT: We will have to sit down and go 1 0 through this transcript. If you laid out the 1 1 hypothetical question correctly, you're entitled to get 1 2 an answer. The problem is, I think in a lot of the 1 3 cases, you did not. 1 4 MS. O'NEILL: Your Honor, respectfully, I think 1 5 this is a little bit of eleventh hour quarterbacking 1 6 because I didn't have an opportunity to correct it at the 1 7 deposition. The witness can't come to this trial because 1 8 of the shortened trial schedule. 1 9 THE COURT: When it was objected to, you had 20 the opportunity - 21 MS. O'NEILL: It wasn't. The question before 22 is about gaskets and packing. 23 THE COURT: And you're right about that. To 24 the extent that it was not objected to, I may well let 25 that testimony that wasn't objected to go in. If there 19 1 is a continuing objection, then that is a different . 2 story. 3 MR. WOLF: Your Honor, Troyce Wolf. Just one 4 point on that, if an expert disqualifies himself on his 5 own, there is no need -- why would we object to that? If 6 he says, no, I'm not an expert in that field. I can't 7 give opinions on that. I'm not an expert. I'm not about 8 to object to that. 9 MS. O'NEILL: Your Honor, Dr. Hammer gives this 1 0 opinion in cases across the country. Mr. Wolf has cross 1 1 examined him on this opinion. Mr. Doolittle has cross 1 2 examined him on this opinion. And what this is is an 1 3 attempt to take advantage of the fact that Your Honor has 1 4 shortened the trial schedule and this witness can't come 1 5 live. 1 6 THE COURT: How does the shortening of the - 1 7 MS. O'NEILL: Because he was - 1 8 COURT REPORTER: It's your record you guys. 1 9 MS. O'NEILL: Sorry. 20 THE COURT: How does the shortening of the 21 trial schedule which frankly isn't going to end up being 22 any shortening at all, enter into whether or not you made 23 a proper hypothetical question or whether or not a 24 witness is qualified to answer the question. 25 MS. O'NEILL: Because this witness was 20 1 scheduled to come testify in this trial, live on behalf 2 of Scapa, in the middle of next week. He did not have 3 another day where he could do that before then. And we 4 will be done with the evidence in this case, by the order 5 of this court, prior to then. And the only opportunity 6 we had to get his evidence to the jury was through this 7 video testimony. And had he been brought live and this 8 objection been raised, we would have fixed it. 9 THE COURT: I'm sorry, I don't see the 1 0 prejudice to you because the doctor can come in and 1 1 testify to the mesothelioma. He can testify that it was 1 2 caused by asbestos fibers. He could possibly even 1 3 testify to what asbestos fibers are involved. But when 1 4 you start asking him about whether or not he was exposed 1 5 to asbestos fibers from dryer felt or he was exposed to 1 6 asbestos fibers from some other source, he doesn't have 1 7 the qualifications to testify to that. And it took three 1 8 pages to tell us that. 1 9 MS. O'NEILL: Then, your Honor, we would ask 20 that the defendants be given the obligation if it's 21 possibile to arrange for this witness to testify live 22 next week. That he come testify live next week, your 23 Honor can hear his qualifications and we can address 24 these issues. Because this is a highly prejudicial issue 25 for Scapa in this case. 21 1 MR. DOOLITTLE: Paul Doolittle. Your Honor, 2 just so the record reflects, I don't believe that Dr. 3 Hammer's availability in scheduling to coming next week 4 should have any relevance to the case. Because if I 5 understand Mrs. O'Neill if I had rested last Friday, then 6 they would be prejudiced. Where Dr. Hammer's schedule 7 is, the plaintiffs can't possibly have to continue their 8 case until the third week in order to get Dr. Hammer 9 here. They schedule him. They control him as their 10 witness. They have to call him in order. If he is not 11 available -- that is why we did accommodate on 12 President's Day. We didn't object, didn't complain at 13 all. Said fine, we will take the holidays, we have a day 14 off, we'll do the video dep. We did everything we could 15 to get Dr. Hammer here. Although I really didn't think 16 it necessary for us to do such. We did such in the order 17 of trying to further getting along and make sure we 18 didn't have to bring it before Your Honor. We didn't 19 object. We did Dr. Hammer by video. Saying that he is 20 unavailable until next Wednesday doesn't have relevance. 21 If the plaintiffs rested last Friday, he would still be 22 unavailable until next Wednesday. 23 MS. O'NEILL: Your Honor, we raised the issue 24 about our witnesses at the time we were advised of the 25 shortened trial schedule. It is part of what we believe 22 1 affects our ability to put on the defense in this case. 2 And I believe your Honor has indicated that he didn't 3 want us to raise the issue on the scheduling repeatedly, 4 so we did not. 5 With respect to this accommodation issue, plaintiffs 6 didn't go to Seattle. They called in to the video 7 deposition. I went to Seattle. So the accommodation is 8 a little bit of a red herring here. 9 THE COURT: I'm not considering that one way or 1 0 another. 1 1 MR. YOUNG: There wasn't any continuing 1 2 objection here. And the first guestion about transite 1 3 was unobjected to. It is an evidentiary deposition. It 1 4 would seem to me it would not be proper to raise that 1 5 objection at this time. So it seems like we ought to at 1 6 least be able to - 1 7 THE COURT: I don't disagree with you, Mr. 1 8 Young. I didn't disagree with Ms. O'Neill when she asked 1 9 that same thing. But that kind of got lost in the rest 20 of the argument. Okay. 21 MR. YOUNG: Judge, we are going to share this 22 after Ms. Ringo finishes. It looks to me like we can 23 show to, right here, (indicating), but we take out the 24 gasket and packing - 25 THE COURT: What I will ask for you to do, 23 1 because we should get started with the jury now is you 2 got -- I don't know who is going to do the cross 3 examination of Ms. Ringo for you - 4 MR. WOLF: I am, your Honor. 5 THE COURT: I'm talking about -- you got the 6 direct exam, that is right. Never mind. 7 MR. WOLF: You're done? 8 MR. FOLEY: I finished with my direct of Ms. 9 Ringo right at the end of the day yesterday. I believe 1 0 it's Mr. Wolf's turn for cross, I believe. 1 1 THE COURT: Right. The point that I was 1 2 getting to, is that have an attorney on your side Mr. 1 3 Young and Mr. Foley's side and the plaintiffs side, that 1 4 is not involved in Ms. Ringo's testimony, work on this 1 5 transcript and see if you can't work something out as 1 6 quickly as possible. Okay. 1 7 I'm trying to decide, Ms. O'Neill, if I'm really 1 8 missing something here. Frankly, I don't understand what 1 9 it is that Dr. Hammer can testify that you need on the 20 record that you don't already have. 21 MS. O'NEILL: I don't have opinion from a 22 medical doctor that the thermal insulation is a 23 substantial and direct cause of his mesothelioma. And 24 that is my whole defense. Dr. Hammer has testified about 25 that in cases where Mr. Doolittle and Mr. Wolf -- 24 1 THE COURT: We have had infinite testimony - 2 infinite is probably over exaggeration, we had plenty of 3 testimony that there was insulation in this plant. That 4 Mr. Skelly was working around it. That it contained 5 asbestos fibers. In fact that it was chrysotile, I 6 believe, insulation and that he would have inhaled it. 7 You got your doctor testifying that that is what he has. 8 He has asbestos related disease. And it would have come 9 from asbestos fibers that somehow made it into his lungs. 1 0 But we don't -- that is all you got. 1 1 MS. O'NEILL: The plaintiffs are going to stand 1 2 up in closing and they are going to say Scapa didn't 1 3 bring you a doctor. No doctor testimony -- sorry. 14 MR. YOUNG: Judge, can I have a minute? 1 5 THE COURT: Yes, you can. 1 6 (Whereupon, an off the record discussion was 1 7 held). 1 8 THE COURT: All right. In any event, would you 1 9 work on the deposition transcript so we can get out of 20 the deposition things that are legitimately to be put on 21 the record. Thank you. Let's get started. Go get the 22 jury please. 23 (Whereupon, the jury was brought into the 24 courtroom). 25 THE COURT: Good morning ladies and gentlemen. 25 1 When we left off yesterday Ms. Ringo was on the stand. 2 Would you please come back up and resume the witness 3 stand. 4 Mr. Wolf, are you going to cross examine? 5 MR. WOLF: Yes, your Honor, I am. 6 THE COURT: All right. You may. 7 MR. WOLF: May I proceed, your Honor? 8 THE COURT: You may proceed as soon as she gets 9 settled here. 1 0 CROSS EXAMINATION BY MR. WOLF: 1 1 Q. You all set Ms. Ringo? 1 2 A. Yes, I am. 1 3 Q. I want to first of all just clarify a few 1 4 things, Ms. Ringo, first of all, you obviously are not a 1 5 medical doctor? 1 6 A. That's correct. 1 7 Q. And as such, I just want to clarify that as an 1 8 industrial hygienist, since you are not a medical doctor, 1 9 you cannot give any opinions and you would agree with me 20 you cannot give any opinions on causation, true? 21 A. For an individual's causation, that is true. 22 But for a group of workers that is what we do. 23 Q. Well, but industrial hygienists talk about 24 risk? 25 A. Risk to a group. What might cause a certain 26 1 disease to develop in a group of workers exposed to these 2 levels. 3 Q. It's what puts people at risk for developing 4 certain diseases from various chemicals? 5 A. That's correct. 6 Q. But it's not causation. That requires a 7 medical doctor to give that opinion. You would agree 8 with me on that, right? 9 A. Yes. 1 0 Q. Okay. Just want to clarify that. Industrial 1 1 hygienists talk about risks. Medical doctors talk about 1 2 causation when we are talking about asbestos disease? 1 3 A. That's correct. 14 Q. I just want to clarify as far as Mr. Gordon 1 5 Skelly is concerned, you, of course, have never met him, 1 6 correct? 1 7 A. No. I haven't. 1 8 Q. You've never been to the Blandin Paper Mill 1 9 where he worked for 36 or 37 years, correct? 20 A. That's correct. I didn't -- 21 Q. In fact, since you never been to that paper 22 mill, it's obvious you've never done any testing of any 23 type with regard to any asbestos that may have been out 24 there at the paper mill in Blandin, correct? 25 A. That's correct. 27 1 Q. And as far as the work that Mr. Skelly did out 2 at the paper mill for almost 37 years, you don't have any 3 information about the type of work he did other than his 4 testimony, either Lieutenant testimony he gave in his 5 deposition or the testimony that he gave in this 6 courtroom. True? 7 A. When you ask if I have knowledge of that, his 8 descriptions and the reason I reviewed the case materials 9 including the depositions is to see if it's consistent 1 0 with what I have seen in my experience out in the 1 1 workplace. So, therefore, I do have knowledge of what a 1 2 maintenance millwright would do having followed them 1 3 around in workplaces, not his specific one, but certainly 14 places like what he worked at. 1 5 Q. Okay. I'm not saying you are not familiar with 1 6 how people remove gaskets from flanges. You are familiar 1 7 with that, true? 1 8 A. That's correct. 1 9 Q. And you saw in his testimony, both in his 20 deposition and through his trial testimony that he did 21 that type of work. True? 22 A. Yes. On occasion. Yes. 23 Q. You say on occasion, wasn't his testimony he 24 did that throughout his career? 25 A. Thoughtout his career. Yes. 28 1 Q. That is a little bit different then on 2 occasion, wouldn't you agree with me? 3 A. It wasn't daily. But it was that he did do 4 that work. Yes. 5 Q. And you would agree that removing gaskets, 6 asbestos-containing gaskets from flanges on pumps, you 7 know, don't you Ms. Ringo, that that is something a 8 millwright would do? 9 A. In certain situations, yes. 1 0 Q. Let me ask you: You were asked by Mr. Foley a 1 1 number of questions about the amount of money you charge. 1 2 And I want to make sure I understand it correctly. When 1 3 you have to come in and deal with us lawyers, you up your 1 4 fee considerably to $300 an hour, is that true? 1 5 A. I didn't up it. That is what the average 1 6 consultant in expert witnessing in my field charges. So 1 7 that is -- it's the going rate, I guess. Or whatever. 1 8 Yes I do charge more for that than I do going out and 1 9 doing investigations. 20 Q. Okay. And I thought you said for your other 21 work such as going out into the workplace and 22 non-litigation situations, that was either a hundred or 23 hundred and fifty dollars an hour? 24 A. Hundred and fifty. 