Document 650GKom8rkL13q7RZx73XMvo

I~ , 3 ~~f 7126 1 TN THE CIRCUIT COURT FOR BALTIMORE CITY 2 3 IN RE : BALTIMORE CITY * April 5, 1994 4 ASBESTOS LITIGATION * Trial Cluster 5 * Judge Edward 6 RALPH 1) . GARRETT, et al * Angeletti 7 Plaintiffs 8 vs . * Case No . 94095701 9 ACandS, INC ., et al 1v Defendants 11 1.2 EXCERPT OF THE OFFICIAL TRIAL TRANSCRIPT 13 TESTIMONY OF RAYMOND HARBISON, Ph . D . 14. The Presentation of the Defendants' 15 Evidence in the above-entitled action was held on 7. 6 Tuesday, June 21, 1994, commencing at 9 :30 a .m ., in 17 Courtroom 3, Courthouse East, Baltimore, Maryland 18 21202, before the Honorable Edward J . Anyeletti, aid 19 reported by Sharon Mech, a Notary Public . 20 EVANS REPORTING SERVICE 9205 Ramblebrook Road 21 Baltimore, Maryland 21236 (410) 256-8410 c":: 1 APPEARANCES : 2 On Behalf of the Plaintiffs : David Palmer, Esquire 3 Peter Nicholl, Esquire Shepard Hoffman, Esquire 4 William I3urgy, Esquire Ann Ritter, Esquire 5 On Behalf of the Defendants : 6 F . Ford Lokcr, Esquire Leigh Halstad, Esquire Deborah Robinson, Esquire Denise Moretz, Esquire 8 Laurence Hopper, Esquire Christopher Emsley, Esquire 9 Nancy Leibowitz, Esquire Warren Weaver, Esquire 10 Douglas Pfeiffer, Esquire 11 Also present : Carrie Blackburn, Law Clerk 1 .2 13 1.4 15 3 .6 17 18 19 20 21 712'7 71781 1 BEGIN EXCERPT 2 3 4 5 5 8 Whereupon, 9 RAYMOND HARI3ISON, Ph .D ., 10 a witness produced on call of the defendants, having 17. first been duly sworn, was examined and testified as 12 follows : 13 THE CLERK : You may be seated . 14 Pleases state. your name and address for the 15 record . 16 THE WITNESS : My name is Raymond Harbison . 1'7 My address is Progress Center, One Progress Boulevard, lII Alachua, Florida . is 20 DIRECT EXAMINATION 21 BY MS . MOT2E'I'Z 7179 1. Q Dr . Harbison, what is your profession? 2 A I am a pharmacologist and a toxicologist . 3 Q And where do you practice those two 4 disciplines? 5 A I practice .in the State of Florida, and also 6 in Little Rock, Arkansas, as well as the rest of the 7 country . B Q Are you married, sir? 9 A Yes, I am . 10 Q And do you have any children? 11 A I do . 12 Q How many children do you have? 13 A Four . 14 Q Could you tell the jury briefly about your 15 educational background, Doctor . ].6 A I received a bachelor of science degree in 17 pharmacy from Drake University in 1955 . 18 I then received a master of science degree 19 in pharma cology from the University of Iowa in 1967 . 20 And I subsequently received a doctorate in 21 pharmacol ogy and toxicology from the University of 7180 1 Iowa College of Medicine in 1969 . 2 Q Are you board certified in any discipline? 3 A I am . 4 Q What discipline is that that you're board 5 certified in? 6 A I am board certified in toxicology . 7 Q Are you a medical doctor? 8 A I am not . 9 Q The jury has heard about board certification 10 for medical doctors . 11 Could you explain board certification for a 12 toxicologist . 13 A Board certification for a toxicologist is 14 similar to the certification for a medical doctor, 15 that is, it establishes a set of qualifications and 16 knowledge, a criteria that you have to meet in order 17 to be able to practice toxicology . 18 Q Doctor, have you written any books with 19 regard to pharmacology and toxicology? 20 A I have published many articles with regard 21. to pharmacology and toxicology, approximately 1 :30 . 7181 1 Q Have any of those articles dealt 2 specifically with asbestos? 3 A I don't believe any of them have dealt 4 specifically with asbestos . 5 Q Can you tell the jury a little bit about the 6 topics that you would have written about in the 7 articles that were published . 8 A The articles that were published were 9 articles concerning research that I have conducted 10 with regard to the testing of a variety of substances, 11 chemicals such as hydrocarbons, metals, such as lead, ].2 for example, or mercury, and then also drugs . 13 And the articles are reports of the testing 14 of these substances for their harmful effects, as well LS as for their beneficial effects . 16 Q Were those articles published in peer review 17 journals? The jury has also heard that term . 18 A These articles are published in peer review 19 journals, meaning that a group of peers, other 20 toxicologists or pharmacologists, would review the 21 experiments, also the results and the conclusions that 71821 L would be reached from those results, to determine that 2 they're consistent with what's known about in science 3 and medicine at the current time . 4 Q Do you belong to any professional societies 5 or organizations, Doctor? 5 A I do . 7 Q What are some of those societies or 8 organizations? 9 A I belong to the Society of Toxicology, the 1U Teratology Society . 1l Q Would you tell us what that involves, 12 Doctor? 13 A That's the group that studies birth detects . 14 The Society for Risk Analysis, the American 15 Society fox- Pharmacology and Experimental 16 Therapeutics, and also the American Association for 1"7 the Advancement of Science . 18 Q Could you tell the jury about the Society 19 for Risk Analysis, what's studied within that society 20 or what that .involves . 27. A The Society for Risk Analysis has an 71831 1 objective of enhancing or improving our ability to 2 assess the risks or hazards associated with exposure 3 to various chemicals or substances . 4 That is, to develop methodology and testing 5 procedures, evaluation procedures that will allow us 6 to better. evaluate potential risks and hazards to 7 protect public health, and also to improve product 8 safety or the safety of the materials that we use in 9 our homes . 10 Q You mentioned risk assessment . Is that a 11 part of the practice of toxicology? 12 A Yes, it .is . 13 Q Could you describe for. the jury just 14 generally what it is that a toxicologist does . 15 A A toxicologist is a specialist in 16 determining the harmful effects that substances 17 produce in the living system . 18 Toxicologists test materials for their 19 potential. toxicity or harmful properties, evaluate 20 what. port of adverse effects chemicals or substances 21 may produce, and then also apply that knowledge to the 71841 1 protection of individuals in the workplace, for 2 example . 3 That is, by knowing what a substance can 4 potentially do or the harm that it can produce, by 5 knowing the concentration or the amount that it takes 6 to produce that harm, a toxicologist can subsequently use that .information to set guidelines or standards in 8 the workplace . 9 For example, around your home or the soil 10 that would be around your home, to set standards for 11 exposure to chemicals that. will not result in harmful 12 effects . 13 So the toxicologist tests the material, 14 identifies the harmful effects, subsequently takes 15 that information and uses it to protect public health 16 or to improve public health . 1'7 Q Would your work as a toxicologist include 18 reviewing studies done by others and conclusions made is by other's as a result of the studies? 20 A Yes, it would . 21 Q What organizations would ask you to do that 7185 ~i 1 kind of study? Who would you be working for as a 2 toxicologist in doing that kind of work? 3 A I would be reviewing information for the 4 National Institutes of Health . The National Institute 5 of Occupational Safety and Health . 'the National 6 Institute of Environmental Health Sciences . The 7 National Institute on Drug Abuse . 8 Also, the United States Environmental 9 Projection Agency . United States Department of 10 Agriculture . 17. All . of these entities would require the 12 evaluation of toxicological information and data, both 13 to determine what research ought to be done in the 14 future, as well as what substances should be 1.5 controlled in the environment, both in the environment 16 in which we live as well as the workplace . 1% So those would be some organizations . 18 Q All of those organizations that you just 19 listed for us, [VIH and NIOSH, are those government 20 organizations, United States Government'? 21 A Yes, ma'am . 71861 1 Q Would you tell the jury about some of the 2 advisory panels that you serve on or sit on . 3 A I have served as an advisor to the National 4 Institute for Environmental Health Sciences -- this .is 5 one of the institutes of the National Institutes of 6 Health that focuses on environmental matter's -- in '7 environmental research . 8 That is, to better understand the potential 9 harm or hazards associated with pollution, chemicals 10 that would be found in your environment, to identify 17. the potential harmful properties, as well as to 12 ultimately help develop public policy for protecting 13 against or controlling the exposure to those 14 substances . 15 I have also served as an advisor to the 16 National Institute of Occupational Safety and 17 Health -- this is the group that serves as a research 13 arm of the Occupational Safety and Health 19 Administration -- to develop information about 20 chemicals in the workplace, to set standards or 21 guidelines for those chemicals in the workplace ; that 71871 7. is, chemicals and the levels of chemicals to which one Z could be exposed without producing any harmful 3 effects . 4 I have also served for approximately 18 5 years as an advisor to the United States Environmental 6 Protection Agency, providing advice to emergency rooms, to emergency response personnel, for chemical 8 releases, chemical spills that would occur as a result 9 of a truck accident or' a barge or a ship accident or 1U an airplane crash . 11- In addition, providing information with 12 regard to the potential hazards associated with 13 Hazardous waste and the investigation of those 14 materials in the environment . 15 Those would be the general areas of advice . 7. 6 Q Have you ever served as a consultant to the 17 Department of Justice? 18 A I have . 19 Q And what would they ask you to do as a 20 consultant Eor the Department of Justice'? 27. A For the Department of Justice, T have 71881 1 provided consultation and testimony in enforcement 2 actions to enforce the public laws with regard to 3 environmental pollution, and have also assisted the 4 Department of Justice in evaluation of their own 5 environmental claims, for example, at the Department 6 of- Defense and other facilities . 7 Q Do you teach? B A I do . 9 Q Where do you teach? 10 A I teach at the University of Florida . I 11 also teach at the Medical College of Wisconsin, and I 12 also provide continuing education . 13 Q At the University of Florida, what is your 14 position? 15 A University of Florida, I am a professor . I 16 am a professor of pathology, pharmacology in the 17 medical school, and also a professor of toxicology at 18 the Health Science Center . 19 Q What is involved in being a professor of 20 pathology? Who do you teach? 21 A As a professor of pathology, I teach 7189 1 second-year medical students . I teach second-year 2 medical students chemical carcinogenicity, or the 3 causes of cancer . Also the mechanisms by which 4 chemicals can cause cellular transformation . 5 And I teach them generally about cancer., its 6 causes, and particularly chemical causes . 7 Q Do you teach students other than medical 8 students at the University of Florida? 9 A I do . 10 Q What sort of classes do you teach, or in 11 what area do you teach other than medical? 12 A I would also teach graduate students . These 13 are students that would be pursuing a graduate degree 14 in pharmacology or physiology or one of the basis 15 medical sciences . I teach those students toxicology . 15 Q Do the courses that you teach, either to the 17 medical students or to the graduate students that you 7.H just described, do they deal with asbestos at all? 15 A Yes . 20 Q In what way would you deal with asbestos in 21 teaching these particular courses? 7190 1 A Asbestos would be taught to second-year, or 2 information about asbestos would be provided to 3 second-year medical students, both in pathology as 4 well as .in pharmacology . I teach the toxicology 5 portion of pharmacology . 6 And it would be included in the general 7 discussion of pneumoconioses, that is, substances that 8 are nonabsorbable dust or particles which, if they are 9 inhaled .into the lung, can over some long period of 10 time, if the level is sufficient, produce pulmonary 11 fibrosis . 12 Q Have you held other teaching positions at 1.3 other universities? 7. 4 A I have . 15 Q What universities have you held positions 16 at? 17 A Dulane Medical School, Vanderbilt Medical 18 Center, and also the University of Arkansas, Medical 19 Sciences . 20 Q The jury has heard the term or heard from an 21 industrial hygienist . 71911 1 Have you had experience in the area of 2 industrial hygiene? 3 A I have . 4 Q Are you an industrial hygienist? 5 A I am not an industrial hygienist . 6 Q How would you have had experience in 7 industrial hygiene? 8 A Part of the practice of toxicology involves 9 industrial hygiene, that .is, the measurement of 10 various chemicals in various places in the workplace . 11 So that, as part of the practice of 12 toxicology, I would frequently evaluate the levels of 13 substances in the air, evaluate the exposure that 14 would occur. as a .result of those various levels of 15 chemicals in the air, and then also provide 16 recommendations ox' advise with regard to the potential17 hazards or some sort of remediation or change that 18 could be made to protect the .individuals against those 19 exposures . 20 Q A7.7. right . The jury has also heard the term 21 threshold limit value . 71921 1 Do you use the threshold limit values as a 2 toxicologist? 3 A I do . 4 Q How would you do that? How would that come 5 into play in your practice of toxicology? 6 A The threshold limit value is the 7 concentration to which an individual can be exposed 8 over a long period of time without producing any 9 adverse effects . 10 So as a toxicologist .I would use the 11 threshold limit value, as well as other numbers or 12 other concentrations, to determine whether or not a 13 particular individual or group of individuals is being 14 exposed to a potentially harmful level of a particular 15 substance . 16 So the threshold limit value would be used 17 in the practice of toxicology as a guideline to 18 determine whether or not a particular workplace is 19 hazardous o .r not hazardous . 20 Q DU you also do research? 21 A I do . 7193' 1 Q Could you tell the jury about some of. your 2 current research projects . 3 A Currently I am being funded by or supported 4 by the National Institute of Environmental Health 5 Sciences to study the harmful effects of a variety of 6 chemicals on the living system, particularly trying to 7 evaluate how chemicals produce their harmful effects 8 and how there may be differences between laboratory 9 animals, for example, and people and how we can best 10 evaluate the usefulness of animal testing data and how 11 we can improve the usefulness of animal testing data 12 and improve its use in the risk assessment process . 13 Q You mentioned the term living systems . What 14 do you mean by that? 15 A Living systems would be experimental 16 animals, for example, mice, rats, rabbits, guinea 17 pigs . 18 Those would be models that would be used for 19 testing, in addition to humans would be used on some 20 occasions, depending on what the testing is and the 21 design of that test . 71341 1 Q When would humans be used in testing -2 different chemicals or drugs, I assume you may be 3 referring to? 4 A Either chemicals or drugs . Humans would be 5 used, for example, in testing the potential irritancy 6 of a substance by using patch testing or by rubbing it 7 on the skin, for example . These would be volunteers . 3 'Phese would be volunteers who would be advised of the 9 potential dangers associated with that testing . 10 Humans would also be used fox- evaluating 11 exposure by exposing humans to some chemicals and 12 looking at the amount of that chemical that would be 13 absorbed .into the body . 14 Those would be some occasions in which 15 humans would be used . But most occasions it would not 16 be appropriate to use humans, so in those instances 7.7 laboratory animals would be substituted for the humans 18 in that testing . 19 Q Doctor, have you managed and/or conducted "2.0 animal studies yourself? 21 A I have . 71951 1 Q For what purpose would you have managed or 2 conducted these animal studies? 3 A For a variety of purposes . One would be to 4 identify t he potential harmful effects of the 5 chemicals ; that is, to determine whether they can 6 produce any harm or not . 7 Also, for evaluating the mechanisms by which 8 a chemical produces the effects that it produces to 9 determine whether or not that information could be 10 extrapolated to humans 11 And then also for evaluating the potential 12 carcinogenicity or teratogenicity, that .is, the 1.3 ability to produce birth defects or cancer would have 14 also used laboratory animals for those purposes . 15 Q Other than your employment at the University 16 of Florida, do you have a private pract ice or do you 1'7 have other employment? 7.,8 A Yes, I have a private practice of 19 toxicology . 20 Q And what does that normally involve? 21 A '.Chat would involve providing consultation to 71961 1 various governmental agencies, as well as .industry . 2 It also involves the development and 3 management of medical surveillance programs, that is, 4 the evaluation of individuals who would be exposed to 5 chemicals, following those individuals over- lorry 6 periods of time, making sure that they are suitable 7 for various activities, such as emergency response . 8 And then also evaluating pathological 9 specimens, evaluating blood levels of various 10 chemicals . 1 :1 That would all be part of the practice of 12 toxicology . 13 Q You mentioned medical surveillance . 14 What sort of medical surveillance activities 15 are you involved with'? 16 A The medical surveillance activities that I 17 am involved with would be for emergency response 13 personnel, primarily contractors of the United States 19 Environmental Protection Agency . These would be 20 individuals who respond to chemical accidents or 21 chemical spills . 7197 1 These would also be individuals who 2 investigate hazardous waste sites, all of whom have 3 potential exposure to hazardous substances or 4 hazardous materials . 5 To evaluate them prior to that employment . 6 To evaluate them annually during that employment to make sure that there is no excess exposure that is 8 resulting in disease or harmful effects . 9 And then also evaluating them prior to 10 leaving that employment to make sure that they're okay 11 oz' healthy when they leave that particular employment . 1")_ Q Have you testified in the past at the 13 request of Owens-Illinois? 14 A I have . 15 Q Do you recall how many times you have 16 testified on behalf of Owens-Illinois? 17 A I believe it was three times . 18 Q Have you testified as an expert. with regard 19 to areas other than asbestos? 20 A I have . 21 Q Okay . In the courtroom setting like we are 71981 1 here today? 2 A That's correct . 3 Q Have you also testified in the past on 4 behalf of plaintiffs .in the lawsuits? 5 A I have . 6 Q What is the charge for your time? 7 A $175 per hour . 8 Q Doctor, I had you define toxicology . You 9 also mentioned that you were a pharmacolog .ist ; is that 10 correct? 11 A That is correct . 12 Q Could you define that term or tell us what 13 that involves . 14 A Pharmacology is the study of the beneficial 15 effects of substances or chemicals on the living 16 system, and toxicology is the study of the harmful 17 effects of chemicals on the living system . 18 Q How are the two fields related, toxicology 19 and pharmacology? 20 A Well, they are related in that the -- both 21 disciplines rely upon the dose response relationship, 71991 1 that is, how much of a chemical it takes to produce a 2 particular effect . 3 As a pharmacologist, I'm interested in that 4 dose or that amount which will produce 100 percent S effect or produce an effect. in 100 percent of the 6 people that are exposed to that particular material . 7 For example, if I develop a medication to 8 control blood pressure, I want to be sure that 9 whenever the physician administers a certain amount of 1v that material., that in 100 percent of the people that 11 receive that material, the blood pressure will be 12 lowered . 7.3 So in the instance of pharmacology, I'm 14 interested in the 100 percent response . 15 As a toxicologist, I'm interested in that 16 concentration or dose that doesn't result in any 17 adverse effect . 18 So I'm interested in the other end of the 19 dose response curve . I'm interested in that 20 concentration or dose of exposure to a chemical that 21 does not result in an adverse effect or harm in those ~7zoo 1 individuals who might be exposed to that, so the 2 relationship is the dose response relationship . 3 Q Have the disciplines of pharmacology and 4 toxicology always been separate, or at one point were 5 they combined as a profession? 6 A They have always been separate, and 7 certainly pharmacology is a much older discipline than 8 is toxicology . 9 Q When did toxicology become an accepted 10 science or discipline? 11 A Toxicology emerged as an .identifiable :L2 discipline around the 1960s . 13 Prior to this time, the interest in 14 toxicology was primarily as a result of the 7.5 development of drugs, that is, what were the side 16 effects or the toxicities or the harm that would occur 17 as a result of taking certain beneficial substances . 18 These are called side effects . 13 So prior to that time, the interest was 20 really in development of drugs, and it wasn't until 21 the '60s that there was an interest in environmental 72011 1 exposure, occupational exposure, and that's when 2 toxicology became a separate and identifiable 3 discipline . 4 Q You mentioned earlier, I think, that, as a 5 toxicologist and a pharmacolog .is -, that it was usual 6 and a customary part of your job to review studies '7 done by others ; is that correct? 8 A `['hat is correct . 9 Q What factors, when you're reviewing those 10 studies, do you look at to determine whether or not 11 the study is a valid study or the conclusions are 12 valid? What do you look at or look for? 13 A In reviewing a study, you would look at, 14 first of all, the objective, that is, what was the 15 study intended to show or to find out . So the 16 objective is important . 1'7 And based upon identifying what the 18 objective is, that is, if it is to determine the 19 potential harmful effects of a. substance, then one 20 looks at the experimental design . 21 'Phat is, is the design, the animals to be 72021 1 used, the exposure of the animals, is that all 2 suitable to develop or to produce information that 3 would ultimately be useful in evaluating the 4 objective, in this case determining whether or not it 5 would produce harm . 6 Then subsequently evaluating the data that 7 is produced, that is, once one conducts the test with 8 the experimental design that has been adopted, are the 9 results results that are reliable, and then ultimately 10 the conclusion that is drawn from that study, is it 11 consistent with the data that has been generated as a 12 result of that particular experimental design or 13 study . 14 So one would, first of all, look at the 15 objective, then whether or not an appropriate 16 experimental design was developed to meet that 17 objective, and then whether or not appropriate results 1.8 were obtained, and then whether or not the conclusion 19 would be a conclusion that is consistent with those 20 results that were obtained during that experimental 21 design . 7203' 1 MS . MORETZ : Your Honor, at this time we 2 would offer Dr . Harbisan as an expert in pharmacology, 3 toxicolog y, and as an expert in the testing of 4 products regarding their toxicity . 5 THE COURT : Mr . Hoffman, any 6 cross-examination on that .issue? 7 MR . HOFFMAN : Yes . Thank you, Your Honor . 8 VOIR DIRE EXAMINATION 9 BY MR . HOFFMAN : ].D Q ]Dr . Harbison, good morning . 1'L A Good morning . 12 Q Doctor, now, am I correct that none of the 7.3 articles which you have published in any of the 14 scientifi c journals deal with asbestos-related 15 disease? 16 A I believe that is correct, yes, sir . 17 Q Have you submitted any chapters to any 7.8 textbooks which have been published of any kind, any 19 chapters on airy subjects in any textbooks? 20 A Yes, sir . 21 Q Do any of the chapters you have submitted to 7204 1 textbooks deal with asbestos-related disease? 2 A No, sir, T don't believe so . 3 Q Have you edited or authored any textbooks in 4 their entirety? 5 A I have not . 6 Q Now, have you ever participated in doing any 7 air monitoring or dust counting for the presence of 8 asbestos in the air? 9 P. i don't believe so . ]. 0 Q Have you ever conducted or participated in 11 conducting any animal inhalation experiments, and by 12 that I. mean experiments where animals were given a 13 substance to breathe and where the results of the 14 animal experiments were then looked at? 15 Have you ever, conducted animal inhalation 16 experiments? 17 A Yes, sir . 18 Q And when was the first time you conducted 19 any animal inhalation experiments? 20 A It would have been about 1970 . Around 1969, 21 1H70 . 72051 1 MR . HOFFMAN : Your Honor, .if I may approach 2 the witness . 3 Q Doctor, do you recall testifying in a case 4 where --- in Baltimore City called Abate vs . ACandS? 5 A I don't recall that, no, sir . 6 Q Let me show you page 35 of that deposition, '1 sir, and ask you to take a look at the first question 8 and answer there . 9 Do you see that? LO A I do . 11 Q Am I correct, sir, that at the time of this 12 deposition, which I Chink was, what, 1991, you were 13 asked at the time, have you ever conducted any animal 14 inhalation experiments personally, and your answer was 15 that C70 , you had not? 16 A That is correct . 17 g And if you will look back on the previous 1 :3 page, sir, you were asked questions about whether you 19 had eves conducted any animal inhalation studies when 20 you were doing your post--graduate training ; is that 21 correct? 72061 1 A That is correct . 2 Q The answer, again, was that no, you had not 3 conducted any animal inhalation studies ; is that 4 correct? 5 A That's correct, I have not personally . 6 Q In fact, you have not conducted any animal 7 studies at all with asbestos ; is that correct? 8 A That is correct . 9 Q Thank you . You do not consider yourself an 10 expert in the field of what's re ferred to as 11 mineralogy ; is that correct? 12 A That is correct . 13 Q Early on in this case we had a scientist 14 named Arnold Brodie here testify ing . 15 Are you familiar with Dr . Brodie? 16 A I am not . 17 Q We also had a scientis t -- physician testify I'S named Victor Roggli . 19 Are you familiar with him, sir? 20 A T am . 21 Q Let me ask you this : Are you a member of 72071 1 the American Conference of Governmental Industrial 2 Hygienists, the ACGTH? 3 A I am not . 4 Q The past chairman of the ACGIH, Dr . John 5 Dement, was here testifying, actually has yet to 6 finish . Are you acquainted with Dr . Demerit? 8 A No, sir, I am not . 9 Q You were asked some questions about 1U consulting work that you have done fox' government 11 agencies . 12 I would like to ask you some questions about 13 consulting work done for chemical companies, if I can . 14 You have consulted for and been an expert 15 witness on behalf of a chemical company called Merr'ill 16 Dowell ; is that correct? 17 MS . MORETZ : Objection, Your Honor . That's 18 outside the scope of the purpose of this examination . 19 THE COURT : Overruled . It goes to the voir 20 dire as to whether or not Dr . Harbison is an expert . 21 Go ahead, please . 72081 1 Q I'll back up . 2 Counsel for Owens-Illinois, I believe, asked 3 you, sir, if you have testified in other areas beside 4 asbestos, and you answered yes, didn't you? 5 A Yes, sir . 6 You testified .for a chemical company named 7 Me .rrill Dowell ; is that correct? 8 A Yes, sir . v Q And in the case of Village of Wilsonville, 10 you testified as an expert on behalf of an operator of 11 a chemical waste dump ; .is that correct? 12 A Yes, sir . 13 Q And you have testified on behalf of 14 numerous other chemical companies, perhaps as many as 15 30 times, in various trials around the country? 16 A Yes, sir . I don't consider it testifying on 17 behalf of, but I have certainly testified in all those 18 matters . 19 Q Well, you were retained by the lawyers for 20 the chemical companies and called by them as a witness 2 ]. in the trial . 72091 1 A That is correct . 2 Q Finally, Doctor, as I understand it, in this 3 case you have been given documents by the lawyers for 4 Owens-Illinois and asked to review them ; is that 5 correct? 6 A Yes, sir, that's correct . 7 Q You have absolutely no personal knowledge 8 whatsoever of anything that happened at Owens-Illinois 9 during the time these documents were created ; is that 10 correct? ... 11 12 A That is correct . Q So all of your testimony here today is based 13 simply on going back through the documents from years 14 gone by and looking at them and telling us about the 1.5 documents to the extent that counsel asked you 15 questions about them . 1 7 A That is correct . 18 MR . HOFFMAN : Your Honor, I have no 19 objection to this witness in the field of pharmacology 20 end toxicology generally, but I object to anything 21 beyond that . 72101 1 MR . PALMER : I just have one question . 2 THE COURT : Go ahead, Mr . Palmer . 3 VOIR DIRE EXAMINATION 4 BY MR . PALMER : 5 Q Doctor, you mentioned something about the 6 TLV and what TLV was ; is that correct? '7 A Yes, sir . S Q TLVs were promulgated by the ACGIH, American 9 Conference of Governmental . Industrial Hygienists? 10 A Yes, sir', that is correct . 7.1 Q Are you aware that the ACGIH has from time 12 to time put out textbooks and articles and 13 publications about 'PLVS and what the TLVs are? 14 A Yes, six' . 15 Q Acid you indicated that if there is a TLV 16 concentration of some toxic substance below the TLV, 17 that that would be a safe working condition? 18 A I have a little problem with your question . 19 Q That's fair enough . It's inartful . 20 I think you .indicated that below a certain 21 concentration, below a TLV, that that concentration 7211 1 would be safe to humans ; is that correct? 2 A Yes, sir . 3 Q Are you aware that the ACGIH has indicated 4 that, with regard to the TLV, that there is no fine 5 line between safe and dangerous concentrations? 6 MS . MORETZ : Objection, Your Honor . Beyond 7 the scope of the purpose of this cross-examination . 8 THE COURT : Overruled . 9 A Yes, sir . I would agree that the threshold 10 limit value is not a bright line between toxicity and 1.1 safety because there is a margin of safety built into L2 that number, so :it would require concentrations well 13 above a threshold limit value to produce -14 'PHA COURT : Excuse me, Doctor . Perhaps I 1S misunderstood, but I think you're answering a question 16 that hasn't beer asked . 1'7 The question was were you aware that the 18 ACGIH said this . The answer would be yes or no, not 19 an explanation . 20 MS . MORETZ : Your Horror, I think he was just 21 explaining his answer . He did answer -- 72121 1 THE COURT : I don't think he -- maybe I 2 missed it, but perhaps -- that's why I prefaced my 3 remark with maybe I misunderstood . 4 Perhaps, Mr . Palmer, would you restate the s question, please . 6 MR . PALMER : Yes . 7 Q You are aware, are you not, that the ACGIH 8 has .indicated that the TLV does not represent a fine 9 line between dangerous and safe concentrations? 10 A And I said yes, and then I explained or 11 tried to explain . 12 Q Doctor -13 MS . MORETZ : May he be allowed to explain 14 his answer, Your Honor? 15 THE COURT : I think he has,but if he wishes 16 to say something further, he may do so . Sure . 17 A Then again, it's not a fine line, that is, 18 if you. yo above the TLV, it doesn't result in 19 toxicity . It would be orders of magnitude above that 20 before some toxicity would be produced . I would 21 agree . 7213 1 Q And if it's below the TLV, depending upon 2 the magnitude, an individual can also contract a 3 disease from the substance even though it's below the 4 TLV ; isn't that correct? 5 A I would not agree with that . 6 Q You would not agree with that? 7 A No, sir . 8 Q Okay . Doctor, have you read any of the 9 articles dating from the 1930s to the 1940s concerning 10 asbestos-related disease? 11 A I have read some, yes, sir . 12 Q And are you aware of any articles, such as 13 the one done in Pennsylvania by F'ulton, where 14 individuals have developed asbestosis being exposed to 15 concentrations of asbestos below five million 15 particles per cubic foot of asbestos dust? 1"7 MS . MORETZ : Objection, Your Honor . This 18 witness has not been offered as a state-of-the-art 7.9 witness and now we're getting into the area of state 20 of the art . 21 THE COURT : Mr . Palmer, I think the 7214 1 objection is well founded . I sustain the objection . 2 MR . PALMER : Thank you . I was just asking 3 because he said no one gets sick below the TLV . 4 MS . MORETZ : Move to strike the comments of 5 counsel, Your Honor . 6 THE COURT : The jury is aware that nothing that cou nsel says is evidence, so it's not necessary . 8 Q Doctor, have you ever tested any 9 asbestos -containing insulation products to determine 10 whether or not they were toxic or not? 11 A I have not . 1.2 MR . PALMER : Your Honor, I have no further 13 questions . 14 THE COURT : The doctor will be permitted to 15 testify as an expert in pharmacology and toxicology, 16 period . 1'7 M5 . MORE'TZ : Are you denying his ability to 18 testify with regard to testing of products? 19 THE COURT : I said he will be permitted to 20 testify as an expert in pharmacology and toxicology, 21 period . Whatever those two subjects cover and those 72151 1 two disciplines cover, he will be permitted to render 2 opinions on . 3 MS . MORETZ : Very well, Your Honor . Thank 4 you . 5 DIRECT EXAMINATION (Resumed) 6 BY MS . MORETZ : Q Doctor, to start out with some general. 8 topics, you mentioned earlier the term risk 9 assessment, and as a toxicologist, what do you mean by 10 risk assessment? 1 :1 And if it would be helpful to you, Doctor, 12 to explain to the jury, the board behind you, there is 13 a special marker and you can write on the board any of 1A the terms that you heed to use that should be defined 15 or explained by using a chart . 16 A May I just do that? 1'7 THE COURT : If you would be kind enough, 18 Doctor, to make the writing somewhat large so that 19 everybody can see it . 20 A Risk assessment is the process by which risk 21 is evaluated, risk being the hazard or the likelihood 7216 1 that some adverse effect will occur . 2 In order to evaluate the risk, there are 3 essentially two things that. you need to know . You, 4 first of all, need to know the toxicity of the 5 substance, that is, what are the harmful effects that 6 it can produce . 7 And you also need to know the exposure or 8 the level of this material or the concentration of 9 this material that .it takes to produce those harmful 1.0 effects . 11 So risk is equal to the toxicity times the 12 exposure, so to evaluate risk, that .is, whether or. not 13 some harm can occur as a result of a particular 14 substance, you need to know what that substance does, 15 the harmful effects it can produce, and the 16 concentrations at which those harmful effects are 1'7 produced in order to evaluate the potential hazard . 18 Q Does the concept of dose response play into 19 risk assessment? 20 A It does . 2 :1 Q And would you explain to the jury how the 72171 1 concept of dose response plays into risk assessment? 2 A The dose response is the relationship 3 between the concentration of material to which you 4 would be exposed or someone could potentially be 5 exposed and the response or the toxicity that is 6 produced . 7 So if you look at the dose response 8 relationship, this is the response and this is the 9 concentration, at some levels of exposure or al some LO concentrations, the response would be produced, a bad 11 response, a harmful response, and ultimately there 12 will be a concentration at which no adverse effect .is 13 produced . 14 So to evaluate the risk, you use the dose 15 response curve to identify that concentration that. 16 doesn't produce arty response . 17 Remember, I talked about pharmacology and 18 toxicology . As a pharmacologist, I'm interested in 19 this end of the dose response curve, in which 100 20 percent of the individuals exposed would respond, have 21 a beneficial effect . 72181 1 With regard to toxicology, we're .interested 2 in the lower end of the dose response curve, or that 3 concentration at which no effect is produced . 4 So essentially the dose response curve is 5 the methodology by which a toxicologist can ultimately 6 determine the risk by knowing what the response is, 7 the potential adverse effect, and the concentrations 8 at which. they occur and the concentrations below which 9 none of these effects or adverse effects will occur . 10 So the dose response relationship is 1 :L critical in evaluating the risk . L2 Q Could you, Doctor, using a common example, 13 such as aspirin, explain how the dose response 1.4 relationship relates to aspirin, for example . 15 A Sure, with regard to aspirin, I'm sure that 16 you all have seen advertisements, for example, in 17 which, if you've had a heart attack and you take one 18 aspirin a day, it can prevent a second heart attack . 19 So there .is a dose that can be used for 20 preventing this second heart attack . 21 I'm sure all of you have taken two aspirin 7219', 1 one time or another to relieve the pain of a 2 headache, so that's another dose that produces an 3 effect . 4 And I'm sure you know some people who have 5 arthritis or a rheumatoid condition which may require 6 ZO tablets of aspirin a day to relieve the joint 7 swelling and the pain of the rheumatoid arthritis . 8 If_ you take 90 aspirin, you will die . So 9 the relationship between the dose and the response for 1U aspirin varies between a beneficial effect, either 11 preventing a second heart attack, relieving the pain 12 of a headache or relieving the joint swelling and 13 pain, or if you take too much, it can produce harm or 14 it can produce death . 