25 Q. Hundred and fifty. Okay. And that as we sit 29 1 her today, in 2009, right now your family business that 2 -- I believe are you the president of that? 3 A. Yes, I am. 4 Q. So you're the head of the family business, of 5 this family of industrial hygienists that you told us 6 about yesterday. True? 7 A. Yes. 8 Q. And that as we sit here today in the year 2009, 9 that 50 percent of your work now is doing what you are 1 0 doing right now, coming in and testifying on behalf of 1 1 the defendants like Mr. Foley's client. True? 1 2 A. Well, 50 percent of litigation support. I 1 3 wouldn't say it's 50 percent of my time to testify. But 1 4 of money that is generated for my bill, as one of four, 1 5 then about 50 percent of my time is now being dealt with 1 6 reviewing case materials, occasionally I write reports, 1 7 doing depositions and then trial testimony. It is about 1 8 50 percent of what I do. But I don't work full-time. 1 9 Q. All right. To be fair, the 50 percent on the 20 $300 per hour that includes not just coming in here and 21 taking the stand like you are doing right now, but that 22 includes the whole ball of wax, so to speak. In other 23 words, that is reviewing materials you were retained by 24 someone like Mr. Foley and asked to come give testimony, 25 you obviously take time to review documents and that sort 30 1 of thing and you charge for your time? 2 A. Certainly. 3 Q. Is that rate $300 per hour? , 4 A. Yes, it is. 5 Q. It1s a flat $300 per hour as soon as you're 6 contacted by the law firm such as Mr. Foley's to get 7 involved in a lawsuit such as this, true? 8 A. Well, as soon as I start spending time on the 9 case. Yes. 1 0 Q. All right. Well, then wouldn't it be fair to 1 1 say that since you charge $300 for that time and that 1 2 makes up 50 percent of your time currently, that this is 1 3 the most lucrative part of what you do now? 1 4 A. You can say that. Yes. 1 5 Q. Now, I want to talk a little bit about the work 1 6 you've done for defendants in asbestos litigation. 1 7 It's my understanding from previous testimony you've 1 8 done work for Garlock? 1 9 A. That's correct. They were the first company to 20 contact me to see if I had any information about gaskets. 21 Q. And you would agree with me, Ms. Ringo, you've 22 done quite a bit of work for Garlock? 23 A. Over the last 13 years, yes. 24 Q. Would Garlock be your best client, so to speak, 25 in. asbestos litigation? 31 1 A. I don't think so. I don't know if there is a 2 best client. It's the defendants who find my data that I 3 did previous to doing any litigation support I guess 4 helpful to their case. 5 Q. Maybe best wasn't a good word. Did Garlock 6 give you more work, did you do more work in asbestos 7 litigation for Garlock than the other entities that have 8 retained you? 9 A. Certainly in the first four or five years that 1 0 was probably the case. 1 1 Q. Okay. And Garlock, they manufactured 1 2 asbestos-containing gaskets, true? 1 3 A. That's correct. 1 4 Q. You've also done work for Crane Company? 1 5 A. Crane Co. Yes. 1 6 Q. Crane Co. That is another pump manufacturer? 1 7 A. That is a valve manufacturer. 1 8 Q. Valve, I'm sorry. Warren pumps, you've done 1 9 work for them? 20 A. Yes. I have. 21 Q. Leslie Valves, you've done work for them? 22 A. Yes. 23 Q. Buffalo Pumps? 24 A. Yes. 25 Q. IMO? 32 1 A. Yes . 2 Q. Durabla? 3 A. That is the same company. Yes. 4 Q- And there is some more, are there not, that 5 you've done beside those? 6 A. I believe there are, there are a few others. 7 Q. Do you recall who those are, Ms. Ringo? 8 A. Not off the top of my head. You named the ones 9 that would have come to mind certainly. 10 Q. But there are others, but you would consider 11 the ones I just, listed as kind of the main ones? 12 A. If you were to ask me who I've done work for, 13 those are the ones I would say yes. 14 Q. Okay. I want to ask you one thing real quick 15 about -- one thing I noticed on your power point 16 presentation yesterday, I've highlighted, do you see 17 where I highlighted Ms. Ringo? 18 A. Yes I see that. 19 1 Q. It says range of individual sample results. Do 20 you see that? 21 A. Yes. 22 Q. Then we go over here, you've got highest value 23 of samples during wet methods. You got 0.10 fibers per 24 cc for 20 minutes. Then you have below that, highest 25 value of sample during dry methods, 0.07 fibers per cc 33 1 for 90 minutes. Do you see that? 2 A. Yes, I do. 3 Q. Okay. And just so we are clear, you got the 4 time out there, the samples, when you were doing these 5 methods of measuring the respirable asbestos fibers 6 released from gasket material, that's the amount of time 7 that is the total time doing that out to the far right? 8 A. Yes, that's correct. That is the time the 9 sample was collected. 1 0 Q. So if we look at that top one where it says 1 1 highest value of samples during the wet methods, you did 1 2 that for 20 minutes, correct? 1 3 A. That's correct. 14 Q. Then down here on the dry method, you did that 1 5 for a lot longer 90 minutes? 1 6 A. Well, that job that we were monitoring took 1 7 longer. 1 8 Q. Okay. And so we are clear and I think you've 1 9 testified about this before, that -- when we talk about 20 wet methods, that is actually doing what? 21 A. That is putting some type of wetting agent on 22 the gasket material as it's being removed. 23 Q. Okay. So you actually wet the gasket before 24 you remove it with some sort of putty knife or scrubber or 25 wire brush, some sort of device, true? 34 1 A. They wet it. I don't wet it. I'm observing 2 what they do during the removal process. 3 Q. But the gasket is wet as it's being removed. 4 And the asbestos fibers that are being released are being 5 measured? 6 A. That's correct. 7 Q. And then below that on the dry method, you 8 don't do anything to the gasket. You just remove it. 9 And you take air measurements. And that is where you got 1 0 the .07 fibers per cc for 90 minute timeframe, correct? 1 1 A. That's correct. 1 2 Q. I think you told me in the past that wetting, 13 in your studies and the things that you've observed and 1 4 the way you measured it, wetting the gasket really has no 1 5 affect whatsoever on the amount of asbestos fibers that 1 6 are released when a individual such as Mr. Skelly would 1 7 remove an asbestos-containing gasket. True? 1 8 A. I believe what I say it made no significant 1 9 statistical difference in the numbers for the fiber 20 release. Now, there is a difference in the water being 21 added adds weight to the debris that is generated during 22 the scraping off of gaskets. And that makes it fall more 23 directly down to the ground. So it makes clean up 24 easier. That is the biggest affect we have seen on 25 wetting gaskets. 35 1 Q. But you've told me and I think I understand 2 your question but I want to make sure I understand it 3 correctly. You are saying wetting the gasket really 4 makes no statistical difference in the amount of asbestos 5 fibers that are released in the breathing zone of the 6 worker. True? 7 A. That is what our numbers say. Yes. 8 Q. In fact, based on what you told the jury 9 yesterday on this sample here, more asbestos fibers were 1 0 released whenever you put water or you had a wet gasket 1 1 being removed than from a dry gasket, true? Isn't that 1 2 what that says? 1 3 A. What that says is that, all you can take from 1 4 that is that that is the number the calculation based on 1 5 the analytical analysis of the sample, that they measured 1 6 a 0.1 fibers for that sample, fibers per cc. We only 1 7 collected the sample for 20 minutes. If we collected 1 8 that sample for a longer period of time, there is a 1 9 chance it would have been exactly 0.07 for 90 minutes. 20 Those numbers, as far as an industrial hygienist 21 evaluating those numbers, there is no difference between 22 those numbers. Certainly not as you would compare them 23 to the short term excursion limit of one fiber per cc, 24 which is allowed. And as you do a time weighted average 25 to evaluate it for the eight hour average, both of those 36 1 numbers equate to less than 0.01 fibers per cc as an 2 eight hour average. So there is no statistical 3 difference in those samples. 4 Q. So it would be your testimony that using wet 5 methods to hold down the dust that you get, has no effect 6 on an industrial hygiene standpoint with regard to 7 asbestos-containing gaskets, correct? 8 A. That is what we found. Yes. That is part of 9 what we were testing. 1 0 Q. That is what you found? 1 1 A. That is what we found. Yes. 1 2 Q. But when you say we - 1 3 A. I was part of a committee with the Louisville 1 4 Gas and Electric Company. It involved their safety 1 5 department, their asbestos coordinators for each of the 1 6 plants. We did the sampling. I reported the results 1 7 back to them and it was part of what we were -- I say 1 8 that group, we, and my own company evaluating because 1 9 this took place in '91 and '92, '93 and on. In 1994 the 20 OSHA standard, when it was revised in '94 required that 21 you do wetting of gaskets that were being removed. 22 So we knew that was coming along. And we wanted to 23 see if it was going to make any difference. Also these 24 are the numbers then that we would report back to the 25 gentlemen in their training classes about what their 37 1 exposures have been. 2 Q. Now, in addition to what you talked about 3 yesterday, you in fact have done some testing on Garlock 4 gaskets that Garlock paid you to do, correct? 5 A. No. I have not. 6 Q. You have not ever done that? 7 A. No. I have not. 8 Q. Garlock never came to you and asked you to do 9 any testing on their gaskets? 1 0 A. No, sir. They had already done that with Carl 1 1 Mangold. I have never done any testing of any product. I 1 2 do workplace exposure evaluations, not testing of 1 3 materials. 1 4 Q. So, Garlock's never -- you never done that for 1 5 Garlock even though you come into the courtroom and 1 6 testify for them, correct? 1 7 A. I've testified for them,. Garlock was the only 1 8 name that was ever mentioned by any of the workers that 1 9 we were doing monitoring for. We actually misspelled it 20 in one of our reports. With the southern accent, 21 Kentuckian, fly ash which came out flash, we misspelled 22 Garlock. That was the only name. 23 So when they approached me many years later, asked 24 me if I had any information, I said yes, I have. Then 25 they asked if I would be willing to come and share that 38 1 information with the jury so people could make better 2 decisions. 3 Q. You didn't ask or ever say Garlock I would like 4 to test your product myself and do a test separate? 5 A. No. Carl Mangold had done that in the '80s. And 6 when they showed me his results, I saw they were 7 consistent with what I found in the real workplace. I 8 didn't see a need to duplicate anything that had been 9 done. 1 0 Q. And the same, Ms. Ringo, would be true, you've 1 1 never done any testing on any Crane Co. products, true? 1 2 A. That's true. 1 3 Q. You've never done testing on any Warren pumps 1 4 products, true? 1 5 A. I can answer no to all of those. I have never 1 6 done any product manufacturer brand name testing. That 1 7 is not what I do. 1 8 Q. That would include Durco pumps? 1 9 A. That would be correct. Yes. 20 Q. On what you observed as far as the gasket work 21 and the removal of gaskets from flanges, Ms. Ringo, 22 haven't you testified in the past that you've seen 23 instead of a wire brush something you described as a, 24 quote, scrubbie thing? 25 A. Yes. There were on occasions they used wire 39 1 brushes. They look like a big toothbrush, kind of wire 2 brush, some are soft, some are hard, some are more rigid. 3 But what LG&E had found in the later years was that they 4 found these scrubbie things that you can use like on a 5 charcoal grill. It's like an expanded foam. It's real 6 rigid. And they found those worked very well and did not 7 scar up the flanges face. So they also used those. I've 8 seen lots of different methods for asbestos removal of 9 gaskets. 1 0 Q. This thing you called a scrubbie thing that 1 1 people would use to clean a bar-b-que grill, I think as 1 2 you put it, those were used and then you took air samples 1 3 based upon removal of gaskets using the scrubbie thing? 1 4 A. They would use a putty knife first. I don't 1 5 think I've ever seen anybody go straight to brushing or 1 6 scrubbing. Most of the time that you have to get either 1 7 -- I've seen big giant screwdrivers with a beveled 1 8 flattened edge, patient scrapers. But putty knife kind 1 9 of activity, get between the flanges and the gasket and 20 pry it up. And go all the way around, sometimes it even 21 takes like a hammer and chisel type activity, all the way 22 around or paint scraper. You get the majority of that 23 off as easily as you can. And then you will go to the 24 wire brush to get any residual that sticks. And 25 sometimes only go back to the scraper and scrape it. And 40 1 then they will go back to the putty knife and the chisel. 2 They will do what it takes to get the material off of the 3 flange. 4 You have to have the clean seal before you put a new 5 gasket back in place or you will end up with a leak 6 again. 7 Q. Right. That is a good point. That flange, 8 that metal flat part has to be absolutely clean or 9 cleared from the old gasket residue completely before a 1 0 new gasket is put on or it's going to leak. True? 1 1 A. It can leak. I have seen where they worked and 1 2 couldn't get exactly every lit bit off. But it was 1 3 essentially smooth and clean enough to make a seal, it 1 4 depends on the size of the flange also. 1 5 Q. That is why a putty knife is used or a wire 1 6 brush is used, or a power wire brush is used to get that 1 7 flange as clean as possible and get all of that asbestos 1 8 gasket material off of there. True? 1 9 A. Yes. Not only the gasket material but any rust 20 or chemical corrosion that has happened to the flange, 21 any kind of deterioration they would want a flat, clean 22 surface. 