15 Now, that concentration which doesn't result 16 in any effect is, if you take the aspirin and you 1'7 divide it into four pieces, and you took only a 18 quarter of that aspirin, it would have no effect . 19 So that concentration below which no effect 20 would occur would be a quarter of an aspirin . It 21 would have no effect . 7220 1 You need to take at least one to have the 2 effect on the heart, you need to take two to relieve 3 the headache, and then on up, and ultimately, if you 4 take 90, it would produce a harmful effect . 5 So that is the doss response relationship . 6 That is, some levels of aspirin have no effect at all, 7 others can have beneficial effects, and still higher 8 can have harmful effects . 9 Q Doctor., like the aspirin, are there other 10 substances that are potentially toxic at certain doses 11 and not at others? 7.2 A Well, essentially all substances can be 13 toxic at some level of exposure, so the answer would 11 be that all substances at some level of exposure can 15 produce harm, and there are no exceptions . 16 Q Doctor, you mentioned or were asked about L'7 the threshold limit value a little bit earlier . 18 Does dose response play a role in threshold 19 limit value or in determining threshold .limit value? 20 A It does . 21 Q And can you explain to the jury how the two 72211 are connected or related? 2 A To establish a threshold limit value, you 3 take that concentration that doesn't produce any 4 harmful effect and you lower it by some order of 5 magnitude . 6 An example might be is if the concentration, 7 for example, that didn't produce any effect was 10 8 milligrams, the threshold limit value would be 9 developed by taking that 1v milligrams which produces 10 no effect and lowering .it further, for example, to 1 11 milligram, so the margin of safety in that case would 12 be 7.0 . 13 That is, you would take the level that 14 doesn't produce airy harm, lower it by a factor, in 15 this case of 10, to develop a threshold limit value of 16 1, which then has a margin of safety built into .it . 17 So that even if you went above that 18 threshold limit value, it's not a fine line between 19 having no effect and having some effect . You can go 20 well above that threshold limit value and still not 21 result in any adverse effect . 72221 1 So the threshold limit value is based upon 2 the dose. response relationship in identifying 3 concentration or dose that doesn't produce any 4 harmful effect . 5 Q Is the term threshold limit value still used 6 today, or is another term more commonly used? 7 A It would still be used today, but the 8 permissible exposure limit would be that guideline 9 that would be used, for example, iii industry, 10 predominantly because it would be part of the 11 Occupational . Safety and Health Act . 12 Q How are threshold limit values measured? Is 13 it minutes, hours, days, months? How is that 14 measured? 15 A It would be - - the threshold limit value 16 would be measured over the day, and it' s a 17 rime--weighted average . 7.B It would be the average concentration over 19 the day that would occur, and there would be 20 excursions above the threshold limit value, and there 21 would be excursions below the threshold limit value, r .... 7223 1 so it would be the time-weighted average throughout 2 the day, or the average concentration throughout the 3 day . 4 Q Is the day important, or is it the working 5 lifetime of the employee or' of the person exposed? 6 A It would be the working lifetime, but it would also be important to consider the date of the 8 exposure . y Q Are you aware of what the TLV or the 1.0 threshold limit value was for asbestos in the 1940s 11 and 1950s? 12 A I am . 13 Q What was that? 14 A It was five million particles per cubic toot 15 of air . 16 Q If the threshold limit value for asbestos is 1'7 five million particles per cubic foot of air, does 7.8 that mean that, if the TLV is exceeded, that that 19 person will have adverse effect? 2p MR . HOFFMAN : Objection . It's beyond the 27. scope of his expertise . r .. 7224' 1 THE COURT : Sustained . 2 MS . MORETZ : Your Honor, as a 3 toxicologist -- may I respond, please, Your Honor . 4 THE COURT : Go ahead . 5 MS . MORETZ : As a toxicologist, he uses the 6 threshold limit value, he applies it in his practice, 7 and I think that it's clearly within his expertise to 8 testify with regard to the threshold limit value . 9 THE COURT : Hasn't he already stated what 10 occurs above and below .it? 11 Let's move on . Next question, please . 12 MS . MORETZ : Very well, Your Honor . 13 THE COURT : He's already stated that without 14 having been asked that specific question . 15 Did I understand that correctly, Doctor? 16 Didn't you explain that without being asked that 17 particular question? 18 THE WITNESS : About the threshold limit 19 value, above and below . 20 THE COURT : You explained that . 21 THE WITNESS : Yes, sir . `1225 1 THE COURT : Next question . 2 MS . MORETZ : Very well, Your Honor . 3 Q What injuries or harms were the threshold 4 limit values developed to protect? 5 MR . HOFFMAN : Objection . That's 6 speculation . 7 THE COURT : Overruled . 8 Q Go ahead and answer . 9 A The threshold limit values were designed to 10 protect against all injuries . 11 Q In evaluating or looking at the threshold 12 limit values specifically for asbestos, or I think it 13 applies or does apply across the board, are we looking 14 at asbestos only, or are we looking at total dust 7.5 counts? 16 MR . HOFPMAN : Same objection . It's beyond 17 his expertise . 18 THE COURT : Overruled . 19 A For. asbestos it would be for asbestos 20 particles, so the five million particles per cubic 21 foot of air would be for asbestos particles . ! .. 72261 1 Q You mentioned that part of your work as a 2 toxicologist has been involved in looking at chemicals 3 or substances that are suspected to cause cancer ; is 4 that correct? 5 A That's correct . 6 Q Are there common things that we are exposed to that at low doses are no risk but at higher doses 8 may be a pause of cancer? 9 A Yes, there are substances to which we are 1.0 exposed to that are carcinogenic, and at. those levels 11 of exposure, there is a minimal risk or a 12 nonmeasurable risk associated with those exposures . 13 Q What are some examples of substances like 14 that? 7. 5 A Some examples would be vinyl chloride . 16 Vinyl chloride would occur as a result of the use of 17 various plastics . For example, PVC pipe, water pipe, 18 would contain the vinyl chloride monomer . 19 Things like vinegar in plastic bottles, 20 those plastic bottles are made of vinyl chloride, and 2 .1 the monomer could be extracted and end up in vinegar . 72271 1 Filling your car with gasoline, being 2 exposed to benzene . Benzene is also a potential 3 carcinogen . 4 Those would be some examples of exposure to 5 carcinogens that would occur as a result o daily life 6 activities . '7 Q What about coal tar? 8 A Wall, coal tar contains polycyc .lic aromatic 9 hydrocarbons, and coal tar is produced, for example, 10 whenever you charbroil meats . It's also found in 11 shampoos and other medicinal products . 17_ For example, salves and lotions contain coal 13 tar for medicinal purposes . Coal tar is also a 14 suspect carcinogen . 15 Q You mentioned shampoo . 16 MS . MORETZ : I have with me a couple of 7."7 bottles of shampoo, if you want to see them, counsel . 18 Mk . HOFFMAN : I use the green one . 19 Q I hand those to you, Dr . Harbison . Do those 20 particular products contain a cancer-causing, a 21 potential cancer-causing ingredient? 72281 1 A They do . 2 Q And what ingredient is that? 3 A That would be polycyclic aromatic 4 hydrocarbons, which are a constituent of coal tar . 5 They would be contained in both of these materials . 5 Q And what percentage of coal tar are in those 7 two shampoos, and it's llenerex and Tegriri? 8 A In Denerex, it's 9 percent, and in T'egrin, 9 it is 7 percent . 10 Q The level of exposure, if you were to wash 7.7. your hair with those shampoos, does that present any 12 risk to the user of those products? 13 A If you use this shampoo, there is no 14 measurable risk associated with the use of this 15 carcinogenic product because the exposure is at a 16 level that is not likely to result in any dose that 17 would increase the risk of cancer as a result of the 18 use of this product . 7.9 Q Is there a warning label on that product 20 with regard to the potential cancer-causing 21 ingredient? 7229' 1 A There is no warning label with regard to the 2 potential carcinogenicity of this compound . 3 Q So is it your opinion as a toxicologist 4 there is do reason to be concerned in using that 5 particular product, even though it has a known 6 carcinogen in the product? 7 A There would be no reason to be concerned 8 with regard to increased risk of cancer with the use 9 of this product as prescribed . 10 Q Is that an example of what you're talking 11 about with regard to dose response? 12 A It .is . 13 Q Are there other common examples of 14 substances that at high doses could be toxic or cause 15 cancer that we deal, with in our everyday lives? 16 A Sure . There are many examples of chemicals 17 that at high concentrations or high doses can be toxic 18 or produce harmful effects . 19 Q Should we, therefore, place warnings on all 20 of those products and all of those substances? 21 A No, it would not be reasonable to place 72301 1 warnings on those because the exposure, as a result of 2 the use of those materials, would not result in a dose 3 or in a concentration that would approach that 4 concentration or dose that would be harmful or toxic . 5 Q Doctor, have you prepared some charts that 6 you think would be helpful to the jury with regard to 7 this dose response concept? 8 A I have . 9 MS . MORE'1'Z : Your Honor, if we could set 10 that up . 1l THE COURT : Why don't we do that, and you 12 can set that up and do that. after we take our.' morning 13 recess . 14 MS . MORETZ : Very well . Thank you . 15 THE COURT : Ladies and gentlemen, we'll take 16 our morning recess at this time, and when we return we 1 "7 will continue with Ms . Moretz' direct examination . 18 Dr . Harbison, you can step down . Don't 19 discuss the matter with anyone because you're subject 20 to cross--examination . 21 THE WITNESS : Yes, sir . F 7231 1 (Whereupon, the jury left the courtroom .) 2 THE COURT : All right . We will recess for 3 about 10 minutes . 4 (Whereupon, brief recess .) 5 THE COURT : Be seated, please . Get the 6 jury, please . 7 I don't think you want to go back there now . 8 Perhaps you want to come up here and stand right 9 behind this small desk, Doctor . That way you're out 10 of the way of the jury and hopefully you'll be abler to 11 see and you can explain to the jury and use the 12 pointer . 13 Ms . MoreCz will be seated there . She will 14 be playing Vanna . 15 Just make sure, if you would, that you don't 3.6 lift that. up without turning it off or you'll hurt 1'7 your eyes . 3.8 (Whereupon, the jury entered the courtroom .) 19 THE COURT : Be seated, please . 20 Ms . Moretz, please . 21 BY MS . MORE;TZ 72321 1 Q Doctor, we were talking about some common 2 substances that at low levels were not toxic and at 3 higher levels were . 4 Let's just briefly talk about some examples 5 of those, and I believe you prepared a chart with 6 regard to that, is that correct? 7 A I did . 8 Q If you would, Doctor, explain the chart to 9 the jury and in what -- can you see okay? 10 THE WITNESS : Could I move up a little 11 closer to that chart? 12 TIDE COURT : Sure . Do you want to borrow Ms . 13 Ritter's glasses? 14 THE WITNESS : No . 15 THE COURT : She left . 16 Q If you would explain that chart and the dose 17 response as relates to that chart to the jury . 18 A Essentially all substances at some level or 19 exposure or. in some dose can produce harm . 20 Now, this chart demonstrates that for.' 21 substances which I expect all of you have the 72331 1 perception that it can't be toxic or produce harm . In 2 fact, it can if the dose is high enough . 3 For example, water, the normal daily dose is 4 about one and a half quarts . IL you ingest 15 quarts 5 of water, it can be toxic or it can actually produce 5 death . 7 There are certain conditions in which people 8 develop a desire for water in which they ultimately 9 dig as a result of the consumption of too much water . 1U Likewise, sugar, 25 teaspoons, teaspoonfuls 11 per day . A thousand would be toxic or lethal . 12 Salt, I'm sure many of you are familiar with 13 the poten tial toxicity of salt . If you take in too 14 much salt , it produces high blood pressure . Normally 15 you take in about three level teaspoonfuls per day . 16 Sixty can be toxic . 17 Q Are there -- excuse me, Doctor . Let me 13 interrupt you . 19 Using salt as an example, is salt made up of 20 cancer--causing or toxic substances that are contained 21 in table salt? 7234 1 A Yes . A good example of another substance 2 that I suspect all of you would t hink of as toxic 3 would be cyanide, and oftentimes, if you look at the 4 back of your salt shaker or the s alt package that you S get, it would say contains yellow prosate of soda . 6 Yellow p rosate of soda is cyanide., and it's 7 put in there as an anti-kinkiny agent, to prevent the 8 salt from congealing or becoming hard . 9 Yet the dose is not sufficient to be worried 10 about having toxicity from the cyanide because the 11 level in there is too small to produce any adverse 12 effect . 13 ['or coffee, two cups . Seventy-five cups can 1.4 produce toxicity, and I'm sure many of you have read 15 about or heard about its ability to cause arrythmias 16 or it can cause various heart problems . 17 Arid then, finally, the aspirin we talked 18 about, the 2 tablets, and 90 tablets would be lethal . 19 So this is an example of the dose response 20 relationship, essentially for all substances, and 21 there are no exceptions . Essentially, everything .in 72351 1 your life, other than light radiation and sound waves 2 are chemicals . 3 So for all chemicals that are in your life, 4 there are levels that can be harmful, but there are S also levels that don't produce harm . 6 There are levels which you can be exposed to '1 every single day without producing any adverse 8 effects, and this demonstrates that dose response 9 relationship . 10 Q Once the risk of a particular substance is 11 recognized by a toxicologist, what kinds of things is 12 that information used for once the risk is recognized? 13 A Once the risk is recognized, then that 14 information can be used to develop guidelines for 1.5 exposure such that the exposure will not result in the 16 hazard or the harm that can be produced as a result of 17 exposure to higher levels of that substance . 18 So once that hazard is identified, that 19 information can now be used to control the substance "2.0 acid to prevent .injury from occurring . 21 Q And hazards are identified through doing 7236 1 studies, studies that you described previously, animal 2 studies and human studies as well? 3 A That's correct . 4 Q Now, you have been asked by Owens-Illinois 5 to review certain documents that have been referred to 6 as the Saranac documents or the animal studies on the 7 Kaylo ; is that correct? 8 A That is correct . 9 g You have not been asked to do a general 10 review of the medical and scientific literature from a 11 particular- period of time ; is that correct? 12 A That is correct . 13 Q Now, .in doing the review of the Saranac 14 studies on Kaylo, did you apply the same criteria that 1.5 you discussed earlier or look at the same factors that 16 you would look at in your everyday practice as a 17 toxicologist? 18 A I did . 19 Q And have you formed opinions as a 20 toxicologist with regard to the Kaylo dust studies 27. done by 3aranac: in the 1940s and 1950s"? 72371 1 A I have . 2 Q First, Doctor, let me ask you about the 3 Saranac Lake Laboratories . Was that a reputable 4 organization? 5 A Yes, it was a reputable laboratory, and one 6 of the few .in the country that could conduct these kinds of studies, that is, to evaluate the potential 8 toxicity as a result of inhalation of various 9 substances . 10 Q What documents specifically or what did you 1 :1 . review at the request of Owens-Illinois with regard to 12 these Kaylo studies . 13 A I reviewed the deposition of Mr . Hazard and 14 the attached exhibits to that deposition . L5 Q Doctor, I am going to hand up to you what 16 has been marked previously in this case as Plaintiffs' 17 Exhibit 0-17, and it's Hazard Exhibit Number 1 . Have 18 you seen that document before? 19 E1 I have . 20 Q Can you tell the jury what that i? Give us 21 the date, who it's to, who it's from . f .. . . .. 7238 1 A This letter is February 12, 1943, from Mr . 2 Bowes to Dr . Gardner . Dr . Gardner is the director of 3 the laboratory at Saranac Laboratories, and Mr . Bowes 4 is the director of research for Owens-Illinois . 5 Q And you reviewed that letter in your review G of the documents on the Kaylo studies ; is chat correct? 8 A That is correct . 9 Q What does this -- is this the first letter LU or the first communication that you have seen or was 11 presented to you with regard to the Kaylo studies? 12 A T believe that's correct . 13 Q Okay . What does this first letter to 14 Saranac reflect as to what Owens-Illinois wanted done 15 as reflected in tile letter? 1.6 MR . HOFFMAN : Your Honor, I object unless 17 what we're going to do is read from the documents 18 which all speak for themselves . 19 THE COURT : Overruled . 20 Go ahead sir . 21 Q You can go ahead, Dr . Harbison . 72391 1 A What the document is requesting is that the 2 new material, the Kaylo material, be tested to 3 determine whether or not it can produce any pulmonary 4 fibrosis or any problems in the lung as a result of 5 exposure to this material . 6 So essentially, what this letter is doing is 7 to establish the objective, and the objective is that, 8 because this is a newly formulated material that 9 contains a variety of constituents which can 10 independently cause pulmonary fibrosis, the objective 11 is to determine whether or not, when these materials 12 are combined, they still have those properties or are 1.3 still able to produce the pulmonary fibrosis or the 14 lung problems . 15 So the objective, as set out in this letter', 16 is they are requesting that Saranac Laboratory develop 17 an experimental design to test whether' or not this 18 substance is capable of causing some pulmonary 19 fibrosis oz' pulmonary damage or pulmonary changes or 20 any toxicity as a result of exposure to these 21 materials . L "- 7240 1 Q Were end users or the users of the product 2 mentioned in that particular letter? 3 A Yes . Q And how were they mentioned in that letter? 5 A They were mentioned in that Owens-Illinois 6 was requesting this testing for the purpose of '7 evaluating the hazards to their employees, as well as 8 to the user's of. the product or the end users of the 9 product, ox' in those individuals who would be in the 10 field applying the product . 11 So their request for the evaluation of the 12 hazard was not only for the employees at the 13 Owens-Illinois facilities, but others as well . 14 Q If you mix materials together, do their 15 effects change? 7.6 A They can . 17 Q And was that one of the objectives of the 18 test, to determine whether the effects changed? 19 A Yes . In this process, there was a change in 20 the physical properties of these materials in that 21 there was crow a gellation process that occurred that 7241 1 encapsulated or perhaps made less available these 2 materials as a result of the combination in which 3 these materials were put . 4 So the objective was to determine whether or 5 not, as a result of that change, there still were or 6 were not hazards associated with this material . 7 Q I am going to show you what has been marked 8 Plaintiffs, U-20, and this is Hazard Exhibit Number 3, 9 and if you could, is that part of. the correspondence 1v and the reports that you reviewed? 1 :L A Yes . 12 Q Okay . Could you identify that letter, the L3 date, who it's to and who it's from . 14 A 'The date of the letter is March 12., 1943, 15 and it is from Dr . Gardner, director of Saranac 16 Laboratories, to Mr . Bowes, the director of research 1'7 at Owens-Illinois . 18 Q The jury has been read portions of_ that 19 letter . 20 What does that letter reflect as to the 21 importance of these Kaylo studies? 72421 1 A Well, what this letter reflects is that Z there is a concern for the asbestos being in this 3 product . However, the laboratory does not know 4 whether or not it is in a form that can be .inhaleable . 5 So what Dr . Gardner is referring to .is that 6 the asbestos may or may not be in such a form as to be 7 inhaleable, and, therefore, his experimental design 8 would be such that he will test as to whether or not 9 this material can be inhaleable and ultimately result 10 in some pulmonary injury or any other toxicity . ... 11 Q What is the significance of the dust being 12 inhaleable? 13 A Well, the dust has to be inhaleabie in order 14 to yet it into the lung . If it 1S not itihaleable and 15 doesn't get into the lung, then the mere fact that it 15 is there doesn't represent a hazard because it .isn't a 17 hazard until it gets .into the lung . 18 Q Does that letter reflect any conclusions by 19 the Saranac Lab as to the safety or the nonsafeLy of 20 the product Kaylo? 21 A It does not . 72431 1 Q From your review of those two documents, 2 Exhibit 17, Plaintiffs' Exhibit 17, or 0-17, and 0-20, 3 can you make any assumptions as a toxicologist as to 4 the toxicity vi the product Kaylo? S A No assumptions could be made at this time as 5 to the toxicity of the product based upon this 7 information . 8 Q Why not? Why couldn't you make any 9 assumptions based on those two pieces of 10 correspondence? 11 A Because, based upon the knowledge of the 12 production of this material and the gellation process 13 and the mixing of the materials together, that mixing 19 could alter the ability of any of the constituents to 7.5 produce -16 Q Can you give the jury an example of how 7.'7 mixing the materials might change the toxic effect of 18 a singl e ingredient? 19 A An example would be lead, lead which can 20 produce toxic effects or can produce damage to the 21 nervous system, as well as other effects . 72441 1 Lead, for example, is a constituent of good 2 crystal, so that the crystal that you would consume 3 beverages from or store beverages in contains lead, 4 contains about 20 thousand parts per. million of lead . 5 And even though the lead :is in that 6 material, it's not likely that you would receive a 7 sufficient dose of lead from that because, 8 essentially, it is now encapsulated in the crystal or 9 the glass and .it's not available to be taken into your 10 body . 11 So that would be an example of which you mix 12 silica or sand together with .Lead to produce crystal 13 oz- produce glass, and in this case, the lead, 14 although, if it wasn't in there could potentially 15 produce harm at those levels, the fact that it is now 16 in this new mixture makes it not available for 17 exposure or, to get into the body and ultimately can't 18 produce any adverse effects . 19 Q Did the Sar'anac Lake Laboratory ultimately 20 perform tests on the product Kaylo as a result of the 21 01 request? 7245 1 A That's correct . They did . 2 Q Would you explain to the jury how Saranac 3 set up those tests or how the tests were conducted . 4 A Well, what Sax'anac did is to initially look 5 at the potential for the Kay1o material to produce 6 lung damage, and the first set of tests was to inject 7 the Kaylo material directly into the lungs of 8 experimental animals . y The problem was that the particle size was 10 too great, so it impaired the ability to inject the 11 material directly into the lungs, so they had to grind 12 it to make it into a smaller particle size . 13 When they ground it into a smaller particle 14 size and ultimately .injected it .into the lungs of the 15 experimental animals, because of its alkalinity, that. 16 is, its corrosivity, it resulted in the death of all 1'7 the animals . 18 So it was an experimental design that was 19 not very good because there wasn't any useful 20 information that could be derived from that study . 21 Q Did Saranac report any conclusions as a 7246' 1 result of that particular test that was done that 2 resulted in the death of all the animals? 3 A They did not . 4 Q And what did they do next? What was the 5 next test that they conducted? 6 A Subsequently, what Sax'anac did was to design 7 a study or a series of studies in which the animals 8 would be exposed via inhalation to the particles of 9 Kaylo or to the particulate of Kaylo, and the animals 10 would be exposed over various periods of time to 11 determine whether ox' riot that exposure would result in 12 any injur y or any toxicity as a result of that 13 exposure . 14 Q What types of animals did they use in the 15 study? ].6 A They used guinea pigs, hamsters acid white 17 rats . 18 Q And how did they go about exposing these 19 animals to the Kaylo product? 20 A There was a device which suspended the Kaylo 21 particles in the air and kept them suspended, and the 72471 1 animals were put .into a dust room or a room or 2 enclosure in which these materials were suspended for 3 various periods of time . 4 And the animals were left .in that room, left 5 in that room during the suspension of the particulate 6 and also after the suspension of that particulate . 7 That is, they were left there for some 8 period of time .in which there was airborne Kaylo, that 9 is, the suspension of the Kaylo was kept as a result 10 of the apparatus that was used, and then subsequently, 11 overnight or wheat there wasn't the air suspension, 12 they still. resided in that room . And this went on for 13 some period of time . 14 So during the day, for eight hours a day 15 they would be exposed to the suspended Kaylo, that is, 16 a fan vi' apparatus was used to suspend it in the air, 17 and then overnight there wasn't any suspension but 18 they remained in the dust. anyway because the dust 19 would settle on the cages or in the room . 20 Q For these tests, not the injection test, but 21 the inhalation test, was the material -- were the R .. .. 72481 1 animals exposed to the material as it was sent to 2 Saranac, or did they have to grind that material as 3 well? 4 A In some cases, they had to grind it, and in 5 other cases they used it as it came to them, so it was 6 used both ways . Q You mentioned something that was used to 8 keep the dust suspended in the air . 9 How did they do that? 10 A With fans, they basically kept it suspended 11 in the air . 12 Q What level of exposure were these animals 13 subjected to? 14 A The animals were exposed to levels generally 15 in excess of a hundred million particles per cubic 16 foot o air . They were generally around 115 to 120 to 1'7 125 million particles per cubic foot of air . 18 Q And were there any breaks in this exposure 1.9 as far as giving them a break during the day, taking 20 them out of the room, that sort of thing? 21 A No, it was continuous exposure throughout 72491 1 the day during the eight-hour period . 2 Q Why was the test performed at such a high 3 level of exposure? 4 MR . HOFFMAN : Objection . Calls for 5 speculation . 6 THE COURT : Keeping in mind that it's the 7 witness' opinion, I'll overrule the objection . S Q Go ahead and answer', Doctor . 9 A The high level was used because the testing 10 would at that time have been to determine whether or 11 not at any level of exposure there could be harmful 12 effects produced . 13 So the general procedure would be to use the 14 highest level that could be used without having all 15 the animals die . And one of the problems that Saraiiac 15 had is that rodents are obligatory nose breathers, 1'7 they have to breathe through their nose, so that at 18 very high levels of dust, it clogs their nose . 19 And so there was a high mortality because 20 the levels were so high that many of the animals 21 developed pneumonia, suffocated as a result of, 7250 1 1 essentially, the dust clogging or blocking their nose . 2 So the reason that the high level was used 3 was to try to maximize the likelihood of finding any 4 adverse effects as a result of the exposure, so you 5 would use the highest level that was possible . 6 Q And at this period of time when these tests 7 were being conducted, what was the- threshold limit 8 value for asbestos? 9 A At this time it was five million particles 10 per cubic foot of air . 11 Q Why did they use the different types of 12 animals? Why not just use all guinea pigs or all 13 while rats? 7.4 A Different species of animals would be used, 15 such as the guinea pig or the rat, to look for a 1.6 consistency of effect . That is, one species may 1'7 develop an effect, and then a question would arise as 18 to whether or not .it was extrapolatable to other 19 species . 20 So the reason that two species or three 21 species were used, the guinea pig, the hamster and the ... . 1 72511 1 rat, was to look at the effect amongst different 2 species to determine whether or not a consistent 3 finding was observed . 4 And there are also differences between 5 species . Differences in respiratory rates, that is, G how much air is breathed in a certain period of time . 7 There's also differences in the anatomy and 8 physiology of the .Lungs between various species . All 9 of those would be reasons for using multiple species . 10 Q The differences that you just described, are 11 those the same type of differences between the guinea 12 pigs and the rats and human beings? 13 A Sure . 14 Q Do the rats and the guinea pigs that were 15 used in the test have the same kind of defense 16 mechanisms for breathing dust as humans do? 1'7 A No, there would be differences in the 18 respiratory system between the rodents and humans . 19 Humans are upright and have an effective 20 procedure, a mechanism for eliminating particles from 21 the lungs called the mucocilliary escalator that is 72521 .. . 1 able to remove particulate from the lung . 2 Rodents do not have such an effective 3 mechanism, and rodents also are horizontal, that .is, 4 their lungs are horizontally located as opposed to 5 upright, so there are physical and morphological 6 differences . 7 Q Can the results of animal . tests such as the 8 Kaylo test be applied directly to humans? 9 A With regard to the Kaylo tests, they 10 probably can be useful fox estimating some risk, but 11 probably can't be applied directly to humans . 1) Q In interpreting tests like the Kayl.o test, 13 is it significant to note the difference between the 19 species, the animals tested and, for example, humans'? 15 A Sure . 16 Q And why is that, as far as the results of 17 your. Lest? 18 A Well, because there may be mechanisms that 19 differ between the species which would make the data 20 not useful or less useful depending on what those 21 differences are . 7253 1 Q Who established the protocol for these 2 tests? Was that something that OI was involved in, 3 Owens-Illinois was involved iii? 4 A Owens-Illinois was not involved in the 5 development of the protocol . The protocol, or the 6 experimental design was that of Saranac Lake 7 Laboratories . Saranac Lake independently developed B that experimental design . 9 Q The type of testing that was done on these 10 guinea pigs and these rats, is that the type of 11 testing that is common today? 12 A The testing, the inhalation testing, is L3 difficult, expensive and is not very common today, and 14 certainly was very rare during that period of time . 15 So the testing is, even by today's 16 standards, difficult to perform . And there aren't 7.'7 very many of those studies that are performed because 18 of the requirement, both for the physical facilities, 19 as well. as for the design, which is very expensive and 20 very time consuming . 21 Doctor, I'm going to show you two more i ... . 72541 L documents, and they have been previously .introduced as 2 Owens-Illinois 30 and Owens-Illinois 53, and they were 3 Hazard Exhibits SC and 5D . These axe Owens-Illinois 4 exhibits . 5 If you could look at those, are those part 6 of. the documents that you reviewed? 7 A They are . 8 Q Could you identify what those documents are 9 for the jury? 10 A These documents, it's a letter and a report 11 regarding the status of the studies at this particular 12 time . This is May 13th, 1946 . 13 It describes what has been found to date aril 14 what the results of the studies are at this particular LS time . 16 Q And what was the status of the study, the 1'1 Kaylo studies, as of May 13, 1946? 18 A At the present time, there was no adverse L9 findings in the studies that could be reported at this 20 time, so there was not a finding of any adverse 21 effects at this particular period of time . 1 ... 72551 1 Q How long had the tests gone on at that 2 particul ar period of time? 3 A For approximately 15 months . 4 Q And this experiment that had gone on for 15 months, is that the dust experiments of these guinea G pigs and rats that were exposed to the Kaylo? 7 A That's correct . The animals would have been 8 exposed for approximately 15 months, every day, six 9 days a week, eight hours a day, to the Kaylo dust, 10 from 100 to 125 million particles per cubic foot or 11 air . 12 Q Does that document make a recommendation as 13 to what should be done as fax' as continuation of the 14 study? 15 A Yes, it does . 16 Q And what was the recommendation according to 17 that doc ument? 18 A The recommendation was that the exposure 19 should be continued for at least another year . 20 Q Were the exposures and was the testing 21 continue d for another year? 72561 ... 1 A It was . 2 Q I am going to hand you what has been 3 previously marked as Owens-Illinois Exhibit 32 and 4 Owens-Illinois Exhibit 33, and these are Hazard 5 Exhibits 6 and 6A, Doctor, and if you could take a G look at those and tell the jury whether or not those are documents that you reviewed with regard to Kaylo 8 studies . 9 A Yes, these are documents that I reviewed . 10 Q Okay . And could you identify those 11 documents as to what they are . 12 A This is another report . This is a letter to 13 Mr . Hazard from Saranac Lake in October, October 31 of 14 1947, and it is also accompanied by another report of 15 the status of the animal testing at this period of 16 time . 1'% Q And how long had the tests been conducted at 18 this period of. time? is A In this case .it would be 30 months for the 20 guinea pit's and 18 months fox' the rats . 21 Q And what was the current status of that 72571 1 test? 2 A AC this period of time there were no 3 findings of adverse effects as a result of either 30 4 months of exposure to the guinea pigs or 18 months of s exposure to the rats . 0 Q What response was Saranac looking for iii 7 these animals? What were they testing for? 3 A They were looking for lung changes, for 9 pulmonary fibrosis or lung changes as a result of the 10 exposure to the Kaylo . 13. Q And what were the exposure levels of this 12 continued testing? 13 A Lt would again be in excess of a hundred 14 million particles per cubic foot of air . It would be 15 around 115, :120, 125 million particles per cubic foot 16 of air . 17 Q According to that document, what were the 18 conclusions at that point in time? 19 A The conclusions were -20 Mk . HOFFMAN : I'm sorry, counsel . Which of 21 the two, 3'7, or 33? 72581 1 MS . MORETZ : The report is 32, excuse me, I 2 believe . 3 A Continue? 4 Q Yes, I'm sorry . 5 A At this time, the conclusion was that there 6 was no tissue change or reaction of the sort that 7 would be seen with silicosis or asbestosis, so there 8 were no findings, adverse findings, in the testing up 9 to this period of time . 10 Q And did Saranac have any recommendations 11 with regard to whether or not the tests should be 12 continued? 13 A Yes . 14 Q And what were those recommendations? 15 A They recommended that it be continued, the 16 testing be continued . 17 Q Does the document reflect why they 18 recommended that the test be continued? 19 A Yes . Because they were interested in the 20 influence of this exposure on tuberculosis, so the 21 reason for the request of the continuation of the 72591 1 studies was to determine whether or not this continued 2 exposure would influence tuberculosis as a result of 3 the exposure . 4 Q What is the normal life span of. rats and S guinea pigs? 6 A The normal life span of rats is about two 7 year's, and guinea pigs is around three year's, three or 8 four years . 9 Q In the animal testing that you have either 1U reviewed as a toxicologist or performed yourself, what 1l is a reasonable period of time to conduct these tests? 12 A In rats, typically 18 months to 2 years 13 would be the life span testing . In guinea pigs, it 14 would be around 30 months, thereabouts . 1.5 Q Would it have been reasonable for 16 Owens-Illinois to discontinue the testing at this 1'7 point in time? 18 MR . HOFFMAN : Objection . 15 THE COURT : Sustained . 20 Q Did Owens-Illinois authorize and ask 9aranac 21 to continue with the studies? 7260 l 1 A They did . 2 Q Going to show you what has been previously 3 marked as Owens-Illinois Exhibit Number 60, it's 4 Hazard Exhibit 6K, and ask you if that's also a 5 document that you reviewed . 6 A It is . "7 Q And . could. you identify that document for the 8 jury . 9 A This is a .letter from Saranac to Mr . Bowes, 10 the fellow at Owens-Illinois who was in charge of 11 research . 12 Q And the date of this letter? 13 A It is April 26, 1948 . 14 Q And the previous exhibits that I asked you 15 about, w1 at was their dates? 1.6 A The ones I just went through? 1'1 Q Yeah, Exhibit 6 and 6A, Hazard . 18 A It was October 31, 1947, for the letter to 7.9 Mr . Hazard, and October 30, 1947, for the report. . 20 Q Okay . So this letter or communication was 21 about six months later than those communications we 7261' 1 just talked about? 2 A That's correct . 3 Q Are there any conclusions drawn in that 4 letter that you just identified for the jury? 5 A Yes . 6 Q Okay . What was the status of the study at 7 that ti me? 8 A The status of the study was that the 9 investi gations to date show that there was not any 10 adverse effect produced as a result of exposure to 11 Kaylo, and that the Kaylo was concluded to be an inert 12 dust . 13 Q And how long had these animals that were 14 part of the test been subjected to the exposure of 15 Kaylo? 