23 Q. And I'm just calling it a scrubbie thing, 24 because I'm using your terminology. Okay? 25 A. I don't know that I have a name for it. I 41 1 don't know the brand name of it. So I just call it the 2 scrubbie thing. Yes. 3 Q. On the scrubbie thing though that you observed, 4 that did not have wire or metal bristles, true? They 5 were plastic? 6 A. It1s a hard plastic. Yes. 7 Q. So you would agree with me that the scrubbie 8 thing had some type of plastic bristle attached to it, 9 where, of course, a wire brush kind of speaks for itself, 1 0 the bristles are made out of wire? 1 1 A. There weren't any bristles with the scrubbie 1 2 thing. The scrubbie thing is like -- all I can explain 1 3 it is an expanded sponge. It's like plastic that is all 1 4 mixed and it has openings. And it has a rough surface. 1 5 And it's the rough surface that breaks that surface loose 1 6 of the gasket material that is still sticking to the 1 7 flange. So it's a mechanical abrasion just like the wire 1 8 brush. 1 9 Q. Okay. Well, I'm a little bit confused, maybe I 20 think you just cleared me up. When you said you were 21 talking about a scrubbie thing, that might be used to 22 clean a bar-b-que grill, I'm thinking about a brush type 23 thing with plastic bristles to clean the bar-b-que pit. 24 But you're actually talking about the round plastic 25 thing that is often used to clean the insides of pots and pans when you would wash dishes? A. It's even tougher than that. I haven't seen that used inside. Maybe it's something local to Louisville. But I've seen it used -- it was sold to clean bar-b-que grills. It has a longer handle. I have never used that kind of expanded foam inside of my dishes. There is, one, no need. And the other is, that's what they used. And they didn't use it all the time, it was just a few of them that used it. Q. It did have a handle? A. It did. Q. It had some sort of plastic on there to get the residue off? A. Yes. Very rigid plastic. Q. We are going to talk about thenumbers and whatnot in a little more detail in a second, Ms. Ringo. But, before we go on, whatever the numbers may be and we will get into that in more detail in a little bit, you would agree asbestos is a carcinogen? A. Yes, it is. Q. You believe it is toxic and needs to be controlled, correct? A. At certain levels. Yes. Q. With regard to the work -- before I leave the scrubbie thing, this is the last thing about the scrubbie 43 1 thing. You didn't see anything in the testimony either 2 in the discovery deposition that I conducted of Mr. 3 Skelly or the testimony, the sworn testimony that Mr. 4 Skelly gave here in that courtroom that he ever used 5 anything other than a putty knife a wire brush or power 6 wire brush, correct? 7 A. That's correct. 8 Q. I want to talk to you next, if I could, Ms. 9 Ringo, about a long amount of questions and answers that 1 0 you gave yesterday regarding Dr. Longo's study. Do you 1 1 remember all that? 1 2 A. I remember it being asked. Yes. 1 3 Q. You were asked a lot of questions about that by 1 4 Mr. Foley and you gave a lot of opinions about that in 1 5 great detail. Do you recall that? 1 6 A. Yes. 1 7 Q. I have some questions about that. Okay? 1 8 A. Okay. 1 9 Q. I understand you disagree with peer-reviewed 20 publication that Dr. Longo did with regard to the removal 21 of gasket material. I want to go into that in a little 22 more detail as to why you think that his findings were 23 incorrect. Okay? 24 A. Okay. 25 Q. You feeling okay with that? 44 1 A. I'm not sure I would say I disagree with that. 2 I disagree with some of his conclusions. And I have some 3 critiques of that and why I would not use that as a 4 reliable document. 5 MR. FOLEY: I would object to showing the 6 unauthoritative non-reliable document of Dr. Longo 7 because there is no predicate. And the rules require it 8 to be read, if it is found to be important. I object to 9 showing it to the jury, your Honor. 1 0 THE COURT: It's cross examination. The 1 1 objection is overruled. . 1 2 BY MR. WOLF: 1 3 Q. Okay. Ms. Ringo, this is the document that we 1 4 talked about or you talked about with Mr. Foley at great 1 5 length yesterday, correct? 1 6 A. That looks like it. 1 7 Q. Right up here at the top, I will try to zoom 1 8 in, I will try not to give anybody a headache, right up 1 9 at the top it says; applied occupational environmental 20 hygiene volume 17, paren one, then it's got 55 -- I 21 believe that's 6, 2, 2002. Do you see that? 22 A. Yes, I do. 23 Q. That is the publication that Dr. Longo's paper 24 was published in in 2002, correct? 25 A. The journal. Yes. 45 1 Q. First of all, have you. ever read that journal? 2 A. Yes. 3 Q. Would you agree as far as industrial hygiene 4 that a lot of the industrial hygienists read that journal 5 throughout this country? 6 A. That's correct. 7 Q. The jury heard about the peer-review process. 8 This went through the peer-review process. I want to 9 clarify, you know what that means? 1 0 A. Yes, I do. 1 1 Q. You, yourself, have never published anything in 1 2 any peer-review publication? 1 3 A. I've never published anything, that's correct. 1 4 Q. Just to clarify, not only have you never 1 5 published anything in the peer-reviewed literature such 1 6 as did Dr. Longo did here, you never published anything 1 7 at all, true? 1 8 A. That's correct. 1 9 Q. Ever. 20 A. Ever. 21 Q. Okay. The top of this, of course, is fiber 22 released during the removal of asbestos-containing 23 gaskets, a work practice simulation. Of course there are 24 several people that contributed to this, but it's Dr. 25 Longo who has a Ph.D. whose name is there. William E. 46 1 Longo, correct? 2 A. That's correct. 3 Q. Have you ever met Mr. Longo? 4 A. Yes, I have. 5 Q. Where have you met Mr. Longo? 6 A. It was at a walk-through at a La-Z-Boy recliner 7 factory in Mississippi. 8 Q. That sounds interesting. We won't go further 9 then that. I want to first of all ask you on page 57 of 1 0 this article, he was got table one. Do you see that-, Ms. 1 1 Ringo? 1 2 A. Yes. I see it. 1 3 Q. And he says in table one, this is the analysis 1 4 of removed gaskets. And we are going to go through the 1 5 studies. He has over there on the left-hand side study 1 6 one two, three. Do you see those? 1 7 A. Yes. Those are the ones I referred to where he 1 8 had done a study and it's a separate document. Then he 1 9 took those three and combined them into this to publish. 20 Q. Right. You can read along. It's pretty self 21 explanatory. This is the number of gaskets analyzed. 22 Study one, ten gaskets; study two is four gaskets; study 23 three is one gasket, correct? 24 A. That is what it says. 25 Q. The asbestos type is has got down there for all 47 1 of those is chrysotile? 2 A. Yes. 3 Q. And then it says, concentration of asbestos in 4 volume percent. Do you see those? 5 A. Yes. 6 Q. Sixty-five to eighty percent asbestos by 7 volume. Then the next one is 75 to 85 percent. Last one 8 is 85 percent. Do you see those numbers? 9 A. Yes. 1 0 Q. You would agree, wouldn't you, Ms. Ringo, that 1 1 that is typical, the typical percentages you would find 1 2 in asbestos-containing gaskets? 1 3 A. I've seen a wide range of percentages of 14 gaskets. 1 5 Q. When you say wide range -- let me ask you, I've 1 6 seen from 60 all the way up to 85, is that consistent 1 7 with your knowledge? 1 8 A. I've seen gaskets that have been as low as 10, 1 9 20 percent. Sometimes it depends on the analysis. 20 Sometimes depends on the manufacturer and the use. 21 Q. Okay. Would you agree with me though, Ms. 22 Ringo, that the number he has up there, the 65 all the 23 way up to 85 percent asbestos content by volume in these 24 asbestos-containing chrysotile gaskets, that that is 25 accurate or that is a fair representation? 48 1 A. Well, I have a challenge with by volume. 2 Because he's -- it's really an optical analysis. Your 3 looking at a hunk of the material under a slide and 4 making a visual estimation of the amount of asbestos 5 versus non-asbestos materials. That is an optical. By 6 volume is -- or by weight would be more in line with what 7 you would refer to as how it is manufactured. The 8 optically he is using that term but I wouldn't use that. 9 Q. Okay. 1 0 A. I would just say, by analysis. 1 1 Q. You would say there is 65 to 85 percent 1 2 asbestos by analysis? 1 3 A. Yes. 1 4 Q. Okay. All right. Now, the numbers that you 1 5 gave to the jury yesterday, on those gaskets, what was 1 6 the percentage of asbestos in those gaskets that you 1 7 tested and then gave the numbers of respirable fibers 1 8 that were release when you abraded them or removed them 1 9 from flanges? 20 A. Well, again, I didn't remove them from flanges. 21 It's the workers that were doing it. Again, a wide range 22 of analysis. The ones that we were actually commissioned 23 or charged with the duty to analyze, had not been 24 previously identified by LG&E. Louisville Gas and 25 Electric had a very extensive program of knowing where 49 1 their asbestos was, asbestos-containing materials were. 2 So a pump, a value, a system, they knew that that gasket 3 was asbestos because it had been put in. Then we didn't 4 go in and double check them or analyze it again and 5 charge them again for having it analyzed. They had 6 already analyzed it. So it was the ones that they 7 weren't certain of, they weren't sure of what it was. 8 That then we would analyze and include in our report. A 9 lot ot tno analysis that we did was or gaskets tnaL were 1 0 of a lower percentage. 1 1 Also I think ours range from ten to about forty 1 2 percer'. Although, I have done analysis on some samples 1 3 that were 80 percent. 1 4 Q. So if I understand it correct, Ms. Ringo, on 1 5 your study where you took air measurements from these 1 6 other gentlemen removing asbestos-containing gaskets from 1 7 flanges, and then you got your readings and your numbers, 1 8 those gaskets had less asbestos in them then these, true? 1 9 A. Only some of them. The ones that we had . 20 analyzed. There were quite a few that we already knew 21 were the sixty, eighty percent asbestos gaskets that LG&E 22 knew were asbestos and we didn't have to do an analysis 23 of that. Those are included with the removals and the 24 numbers that I reported. 25 Q. Okay. So you basically were taking the word 50 1 from certain other individuals that these gaskets that 2 were being removed and then you were measuring the 3 asbestos that was being released from those gaskets, you 4 were just taking the word from these other individuals 5 that they were asbestos-containing and they ranged 6 anywhere from 20 to 60 percent asbestos. True? 7 A. Twenty to sixty? No. I'm sorry. We analyzed 8 gaskets that were not already analyzed or identified as 9 asbestos-containing on some projects. Each time we would 1 0 be called out there, the engineer in charge of the plant 1 1 or the maintenance group that was doing the work, they 1 2 have what is called the asbestos book. They called it 1 3 the big book. They would go and look by the piece of 1 4 equipment. If they knew what was in there and where they 1 5 had had it analyzed or where it was installed originally, 1 6 they knew what it was by the specs, specifications, I 1 7 took their word that that was asbestos, if they said it 1 8 was asbestos. 1 9 On the ones that they didn't know and there was no 20 documentation as to whether it was asbestos or not, they 21 would ask us to take a bulk sample of the material being 22 removed. We would do the air monitoring just like we did 23 in every case. We would take the samples back at the 24 laboratory analyzed it. They would analyze it and report 25 it as asbestos. 51 1 If it wasn't asbestos, then we reported it wasn't 2 asbestos. We also still reported the numbers. Those 3 industrial hygiene surveys, where the gaskets ended up 4 being non-asbestos are not included in what I refer to as 5 my reference materials to base my opinion on. 6 Q. Okay. I want to draw your attention, if I 7 could, Ms. Ringo, to this part. This is actually on I 8 believe page, it says 58 of his study. And there where I 9 have a line, it's highlighted in yellow, Dr. Longo says 1 0 all PCM and TEM data in the tables are expressed for 1 1 comparison purposes as fibers per cubic centimeter, 1 2 paren, f/cc - 1 3 A. Right. Fibers per cc. 1 4 Q. Greater than five microns in length. Do you 1 5 see that? ' 1 6 A. Yes. I do. 1 7 Q. To clarify, we are going to talk a little bit 1 8 more about the PCM and TEM method that you discussed 1 9 yesterday with Mr. Foley. You testified of course that 20 PCM is the method that OSHA uses because they had to have 21 some sort of standard way of measuring how much asbestos 22 is released from various products when they were 23 manipulated. True? 24 A. Right. When they were handled or the materials 25 disturbed. Yes . 52 1 Q. They wanted some sort of, I guess, for no 2 better term just a consistent method of doing that so the 3 numbers would all be the same? 4 A. Consistent and reliable is really what they are 5 looking for. 6 Q. Okay. 7 A. When they did early on the testing of analysis 8 of the samples by PCM and TEM, there was no correlation. 9 If the methods had been -- could correlate and give you a 1 0 straight graph, then you would be able to use the TEM. 1 1 It did not and you cannot. 