16 A The guinea pigs were exposed for 30 months, 17 and the rats were exposed for 18 months . 7.8 Q Ts that as of the date of this letter, or 1.9 was that the previous report that we discussed? 20 A That was the previous report . 21 Q Okay . As of the date of the exhibit O .T-60, 7262 1 how long had the animals been exposed? Is that 2 containe d in that letter? 3 Let me ask it this way . Were the tests 4 ongoing on the same animals, or had they started new 5 tests? 6 A No, the tests were ongoing . 7 Q Did Sarariac have any recommendations as- to 8 whether vi' riot to continue the tests as of April 26, 9 1948? 10 A They did . 11 Q And what was their recommendation? 12 A 'To continue testing to look at exposure for 13 longer periods of time . 14 Q And what was -- did that letter reflect the 15 purpose of. that recommendation to continue the 16 testing? 17 A Yes . Again, they are concerned about the 7.8 tubercul osis and the effect of exposure on 19 tubercul osis . 20 Q Doctor, I'm going to hand you two documents 21 that the plaintiff has offered . One .is Plaintiffs' 72631 1 Exhibit 0-39, and one is Plaintiffs' Exhibit 0-40 . 2 What are the dates of these documents? 3 A The letter is November 16, 1948 . This is a 4 letter from Saranac to Mx . Bowes . 5 Q Okay . 6 A And the report is October 30, 1948 . 7 g And that is approx imately six months since 8 the last correspondence that we just discussed? 9 A That's correct . 10 Q Would you describe fox' us, at this point in 11 time, what the status of the Kaylo s tudies were? 12 A At this point .in time, with the exposure 13 beyond 30 months, up to 36 months, there was a finding 14 of pulmonary fibrosis in the lungs that was consistent 15 with asbestosis . 16 So at this time, the previous conclusions 1'7 that Saranac had reached would have to be changed, 18 that, based upon the continued exposure up to 36 19 months, there clearly was crow =vidence of a pulmonary 20 fibrosis or a lung change as a result of this 21 continued exposure . 7264 1 Q The continued exposure, was that done at the 2 same levels of exposure that we talked about 3 previously? 4 A Yes, it was, again, the hundred -- in excess 5 of hundred million particles per cubic foot of air . 6 Q Did that complete the Kaylo studies? Was 7 this the last report on the Kaylo studies? 8 A This completed the experimental part of the 9 studies, yes . 10 Q As a toxicologist, what conclusions can you 7.1 draw from that report dated October 30, 1948? 12 MR . HOFFMAN : Objection . It's .irrelevant . 13 THE COURT : Sustained . 14 MS . MORETZ ; Your Honor, may I be heard on 15 that issue? 16 THE COURT : No, ma'am . 17 M5 . MORET7 : I'm sorry? 18 THE COURT : No . 19 Q From your review of Mr . Hazard's deposition 20 and the documents that were attached to Mr . Hazard's 21. deposition that you reviewed, what were the 72651 1 recommendations, the general recommendations, by 2 Saranac to Owens-Illinois as a result of these tests? 3 A The recommendations wire that this material 4 was a potentially hazardous material, and, as such, 5 should be handled accordingly in the workplace, and 6 that there should be appropriate procedures taken to 7 regulate or to control the exposure of individuals to 8 these materials . 9 Q From your review of that deposition and 10 those documents, what did Owens-Illinois do as a 1]. result of the Saranac recommendation? 1?. A Owens-Illinois had procedures for regulating 13 the exposure of the workers . They also had 14 information with regard to the levels that were in the 15 workplace . 16 They also had a medical surveillance program 17 whereby the employees were examined, and also X--rays, 18 chest X-rays, were performed to evaluate any potential 19 adverse effects that would occur as a result of the 20 use of this product . 21 So they had procedures for controlling 7266 1 exposure, they were evaluating the health of those 2 individuals who were exposed, and generally .regarded 3 this as a hazardous material that should be controlled 4 in the workplace . 5 MS . MORETZ : Your Honor, there is one more 6 exhibit that I would like to talk with Dr . Harbison 7 about and would like to put the screen up to show to 8 the jury . 9 THE COURT : Go ahead, please . 10 Which document is this, Ms . Moretz? 11 MR . HOOPER : Your Honor, it's Owens-Illinois 12 Exhibit, OI-45 . 13 Q Doctor, I have handled you a copy of the 7.4 same thing . Can you identify that document for us? 15 A This .is the Industrial Hygiene Survey of May 16 1951 or the Sayreville, New Jersey, Owens-Illinois 17 facility . 18 Q And who was this study done by, or this 19 survey done by? 20 A This was done by Saranac Laboratory . 21 Q I think this is page 4 of the study, Doctor . 7267) 1 This table, or the samples that we are looking at, 2 Doctor, what are we referring to or what was that 3 report referring to? 4 A What this was is a sampling of the dust in 5 the air at various locations in the plant, grid it 6 reports the particles per cubic foot of air grid there 7 also the percent of asbestos or silica that was found 8 in those various levels .in the various workplaces . 9 Q For example, the first sample, I think, is 7.0 the router machine? 11 A Correct . 12 Q What was the particles per cubic foot there? 13 A At the router machine the concentration was 14 4 .4 million particles per cubic foot of air . 15 Q And what would the asbestos content of that 16 dust have been? 17 A The asbestos content was 6 to -- it looks 18 like 12 percent . 19 Q All right . Going down to the next one, it 20 says center.' aisle . What was the total dust particles 2 .1. per cubic foot of air? 72681 1 A 3 .4 million particles per cubic foot of air . 2 Q Arid what percent of asbestos was in that 3 dust? 4 A It's 32 to 40 something . 5 Q Going on to the batch weighing room, what 6 was the particles per cubic foot of air? 7 A The batch weighing room was 8 .4 million 8 particles per cubic foot of air . 9 Q And what about the asbestos component 10 percent? 11 . A It was about 3 to 6 . 12 Q Okay . If you will just go ahead and tell us 13 what all of those readings are, the asbestos unbagging 14 room . 15 A The asbestos unbaggicig room was 6 .9 million 15 particles per cubic foot of air, with about 40 to 50 17 percent a sbestos . 18 The east finishing line was 8 .3 particles 19 per cubic foot of air, with about 10 to 20 something 20 percent a sbestos . 21 The pre-hardener was 2 .2 million particles 72691 1 per cubic foot of air, with about 30 to 45 percent 2 asbestos . 3 And the mixer balcony, asbestos tank was 5 .2 4 million particles per cubic foot of air, with about 40 5 to 50 percent asbestos . 6 And there were no actual measurements in the '7 boxcar in the air, but the percentage, based upon 8 sampling of the dust collected by a vacuum cleaner, 9 was about 2'7 to 39 percent . 10 Q And in the same report, was there a 11 reference to the threshold limit values? 12 A There was . 13 Q I think that is page 6 of the report . 14 What .is this a reference to? 1.5 A 'this -- I'm sorry . 16 Q Go ahead . I'm sorry . 17 A This refers to the threshold limit values in 18 this case for asbestos of five million particles per 19 cubic foot of air for New Jersey and five million 20 particles for the American Conference of Governmental 22 Industrial Hygienists . 72701 1 Q Is there also a total dust number that is 2 included in that document? 3 A There is . 4 Q And what was the total dust threshold limit 5 value? 6 A It is SO million particles per cubic foot of "7 air. . 8 Q Thank you, Doctor . 9 Doctor, in your opinion, to a reasonable 10 degree of scientific certainty, did the Kaylo dust 11 studies give us any information with regard to 12 exposures to Kaylo that were within the current TLV"? 13 MR . HOFFMAN : Objection . Beyond his 14 expertise . Calls for speculation . 15 THE COURT : Overruled . 16 Q Was my question unclear, Doctor? 17 A Yes . 18 Q Okay . Let me start all over again . 19 THE COURT : In that case, it's withdrawn . 20 Go ahead . Next question . 21 Q From your review of the documents that you 7271' 1 have reviewed, the Hazard deposition and the Saranac 2 Kaylo testing documents, can you state, to a 3 reasonable degree of scientific certainty, or tell the 4 jury, whether or not the lCaylo studies by Saranac 5 showed the exposure which might result from the 6 ordinary use of Kaylo in compliance with the TLV of 7 five million particles per cubic foot? 8 Is there information that would indicate 9 that that was a health hazard as a result of the Kay .Lo 1v studies? 11 Is that any clearer, Doctor? I'm not sure 12 I've gotten any better . 13 MR . HOFFMPN : I don't mean to be rude, I 14 just want to object . Same objection, and it also 15 lacks foundation . 16 THE COURT : I'm not sure I understand the 17 question, but if the doctor does, I'll let him answer 18 it . 19 THE WITNESS : I'm not sure T do . 20 THE COURT : Try the question again . Third 21 time . 7272 1 M5 . MORETZ : Okay . Maybe the third time 2 will be a charm, Your Honor . 3 THE COURT : You could also strike out . 4 MS . MORETZ : That's true, Your Honor . We 5 could . 5 Q Did the documents that you reviewed, the 7 Kaylo studies, did they tell you, as a toxicologist, 8 to a reasonable degree of scientific certainty, or 9 give you any information with regard to exposures to 10 Kaylo for the end user and for the workers in the OI 11 plant? 7.2 A Yes . 13 Q Okay . And what information were you, as a 14 toxicologist, able to glean from those reports and 15 those documents? 16 A Based upon a review of the information, the 1'7 information indicates that there was not an exceedence 18 of five million particles per cubic foot of air for 19 asbestos in the workplace at Owens-Illinois where the 20 material was being manufactured and ultimately 21 prepared for shipping . 72'73 1 There was no exceedetice of the then 2 threshold limit value or guideline of five million 3 particles per cubic foot of air . 4 Q Okay . From your review of these documents, 5 do the documents indicate whether oz' not 6 Owens-Illinois requested that this study be published? 7 A Yes . 8 Q Okay . And what did they indicate? 9 A They indicated that they would like to have 1U this study published . 11 Q Did they draft a report or draft what they 12 wanted to have published or edit it in any way? 13 MR . HOFFMAN : Objection . Calls for 14 speculation . 15 THE COURT : Sustained . 16 Q Were the reports even published? 17 A Yes, they were . 18 Q Is there correspondence within these 19 documents to indicate how they were published? ")_U A Yes . 21 Q Could you describe that for the jury? R 7274 1 A The information was published without regard 2 to any input from Owens-Illinois . It was published in 3 the absence of knowledge or any sort of review by 4 Owens-Illinois . 5 MR . HOFFMAN : Object and move to strike as 6 lacking foundation . 7 THE COURT : I'll let you briny that out on 8 cross-examination, Overruled . 9 Q Doctor, I'm going to hand you what was 10 marked as Hazard Exhibit 21 . I don't think it has 11 been introduced by either the plaintiff or the 12 defendant at this point in time . 13 Can you identify that for us please . 14 A Yes . This is the publication of the results 15 of the study which is entitled, Effect o Inhaled 16 Commercial Hydrous Calcium Silicate Dust on Animal 7.7 Tissues . 18 Q What is the date of that publication? 19 A It is 1955 . 20 Q And where was that article published? 21 A Published in the American Medical 7275 1 Association Archives of Industrial Health 2 Q And who was the author of that particular 3 publicati on? 4 A It was Dr . Schepe .rs, Mr . Durkin and Delante . 5 Q The AMA Archives of Industrial Health, is 6 that a peer review journal? 7 A It is . 8 Q Have you reviewed that publication, Doctor? 9 A I have . 10 Q Would you tell the jury if, in that report, 11 Dr . Schepers and his co-authors ever mention or 12 indicate cancer in the animals in the Kaylo study? 13 A They mention not finding any neoplasia or 14 cancer in the animals . 15 Q When you refer to neoplasia, what are you L6 referring to, Doctor? 17 A Cancer, new growth . 18 Q Was that the only mention of cancer, the 19 fact that they didn't find any? 20 A Yes . 21 Q Did Dr . Schepers in that publication mention ... 7276 1 mesothelioma? 2 A He did not . 3 Q From your review of the Hazard deposition 4 and all. the exhibits with regard to the Kaylo studies, 5 did you see any reference that Saranac ever advised 6 Owens-Illinois to stop manufacturing or selling Kaylo? 7 A I did not find any reference that Sarana.c 8 advised Owens-Illinois to stop selling Kaylo . 9 Q From your review of the documents, did you 10 see any reference in the documents or .in the 11 deposition that Saranac told Owens-Illinois to remove 12 asbestos from the product Kaylo? 13 A No, I did not . There was no information or L4 these was no .reference by Saranac or recommendation by 15 Saranac to remove asbestos from the product . 16 Q Did Saranac even indicate to Owens-Illinois 1'7 that the threshold limit values were unreliable? 18 A They did not . 19 Q What, in doing the dust studies that Saranac 20 did, what standards or guidelines did they use in 21 doing those dust studies? 7277 1 A They used five million particles per cubic 2 foot of air . 3 Q That's the threshold limit value? 4 A That's correct . 5 Q Did Saranac ever indicate, from your review 5 of these documents, that the end user of the Kaylo 7 product was ever at risk? 8 A They did not . 9 Q And that was something that Owens-Illinois 10 had spec ifically asked for in their first letter or 11 communic ation to Saranac, is that correct? 12 A That is correct . 13 Q In any of these documents, is there ever an 14 indicati on that Saranac asked Owens-Illinois or told 15 Owens-Il linois to place a warning on the product 16 Kaylo? 1'7 A There is no indication that Saranac ever 18 recommended a warning on Kayl.o . 19 Q Doctor, what could a reasonable manufacturer 20 conclude from these Kaylo studies, the Saranac 21 studies? 7278) 1 MK . HOFFMAN : Objection . That's for the 2 jury . 3 THE COURT : Sustained . 4 MS . MORETZ : At. this time, Your Honor, 5 that's all .I have for Dr . Harbison . 6 THE COURT : Okay . Cross-examine, Mx' . 7 Hoffman? 8 MR . HOFFMAN : Thank you, Judge . 9 THE COURT : Let's start it . Go ahead . 10 CROSS-EXAMINATION 11 BY MR . HOFFMAN : 12 Q Doctor, from your consultations with various 13 companies, let's say in the chemical business, you 14 would agree, would you not, that .it's a good marketing 15 tool to say that a product ~~- ox' to be able to say 16 that a product is nontoxic? 17 A I don't know the answer to that . I don't 18 know ii that's a good marketing tool or not . 19 Q Well, you would agree, would you not, sir, 20 that if a customer or a worker knows that a product .is 21 toxic, they may be more hesitant to use it than an 72791 1 alternative product that is known to be nontoxic? 2 In other words, if something is known to be 3 toxic and there is another product that could be used 4 that's nontoxic, you would agree, wouldn't you, that a 5 customer or a worker would want to use the nontoxic 6 product rather than the toxic product? 7 A I don't know the answer to that . 8 Intuitively it would probably seem that yes, that 9 would be the case, although in the industrial setting, 10 with appropriate recommendations, I don't know that 11 that's true . 12 Q So, for instance, at the Owens-Illinois 13 Kaylo manufacturing plant where they had exhaust 14 ventilation, vacuum equipment on the saws, education 15 for the workers, X-ray monitoring for the workers, 16 that would be an example of an environment where a 1'7 toxic. substance could be used but used safely ; would 18 that be fair to say? 19 A Well, the problem I' m having generally with 20 questions of a toxic substance is that, generally, 21 toxicity is determined by the concentration . 72801 1 So in that setting where there would be a 2 control of the exposure, then there would be probably 3 little worry about that . 4 Q You would agree, would you not, that another 5 term for the word toxic is the word poison? 6 A Could be . 7 Q Well, lots of things could be . 8 My question, sir, is you would agree, would 9 you not, that another term for the word toxic is the 10 word poison? 11 A Under some circumstances, I would agree, 12 yes, that's the case . 13 Q All right . And I have a dictionary here . 14 MR . HOFFMAN : Arid if I can approach, Your 15 Honor . 16 THE COURT : Please . 17 Q Doctor', I'm going to show you a dictionary, 18 which interestingly is copyrighted .in 1947 -- if I can 19 find that page . Copyrighted in '4'7, '48, '49, 'S0, 20 1S1, 'S2, 153, 'S4, 1S5, 'S6, 'S'7 and 1S8, during all 21 the years that Kaylo was manufactured . 72811 1 Could I ask you to yo to the page I tagged 2 there that starts with the definition of the word 3 toxic, please . 4 A Well, although .it's copyrighted in all of 5 those dates, this is a 1966 dictionary, and certainly 6 the terms could have changed from 147 to -- or the 17 definitions could have changed . 8 Q All right . I'll grant you that . y Given that it was --- that edition was 10 published in '66, right when T started high school, 11 could you tell me please, sir, how they defined toxic 12 at that time . 13 MR . HOFFMAN : Shows you how long I keel 14 things, Judge . 15 A Of, pertaining to, affected with or caused 16 by a toxin or poison . 17 Q All right . And would you go to the page 1.8 where they talk about defining what a poison is for 19 me, please . ?.0 A Yes . 21 Q Arid would you read for the Court and the 72821 1 ladies and gentlemen of the jury, please, what a 2 poison refers to . 3 A Any substance, liquid, solid or gaseous, 4 which by reason of a inherent deleterious property 5 tends to destroy life or- impair health . 5 Q You would agree, would you not, that '7 asbestos is a solid substance which, by reason of 8 inhalation, can impair health? y A If the concentration is sufficient . 10 Q You would agree that the asbestos in 1.7. whatever concentration you believe is sufficient to 12 cause problems, if it's breathed it can impair health, 7.3 correct? 14 A Yes, sir, if the concentration is 15 sufficient, that's correct . 16 Q And the same is true for Kaylo dust, 17 correct, if the concentration .is sufficient? 18 A That it could result in some harm? 19 Q Yes . 20 A I expect that's probably true . 21 Q Well, .in fact, isn't that what the Kaylo 72831 1 experiments show, that inhalation of dust, Kaylo dust, 2 could cause some harm if, as you put it, the levels of 3 exposure were sufficient? 4 A Sure, in laboratory animals, that's correct . 5 Q Well, let me ask you this . The purpose of 6 experiments was -- let's go back to something you said 7 early nn, and T think I made a note of it . 8 Why don't you tell us again, sir, under what 9 circumstances is it appropriate to experiment on human 10 beings, to do experiments on people with drugs or 7.1 substances, that types of thing? 12 A Well, where information is needed to 1 :i evaluate the potential effects or the absorption of 14 material or the bioavailability of material in humans, 15 where the risk is . 16 Q And you mentioned patch tests or scratch 17 tests, that type of thing ; is that correct? 