1 2 Q. Okay. And what Dr. Longo and we will look at 1 3 the numbers he got, he did both. Correct? In other 1 4 words, he used both the PCM and the TEM method to 1 5 determine the amount of asbestos that is released from 1 6 asbestos-containing gaskets when you grind them off, use 1 7 a wire brush or even a power wire brush. True? 1 8 A. For the actual analysis, yes. 1 9 Q. Let's move over to this paragraph, so we have a 20 better understanding. It says the air samples collected 21 were analyzed by both PCM and TEM during the gasket 22 removal activities in these studies. The two basic types 23 of sample preparation for TEM air analysis are the direct 24 and indirect methods. And he gives some footnotes. And 25 those are listed at the back of the peer-reviewed 53 1 publication. 2 And then he goes on to say, some scientists have 3 suggested that the indirect sample preparation method, 4 particularly the sonication step causes large complex 5 asbestos structures such as fiber bundles and clusters to 6 break up and bias fiber count to higher concentrations. 7 He gives some more footnotes. 8 , However, he goes on to say, in his peer-review 9 study, studies performed by the EPA and others have shown 1 0 that this criticism is not valid and that the indirect 1 1 technigue is an acceptable method to analyze overloaded 1 2 air samples. Do you see that? 1 3 A. I see he said that. Yes. 1 4 Q. In the term up there sonication step, that's 1 5 what you referred to as the jewelry cleaner yesterday? 1 6 A. That's correct. Where you put it in a liquid 1 7 bath and use ultrasonic waves to break up the particles. 1 8 Q. You used the term jewelry cleaner that women 1 9 put their jewelry in and it vibrates, you put a solution 20 in there, I think my mom has one and it cleans jewelry? 21 A. Right. 22 Q. That is what he is talking about when he uses 23 the term sonication step. True? 24 . A. That is very similar. Yes. 25 Q. What that does -- I don't want to get into it 54 1 too much, the jury heard quite a bit about the different 2 types of asbestos. And that the asbestos fibers can come 3 in bundles and they can splinter and those can splinter 4 and they can even splinter into even smaller asbestos 5 fibers. True? 6 A. That is true. 7 Q. Using the PCM method you count a bundle of 8 asbestos fibers as one fiber, true? 9 A. If it is three times as long as it is wide, and 1 0 it1s greater than five microns you would count it as a 1 1 fiber. 1 2 Q. You would count that as one fiber even though 1 3 it is -- it could be a very large bundle, larger than the 1 4 dimensions you just gave, it could be a very large bundle 1 5 containing many, many individual asbestos fibers. But 1 6 under the PCM counting method, you count that as one 1 7 fiber. True? 1 8 A. That's the counting rules. Yes. 1 9 Q. Just so we are all on the same page, the PCM 20 phase contrast microscopy or microscope, it's not as 21 powerful, the magnification is not nearly as great at 22 TEM, the trans electron microscope or microscopy method. 23 True? 24 A. That's correct. 25 Q. The PCM doesn't magnify nearly as strong as the 55 1 TEM, in simple terms. True? 2 A. That's correct. 3 Q. All right. If you use the sonification or 4 sonication, excuse me, step, that causes these large 5 complex asbestos structures or bundles to break up, that 6 then with the TEM method allows you to see more asbestos, 7 individual asbestos fibers. True? 8 A. Yes. That is the critique of it. Yes. 9 Q. You can see actually more asbestos fibers and 1 0 you can even see smaller asbestos fibers? 1 1 A. That's correct. 1 2 Q. You can see a whole lot more than you can with 1 3 the PCM irregardless if you do the sonication process. 14 True? 1 5 A. You can see smaller and thinner ones, yes, and 1 6 shorter ones. 1 7 Q. But from an industrial hygiene prospective, Ms. 1 8 Ringo, you would have to agree with me that if these 1 9 bundles contained, say there was a large bundle of 20 asbestos fibers, and they contained many, many asbestos 21 fibers that were greater than five microns in length, and 22 had the other dimensions, that those individual fibers 23 even though they are grouped in one bundle still pose a 24 risk in causing asbestos disease. True? 25 A. Well, again, individual fibers or one single 56 1 bundle isn't going to put someone at risk for the 2 disease. It's the overall total dose with all the fiber 3 counts for day in and day out, that type of thing. 4 So when OSHA looked at the historical data that they 5 had for being able to say that at this level we see 6 disease, they had been counting it a certain way. And 7 those smaller fibers were in there, just not counted. Or 8 the bundles were in there and just not counted as 9 individual fibers. They were counted as bundles. So 1 0 that has been taken into consideration for all the 1 1 historical epidemiological data that has been done. All 1 2 of the research that's been done. 1 3 And for someone to take the material and essentially 1 4 take it, it's like string cheese where you can pull apart 1 5 string cheese, little kids like to eat string cheese. 1 6 And you pull apart and you get the individual strings. 1 7 It's taking that bundle and making it all into individual 1 8 smaller ones and counting what would have been one fiber 1 9 now counting it as 150 or 10 or whatever, however many 20 times you pull it a part. 21 The sonication also, and that indirect method also 22 breaks up any kind of binder that may have still been 23 adhered to small particles or fiber bundles that are 24 holding them together. It's not an accurate way to do 25 the work. No one else uses it. It has not been done. 57 1 And it1s not the way you do it as an industrial hygienist 2 to evaluate employee exposures in the workplace. OSHA 3 doesn't use it. It's not an approved method. 4 Q. Let's see what Dr. Longo, in his peer-reviewed 5 publication on that very topic had to say and was printed 6 and went through the peer-review process and was 7 published. This paragraph on page 59 says, the current 8 OSHA asbestos exposure standards are based on the NIOSH 9 7400 method, you mentioned that yesterday? 1 0 A. Yes. 1 1 Q. This method measures only fibers longer than 1 2 five micrometers in length and greater than 0.25 1 3 micrometers it width. That is what we talked about a 1 4 moment ago, true? 1 5 A. That's correct. 1 6 Q. However, these fiber dimensions were not 1 7 implemented by OSHA with regard to health issues. The 1 8 minimum dimensions were implemented solely due to the 1 9 fiber resolution limitations of the PCM technique. And 20 the PCM technique is that less powerful microscope we 21 were talking about a while ago, true? True? 22 A. The PCM is the less powerful and more common 23 method. Yes. 24 Q. OSHA has long recognized that PCM is not fiber 25 specific or able to resolve fibers that are less than 58 1 0.25 micrometers in width. The TEM, again that is our 2 much more powerful electron microscope, true? 3 A. Right. 4 Q. Analysis performed in these studies augmented 5 the PCM measurement by obtaining more complete and 6 accurate measurements of the airborne asbestos 7 concentrations. Do you see what he said about that? 8 A. I see what he says. Yes. 9 Q. Let's see what he got when he was doing his 1 0 testing. 1 1 A. May I comment on that? 1 2 Q. No, ma'am. Let me ask the question. I'm sure 1 3 Mr. Foley will have a number of questions for you. 1 4 THE COURT: If that is an objection, Counsel, 1 5 it's sustained. 1 6 MR. WOLF: Okay. 1 7 BY MR. WOLF: 1 8 Q. This first table, just so we are all on the 1 9 same page, this table one was the one we looked at 20 earlier where he actually gives the percentage of the 21 asbestos on the gaskets he is testing that we went over. 22 Okay? 23 A. Right. 24 Q. And then on table two, he is talking about 25 study one up there scraping and hand wire brushing small 59 1 flanges. Do you see that? 2 A. Yes. 3 Q. PCM airborne exposure levels. So he is using 4 the PCM method that OSHA uses, correct?. 5 A. That is what he says. 6 Q. And he is measuring fibers greater than five 7 micrometers in length, true? 8 A. That is what he says. 9 Q. Over there on the sample type, he has kind of 1 0 got a box and it's fairly easy to kind of go down. The 1 1 sample type he has got a background measurement. He has 1 2 got a worker measurement that I highlighted. It has an 1 3 assistant, that would be just someone standing there 1 4 handing someone like Mr. Skelly the tools that he may 1 5 need to get the flange clean. True? 1 6 A. Yes. 1 7 Q. And then area samples. And then up there he 1 8 has got number of air samples analyzed. And that is just 1 9 on background he did four. And on worker he did 14. And 20 so forth. Then the range he has this fibers per cc up 21 there. Do you see that? 22 So when he did, using the PCM airborne method, 23 counting fibers greater than five micrometers in length 24 on a worker scraping and hand wire brushing a small 25 asbestos-containing gasket off of a flange, the range he 60 1 got in fibers per cc was 1.5 to 10.1. Do you see that? 2 A. I see it. 3 Q. And then he went on and he did the time 4 weighted average on the fibers per cc. He got 3.7. And 5 then he went further and he did what you talked with Mr. 6 Foley about this eight hour time weighted average fibers 7 per cc. Do you see that? You got 1.5. 8 A. I see what he says. Yes. 9 Q. Just so clarify, the eight hour time weighted 1 0 average, Ms. Ringo, what is that? 1 1 A. That is the average based on the samples and 1 2 the time the samples were run, that you would do the 1 3 calculation as set forth by OSHA and ACGIH to be able to 1 4 evaluate what an eight-hour-exposure is. It's to allow 1 5 for shorter sampling time but still comparison to the 1 6 eight hour average or someone working a full eight hours. 1 7 You can take -- if you monitored for a full eight hours 1 8 that would be representative of an eight hour average. 1 9 You wouldn't do any calculations to it. It's just a way 20 of accurately averaging the numbers on the samples. 21 There is a time component. 22 Q. You are averaging it over an eight hour 23 timeframe? 24 A. That's correct. 25 Q. Now, in table three, he is basically doing the 61 1 same thing. I want to show you that in table three, 2 right here. Table three, scraping and hand wire brushing 3 small flanges again, asbestos-containing small flanges - 4 the gaskets off of flanges. Now he is using the TEM, the 5 electron microscope - 6 A. That's correct. 7 Q. --to get asbestos level. And again, he is 8 counting only those that are greater than five 9 micrometers in length. Do you see that. Here, he did a 1 0 worker and the assistant. He did 14 different air 1 1 samples on the worker. ' And the range he got in fibers 1 2 per cc, counting with the TEM, which is our big powerful 1 3 microscope, he gets 29.9 all the way up to 144.2 fibers 1 4 per cc. Do you see that? 1 5 A. I see that. 1 6 Q. That exposure the 29.9 to 144.2, that is a high 1 7 exposure. Yes or no? 1 8 A. If that were an accurate analysis. 19 Q. Yes or no Ms. -- , 20 A. -- exposure - 21 MR. WOLF: Objection. 22 THE COURT: Sustained. Non-responsive. 23 BY MR. WOLF: 24 . Q. Yes or no Ms. Ringo? Is the 29.9 dash 144.2 25 fibers per cc a high exposure. Yes or no? 62 1 A. If that were an accurate exposure it would be 2 high. Yes. 3 Q. Just to put it in context, on your power point 4 yesterday you gave a lot of discussion -- went through a 5 lot of discussion on pipe insulation. You had a picture 6 up here -- looks like one that is in kind of bad shape - 7 pipe insulation, you were talking about 15.8 to 113.9 8 fibers per cc. Do you see that? 9 A. That's correct. 1 0 Q. You considered that a high exposure, correct? 1 1 A. That's correct. 1 2 MR. WOLF: May I approach, your Honor? 1 3 THE COURT: You may. 1 4 BY MR. WOLF: 1 5 Q. Ms. Ringo, I'm sure you are better at math than 1 6 I am because I'm not all that good in math. But I've got 1 7 a mathematical question for you. Okay? 1 8 A. Okay. 1 9 Q. The jury's already heard quite a bit about what 20 fibers per cc mean, that right there? 21 A. Yes. 22 Q. That is cubic centimeter, right? 23 A. Cubic centimeter. Yes. 24 Q. The jury's heard from a number of experts that 25 a cubic center is roughly somewhat like a sugar cube? 63 1 A. A little smaller than a sugar cube, a little 2 smaller than a dice, or a die and a pair of dice. 3 Q. I've heard that said and I've been meaning to 4 get a pair of dice and a sugar cube and actually compare 5 the two. Roughly we are talking about something the 6 size - 7 MR. WOLF: May I approach, your Honor? 8 THE COURT: You may. 9 BY MR. WOLF: 1 0 Q. Something the size of a sugar cube? 1 1 A. That's correct. 1 2 Q. A cube, a centimeter cubed? 1 3 A. Yes. A centimeter on each side in length. 1 4 It's a centimeter by a centimeter by a centimeter which 1 5 is how you get cubic centimeters. 1 6 Q. So cubic centimeters, I'm going to make - 1 7 don't hold me too this, I will try to draw something that 1 8 looks a little bit like a sugar cube. It's something 1 9 about like that square, is that fair? 20 A. It actually has a dimension to it. So you 21 would do little lines, I can do one for you. 22 Q. You will make me do the box, aren't you? 23 A. Yeah. (Laughing). 24 Q. Let me see if I can do that. Something roughly 25 like.that? 64 1 A. Yes. 2 Q. The size of a sugar cube all the way around. 3 If we extrapolate that out -- what I have here is a yard 4 stick. 5 A. Yes. . 6 Q. Do you want to look at it? 7 A. It has a meter stick on the other side. You 8 got centimeters on there. 9 Q. Okay. Do I have a full meter on here? 1 0 A. Probably not. 1 1 Q. I think I need three more inches. 1 2 A. Right. 1 3 Q. Because this is 36 inches? 1 4 A. Yes, makes a yard. 1 5 Q. That makes a yard. So to have a meter, I need 1 6 three more inches out there to 39? 1 7 A. Just about. Yes. 1 8 Q. Three more inches to this. So if I had a meter 1 9 cubed, we will use my finger sticking out about three 20 more inches, and we did the same thing, we made a box and 21 it was a meter cubed on all sides, same as this right 22 here, (indicating), of course I will not make it near 23 that big, but we will just say -- the paper is not that 24 big. (Drawing). This is one meter, all right, cubed. 25 Here's the math question: Cubic centimeter, is this 65 1 right here, (indicating), all right? 2 A. Yes. 3 Q. There is one million cubic centimeters in this 4 metered cubed, correct? 5 A. Yes. 6 Q. One million? 7 A. Because it's a hundred centimeters per each 8 length then. It would be a hundred, times a hundred, 9 times a hundred. So it's a million centimeters, cubic 1 0 centimeters in a cubic meter. 1 1 Q. So, to kind of complete the picture, why do we 1 2 use cubic centimeters whep we are measuring how much 1 3 asbestos is in a breathing zone of a worker? 1 4 A. I don't know. Every other -- other than 1 5 fibers, every other agent of dust is measured for 1 6 industrial hygiene purposes in cubic meters of air 1 7 breathed. I just don't know why they did it. 1 8 Q. Why they did it that way? 1 9 A. Yes. Because the NIOSH actually made 20 recommendation based in fibers per cubic meter. 21 Q. Okay. If we take -- let's use this example 22 before we go on to the next table, if we use this range 23 of a worker using an asbestos gasket and removing it from 24 a flange, a small flange. And using the TEM method. And 25 the range from the 14 air samples came out to be almost 66 1 30 to 144 fibers her cc. If we extrapolated that out to 2 my meter by meter by meter cubed box, that I've drown up 3 here on the butcher paper up here, that means you would 4 multiply the 29.9 and the 144.2 times one million, 5 correct? 6 A. To do the conversion from any number in fibers 7 per cc to fibers per cubic meter, you would multiply by a 8 million. Yes. 9 Q. So if he found that there was 29.9 to 144.2 1 0 fibers per cc in a cubic centimeter, that would equate to 1 1 29.9 million to 144 million fibers in my meter cubed, up 1 2 on the board, true? . 1 3 A. If you do the calculation, yes. 1 4 Q. Here we go to table four, study two. And the 1 5 difference up here is that he is scraping -- he is 1 6 showing that he is scraping and hand wire brushing large 1 7 flanges, the other two we looked at were small flanges? 1 8 A. That's what he says. 1 9 Q. These are large flanges. And he is again using 20 the PCM, the method that OSHA uses, and that you like to 21 use, true? 22 A. He is saying he used that method. Yes. 23 Q. And he is getting, again, measuring only fibers 24 greater than five micrometers in length. He has got the 25 sample type, background worker, assistant and sample 67 1 areas. We will stick with the worker. Okay. Mr. Skelly 2 testified that he actually did this work himself. So we 3 will just stick with that. And on these he did ten 4 samples analyzed on the worker. And he got a range of 5 9.3 to 24.0 fibers per cc, is sample time weighted 6 average was 15.3 in his eight hour time weighted average 7 was 3.6. Do you see that? 8 A. I see that. I don't know how he did that. 9 It's interesting he put that value there. 1 0 Q. Well, the large flanges on the PCM, the numbers 1 1 -- if we go in the range 9.3, 2.4, those are larger than 1 2 -- and I apologize for having to flip back and forth, if 1 3 we are comparing apples to apples, here's his PCM on the 1 4 small flanges, and obviously it was less, 1.5 to 10.1 . 1 5 Do you see that? 1 6 A. I see what he says. 1 7 Q. You would agree, that only makes common sense, 1 8 doesn't it, Ms. Ringo, that the larger the flange, the 1 9 larger the gasket, true? 20 A. Yes. 21 Q. The smaller the flange, the smaller the gasket? 22 A. That is true. 23 Q. So if someone is removing a larger gasket, it 24 only stands to reason that they are going to be exposed 25 to more asbestos fibers than if they are removing a small 68 1 gasket from a smaller flange. Do you agree? 2 A. Logically that makes sense. But it depends on 3 how stuck the gasket is to the flange. On a larger 4 gasket, if it comes off relatively easy versus a smaller 5 flange where it takes a lot more scraping, you might have 6 a higher number for the smaller flange, relatively higher 7 number. They are all low numbers though based on the 8 monitoring that has been done other than Dr. Longo. 9 Q. Okay. Well, I guess the fair way to say that 1 0 then, all other things being equal as far as how baked on 1 1 or how hard it was to get off the gasket, if you had a 1 2 small gasket on a small flange and it was baked on and 1 3 it was as difficult to get off as a larger flange on a 1 4 larger gasket, all things being equal in that situation, 1 5 you would agree with me that you are going to get more 1 6 asbestos fibers in the worker's breathing zone by 1 7 removing the larger gasket. True? 1 8 A. You would certainly expect it. Yes. 1 9 Q. There is more asbestos? 20 A. There is more time spent on the larger gasket 21 so you would have a longer sample of the actual removal. 22 Yes, that is certainly a possibility. 23 Q. Okay. Now, he goes -- what we were looking at 24 a while ago was a PCM on large flanges, looked at those 25 numbers. And now we go to our more powerful microscope 69 1 that counts not just the bundles of asbestos fibers but 2 all the different asbestos fibers. This again is 3 scraping and hand brushing on large flanges using our 4 electron microscope. And again he is counting only those 5 fibers that are greater than five micrometers in length. 6 And on the worker he did 14 different air samples were 7 analyzed. And the range he got there 199.6 to 842.7 8 fibers per cc. Do you see that? 9 A. I see that. 1 0 Q. Again, you would agree with me, Ms. Ringo, if 1 1 we did the math and my box up here, this box that is yea 1 2 big, I think maybe my arm will reach out about that far, 1 3 (indicating), something like that. You would multiply 1 4 that times a million. And if you extrapolate that out, 1 5 that would be almost 200 million fibers to almost 843 1 6 million fibers in that box. True? 1 7 A. That would be the calculation. 1 8 THE COURT: Mr. Wolf, can we take a morning 1 9 break at this point? 20 MR. WOLF: Sure, your Honor. 21 THE COURT: Let's take a fifteen minute break 22 please. Be back at ten to. 23 (Whereupon, a short break was taken. ) 24 THE COURT: You can be seated. Mr. Wolf, you 25 may continue. 70 1 MR. WOLF: Thank you, your Honor. 2 BY MR. WOLF: 3 Q. Ms. Ringo, when we left off to take a break, of 4 course we were talking about Dr. Longo1s peer-reviewed 5 study on gasket removal. And you had talked yesterday on 6 direct examination with Mr. Foley quite a bit about 7 asbestos gaskets being in a matrix synthetic rubber 8 makers. Do you remember that? 9 A. Yes. 1 0 Q. Well, I want to show you Dr. Longo also in his 1 1 peer-reviewed study discusses that. And he said 1 2 generally sheet gaskets are comprised of approximately 70 1 3 percent chrysotile asbestos bundles in a synthetic rubber 1 4 matrix. Do you agree with that? 1 5 A. Generally, yes. 1 6 Q. The SEM micrograph on figure one, we will look 1 7 at that in a second, shows large bundles of asbestos 1 8 protruding from the matrix of new sheet gasket materials, 1 9 any minimal disturbance or an abrasion of these bundles 20 can release asbestos fibers into the air. Another 21 problem with asbestos gaskets is that the synthetic 22 rubber matrix that we have been talking about, begins to 23 deteriorate after installation, in most cases installed 24 sheet gaskets are subjected to high temperature and 25 pressure that will increase the rate of thermal 71 1 decomposition of the rubber matrix. 2 First of all, Ms. Ringo, do you agree in most cases 3 installed asbestos-containing sheet gaskets are subjected 4 to high temperature and pressure, would you agree with 5 that, ma'am? 6 A. There are many applications for sheet gaskets. 7 Some are high temperature, high pressure, others are not. 8 Q. Okay. 9 MR. FOLEY: Your Honor, I apologize, before we 1 0 get to a new question, just for the record to note as we 1 1 discussed earlier, I do have a continuing objection to 1 2 the Dr. Longo study and reference to it as Counsel and we 1 3 discussed. 1 4 THE COURT: You do. 1 5 MR. FOLEY: Thank you, your Honor. 1 6 BY MR. WOLF: 1 7 Q. They are used in a wide variety of 1 8 applications, true? 1 9 A. That's true. 20 Q. You would agree with me though, would you not, 21 Ms. Ringo, that the part about the gasket being under 22 pressure, as far as being compressed between pieces of 23 metal where there is a flange or an internal component 24 part of a pump or whatever, that has to be compressed 25 fairly tightly, you would agree with that, correct? 72 1 A. I believe there are specifications for how much 2 compression those gaskets can withstand. Yes. 3 Q. And that makes sense because the whole purpose 4 of gaskets, if we didn't have the gasket and we had two 5 pieces of metal they were putting together and there is a 6 lot of fluid going through that high pressure, and you 7 have metal on metal, it's going to spray out and leak. 8 True? 9 A. That would be correct. 1 0 Q. So the gasket is just there to seal. And you 1 1 have to use bolts and nuts typically? 1 2 A. That's correct. 1 3 Q. Something to fix the two pieces of metal with 1 4 your gasket material in between very tightly, so when you 1 5 have this high pressure steam, water, fluid or whatever, 1 6 chemicals - going through there, it doesn't leak, fair? 1 7 A. That's correct. Yes. That is the purpose. 1 8 Q. Now, what Dr. Longo is saying here is that he 1 9 is agreeing with you that there is a synthetic rubber 20 matrix in these asbestos, 70 percent chrysotile asbestos 21 gaskets. But he actually looked at just a brand new 22 asbestos gasket under the microscope to see what it 23 looked like. Have you ever done that? 24 A. I have seen pictures of them. Yes. I haven't 25 done it myself. I don't have a scanning electron 73 1 microscope. I have seen pictures of a lot of surfaces of 2 different materials under the microscope. 3 Q. You don't have the electron microscope? 4 A. No. 5 Q. I think it's been said in court those are very 6 large and very expensive? 7 A. That's correct. 8 Q. But using that, he saw large bundles of a 9 asbestos protruding from the matrix of the new sheet 1 0 gasket material. Have you ever seen that? Are you aware 1 1 of that? 1 2 A. I have seen pictures of that. Yes. 1 3 Q. In other words, before the gaskets are ever 1 4 even used or put in place on a flange or pump or valve or 1 5 whatever, there is actually, if you looked under a 1 6 microscope you would see asbestos fibers protruding from 1 7 that gasket material? 1 8 A. It's still bounded in the matrix. Yes. 1 9 Q. - The matrix -- do you agree with Dr. Longo that 20 once asbestos-containing gasket has been in place and 21 squeezed tightly between two pieces of metal and you have 22 hot fluid going through there for some period of time, 23 say a year or two, that the rubber matrix begins to 24 deteriorate? 25 A. That can occur. Certainly doesn't occur in 74 1 every situation. But it can occur I'm sure. 2 Q. Okay. He went on and talked about that in this 3 paragraph, said a comparison of the surface of a new 4 gasket, figure one, to that of a used gasket or removed 5 from one of the flanges in study two, shown in figure 6 two, demonstrate how the rubber matrix material is 7 degraded. This degradation provides more opportunity for 8 the release of asbestos fibers during the removal 9 process. 1 0 You would agree with that statement, wouldn't you, 1 1 Ms. Ringo, that if the matrix is dissolved to a certain 1 2 extent or degraded over a period of time because of 1 3 pressure and heat, that when that flange or whatever the 1 4 gasket may be attached to is removed in a worker such as 1 5 Mr. Skelly then has to take a wire brush or power wire 1 6 brush to get that off, that the decomposition basically 1 7 of the matrix allows for more asbestos fibers to be 1 8 released. True? 1 9 A. As a hypothetical, yes. Sure. 20 Q. Okay.. Real quick. The last thing he did, we 21 have been talking about hand wire brushing on small and 22 large flanges using both the PCM on those tables, large 23 and small flanges, gaskets being removed using PCM. The 24 same thing using the TEM. They gave us the four we 25 already talked about. 75 1 Now we are going to the third study. This is the 2 power wire brushing. Okay. You're familiar with that 3 practice being used in the workplace or out in the field 4 so to speak? 