18 A Patch rests, yes, sir . 19 Q And are the people who participate in the 20 experiments told what's going on? 21 A Yes, sir . 72841 1 Q And are they told about any potential side 2 effects or risks of harm? 3 A Yes, sir . 4 Q Why? Why are they told about that? 5 A Well, because if there is a potential for 6 that risk or harm, there is a necessity to advise 7 those individuals of that potential. harm . 8 Q Now, at the Owens-Illinois Kaylo 9 manufacturing plant -- let's back up a minute . 10 You agree, do you not, that one of- the 11 purposes of the Kayl.o studies initiated with the 12 animals in the early '40s was to determine ii there 13 would be any hazards to workers at the manufacturing 14 plant in the process of making the Kaylo material, 15 correct? 16 A No . I think it was to determine whether or 7.7 not this new substance could cause any sort of 18 pulmonary changes and then to relate that to the 19 exposure at the plant so that, ultimately, the 20 information could be u sed to determine whether or not 21 the current plant leve ls or the current guidelines t ... 72851 1 were consistent or inconsistent with those particular 2 results . 3 MR . HOFFMAN : Well, if I may approach, Your 4 Honor? 5 THE COURT : Go ahead, please . 6 Q Let me hand you what you referred to, what was discussed with you as Plaintiffs' v-17 and 0-30, 8 sir . 9 In those two documents from 1940 -- what is 1u it, '43 and '44? I'm not sure of the dales on it . 11 A Yes, sir . 12 Q In those two documents, what they say in 13 there essentially is we have a new material . We waist 14 to know about the air- hygiene aspects of the material . 15 We want do you do some studies on it, and 16 we want to know -- we want you to design the studies 1'7 so you can tell us whether there is going to be any 18 problems in connection with the manufacturer of this .1.9 product or in connection with the use of it out in the 20 field, correct? 2.1 A Yes, sir . 7286 1 Q Nothing in those letters which says 2 anything about relating it to the conditions in the 3 plan, relating it to threshold limit values or 4 anything like that, correct'? 5 A Well, it's asking .for an evaluation of the 6 hazard in the plant and where the material would be 7 used . 8 Q Right . And I don't mean to be a wise -9 some people would start the word with an A, but I'll 10 say guy . T don't mean to be a wise guy, but the 11 people were working in the plant, not guinea pigs or 12 rats, right'? 1-3 A Right . 14 Q And people were using the product out .iii the 1.5 field, not guinea pigs or rats, correct? 16 A Correct . 17 Q So the studies were designed with animals, 18 knowing full well you couldn't intentionally expose 19 people to the product, the study was designed with 20 animals by the laboratories because they wanted to do 21 the best they could to design an experiment that would 72871 1 give information that would be helpful or 2 translateable to the human experience, correct? 3 A Well, the animal studies used the maximum 4 concentrations to which life can still be sustained to 5 determine whether or not any adverse effects would be 6 produced, but that's not all Saranac did . 7 Saz'anac also looked at the industrial 8 hygiene of the plant, also looked at the medical 9 status of the employees of the plant, so it wasn't 10 just the animal testing, it was a combination of the 11 animal testing, as well as the experience at the 12 plant . 13 THE COURT : On that note, we'll take our 14 lunch .recess, and we will return, continue the 15 cross-examination, Mr . Hoffman, at 2 :30 . 16 MK . HOPFMAN : Thank you, Judge . 17 THE COURT : Members of the jury, don't 18 discuss the matter among yourselves . Be back iii the 19 jury room so we can start at 2 :30 . Have a good lunch . 20 Doctor, don't discuss the matter with 21 anyone . You're still subject to examination . If you r .. '72881 1 will be back in your seat, along with counsel in their 2 seats, at 2 :25, we will begin again at 2 :30 . 3 (Whereupon, the jury left the courtroom .) 4 THE COURT : Haves a good lunch, counsel . 5 (Whereupon, luncheon recess .) 6 THE COURT : Be seated, please . Good 7 afternoon . 8 Bring the jury in, please . g (Whereupon, the jury entered the courtroom .) 10 THE COURT : Se seated, please . 11 A11 right, Mr . Hoffmaii, please . Continue, ].z 41 T' . 13 MR . HOFFMAN : Thank you, Judge . 14 BY MR . HOFFMAN : 15 Q Good afternoon, Doctor . 16 A Good afternoon . 17 MR . HOFFMAN : Your Honor, with your 18 permissio n, what I'd like to do is put a few documents 19 up on the screen to go over with Dr . Harbison . 2O THE COURT : Please . 21 Q Before I do chat, I wanted to ask -- Dr . 72891 c 1 Harbison, as I understand it, you were provided with 2 the transcript of the deposition of Mr . Hazard ; is 3 that correct? 4 A Yes, sir . 5 Q end documents attached to that deposition, 6 is that also correct? 7 A Yes, sir . 8 Q Did you ask Owens-Illinois counsel for 9 additional documents about Kaylo or Saranac Laboratory 10 or the dust experiments beyond what was attached to 11 the Hazard deposition? 12 A I did not . 13 Q Is there any reason you didn't inquire as to 14 whether there were more documents other than just what 15 was attached to the Hazard transcript? 16 A I don't know of more documents, so I didn't 17 ask for more documents . I mean, I don't know that 18 more exist . 19 Q The lawyers at Owens--Illinois didn't offer 20 you any additional. documents about Kaylo dust or 21 Saranac ; is that correct? 7290 1 A That's correct . 2 Q What I will ask you to do, Doctor, is -3 come nn down . After you get into the front area 4 there, .I' .11 get the screen set up for us . 5 MS . MORETZ : What exhibit numbers are you 6 going to be talking to him about? 7 MR . HOFFMAN : The first one is the March 12, 8 '43, exhibit . 9 THE COURT : Who's going to be Vanna? 10 MR . HOFFMAN : Probably me, Judge . 11 THE COURT : You're going to do double duty . 12 MK . HOFFMAN : The first one is -13 THE COURT : There's a chair there for you to 14 sit down, Mr . Hoffman . 15 MR . HOFPMAN : Thank you, Judge . I'll 15 probably stand, if it's all right . 1'7 4 Doctor, let me ask you to take a look at 18 this first exhibit, which is 0-20 . 19 Were you provided with this Marsh 12, 1943, 20 letter from Dr . Gardner at the Saranac Laboratory to 21 Mr . Bowes, the director of research at 72911 1 Owens-Illinois? 2 A Can I get closer? I cannot see that . 3 Yes, I was provided with it . 4 Q Now, T think you were asked a question about 5 this paragraph which says the fact that you are 6 starting with a mixture of quartz and asbestos would 7 certainly suggest that you have all the ingredients 8 for a first class hazard ; however, the particle size 9 of the former will, of course, be determined . 3.0 You read that as one of the -- in the 11 materials you were given ; is that correct? 12 A Yes, sir . 13 Q Aid I think, if I wrote my notes down 14 correctly, you went on to say that you can't make any 15 assumptions about the toxic qualities of Kaylo based 16 on that statement, that it was a first class hazard ; 17 is that correct? 18 A I don't think I was asked about that 19 particular statement . I think the question was, if 20 you mix materials together, can you make an assumption 21 as to whether or not the materials would have a F M... '72921 1 particular toxic effect, and my answer was no . 2 Q You would agree, would you not, with Dr . 3 Gardner -- well, let me ask you this . You certainly 4 would agree, wouldn't you, that Dr . Gardner, who was 5 at the laboratory, who was there .in the 1940s, who was 6 corresponding with Owens-Illinois, was in the best 7 position to advise Owens-Illinois of what was going on 8 with its product? 9 A I don't know if he was in the best position 10 ox' not . I mean I don't know the answer to that 11 question . He was certainly there and certainly had 12 information . 13 Q All right . Well, let's take a look, if we 14 can -- why don't I hand it to you first . 7.5 Were you provided with a copy of what's in 16 evidence as Plaintiffs' 0-18? 17 A Yes, sir . 18 Q All right . Thank you . 19 This .is Plaintiffs' 0-18 from February 23 of 20 1943, another letter from Dr . Gax'dner to Mr . Bowes at 21 Owens-Illinois . 7293) 1 And he's talking here about the calcium 2 silicate material, which is the Kaylo, that they are 3 in the process of considering production for ; .is that 4 correct? 5 A It's one of the ingredients, yes, sir . 6 Q Right . Calcium silicate is one of the '7 ingredients in the material? 8 A That's correct . 9 Q Along with the asbestos? 1U A That's correct . 11 Q Now, Dr . Gardner told Mr . Bowes at that L'1, time, I would suspect, and he is referring now to the 13 material s, T would suspect they might be a source of 14 respiratory difficulty, but that point cannot be 15 answered until we obtain considerable more 16 informat ion . Correct? 17 A I'm sorry . Is that a question? 18 Q That's what it says there? 19 A Yes, sir . 20 Q And you read that? 21 A Yes, sir . 72941 1 Q All right . Now, at the same time in 1943, 2 Dr . Gardner advised Mr . Bowes that, because of the 3 nature of the product, that Dr . Gardner would regard 4 it with suspicion, and he recommends that you see that 5 those who are working .in the pilot plant or otherwise 6 exposed were protected by respirators if there are 7 appreciable concentrations in the atmosphere . 8 Again, this is a document you were provided 9 with and that you read, correct? 1U A Yes, sir . And you would agree that that was a good 12 recommendation at the time? 13 A Yes, sir . 14 Q Now, last week and this morning we looked at 15 a series of reports from the 1945, '46, '47 on what 16 was happening with the animal experiments . 1'7 Would it be fair to characterize those as 18 progress reports on the Kaylo studies? 19 A Yes, sir . 20 Q And what those progress reports basically 21 . showed was that during the first 6, 12, 18, 24, 30 '1295 1 months of the experiments, it appeared that the Kaylo 2 dust was inert, not causing any serious health 3 problems, correct? 4 A Yes, sir . 5 Q Now, as a toxicologist, and I think you've 5 told us the concept of latency is an important one 7 with regards to toxicology or harmfulness of various 8 materials, because if you do a study on something, and 9 you don't wait long enough for the injury to show up, 10 if there's a long latency period, then your study may 11 not be valid, is that fair to say? 12 A At the beginning of that, you said that T 13 said latency was -- I don't think I said that . 14 Certainly latency is an important consideration, but 7.5 in these animal studies, the studies were for a long 16 time, essentially the lifetime of the animals . 1'7 Q Right . Now -- and, of course, you recall 18 that Mr . Hazard was the industrial hygienist for the 19 Owens-Illinois Company, correct? 20 A Yes, sir . That's correct . 21 Q And let me show you Exhibit U-22, a speech 72961 1 of Mx' . Hazard, and ask you if you were provided with 2 that document, sir . 3 A I don't believe so . 4 Q All right . Well, this is in evidence as 5 Plaintiffs' 0--2'2. . 5 Let me ask you if you would agree with this statement of Dr . Hazard, and I'll put it up here for II all of us to read . Actually Mr- . Hazard, T guess, not ti Doctor . 10 By the way, would you agree with ms, Doctor, 11 that someone like yourself who has advanced training, 12 with a master's degree and a doctoral degree .From a 13 respected institution of higher education, is 1.4 certainly deserving of the term doctor? 15 You don't have to just be a medical doctor 16 to be deserving of that title, woul.dn't you agree? 7. "1 A Well, it's not whether you deserve it or 1.8 don't deserve it . It's whether you earn it . Some 19 people may be very --ZO g You're absolutely right . 21 A -- deserving of it but haven't earned it . 72971 ,. 1 Q You're right . If you -earn and you get that 2 degree, whether it be from Johns Hopkins or from the 3 University of Florida, or from wherever, a person who 4 earns that degree is deserving of being called doctor, 5 correct? 5 A I can agree with the first part of, that, and then you said wherever . I don't know what wherever 8 means, but certainly Florida, Johns Hopkins, that is 9 the case . 1v Q Okay . Now, let's take a .look at this 11 exhibit, and I'm going to direct you over here to 12 these comments by Mr . Hazard about the animal 13 experiment protocol that was developed by Dr . Gardner 14 at Saraiiac Lake . 15 You recognize the name of Mr . Durkin as well 16 as being one Of the scientists at the Saranac Lab that 17 participated in the Kaylo studies? 18 A Yes, six' . That's correct . 19 Q And he says Mr . llurkin has reported on 20 animal -experiments conducted by him and Dr . Gardner in 21 which animals lived in a dust room for several hours a 72981 1 day over a period of months exposed to as high a 2 concentration of airborne glass wool dust as could be 3 obtained . No hazard to the lungs was found . 4 These experiments carry conviction where the 5 technique was one which has been developed by Dr . 6 Gardner, Mx' . Durkiri and their associates through '7 recent years to a point of great reliability in 8 predicting lung damage or absence of it in humans . 9 Now, first of all, would you agree with Mr . 10 Hazard, sir, that the Saranac Laboratory, Dr . Gax-dner 11 and Mr . Durkiri, had developed their work with animals 12 to the point where it was '-- where they were able to 13 use it with great reliability in predicting lung 14 damage or absence of it in humans? 15 A I don't know the answer to that because T am 16 not familiar with those studies . 17 Q All right . You are familiar with the fact, 18 are you not, that when they produced this new 19 fiberglass product, they used animal experiments for. 70 purposes of then trying to convince the public that 21 there was nothing wrong with fiberglass? 72991 1 A I am not familiar with that . 2 Q It is your understanding that the purpose of 3 the Kaylo dust studies was to experiment on the 4 animals and then use it, use the results of the 5 experiments with great reliability to predict lung 6 damage or the absence of it in humans? That you do 7 agree with? That was the purpose of the Kaylo 8 studies, in your opinion, from reading the documents'? 9 A I wouldn't agree with the way you placed 10 that, that is great reliability . Certainly the animal 11 studies were part of. an overall evaluation of the 1.2 effects of this material and would be used ultimately 13 for determining whether or not there was a potential 14 problem associated with the use of this material in 15 humans . 16 Q All eight . Let me hand you what's in 17 evidence as Plaintiffs' 0-39 . This is a retyped 18 version . I have the original here if you'd like to 1.9 see it . 20 You are familiar with and have reviewed that. 21 document, correct? This is the October 30, 1y48, 73001 1 report to Owens-Illinois . 2 A Yes, sir . 3 Q And this is the report after 36 months, 4 which, in fact, shows that the animals developed 5 scarring of the lungs, also called fibrosis, and 6 because it was caused by asbestos, termed asbestosis, correct'? 8 A Yes, sir . 9 Q If I can take that . I don't mean to make 10 this into a visual acuity test . 11 On the very first page of the report, the 12 author's, in fact, start at. the top by referring to the 13 fact that a year ago in their interim report they 14 basically said that they hadn't found any problems as 15 of yet . 3.6 Is that a fair characterization? 1 7 A Yes, sir . 18 Q And they thin go on to say the original 19 experiment's been completed and the conclusions drawn 20 are based upon full three-years exposure, more than 21. just 30 months now, correct? 1 1111 73011 1 A Yes, six' . 2 Q And they say this experiment constitutes an 3 example of the .importance of such prolonged study, 4 where as is to be shown below, the findings at three 5 years were strikingly different from those at two and 6 a half years . 7 And what was strikingly different was at two H and a half years, it didn't appear there would be a 9 problem from Kaylo dust, and at three full years, 10 asbestosis had developed in the animals? 11 A Yes, sir . 12 Q And then, finally, they say it will be shown 13 below -- and they're referring to this report, are 1.4 they not 15 A Yes , sir . 16 Q -- that Kaylo is capable, on prolonged 1'7 inhalation, of producing asbestosis in the lungs of 18 guinea pigs and that it should be handled .industrially 19 as a hazardous dust . 20 They are referring there, are they riot, sir, 21 to handling it industrially as a hazardous dust when 73021 1 it's used around people, not around guinea pigs? 2 A Yes, sir.' . 3 Q Now, let me show you page 5, if I can, of 4 this, sir . 5 There is a reference in this same report 6 from October of 1948 . They say the laboratory -- and 7 they're referring to Saranac there, am I correct -8 A Yes, sir . 9 Q -- has recently completed a large amount of 10 work with asbestos which has been reported to certain 11 other supporting companies but not as yet published . 12 The following discussion of the problem .is 13 drawn largely from that work, and we would request 14 that those comments be considered confidential . 15 It is felt that the following information 16 may be of aid to the Owens-Illinois health department 17 in formulating a safety program, which certainly is 18 necessary in view of the results of this Kay1o 19 experiment . zo Now, your understanding from that, sir, was 21 that the results of the Kaylo experiment were such 7303 1 that Owens-Illinois needed to formulate a safety 2 program fox- its own employees if they were in areas 3 where Kaylo dust might be released into the air, 4 depending on the quantity? 5 A Yes, it would be important in continuing the 6 safety program that they already had or in revising 7 the one that they had . 8 Q And the one that they had included exhaust 9 equipment, ventilation, X-rays for worker's, 10 information and education to workers iii the plant? 1i A Yes, sir . It included all those things . 12 Q Now, did you see that they also r'epor'ted in 13 this, sir, and what they are talking about here is :4 reference to additional work that this laboratory had 15 done, and they say certain investigations have 16 indicated that a seemingly negligible proportion of 17 fibrous asbestos is sufficient to produce the 18 characteristic reaction . 19 What does that phrase mean, a seemingly 20 negligible proportion of fibrous asbestos? 21 A A small amount of fibrous asbestos . 73041 1 Q Is sufficient to produce the characteristic 2 reaction would refer to asbestosis? 3 A Yes, sir . 4 Q Thus, an inhalation experiment was carried 5 out with ball .-milled asbestos in which an attempt was 6 made to eliminate all .fibers with the material . As a toxicologist, you understand that to 8 mean that they took some asbestos and they tried to 9 get rid of all of the fibers that way contained in the 10 sample, correct'? 11 A Yes, sir . 12 Q And as a toxicologist, is it your 13 understanding that .it's the fibers which are harmful 1.4 when breathed in'? 15 A Yes, sir . 