5 A. Some places use that, yes. Or it can be used, 6 yes. 7 Q. And just so we are all on the same page, a 8 power wire brush it's kind of like a grinder or handheld 9 grinder that is either operated pneumatically with air, 1 0 an air hose, or some of them are electric and they have a 1 1 wheel and you apply a wire brush to the wheel. And then 1 2 you can use that, it spins at a very high rate of speed. 1 3 And you can use that to grind or clean the surface, a 1 4 metal surface. True? 1 5 A. I have not seen the very large ones used. 1 6 Because if you do that too much you scar up the surface 1 7 of the flange. And then it's not any good. It's no 1 8 longer flat. It has these gouges and no gasket will be 1 9 able to fill in those gouges. The wire brushes I have 20 seen are small maybe attached to what would look like a 21 handheld drill, it's more like the pneumatic tool that I 22 have seen used. 23 Q. But the tool -- so was it electric or - 24 A. Pneumatic. 25 Q. Powered by air? 76 1 A. Yes. 2 Q. High pressured air hose? 3 A. Yes. 4 Q. The same process, the wheel though has a wire 5 ring around it, a wire stiff brushes. And that spins at 6 a high rate of speed. And the person uses that to clean 7 the metal surface to get all the flange clean and the 8 residue from the gasket off? 9 A. Yes. There is a variety of configurations of 1 0 how the wire brushes look. 1 1 Q. And do you recall that Mr. Skelly talked about 1 2 using power wire brushes on occasion to remove asbestos 1 3 gasket in his work? 14 A. On occasion, yes. 1 5 Q. This study three, this again is using the PCM, 1 6 that is the method that you like? 1 7 A. Yes. It's not that I like it, it is the method 1 8 required by law that we use to evaluate employee 1 9 exposures. . 20 Q. OSHA. 21 A. OSHA. 22 Q. Okay. The PCM up there is what he is using. 23 And again, he is measuring just the fibers that are five 24 micrometers in length. And I will highlight just the 25 worker. He did seven samples. And the range on that 77 1 fibers per cc were 14.9 to 31.0. Do you see that? 2 A. I see what he says he got. Yes. 3 Q. And again, if we did our math over here, that 4 would be 14.9 million to 31 million fibers in our meter 5 box that's cubed up there, true? 6 A. That would be correct. 7 Q. Then if he takes that on out, there is a time 8 weighted average of 21.8 fibers per cc. If you go to the 9 eight hour time weighted average, that is 2.3. 1 0 You would agree with me, wouldn't you, Ms. Ringo, 1 1 that in using a powered wire brush to remove an 1 2 asbestos-containing gasket, typically you're going to get 1 3 higher amounts of asbestos in the worker's breathing 1 4 zone, true? 1 5 A. Not necessarily. 1 6 Q. Let me ask you this question: Do you have an 1 7 opinion or do you believe that the amount of force that 1 8 is used to remove, and the manner of force that is used 1 9 to remove the asbestos-containing gasket residue off of a 20 piece of metal, a flange for example, has a direct impact 21 on the amount of asbestos that is released into the 22 worker's breathing zone? 23 A. The amount that is released might be more at 24 the surface. But the power action, what I have seen and 25 what I have observed and what I have monitored, is that 78 1 during that power application, the pneumatic wire brush 2 to it, there is more of a force that flings it actually 3 away from the person's face. So unless someone would 4 direct that so it's blowing directly at them, and I've 5 never seen a worker do that, that generally it actually 6 pushes it away from their face and gets it out of their 7 breathing zone faster than if they were sitting there 8 with a hand wire brush. 9 It also takes less time to clean off the flange 1 0 face. So the time of exposure is actually less. So I've 1 1 done monitoring both ways. As a time weighted average, 1 2 there is no difference. 1 3 Q. Well, what you are talking about, if we look at 1 4 our assistant right here, that is just the person 1 5 standing beside the actual person doing the work, maybe 1 6 handing the tools or the materials, true? 1 7 A. True. 1 8 Q. Well, Dr. Longo found on the assistant that the 1 9 range was not a whole lot less, some less. Instead of 20 14.9 to 31 fibers per cc, he got 12.8 to 21.2 fibers per 21 cc just in the assistant's breathing zone, who wasn't 22 actually doing the power wiring brushing. Do you see 23 that? 24 A. I see that. It depends on where they are 25 standing. And truly I don't know how he came up with the 79 1 numbers that he came up with. 2 Q. Well, you've seen this whole process done out 3 in the field, right? 4 A. Yes. I have. 5 Q. Well, can you give the jury some estimate how 6 close a worker would be, their face, their actual face, 7 by that I guess their mouth and their nose is the 8 important part, how far away it is from the flange that 9 they are using a power wire brush to remove gasket 1 0 residue? 1 1 A. Generally, it's the distance of the arm. It's 1 2 very -- it's just like doing with a wire brush. There is 1 3 no difference in the distance when they are using a 1 4 regular brush to a power wire brush -1 5 Q. So we are talking -- I'm sorry. 1 6 A. -- matter of feet. Yes. 1 7 Q. You couldn't hold it out like that, would you? 1 8 (Indicating). 1 9 A. No. You are not going to -- unless they are 20 afraid of something getting kicked back to them, but 21 usually if they are using a power tool they are using 22 some kind of face protection. 23 Q. You would agree obviously they have to be 24 looking at what they are doing to see if they are getting 25 all of the residue of the asbestos gasket off of the 80 1 metal, true? 2 A. That is true. 3 Q. If you are holding it way back like this, that 4 might be rather difficult to do? (Indicating). 5 A. I wouldn't say that they did that. No. They 6 are doing the same way, same distance is what they're - 7 it also depends on the piece of equipment that they are 8 working on. 9 Q. If we then go to this table, this is study 1 0 three, where again he is using the power wire brushing. 1 1 Of course I underlined he's using the TEM method. The 1 2 more powerful expensive microscope, is much more powerful 1 3 and you can see a lot more fibers, again he is counting 14 just the fibers that are five micrometers in length. And 1 5 on the worker he did seven samples, analyzed seven for 1 6 the worker. And the range of fibers he got on that using 1 7 the TEM method was 877.1 to 1636.1 fibers per cc. True? 1 8 Yes or no? 1 9 A. He actually doesn't get fibers per cc there, 20 with the TEM method. This is one of the reasons that 21 this has been deemed junk science. When you do TEM, 22 you -23 Q. Ma'am, I hate to object as nonresponsive. 24 THE COURT: If that is an objection, it is 25 nonresponsive to the question. 81 1 MR. WOLF: Yes. 2 BY MR. WOLF: 3 Q. If we did the math on the 877.1 to 1636 fibers 4 per cc using the TEM method and doing our math up there, 5 that would be 877 -- over 877 million fibers in our cubic 6 box up to one billion six hundred and thirty-six million 7 fibers. True? 8 A. Doing the calculation that would be the number 9 you would get. 1 0 Q. A million times a thousand is a billion? 1 1 A. Yes. 1 2 Q. Well over a billion, over one and a half 1 3 billion. Okay. 1 4 Right here, on his conclusions and recommendations, 1 5 he says these studies as well as the other studies 1 6 previously discussed demonstrate that there can be wide 1 7 variability in airborne asbestos fiber levels generated 1 8 during the removal of asbestos-containing gaskets from 1 9 flanges. The variability of fiber levels released is 20 most likely dependent on the condition of the asbestos 21 gasket, the size of the gasket surface area, and the 22 method of removal. 23 You would agree that all of those factors that he 24 listed down at the bottom, Ms. Ringo, do have an impact 25 on how much asbestos is released into the worker's 82 1 breathing zone? 2 A. How much it would measure for the individual 3 sample, yes, I would agree with that. 4 Q. Okay. He goes on to say in his peer-reviewed 5 article, our data showed that dry removal methods 6 typically used by machinists and pipefitters, past and 7 present, result in significant airborne asbestos fiber 8 exposure. Down below that he says, the exposures also 9 far exceed current OSHA levels. Therefore, former 1 0 machinists and pipefitters that performed to this type of 1 1 work as part of their job activities would have had 1 2 significant airborne asbestos exposures while removing 1 3 tightly adhered gaskets on flange surfaces. 1 4 The numbers that we have been going over all morning 1 5 in his peer-reviewed paper on these studies that he did, 1 6 Ms. Ringo, you would agree that they are far in excess of 1 7 the levels that OSHA permits, true? 1 8 A. Those numbers are excessive. Yes. 1 9 Q. You talked about asbestos gaskets still in use. 20 You went on and talked about under current OSHA 21 regulations, the removal of asbestos-containing gaskets 22 require the use of a glove bag in wetting methods to 23 contain the release of asbestos fibers into the 24 workplace. You are aware of that, right? 25 A. That is a method that can be used. Yes. 83 1 Q. And a glove bag, I don't know that we talked 2 about that. What is a glove bag? 3 A. If you've ever seen a science program or even 4 on movies where they are doing work inside a box, they 5 put your hands in a glove, the hands go into gloves. And 6 it's isolation of whatever is in there from the person 7 doing the work. A glove bag is like a giant Zip-lock bag 8 with gloves that are put into it. And you can take and 9 put the bag around the pipe and seal it. And be able to 1 0 do work inside. So that the employee is outside the 1 1 enclosure, if you will, that they put -- as a glove bag 1 2 around the pipe. 1 3 Q. In other words, it's a mechanism or a way of 14 keeping all the asbestos fibers contained and preventing 1 5 them from getting into the breathing zone of the worker 1 6 removing the gasket? 1 7 A. It's used for other than gaskets. It's been 1 8 around to remove pipe insulation for small -- at one 1 9 point OSHA had a terminology for asbestos removal called 20 short term small scale removal. If you had just three 21 linear feet of pipe insulation, you could use a glove 22 bag. So it was really designed more for the friable 23 stuff. But they also used for and at one point OSHA said 24 used them for gaskets. 25 Q. He goes on to say, the following actions are 84 1 recommended that asbestos-containing gaskets are removed 2 without a glove bag and wetting. Number one, a negative 3 pressure enclosure should be used. What is that? 4 A. That is the building of a containment of 5 usually made out of structure with plastic around it and 6 you seal it up so it's an enclosure. A plastic tent like 7 enclosure. And you put the inside of it under negative 8 pressure. In other words, you put air machines that are 9 going to draw air out so that -- and it goes out through 1 0 the machine rather than coming out through the doors. 1 1 Any air that goes in or out of that enclosure is being 1 2 drawn into the enclosure, except where it's being pulled 1 3 out by the machine. 1 4 Q. It goes on to say that if you are going to do 1 5 this you also need to have -- the enclosure should have a 1 6 HEPA filtering slash air blower system. What is that? 1 7 A. That is the air handling machine, referred to 1 8 into the OSHA and EPA methods for abatement. It's called 1 9 a negative air machine. It's the machine that is used to 20 create that negative pressure inside the enclosure. And 21 it has a HEPA filter, which stands for high efficiency 22 particulates in air. It's a type of filter that will get 23 out even the smallest particles, it's very high 24 efficiency filter. 25 Q. Number three, a HEPA vacuum cleaner and wetting 85 1 agent should be used. That speaks for itself? 2 A. Yes. That is a vacuum cleaner with HEPA 3 filter. You can buy them in stores now, vacuum cleaners 4 with HEPA filters, as a high efficiency particulate. It 5 keeps the dust from getting back out. 6 Q. And number four says, the worker should wear a 7 respirator appropriate for the airborne asbestos 8 concentration generated by the activities. What does 9 that mean to you, Ms. Ringo? 1 0 A. That is not only for asbestos but for every 1 1 activity. When you do your air monitoring and it is the 1 2 reason we do the monitoring, is determine the level of 1 3 respiratory protection. Different respirators provide 1 4 different levels of protection. If the numbers are 1 5 moderately at or above the OSHA levels than you could use 1 6 like a dual cartridge half-face respirator. If they 1 7 become higher levels, then there is a chart you can go to 1 8 in the standard that says if your levels are ten times to 1 9 a hundred times, then you have to choose like a full-face 20 respirator. Over a hundred or a thousand times then you 21 would use air-line respirators, something like what the 22 firemen use going into burning buildings. That type of 23 thing. So it's the different levels of protection for 24 respiratory protection. That is very appropriate for 25 whatever the exposures are. 86 1 Q. They were not talking about the little paper 2 mask, are we? 3 A. No. In fact for asbestos the paper masks are 4 not appropriate. 5 Q. Why not? 6 A. Some of them I think do a good job. But there 7 are others in the past maybe have not. And it's just 8 what OSHA says. You have to use a high efficiency 9 particulate filter. And most of those paper masks are 1 0 not high efficiency. 