16 Q And dust can come in a couple of different 17 shapes . You can have long thin pieces, which would be 18 fibers, and you can have sort of round pieces, which 19 might be referred to as particles, or square pieces or 20 whatever they are, but not long and thin like fibers ; 21 is that fair to say? 7305 1 A Sorry, I didn't quite understand that . They 2 can come .in different forms . 3 Q Right . For instance, Kaylo dust, you can 4 have asbestos fibers in the dust and you can have 5 particles that aren't fiber in shape . 6 What they did here was they tried to get rid 7 of all the fibers, see what would happen if you 8 breathed dust that didn't . contain any fibers . 9 A Yes, sir . 10 Q But they couldn't get rid of all of the 11 fibers, correct? And, .in fact, it was found to be 12. impossible to break up all of the fiber, and about 1 13 percent of- the air-suspended dust consisted of fibers . 14 And they went on and they did an experiment, 15 and what they found was characteristic peribronchiolar 7.5 Fibrosis . That's asbestosis, correct? 17 A Well, it's fibrosis . Yes, it's consistent 18 with asbestosis . 19 Q And even where only 1 percent of the total. 20 dust way fibers, the animals still got asbestosis . It 21 just took 40 months now instead of 36, correct? 7306 1 A Yes, sir, that's for asbestos, exposure to 2 asbestos . 3 Q Right . And what the authors of this report 4 said to Owens-Illinois was that, thus, it appears that 5 very small numbers of fibers are capable of producing 5 asbestosis, although the development of the lesion is delayed . 8 That is a statement basically, is it not, 9 that the more fibers in the dust, the sooner the 1U disease shows up . The less fibers in the dust, the 11 longer it takes for the disease to show up . 12 Isn't that basically what that says? 13 A I'm sorry? 14 Q I'll try and sharpen that up for you . 1.5 A I'm sorry . The question is? 16 Q Sure . This statement where they say it 17 appears that very small numbers of fibers are capable 18 of producing asbestosis, although the development of iy the lesion is delayed . 20 In other words, it took 40 months where only 21 1 percent of the dust was fibrous instead of 36 73071 1 months, where they used iii the regular Kay1o study, 2 this is a demonstration of the fact that, if there is 3 only a small amount of fibers in the air, only 1 4 percent here, it takes a longer period of time for the 5 disease to show up than if there's a larger number of 6 Fibers in the air, correct? 7 The more harmful material in the air, the 8 sooner the disease shows up . The less harmful 9 material in the air, the longer- .it takes for it to 10 show up . 11 A Certainly, that .is an example of a dose 12 response relationship, and yes, the more that's in the 13 air, the more likely you are to get the disease over 14 some period of time . 15 The problem I'm having with your question is 16 I don't think this paragraph refers to Kaylo . 7.7 Q Well, let's go to the next sentence, sir . 18 A It refers to asbestos, and you're sort of -19 Q [ think you're right . Up to now we have 20 just been talking about using asbestos . 21 A Right, but your questions were with regard 73081 1 to Kaylo, and that's not correct . 2 4 Okay . Well, that's good . But it is true, 3 is it not, as Dr . Gardner said at that time, if we 4 take a look at the next sentence, the present 5 experiment with Kaylo is also an example of this fact? 6 A Yes, it is an example of that, that is, you 7 didn't see anything at 30 months and you did see 8 something at 36 months . However, the Kaylo was less 9 potent than a corresponding amount of asbestos, so 10 there was a reduction in the potency of the Kaylo as 11 compared to the pure asbestos, and I think what you 12 read earlier on is for the pure asbestos . 13 Q 'Take your time, if you would please, Doctor, 14 acid find for ms where in that report it says that 15 Kaylo is less potent than the pure asbestos, and I'll 16 be happy to wait as long as you need . 17 A Okay . It's not in this report, it's in a 18 subsequent letter . 19 Q Okay . Let's get to that . 20 Let's go to, if we can -- by the way, just 21 on the last portion of. this page, there is a 73091 1 reference, is there not, sir, to the fact --~ actually 2 a recommendation by Dr . Gardner where he says that 3 Kaylo, because o an appreciable amount of fibrous 4 chrysotile, is capable of producing asbestosis and 5 should be handled as a hazardous industrial dust . 6 Do you see that? 7 A Yes, sir . 3 Q Is there any place in this report anywhere 9 where Saranac says to Owens-Illinois, you don't have 10 to handle it as a hazardous industrial dust if you are 11 below five million particles per cubic foot? 12 Does that appear anywhere in this report? 13 A In this report, it does not . 14 Q Okay . Let's go to the letter of transmittal 7.5 which follows immediately after this, if we can . This 16 is v-40 . 17 '.Ch .is is 0-40 from November 16, 1948 . This 18 is the letter to which that last report was attached 19 when they sent it to Mr . Bowes at Owens-Illinois ; .is 20 that your understanding? 21 A Yes, sir . 7310 1 Q All right . November 16, '48 . And I'm going 2 to come down here . 3 Again, they refer to the fact that -- they 4 talk about up to 30 months they had a tentative 5 conclusion . 6 The tentative conclusion was that Kaylo 7 alone failed to produce significant pulmonary damage, 8 but then during the 30 to 36-month period, they found 9 definite indications of tissue reaction . 10 That's what they communicated there, 11 correct? 12 A Yes, sir . 13 Q And they told them that their tentative 14 conclusion had to be altered . They told them that 15 Kaylo, on inhalation, is capable of producing 7.6 asbestosis and must be regarded as a potentially 17 hazardous material . 18 Now, is it your understanding -- did you 19 also read the portion of this letter where they told 20 Owens-Illinois that they could use the findings here 21 in formulating a safety program, right here? 7311 1 A Yes, sir . 2 Q And on the second page of this letter, Dr . 3 Vorwald tells Mr . Bowes, I realize our .findings 4 regarding K.ay1o are less favorable than anticipated . 5 However, since Kaylo is capable of producing 6 asbestosis, it's better to discover it now in animals 7 rather than later in industrial workers . 8 And, in fact, what we have seen in the 1980s 9 and 1990s are cases of asbestos disease in industrial 10 workers using Kaylo and other products, correct? 11 MS . MORETZ : Objection, Your Honor . 12 THE COURT : If he knows . Overruled . 13 You can answer if you know, sir . 14 A Am I familiar with the tact that asbestos 15 can produce asbestosis? 16 Q No . Are you familiar with the fact that 17 Kaylo asbestos insulation, pipecovering and block 18 material has resulted in causing asbestosis, :lung 19 cancer and mesothelioma in people in the 1980s and 20 1990s? 21 A I am riot aware of that . 7312' 1 Q You're not aware of that? 2 A No, sir . 3 Q Now, the last thing the company was told in 4 this letter was, thus, the company, being forewarned, 5 will be in a better position to institute adequate 6 control measures for safeguarding exposed employees 7 and protecting its own interests . 8 You read that as well, correct? 9 A Yes, sir . 10 Q And you then saw additional documents 11 following this where the company -- where there axe 12 back and forth communications about, again, 13 ventilation, exhaust, and I guess what would be called 14 control measures for safeguarding exposed employees ; 15 is that fair to say? 16 A Yes, it is . 17 Q Let's go to what's in evidence as v-44 . Let 18 me hand you that and ask you if you were provided with 19 that document, 0-44, I think, June 1, 1950 . 20 A Is this an exhibit to the Hazard deposition? 21 Q I don't know if it's an exhibit to the f .... 73131 1 Hazard deposition or not, Doctor . It is an 2 Owens-Illinois document that's in evidence in this 3 case . That's why I was asking you if you had seen it, 4 sir . 5 A I don't recall specifically . If it's not an 6 exhibit to the Hazard deposition, then I don't think I saw it . 8 Q A11 right . Let me ask you to take a look at 9 it now, and :['m going to go to the second page, 10 although I'm happy for you to, and I want you to have L1 a chance to look at the whole thing, if you'd like . 12 This is another letter, again from Dr . 13 Vorwald . 1A What had happened, as .1 understand it, 15 Doctor, is that Dr . Leroy Gardner had been the 16 director of the laboratory . He died, and Dr . Arthur L "7 Vorwald took over and continued the dust experiments 18 on Kaylo . 19 Is that your understanding? 20 A Yea, sir . That's right . 21 And .in June 1950, Dr . Vorwald wrote to Mr . 73141 1 Hazard, and among the things he told him was, Kaylo 2 dust on inhalation by experimental animals does not 3 produce silicosis, irrespective of the small amount of 4 quartz present . 5 As a toxicologist, Doctor, it's your 6 understanding that the disease silicosis is different 7 from the disease asbestosis, correct? 8 A Yes, sir . 9 Q Then Vorwa .ld goes on to tell Mr . Hazard it 10 does produce the asbestotic type of reaction in the 11 lungs, and, therefore, we believe every precaution 12 should be taken to minimize exposure of industrial 13 employees . 14 Do you see that, sir? 15 A Yes, sir . 16 Q [Vow, you would agree, would you not, that, 17 again, the phrase we believe every precaution should 18 be taken to minimize exposure of industrial employees 19 means that every precaution should be taken to reduce zo the exposures of industrial employees to the lowest 21 levels possible"? 73151 1 A Or to those levels which are not associated 2 with an increased likelihood of harm . 3 Q All right . And, again, why don't -- I'd be 4 happy to hand you back this document . 5 Is there any place in this document where 5 there is any suggestion about what doses are good or what doses are bad or that it's okay to expose 8 employees to certain amounts? 9 A There is no specific indication of an amount 10 in this letter . 11 Q All right . Now, one of the things that 12 you -- one of the things that I thought you testified 13 to this morning was that the threshold limit value was 14 a level below which it would be appropriate to believe 15 that no one would develop any disease if you kept 16 exposures at or below that level, is that correct? 17 A Yes, sir . 18 Q And, in fact, didn't Saranac tell 19 Owens-Illinois just the opposite of that in the 1950s? 20 A I do riot know the answer to that . 2 7. Q Let me show you what's in evidence as 7316 1 Plaintiffs, -- I think it's in evidence as 0-56 . 2 I'm sorry . This document is in evidence as 3 OI Defendant Exhibit 45 . It's also marked as my 56 . 4 You received this May 1951 document, didn't 5 you? 6 A Yes, sir . Q Let's put that paragraph up on the board, 8 if we can, for the ladies and gentlemen of the jury, 9 and go through .it together . 10 I'll take off my editorial . 1 .1 This says -- and this is from Saranac to 12 Owens-Illinois, correct? 13 A Yes, sir . 14 Q May 29, 1951 . It says the maintenance of 15 the working environment in a condition which conforms 16 to regulations promulgated by local health agencies or 1'7 which is in accord with accepted standards of good 18 practice . is Now, I believe you've already testified that 20 it's your impression that in 1953. in the State of New 2 :1 Jersey, where this plant was, that the threshold limit. 7317 1 for asbestos dust was five million particles per cubic 2 foot, correct? 3 A Yes, sir . 4 Q And so that would be the regulations 5 promulgated by local health agencies, correct? 6 A Those would be the gui.del .ines . I don't think they were regulations, but they were guidelines . 8 Q All right . What is said in this report by 9 Dr . Vorwald is that maintenance of the working 10 environment in a condition which conforms to 7.1 regulations promulgated by local health agencies or 12 which .is in accordance with accepted standards of good 13 practice should not -- should not be considered as a 14 complete protection fox' a worker from acquiring a 15 disease as a result of his occupation . 16 You read that, did you not? 17 A Yes, sir . 18 Q And that's a recognition on the part of Dr . 1-9 Vorwald that threshold limit values are not, as T 20 think you agreed before, are not fins lines between 22 safe and dangerous, correct? 73181 1 A Well, I wouldn't agree with that . L Chink 2 what he is saying is that that isn't the only 3 consideration in the workplace, that there are other 4 exposures, there are other dangers in the workplace . 5 So simply using a threshold limit value G would not be the only consideration for -- it says 7 result from his occupation . That is all the things 8 that he does in his workplace . 9 Q Well, in terms of the -- all of these 10 reports have been about asbestos and Kaylo, correct? 11 A Well, they have been about silica . They 12 have been about ocher substances as well., riot just 7..3 asbestos . 14 Q Bur it' s been established that the dust 15 didn't cause any silicosis, correct? 16 A That's right, in the experimental testing or 17 it . 18 Q Right . 19 A But, remember., in the manufacture of the 20 product, there must. be silica and other materials that 21 are put: together in the mixture to make a product . 73191 1 So the only exposure of [here. individuals is 2 not just to Kaylo, it's to other materials that are 3 used as ingredients in that product. . 4 Q Well, was there a silicosis hazard from the 5 Kaylo dust, sir? 6 A Not from the Kaylo dust . '7 Q Now, Dr . Vorwald goes ors to recommend at the 8 Kaylo plant that they have -- a medical program be 9 maintained, with pre-employment examinations, chest 10 X-rays, that's roentgenograms of the chest . 11 And he says such a program should reveal 12 individuals who axe unfit for employment in a dusty 13 trade . 14 Of most importance, any case of disease 15 which might develop in the .regularly employed workers 16 would be found early before it becomes a serious 17 health problem to the individual and a liability to 18 management . 7.9 That's part of the considerations you gave 20 here, .is that not? You considered these statements in 21 the opinions you reached? 73201 1 A Yes, sir . 2 Q Now, in this same report, if I'm not 3 mistaken, counsel for Owens-Illinois and you reviewed 4 a chart that -- I'm not sure of the page . Page 4, I 5 guess, of the report . 5 Let me put that up, if I can . 7 Do you recall this chart that you reviewed? B A Yes, sir . v Q Now, Sample 6P. is referred to as boxcar and 10 trunk . Do you see that? 11 A Yes, sir . 12 Q Or truck . I'm sorry . Boxcar and truck . L3 A Yes, sir . 14 Q And they say that 27 to what -- 39 percent 15 of the total dust is asbestos? 16 A Yes, sir . 17 Q All right . And they have no entry for total 18 amount of dust that was found, correct? 19 A Right . 20 Q Have you asked Owens-Illinois' counsel for 21 any of the additional documents which show how much 73211 1 dust was generated from the process of loading Kaylo 2 into boxcars or trucks? 3 MS . MORETZ : Objection, Your Honor . 4 THE COURT : Overruled . 5 A I asked if there were any numbers, and I did 6 not rece ive any . 7 Q A7.1 right . Let me show you what is in 8 evidence here, if I can, sir, as Plaintiffs' 0-62 and 9 ask you if you were provided with that document . 10 A So your question is , did z receive this? 1.1 Q Yes, sir . 12 A C don't= believe so . 13 Q A1 .1 right . If T can take that from -14 A Sorry . If you would give me just a moment . 15 Q Sure . Feel free . 16 A I do riot have this document . I don't 1.7 believe I have this document . 18 Q What T wanted to do was to show you this 19 section on page 2, if I could . This is from page 2 of 20 the Apri l 8, 1952, letter, last or second to last 21 paragrap h . 7322 1 Our research laboratory also analyzed sample 2 number 5 and found it to contain 12 .9 percent 3 asbestos . This falls within the range of amosite and 4 chrysotile content that you found . 5 The asbestos content of this sample which 6 represents conditions during the loading of boxcars 7 with Kay1o roof file is important because the dust 8 concentrations are around 40 to SO million particles 9 per cubic foot . 10 Have you ever been provided with any 1 :1 information by counsel for Owens-Illinois other than 12 this, which we know you didn't get, which indicated 13 that the use of Kaylo or handling of Kaylo generated 14 total dust of 40 to 50 million particles per cubic 15 foot? 16 Have you ever been provided with any other 17 indications of that? 18 A Well, in the report that we just discussed, 19 there was an estimation of 40 to 50 million particles 20 per cubic foot of air as being associated with the 21 boxcar activity . 7323 1 Q Right . So then this is confirmation of that 2 estimation? 3 A Yes, six . 4. Q And in the report where they estimated 5 that -- and we'll just go back . G In the report where they estimate boxcar levels at 40 to SO million, the total dust in there 8 is -- total dust would be 40 to 50 million, and a asbestos would be 27 to 39 percent of that, correct? 10 A In the estimation, yes . In the document you 11 just showed me, it was about 12 percent . So the 12 estimation was obviously off . 13 Q Right . But either way, above the threshold 14 limit value? 15 A Oh, no . 10 percent or 12 percent of 40 to 16 50 million would be about 4 to five million . 17 Q Well, it was 12 .9, and tell me, if you 18 would, please, what is 12 .9 percent of 50 million . 19 A Well, 10 percent would be 5 million, so 12 .9 20 would be a little bit higher than 5 million . 21 Q Above the threshold limit value? 73241 1 A It would be slightly above, yes . 2 Q And if it's above the threshold limit value, 3 certainly workers ought to be informed of the need or 4 opportunity to take precautions to protect themselves . 5 You would agree with that, wouldn't you? 5 A Well, it depends on how long above the 7 threshold limit value it is and the magnitude above 8 the threshold limit value . 9 If it is slightly above the threshold limit 1U value, again, .it's riot a bright line that exists 11 between no hazard and some hazard arrested ox' some 12 likely increased to risk of harm, so it depends on 13 how much above . 14 Q Why does it matter how much above, Doctor, 15 before you're willing to tell people that it's 16 dangerous? 1'7 Why does it make any difference how much 7.8 above it goes before you're willing to .inform 19 employees or workers that there's a danger? 20 Aren't the workers entitled to know there's 21 a danger? 73251 1 A Only if there's a danger, and the reason it 2 matters is whether there is a real danger or not, so 3 how much above it is would make a difference . 4 Q A7 . :1 right . Let me ask you if you've seen 5 this document . This is in evidence as 0-83 .1 . 6 A This is not an attachment to the Hazard 7 deposition . 8 Q Correct . It is not . 9 A [ don't believes :[ have seen this . 10 Let me show you, if I can, please, from 11 0-83 .1 . Start with the first page, which is a retyped 12 version . 13 This includes -- Dr . Harbison, this is from 14 a dust study done at the Owens-Illinois Kaylo 15 Division, Berlin, New Jersey, April 28th and May 2nd, 15 1958 . 17 The purpose of the visit was to determine 18 the employee exposure to dust in production 19 operations . You'll notice that among the contacts 20 present were Mr . Gardner, safety director for 21 Owens~~Illinois . 