1 1 Q. When you say high efficiency - 1 2 A. There is a test that they do on the filtering 1 3 materials that go into these respirators and they 14 calibrate how much the filter will stop. So a high 1 5 efficiency filter will stop 99.9 percent of particles 1 6 down to three microns in size. The others only not at a 1 7 high efficiency would stop 95 percent. And some of them 1 8 stop 90 percent. 1 9 Q. Ms. Ringo, have you ever written and published 20 a critique of Dr. Longo's work or have you only come into 21 a courtroom after being paid $300 an hour to critique his 22 work? 23 MR. FOLEY: It's argumentative. 24 THE COURT: It's very argumentative. Objection 25 is sustained. 87 1 BY MR. WOLF: 2 Q. Let me rephrase. Have you ever written to any 3 publication critiquing Dr. Longo's work that we have been 4 discussing this morning? 5 A. I thought about it when I first read it, but 6 others had done that and I didn't see that it was 7 necessary to add on to what already had been said. 8 Q. Okay. You talked with Mr. Foley yesterday 9 about thermal insulation. Do you remember that? 1 0 A. Yes. 1 1 Q. About a bunch of different products. In fact 1 2 your power point had a bunch of pictures of thermal 1 3 insulation and different asbestos-containing products. 1 4 Do you recall that? 1 5 A. Yes. 1 6 Q. Fireproofing, different things that were used 1 7 in industry. I want to show you some documents, some 1 8 abatement documents. This is dated -- this is from the 1 9 Nova Environmental services Inc. dated June 25, 1992. 20 Q. Showing you, Ms. Ringo, this is a document 21 dated June 25, 1992 to the Blandin Paper Company, in 22 Grand Rapids, Minnesota. It's regarding asbestos 23 abatement and sampling. First paragraph I've 24 highlighted, it says Nova Environmental Services Inc., 25 paren. Nova, closed paren, has completed the analysis on 88 1 the bulk samples of building material delivered to our 2 laboratory on June 24, 1992. These samples were analyzed 3 for asbestos utilizing the environmental protection 4 agency, EPA, recommended polarized light microscopy 5 technique described in, quote, interim method for the 6 determination of asbestos in bulk insulation samples, end 7 quote. Do you see that? 8 A. Yes. 9 Q. On the second page of that document, up at the 1 0 top says, bulk sample analysis. It says sample 1 1 description and it's transite. Do you see that? 1 2 A. Yes. 1 3 Q. Then says asbestos fiber percent, they have 1 4 forty 40. Assuming they found 40 percent. Would you 1 5 agree with me? 1 6 A. That is the optical evaluation from the 1 7 microscopist. Yes. 1 8 Q. Then it says asbestos fiber type. And it's 1 9 chrysotile, correct? 20 A. Correct. 21 Q. You are familiar with these types of documents, 22 right? 23 A. Yes. 24 Q. Abatement documents where they analyze to see 25 what type of product was there and what type of asbestos 89 1 and the amount of asbestos? 2 . A. .Certainly. 3 Q. So this is basically saying that this transite 4 material that came out of the Blandin Paper Mill was 40 5 percent chrysotile asbestos? 6 A. Of the samples they took. Yes. 7 Q. You talked quite a bit about insulation. 8 Here's another one. This one is dated -- do you all want 9 to see these? (Showing the document to counsel). 1 0 This, Ms. Ringo, is from Industrial Health 1 1 Engineering Associates Inc. here in Minneapolis, dated 1 2 March 3, 1981. Mr. Robert Holycross there at Blandin 1 3 Paper Company in Grand Rapids, he is talking about 14 enclosed are the results of the laboratory analysis of 1 5 the bulk insulation samples submitted to IHE on January 1 6 26, 1981. Then on the second page, on table one says 1 7 analysis of bulk insulation samples, he has got six 1 8 different samples there. Do you see that? 1 9 A. Yes. 20 Q. And a percentage of asbestos, the type of 21 asbestos and over on the far right-hand side says other 22 fibers. On number one, on this bulk insulation sample 23 they found it was chrysotile asbestos and it was 30 to 35 24 percent chrysotile asbestos. Am I reading that 25 correctly? 90 1 A. That is what it says. 2 Q. Then on samples two and three of the 3 insulation, bulk insulation samples they tested they 4 didn't find any asbestos, true? 5 A. It's reported as less than one percent. 6 Q. That is the ones where they go to the 7 right-hand side and say they found other fibers cellulose 8 and glass wool. One was synthetic and glass wool. Do 9 you see that? 1 0 A. Yes. 1 1. Q. Are you familiar with cellulose and glass wool 1 2 and synthetic material being used for insulation 1 3 purposes? 1 4 A. Certainly. 1 5 Q. In industrial settings like a paper mill such 1 6 as the one Mr. Skelly worked in? 1 7 A. A wide range of insulation materials were used. 1 8 Yes. 1 9 Q. Then samples four, five and six, except for 20 maybe the last one, are all pretty much the same. They 21 had a range of 30 to 35 percent asbestos. It was all 22 chrysotile. Do you see that? 23 A. Looks like four and five are chrysotile. And 24 then it doesn't have -- you can't -- I would assume which 25 is always a little dangerous, that the 35 percent 91 1 chrysotile and 3.5 in brackets, if they drew those 2 brackets then it goes to number six. Which would be a 3 mixture. 4 Q. Okay. That is the three dash five crocidolite? 5 A. Yes. 6 MS. O'NEILL: For the record, are we marking 7 these as exhibits? That might be easier. I can just 8 write down the exhibit number than write down all the 9 information. It might go quicker. 1 0 MS. CELUM: Sure. 1 1 MS. O'NEILL: Okay. 1 2 BY MR. WOLF: 1 3 Q. Next one, Ms. Ringo, again addressed to the 1 4 Blandin Paper Company dated May 27, '87. The subject is 1 5 asbestos sampling report. Says attached you will find a 1 6 report from Pace Laboratories Incorporated outlining the 1 7 results of the bulk samples that were sent to them from 1 8 number three boiler. 19 If you look at that, the bulk asbestos analysis on 20 the Blandin Paper Company, they have the sample ID, then 21 they have the asbestos content on the boiler exhaust it 22 was five to fifteen percent chrysotile. Do you see that? 23 A. Yes. 24 Q. Would that indicate to you the insulation on 25 the boiler exhaust? 92 1 A. Sometimes boiler exhausts are wrapped. Yes. 2 Q. So that wrapping or insulation wrapping on that 3 exhaust that probably got kind of hot? 4 A. Probably. 5 Q. Probably. Had a five to fifteen percent 6 chrysotile in it. And then on the other boiler exhaust 7 it had 30 to 50 percent chrysotile. Do you see that? 8 A. Yes. 9 Q. Is that consistent with what you've seen in the 1 0 workplace as far as the amount of chrysotile asbestos in 1 1 insulation on exhaust say for boilers or other exhaust? 1 2 A. It depends on where it comes from and what they 1 3 put in. Yes. You find mixed chrysotile insulation, 1 4 gasket -- sorry, mixture of asbestos types and 1 5 non-asbestos. 1 6 Q. Just to follow-up on that, Ms. Ringo, then it's 1 7 your testimony that in an industrial settings such as a 1 8 paper mill even, that not all insulation contains 1 9 asbestos? 20 A. Certainly after -- certainly. That is true. 21 Q. Here's another one that is dated September 13, 22 '87. This is out of Twin Ports Testing, out of 23 Wisconsin, addressed to the Blandin Paper Company. And 24 the designation talking about pipe covering, ceiling, nip 25 and sip. Do you know what that is? 93 1 A. No, I don't. 2 Q. Do you know what pipe covering is? 3 A. Yes. Nip and sip may be designations from part 4 of the mill. Maybe it's a designation for a location. 5 Because you see pipe covering at the same thing. But I 6 don't know. 7 Q. They have got there bulk samples up there for 8 asbestos. They got the sample number. And they have got 9 on number three, 10 percent chrysotile. Number four, 25 1 0 percent chrysotile. And on the 25 percent chrysotile, 1 1 they have got over to the right-hand side, 40 percent 1 2 cellulose. Do you see that? 1 3 A. Yes. 14 Q. I don't know if we explained to the jury, what 1 5 is cellulose? 1 6 A. Cellulose is what paper is made out of. Wood 1 7 pulp is cellulose. It's used in lot of ceiling tiles. 1 8 Backing board. Yes. 1 9 Q. Next to the last one, this is out of the same 20 company. This is out of the same testing outfit out of 21 Wisconsin. Again, it's Blandin Paper Company; received 22 August 1, 1988, bulk asbestos report. This is the number 23 three paper machine duct work. Do you see that? 24 A. Yes. 25 Q. It says it's a chrysotile -- contains 94 1 chrysotile, 20 percent chrysotile covering. And then 15 2 percent mineral wool. Do you see that? 3 A. Yes. 4 Q. Is that something you've seen before where they 5 would use insulation say on a duct work type application 6 where a mixture of mineral wool and chrysotile asbestos 7 would be used together? , 8 A. Yes, sometimes it's layered like that. Yes. 9 Q. Last one. Again, another abatement 1 0 publication. This is Blandin Paper Company, dated 1 1 January 18, 1988. It says attached is the lab report on 1 2 the samples of material that were taken from the duct 1 3 work along the walkway on the north side of number four 14 paper machine upstairs. As the report shows, the 1 5 material is less than one percent asbestos. 1 6 That just confirms that, is that correct, Ms. Ringo? 1 7 A. That is what it says. 1 8 Q. Looks like it's 80 percent mineral wool, one 1 9 percent or less than one percent? 20 A. That's correct. 21 Q. Both of those were 80 percent mineral wool and 22 have some trace amount, would you say less than one 23 percent would be -- - 24 A. They can't say no or none is present. They can 25 to say it's less than one percent. Meaning it might be 95 1 there as a trace and they just didn't see it. But when 2 you are looking at it optically and when you are looking 3 at a group or bulk material, you might not see any. But 4 that doesn't mean there is none, maybe some that you 5 didn't see. So they tend to -- it's scientifically 6 accurate to report it it's less than one percent. 7 Q. Thank you, Ms. Ringo. That is all I have. 8 THE COURT: Do we have additional - 9 MR. YOUNG: I don't have any questions, your 1 0 Honor. I'm sorry. 1 1 THE COURT: Okay. You don't have to be sorry. 1 2 MR. FOLEY: I will take up - 1 3 MR. YOUNG: I apologize for not responding more 14 quickly. 1 5 FURTHER EXAMINATION BY MR. FOLEY: 1 6 Q. Ms. Ringo, in the scientific literature, if 1 7 something is peer-reviewed, if an article gets in the 1 8 literature, does that mean it is automatically 1 9 authoritative? 20 A. No. 21 Q. Does it mean it's been looked at and someone 22 said we should put this out there for scientists to look 23 at? 24 A. Yes. It means that the editors deem it of 25 interest to the readers but in no way do they go 96 1 invalidate everything that's in the article is correct. 2 Q. If you are going to write an article in the 3 peer-reviewed literature, is it proper to hide your 4 affiliations or should you disclose your affiliations and 5 interests? 6 A. Well, I actually -- part of my -- what I saw in 7 that article I immediately went and looked at the 8 requirements for submission to that journal. If you were 9 doing that work, in any way related to litigation, you , 1 0 were suppose to disclose that to the editor. Longo did 1 1 not do that. 1 2 Q. This work that Longo did that he published, who 1 3 funded that work based on your knowledge of Mr. Longo and 1 4 his laboratory and these work practice simulations? 1 5 MR. WOLF: Objection, your Honor, foundation, 1 6 speculation. 1 7 THE COURT: Objection is sustained on 1 8 foundation. 1 9 BY MR. FOLEY: 20 Q. Do you have knowledge of Dr. Longo's source for 21 who put him up to doing the studies and who paid for 22 them? 23 A. No. I really don't. 24 Q. So you don't know -- great. Does Longo 25 disclose that in his paper -- 97 1 A. No. He does not. 2 Q. -- that did this as part of his litigation 3 consulting work? 4 A. No. He does not. 5 Q. Does he disclose that he is a testifying expert 6 for the Waters and Kraus and other plaintiffs law firms 7 across the country? 8 A. No, he does not. 9 Q. Does he disclose that the business of MAS, his 1 0 laboratory that he owns, is litigation support for 1 1 plaintiffs attorneys in asbestos litigation? 12 A. No. He does not. 1 3 Q. Is that a problem in the peer-reviewed 1 4 literature to not disclose that information so the reader 1 5 can decide whether you have a bias or not with the work 1 6 he did? 1 7 A. Yes, it is. 1 8 Q. Now, one thing Longo says, he says that even 1 9 with his study the work he is doing under his normal 20 lighting conditions, none of this dust was visible. It's 21 all invisible, right? , 22 A. That's correct. 23 Q. Okay. And when you did your work in the field 24 doing this air monitoring, the gasket and packing work, 25 did you see clouds of dust coming off gaskets? 98 1 A. You can see small amounts of what I would call 2 maybe with the pneumatic grinder, little poofs on 3 occasion. When it's just grinding or when you are just 4 scraping and then wire brushing normal, you see debris, 5 but not what I would consider clouds of dust. And 6 certainly not clouds of dust like you would see with a 7 thermal insulation. I don't see that. 8 Q. Now, Mr. Wolf asked you about Longo's numbers 9 here. They went through some kind of math quiz with you 1 0 with the box and everything. 1 1 If we took the scientific literature that has been 1 2 consistent throughout time about the insulator fiber 1 3 release and insulator exposure levels? 14 A. Yes. 1 5 Q. You took those samples that were reported as 1 6 PCM, and you subjected them to that indirect -- that 1 7 shaking thing that Longo does to break them all up? 1 8 A. Right. 1 9 Q. And then you put them under the TEM microscope 20 to count them like Longo did. 21 A. Right. 22 Q. Where would those numbers go? 23 A. It would still be the same order of magnitude 24 as we have talked about before. That those make it look 25 like a larger number but then the thermal insulation 99 1 numbers would be up in the trillions. And it's just not 2 the way you measure it. And the standard would then have 3 to be based on times a million. 4 Q. So if we did the Longo - 5 A. It1s a mathematical - 6 THE COURT: You both can't be talking at the 7 same time. 8 THE WITNESS: I'm sorry. 9 MR. FOLEY: My apologies. It's my fault, your 10 Honor. 1 1 BY MR. FOLEY: 1 2 Q. If we did the Longo method, which is not OSHA 1 3 approved, right? 14 A. No, it's not. 1 5 Q. But if we did that method and wanted to count 1 6 the insulation exposures, we would be in the trillions? 1 7 A. Absolutely. 1 8 Q. Well, if I wanted to come here and ask you to 1 9 use Longo's method to try and, you know, make insulation 20 look even worse then it is, and I asked you to do that, 21 what would you tell me? 22 A. I would ask, do you want the science fiction 23 part of how to do this or making a movie? But it 24 wouldn't be valid and I wouldn't do it. 25 Q. All right. That is why we didn't talk about 1 00 1 it. It's not valid, is it? 2 A. No. It's not. Under the TEM, he is talking - 3 he calls them fibers. But in the TEM method, you have to 4 call them structures. Because they are no longer fibers. 5 And the method is so different. So even what he reported 6 in his charts are inaccurate. That is why I don't 7 consider it credible at all. 8 Q. Longo's work, you indicated earlier, has been 9 criticized in the subsequent peer-reviewed literature, is 1 0 that right? 1 1 A. Yes, it has. 1 2 Q. That would be -- the most recent criticism of 1 3 that would have been in the Journal of Toxicology and 1 4 Environmental Health by Drs. Madl, Paustenbach and Clark, 1 5 is that right? 1 6 A. That's correct. 1 7 MR. WOLF: Your Honor, I'm going to object, 1 8 this is hearsay. This is direct examination by his own 1 9 witness. 20 THE COURT: Overruled. 21 BY MR. FOLEY: 22 Q. Now, this is the Madl study. I'll call it the 23 Madl, M-a-d-1 study for short, right? 24 A. Yes. 25 Q. I think you mentioned this yesterday, this is 101 1 that meta-analysis of all the work that's been done all 2 the way going back to the Navy study by Liukonen and - 3 A. That's correct. 4 Q. And they even include Longo in here? 5 A. Yes, they do. 6 Q. They say that Longo's study was not consistent 7 with other occupational exposure evaluations of gasket 8 work. That is what you talked about yesterday? 9 A. That's correct. 1 0 Q. You would agree with that statement? 1 1 A. Absolutely. 1 2 Q. And they said that his sample filters were 1 3 overloaded with the dust before he started. That is what 1 4 you told us yesterday? 1 5 A. Some of them were. 1 6 Q. The environment in which the study was 1 7 conducted was not cleaned prior to starting the study? 1 8 A. That's correct. 1 9 Q. Is that a scientific shortcoming? 20 A. Absolutely. 21 Q. And the fact they say this is a series 22 shortcomings in the study, don't they. 23 Now, they had overloaded filters. If you have an 24 overloaded filter, is it valid to count it? 25 A. No. It is not. 1 02 1 Q. They did that indirect preparation method and 2 they cite to Dr. Boelter saying that's known to 3 overestimate the fiber counts? 4 A. Yes, it is. That indirect method was designed, 5 it's an ASTM method for taking surface dust samples. And 6 it's even if the second paragraph it says this is not to 7 be used for air samples. So he is taking a method that 8 says don't do this and does it. It's just not valid. 9 Q. Is that NIOSH 7402? 1 0 A. No. 1 1 Q. What's the NIOSH number for? I know there is a 1 2 standard for indirect. 1 3 A. I believe it's either -- I don't recall. It's 14 like D155, it's an ASTM method. It's not NIOSH. It's 1 5 not for exposures, NIOSH would not validate that method. 1 6 Q. The ASTM standard for surface dust, that is if 1 7 I went and I swiped dust off the surface of a table or 1 8 glass or this bench and bar here and I wanted to measure 1 9 that dust after I did a swipe? 20 A. . Yes. Actually you vacuum it up using a filter 21 cassette and the pump like we do. And you vacuum up a 22 set square centimeters, a hundred square centimeters. 23 And then you take and you have to rinse it, do the 24 indirect. And it's a range of structures that you get 25 that will tell you whether a surface is clean or not. 1 03 1 It's a really a gross examination. It's not meant to be 2 detailed or finally tuned like he does. 3 Q. Does it have any application to airborne 4 sampling of a the worker's breathing room? 5 A. Absolutely not. As I said, one of the 6 paragraphs in there said, this is not to be used for air 7 samples. 8 Q. Is it approved by EPA, AHERA or NIOSH method? 9 A. No. 1 0 Q. Does Longo's studies, are they -- how would 1 1 you describe them in terms of there orders of magnitude 1 2 difference from every other study that has been done by 1 3 anybody looking at how workers actually remove gaskets 14 and packing in the real life workplace? 1 5 A. I would describe them as they were described in 1 6 a presentation at the American Industrial Hygiene 1 7 Conference, that was evaluating all of the different 1 8 studies and looking at the results. And when you apply a 1 9 statistical analysis to it, they are so far out on the 20 curve that they qualify as what is called a outlier. 21 They have no valid statistical significance to the body 22 of work that has been done historical with gaskets and 23 packing. 24 Q. That was expressed at one of your national 25 conferences? 1 04 1 A. Yes. It was. 2 Q. Table four in the Madl report summarizes, does 3 it not, the removal of the gaskets and flange face 4 cleaning that workers do, right? 5 A. I believe so. I didn't memorize the titles off 6 of the tables. 7 That is still out of focus a little back here. 8 Q. I probably screwed it up. While they are 9 fixing that, let me -- can you see that? 1 0 A. Somewhat, yes. 1 1 Q. All right. Let's see if we can --we have got 1 2 the Navy study, that didn't have anything to do with 1 3 litigation, did it? 1 4 A. No. 1 5 Q. That is the Liukonen, the Bremerton Washington 1 6 shipyards? 1 7 A. That's correct. 1 8 Q. Their average is 0.11 by PCM? 1 9 A. Yes. That is of the actual samples. That is 20 not time weighted. 21 Q. That is not time weighted? 22 A. No. 23 Q. Those are the peak exposures? 24 A. Yes. 25 Q. So the 0.3 to 0.18 is then what, that is the 1 05 1 range? 2 A. That is the range. 3 Q. All the samples? 4 A. All the samples. 5 Q. Before you put a time weighted average? 6 A. That's correct. 7 Q. If you pop that into a time weighted average 8 standard, what would happen to those numbers? 9 A. Based on the times, and I've done that, they 1 0 are all less than 0.01. 1 1 Q. Okay. For a worker, that is a good thing? 1 2 A. Correct. 1 3 Q. Then we get to -- there is the Navy. Then you 1 4 get to Cheng and McDermott. And their numbers are 1 5 relatively consistent. Would that be considered 1 6 scientifically consistent or inconsistent? 1 7 A. Consistent. 1 8 Q. These are all the peak exposures not time 1 9 weighted averages? 20 A. That's correct. 21 Q. Then you jump down here to Longo, where it's 22 15.3 fibers and his 3.7 fibers. Does any the other study 23 than what Mangold did a whole bunch of them and Boelter 24 did a whole bunch of them, does anybody come close to 25 even 1.0? 1 06 1 A. No, none. 2 Q- Did Mangold, when he did his studies, that was 3 done for scientific purposes? 4 A. It was done at the request of the gasket 5 company to determine what the exposures were. 6 Q. Okay. And we saw from another gasket company 7 earlier, the Durabla Gasket Company, is Plaintiff's 8 Exhibit 1703. We looked at this briefly yesterday. So 9 he have another study we could put in here. And it shows 1 0 time weighted average was .004? 1 1 A. Yes. I report that as less than 0.01. 1 2 Q. Okay. That seems to be consistent with all the 1 3 other work that has been done? 1 4 A. Very consistent. 1 5 Q- So if we get to the end of the day and we are 1 6 talking about Longo, how would you describe his 1 7 scientific validity? 1 8 A. There is none. 1 9 Q- Junk? 20 A. Junk science. 21 Q- You're in here today testifying at my request? 22 A. Yes. 23 Q- Have you testified on behalf of injured workers 24 in other matters? 25 A. Yes. I have. 1 07 1 Q. Do you have a bias against workers? 2 A. Absolutely not. I've dedicated my -- I have 3 dedicated my entire life to making sure that workers are 4 protected. 5 Q. Why is that? 6 A. My father died of an occupationally induced 7 disease. If I thought that I was doing anything that 8 would injure a worker, make anybody go through any kind 9 of experience like we did, I would be very upset. I 1 0 would not do it. 1 1 Q. Thank you, ma'am. Those are all the questions 1 2 that I have. 1 3 MR. YOUNG: No questions. 14 MR. WOLF: Very briefly, your Honor. 1 5 FURTHER EXAMINATION BY MR. WOLF: 1 6 Q. The paper, Ms. Ringo, that Mr. Foley showed you 1 7 talked a lot about Navy gaskets and studies with regard 1 8 to the Navy. Do you recall that? The gaskets studies? 1 9 A. The Bremerton study? 20 Q. Yes, ma'am. 21 A. Yes. 22 Q. Those were Navy gaskets. And in Dr. Longo's 23 papers, gaskets that he was studying, they came from a 24 paper mill powerhouse in Oregon, correct? 25 A. That is what it says. 1 08 1 Q. Now Dr. Longo also testifies for defendants in 2 asbestos litigation. Do you think he should have put 3 that in his paper as well? 4 MR. FOLEY: Objection, lacking in foundation. 5 THE COURT: Overruled. 6 THE WITNESS: I would say if he testifies for 7 litigation in any way that should have been in there. 8 BY MR. WOLF: 9 Q. Okay. 1 0 A. It's required by the rules when you submit a 1 1 paper to the editor of the journal. 1 2 Q. Okay. And this paper that you and Mr. Foley 1 3 just talked about, one of the authors is Dennis 1 4 Paustenbach. Do you know that Dennis Paustenbach has 1 5 testified for many years for many defendants in asbestos 1 6 litigation all over this country, true? . 1 7 A. That is true. They stated in the paper that 1 8 they are involved with litigation and have done that 1 9 work. 20 Q. The statements in here from Mr. Boelter, you 21 are also aware that Mr. Boelter has testified for years 22 for defendants in asbestos litigation all over this 23 country for many years, true? 24 A. They have found his work to be supportive of 25 their defense. Yes. 1 09 1 Q. And even Mr. Mangold, he testified for 2 defendants in asbestos litigation for many years all over 3 this country, true? 4 A. That's true. And it's in his papers where he 5 published that. Yes. 6 Q. I don't know if you can read that small print 7 at the bottom. I will read it. Can you see that Ms. 8 Ringo? 9 A. I can see most of it. 1 0 Q. Says, the authors appreciate the assistance of 1 1 Carl Mangold. That is Mr. Mangold that we were talking 1 2 about that used to testify all over the country for the 1 3 defendants in this type of litigation. 1 4 A. Right. After he retired from the Navy and 1 5 working with Dr. Selikoff. Yes. 1 6 Q. For providing invaluable insight into the 1 7 worker activities associated with removal and 1 8 installation of gaskets and packing. Although we 1 9 initiated this evaluation, financial support for the 20 underlying research was provided by a pump manufacturer 21 involved in asbestos-related litigation regarding gaskets 22 and packing. One or two of the authors has also served 23 or may serve as expert witnesses in related litigation. 24 Do you see that? 25 A. That is what they should say. If they do that 110 1 work and then they find that information to be useful, 2 they should put that in as a disclaimer for the 3 publication of the article. Absolutely. 4 Q. Thank you, ma'am. 5 THE COURT: Anything further from anyone? 6 MR. FOLEY: Nothing, your Honor. 7 MR. YOUNG: No, your Honor. 8 THE COURT: You may step down. Thank you. 9 THE WITNESS: Thank you. 1 0 THE COURT: It would appear we have reached 1 1 lunch time. I'm going to give you a little longer than I 1 2 have been giving you for lunch. Let's say 1:30. We have 1 3 some things we need to do. Hopefully we will get started 1 4 at 1:30. Thank you. 1 5 (Whereupon the jury was excused). 1 6 (This concludes the morning session). 1 7 'k'k'k'k'k'k'k'k'k'k'k 18 19 20 21 22 23 24 25 111 1 CERTIFICATE 2 3 I, Mary C. Dupre', Court Reporter, do hereby 4 certify that the foregoing pages 1 through 111, 5 inclusive, comprise a full, true and accurate transcript, 6 to the best of my ability, of the proceedings held before 7 Dale B. Lindman, Judge of District Court, at the Ramsey 8 County Courthouse, St. Paul, Minnesota. 9 10 1 1 Dated this 20th day of February, 2009, at Apple 1 2 Valley, Minnesota. 13 14 1 5 Mary CV Dupre , RPR 1 6 Court Reporter 17 18 19 20 21 22 23 24 25