73261 1 I'm going to go down to Air Sample Number 3, 2 horizontal splitting saw for Kaylo . This is taken at 3 the breathing level of the operator separating the 4 pieces as they came through the saw . 5 Taken between the saw and the operator, the 6 level is 91 .8 million particles per cubic foot of_ air . 7 Sample Number 4, flatware finishing . Do you 8 understand that to be where they would trim the pieces 9 of Kaylo as they came down the production line? 10 A I don't have any understanding of that 11 process . 12 Q All right . Taken at breathing level of 13 operator feeding flatware to the turn saw, 46 .3 14 million . particles per cubic foot of air . 15 You would agree that both of those 16 exposures, as set forth here, Doctor, are hazardous 17 industrial exposures fox' workers, correct? 18 A No, I wouldn't agree with that . I don't 19 know what those numbers are . Is that total dust? 20 Q All right . Well, let me ask you this, sir . 21 You would agree, would you not, at least, that that 73271 1 91 .8 million particles is a dangerous -- dangerously 2 high dust count? 3 A No, I wouldn't agree with that . Lt is a 4 nuisance dust count . 5 That certainly, if it's at that level, it's b going to be a nuisance to the worker as getting in the 7 eyes and nose and causing coughing and irritation . S Q But no big deal 'cause it's just a 9 nuisance? Sort of like a dog barking at night? 1U MS . MORETZ : Objection, Your Honor- . 11 Argumentative . 12 THE COURT : Overruled . 13 A No, it wouldn't be like a dog barking at 14 night . It would cause a nuisance, it would cause 15 irritation of the eyes, nose, coughing and so forth . 16 Q But certainly, in your opinion -17 THE COURT : Let him finish . 18 Q S didn't mean to interrupt . 19 A Let me finish . 20 Without knowing the particle sizes, whether 21 it's re7pirable or not, there it may not be a 73281 1 particular hazard . 2 Q But certainly, .in your opinion, this is not 3 a dangerously high count, correct? 4 A Well, based upon just dust alone, if .it's 5 not respirable, it would certainly be a nuisance, but 6 it may not be a hazard . 7 Q All right . Let's look at page -- I'11 get 8 the page for you in just a minute . Let's continue on 9 with the same document . This is Plaintiffs' 0-83 .1 . 10 Now, let me show this to you, if I can, 1 :L Doctor . This .is prepared by the Aetna Insurance --12 Aetna Life and Affiliated Companies, Special Hazards 13 Dust Survey, is that correct? 14 A Yes, sir . That's correct . 15 Q Acid what t he industrial hygienist from Aetna 16 told Owens-Illinois in this document is that Air 1'7 Sample Number 3 shows a dangerously high count . 18 You don't agree with that, do you? 19 A Well, you just. asked me that question and I 20 said that it depends on what the particle size is . IC 21 may not be a hazard .if its not respirable . It will 73291 1 certainly be a nuisance in that it's likely to cause 2 eye irritation, nose irritation and difficulty with 3 regard to inhaling . 4 Q You would agree that asbestosis, lung cancer 5 and mesothelioma are more than a nuisance to a person, 6 wouldn't you? 7 A Asbestosis, mesothelioma and -8 Q And lung cancer . That's more than a 9 nuisance to a person? 7.0 A Yes, sir . 11 Q And they yo on to say here that in operation 12 here, which is splitting of flatware on a hand saw, 13 the man removing the pieces separates the two pieces 14 and the dust is due to his handling of the wax's . The 15 band saw itself does not create too great a problem as 7.6 it is equipped with a dust collector, which is working 17 quite effectively . 18 That would be in accordance with your 19 understanding of the fact that Owens-Illinois put on 20 vacuum equipment or exhaust equipment at the saws, 21 correct"? '7330 1 A Yes, sir . 2 Q Then they go on to say we .feel that an 3 exhaust system should be installed which will remove 4 this excessive dust from the breathing area of the S man . We noted that this operator was not wearing a 6 respirator . Use of a respirator for this operation should be mandatory . 8 You would agree, wouldn't you, Doctor, that 9 if someone is exposed to these kinds of dust levels, 10 91 million particles per cubic foot, it should be 11 mandatory to wear a respirator? 12 A Yes, sir . It will produce a nuisance, and 13 it would certainly be required to wear a respirator to 14 prevent, that nuisance . 15 Q Now, by the way, Doctor, if I can, as a 16 toxicologist, does the term allergy have a meaning for 17 you? 18 A Yes, sir . 19 Q What is an allergy, sir? 20 A An allergy is a reaction that occurs to a 21 substance that .is able to produce an antibody ox' that 7331 1 is an antigen, so it would be a response to a material 2 that is potentially allergenic . 3 Q So if a company manufactured Kaylo and told 4 people that they removed the asbestos from the Kay .lo 5 because the asbestos caused an allergic reaction in 5 some people, would that be accurate, sir? 7 MR . PFEIFFER : Objection . Scope, Your 8 Honor . 9 THE COURT : Overruled . 10 Q That wouldn't be accurate, would it? 11 THE COURT : You may answer, sir . 12 A Oh, I'm sorry . I didn't hear you . 1.3 Would it been accurate to say that, if the 14 asbestos was removed, that the allergenic properties 15 of the material --L6 Q No, sir . I'll rephrase it, try and make it 17 clearer . 1.8 Is asbestosis an allergic reaction? 19 A No, sir . 20 Q Ts lung cancer an allergic reaction to 21 asbestos when it's caused in connection with asbestos 73321 1 inhalation? 2 A No, sir . 3 Q Is mesothelioma an allergic reaction? 4 A No, sir . 5 Q You would degree, would you not, that common 5 folk, which I will include for everybody in the courtroom, don't tend to think of allergies as being 8 very serious reactions or responses to inhaled 9 substances, do they? 10 They think of it in terms of runny nose, 11 runny eyes, maybe some chest congestion . People don't 12 normally think of allergies as being things that will 13 kill you, do they'? 14 A I'm not sure I would agree with that: because 15 you can certainly have a reaction that results in 16 severe bxoncho-constriction, which can he life 17 threatening . 18 Q You cannot go to the drugstore and get any 19 Sudafed for mesothel .ioma, can you? 20 A No, sir . 21 Q You would agree, would you not, that to 73331 1 call --- that to say that asbestos was taken out of 2 Kaylo because some people were allergic to asbestos is 3 misleading and untrue? 4 Mk . PFEIFFER : Objection . 5 THE COURT : Overruled . 6 A I don't know the answer to that . 7 Q Now, I did want to ask you -8 MR . HOFF'MAN : If I can have just a moment, 9 Your Honor . 10 THE COURT : Go ahead, sir . 11 MS . MORETZ : Can the witness sit back down 12 in the chair? 13 MR . HOFFMAN : We're going to go over some 7.4 more in a moment . 1.5 Does anybody know our. exhibit number for the 16 OSHA -- 3811? 1'7 MS . MORETZ : What's the date of the 7.8 document? 19 MR . HOF'FMAN : It's June 1986 . 20 Q And I'll just put .it right up here, Doctor . 21 'Phil is in evi dence as Plaintiffs' U--3817 . -- 73341 1 Miscellaneous 3811 . 2 First of all, you're familiar with an 3 organization known as the Occupational Safety and 4 Health Administration? 5 A Yes, sir . 6 Q And that's known as OSHA? It's a branch of the Department of Labor of the United States 8 Government? 9 A Yes, sir . 10 Q Do you agree with the statement by OSHA, L1 sir, that -- where they say OSHA is aware of no 12 instance in which exposure to a toxic substance has 13 more clearly demonstrated detrimental health effects L4 on humans than has asbestos exposure? Would you agree 15 with that? 16 A Would I agree with that statement? 17 Q Would you agree that -- are you aware of any 18 instance in which exposure to a toxic substance has 19 more clearly demonstrated detrimental effects on 20 humans than asbestos? 21 A Well, I wouldn't agree with that statement, 73351 1 and I don't know what the basis is that OSHA used fox' 2 that statement . I don't know the answer to that . 3 Q All right . Have there been a lot of 4 studies, six', that demonstrate the toxic effects of 5 water'? 6 A Lots? There are a couple, two or three . 7 Q How about 3 or 4,000? 8 A There are not 3 ox' 4,000 to water . 9 Q How about for sugar? 10 A There are not 3 or 4,000 . 11 g How about for salt? 12 A No, sir . 13 Q Now, as a toxicologist, would I be correct 14 in assuming that you are familiar with the publication 15 of the Agency for Toxic Substance and Disease 16 Registry? 17 MS . MORETZ : What's the date of the 18 document, please . 19 MR, HOFFMAN : A 1991 document published by 20 the EPA . December 1990, I'm sorry, is the date on it . 21 Q Are you familiar with what's referred to as 73361 7. the ATSDR, for the Agency .for Toxic and -2 A Agency for Toxic Substance and Disease 3 Registry . 4 Q Are you familiar with the ATSDR for 5 asbestos? 6 A Yes, sir . 7 Q Now, let me ask you to go over to the B section on health effects of asbestos . 9 Do you see the reference there to the 1U very -- the very first article that's referenced 11 there? Do you see that? There's the name of an 12 author from 7.983 . 13 A Dement . 14 Q Yes . Do you know who Dr . John Dement is'? is A I do riot . 16 Q Are you referenced anywhere on the ATSDR for 17 asbestos, any of your writings or publications or 18 statements or anything? 19 MS . MORE'TZ : Asked and answered . 20 THE COURT : Overruled . 21 MR . HOFFMAN : Not about this specific 73371 1 document . 2 Q Are you referenced in this document? 3 A T don't think I'm referenced in this 4 document . 5 Q Now, let's go, if we can, to the question of 6 toxicity . 7 You would agree, would you not, that in 1948 8 and 1949 and 1952, Owens-Illinois was provided with 9 documents or wrote in documents that the purposes of 10 the Kayl.o study was to determine the toxicity of Kaylo 11 dust? 12 A I don't know . I'd have to see the 13 document. . 14 Q A11 right . Let's start with this first one, 15 and this i5 - we'll start with this one while we're 16 getting our papers together, Doctor . 17 Let's take a look at what :C think is in 18 evidence as defendants' 60 . Let's yo to the last 19 page . 20 27. M5 . MORE'PZ : Is that OS-60? Mk . HOFFMAN : Defendant Owens-Illinois 60, 1 73381 1 believe, april 26, 1948 . 2 Q This is a document you have seen ; .is that 3 correct? 4 A Yes, sir . 5 Q All right . Now, in this paragraph where I 6 have the yellow highlighting, they talk about the fact 7 that. they agree that their investigations have taken a 8 long time . 9 But the nature of the studies dictates 10 prolonged observations to snake as certain as possible 11 the potentialities of the dust when inhaled into the 12 lungs . 13 That is a reference, is it not, to the fact 14 that you have got to continue the experiments for the 15 appropriate time period before you decide that there 16 is no reaction to the Kaylo dust? 17 A Yes, sir . 18 Q And they say this can only be determined 19 after months of observation . It must be so by reason 20 of the fact that the daily increment of dust localized 21 in the lungs by inhalation are of very low magnitude . 73391 1 Did I read that correctly? 2 A Yes sir . 3 Q So what Dr . Vorwald is saying to Mr . Bowes 4 in this letter is that, whatever the amount of dust 5 that they may be putting in the air, the dust. 6 localized iii the lungs by inhalation are of very low 7 magnitude, correct? 8 A That's what he's saying, yes, sir . 9 Q All right . Now, you've never gone back and 1U looked at any of the slides of the lung tissue of the 1l. animals that they examined to see how much asbestos 12 was actually getting into their lungs, have you? 13 A I have not . 14 Q Now, he says here, believe me, it demands 15 extreme patience on our part to wait until the desired 16 period of time has elapsed to warrant positive 17 conclusions concerning the potential toxicity of dust 18 when inhaled . 19 He is referring there to the potential 20 toxicity of the Kaylo dust ; isn't that your 21 understanding? 73401 1 A Yes, sir . 2 Q That's 1948 . 3 MR . HOFFMAN : If I may have just a moment, 4 Your Honor . 5 Your Honor, at this time we would like to 6 mark, as Plaintiffs' 0-240 -- and I have one for your 7 clerk and for you . This is Plaintiffs' 0-240, 8 November 10, 1949, letter from Willis Hazard to Mr . 9 J .F . McMann . 10 MS . MORSTZ : This has not been introduced 11 into evidence ; is that what you're saying? 12 MR . HOF'FMAN : That's correct . 13 Q While you're reading that, Doctor, let me 14 ask you, have you ever seen this document before? 15 A No, sir . 16 MR . HOFFMAN : Your Honor, we'd move the 17 admission of Plaintiffs' 0-240 . 18 MS . MORETZ : Objection, Your Honor . The 19 witness has never seen the document . 20 THE; COURT : That's not a sufficient reason 21 to sustain the objection . I'll overrule it . 73411 1 MS . MORETZ : There is no authenticity or no 2 foundation . 3 THE COURT : Well, it's on Owens-Illinois 4 Glass Company stationery dated November 10, 1949, 5 signed by Mr . Hazard, who has already been identified 5 as the industrial hygienist for Owens-Illinois, so 7 I'll overrule the objection . 8 MS . MORETZ : I understand, Your Honor . 9 (Whereupon, Plaintiffs' Exhibit No . 0-240 10 was received .into evidence .) 11 U Doctor, first of all, let's yo to the first 12 page of. this document, about, oh, a year and a half 13 latex' . 14 Now, the previous document we just looked at 15 was Dr . Vorwald using the word toxicity with respect 16 to Kaylo dust, correct? 17 A I'm sorry . 18 Q That's all right . This is 1948 . Dr . 19 Vorwald writes and talks about the toxicity of Kaylo 20 dust, correct? 2 :L A Well, he's talking about the potential 7342 1 toxicity of Kaylo dust . That's what he's trying to 2 do, is to determine the toxicity . 3 Q Agreed . And this is -- but it was Dr . 4 Vorwald, not someone at Owens-Illinois, who used the S language toxicity, correct? 6 A That's correct . 7 Q Let's take a look at what happens a year and 8 a half la ter in this letter from Mr . Hazard, sir, 9 Plaintiff s' 0-240 . 10 In this letter, November 10, 1949, 11 Owens-Ill inois Glass Company, Mr . J .F . McMann, 12 managing director, Industrial Hygiene Foundation of 13 America . 14 Dear Mac : Some months ago we reviewed with 15 Ted the results of animal experimentation that Saranac 16 had been carrying on for us during the past three 17 years to determine the toxicity of Kaylo dust . 7.8 Again, you would agree that that was the 19 purpose of these experiments, to determine the 20 toxicity of Kaylo dust? 21 A Yes . 73431 1 Q Now, I think you mentioned early on, and I'm 2 not sure, you do agree, don't you, Doctor, that the 3 dust that they got, the dust that they got was dust 4 from the finished product? 5 In other words, in doing these experiments, 5 they got dust from the products and the dust that was 7 generated from handling or cutting the products? 8 A Yes, sir . 9 Q So there's no issue about them using pure 10 asbestos since they used dust that was actually the 11 same kind of dust that would be generated in the field 12 from using the product? 7.3 A C believe that's correct . 14 Q So, for instance, on the second page of this 15 document, at the top, signed by Bill, W .G . Hazard, ].6 Industria l Relations Division, Owens-Illinois, 1'7 he says i f you take the blocks of Kaylo and knock them 18 together, you will see a small cloud of dust is given 19 off. . 20 This is the way the dust was generated that 21 we collected with the vacuum cleaner from the air . 73441 1 And that dust, in turn, was sent to Saranac 2 and they did their experiments, correct? 3 A Right . 4 g Now, in 1952, three years later, in January 5 of 1952, a final report was issued by Owens-Illinois, 6 correct? 7 A That's correct . g Q I'm sorry . Issued by Saranac to 9 Owens-Ill inois? 7.0 A Right . 11 Q And, again, there is reference here to the 12 fact -- and correct me if I'm wrong, there is 13 reference here, is there not, to the toxic properties 14 of_ Kaylo? 15 What I'll read -- do .is, I'll read it to you 16 and then ask you . 1'1 MR . PEEIFFER : What exhibit number are you 18 referring to? 19 MR . HOFFMAN : 0-59 . 20 MR . PFEIFFER : Plaintiffs? 21 MR . HOFFMP.N : Yes, Plaintiffs' 0-59 . 7345' 1 Q He says here in the final shipment of Kaylo, 2 received in January 1949 and first used in this 3 experiment in September 1949, the asbestos component 4 contained the mineral amosite, as well as chx-ysotile . 5 The fibers of amosite, in comparison with 6 those of ch.rysotile, are less flexible and have a 7 higher iron content . 8 However, since experiments with the animals 9 have shown that both amosite and chrysotile are 7.0 capable of causing asbestosis, it is unlikely that the 1]. substitution of the one mineral for the other in Kaylo 12 would cause a significant change in the toxic 13 properties of the final product . 14 Now, first of all, I read that, correctly, L5 correct? 16 A Yes, sir . 1'7 Q Now, what they're referring to here is the 18 Fact that they have amosite asbestos and chrysotile 7.9 asbestos that they're looking at, and the last 20 sentence says :it doesn't make any difference whether 21 you use amosite or chrysotile . 73461 1 Both of them are going to -- or it doesn't 2 make any difference which one you use, that Kaylo dust 3 still has toxic properties, regardless of which 4 asbestos you put in it? 5 A That's correct . G Q Now, you were asked some questions about the 7 publication of the Kaylo study . Do you recall that, 8 sir'? 9 A Yes, Sir . I do . 10 Q Now, it is true, is it not, that from the 7.1 very beginning of the Owens-Illinois Kay1o animal 12 experiments, the agreement. was that nothing would be 13 published without first submitting it to 14 Owens-Illinois for review? 7.5 A I don't remember that agreement . 16 Q Let me hand you what's in evidence as 17 defendants' number 27 and ask you if you were provided 18 with that document, OI Defendant Number 27 . 7_9 MS . MORETZ : Are you going to continue to 20 show -21 MR . HOFF'MAN : Yes, a few more . Thank you . 73471 1 A Is this a part of the Hazard deposition? 2 Q Don't know . 3 MS . MORETZ : What's the date of it, Doctor? 4 THE WITNESS : November 27, 1944 . 5 Q You don't know? You don't recognize it one 6 way or the other? 'I A I don't recognize it, no, sir . 8 Q All right . It's in evidence as 9 Owens-Illinois' exhibit, and let me just go over to 10 the last page here, if I can, sir . 11 This .is 1944 . This is Dr . Gardner writing 12 to Mr . Bowes, the research director at Owens-Illinois . 13 And he says it is hoped that the results may 7.4 be such that you might wish to have us publish our 15 findings, but it is understood that nothing will be 16 published without your authorization . 17 This is an indication in 1944, is it not, 18 that the understanding between Owens-Illinois and 19 Saranac was nothing would be published without 20 authorization from Owens-Illinois? 21 A It would certainly, nn the part of, what Dr . 7348 1 Gardner thought, but Dr . Gardner subsequently died, so 2 I don't know if that was the understanding at Saranac 3 or not . 4 Q All right . Let's go to Plaintiffs' 0-60 and 5 ask you if you were shown that document, sir . 6 A I don't believe so . Q Put this up for you to review . This is a 8 letter from Dr . Vorwald to Mr . Hazard at 9 Owens-Illinois, February 7, 1952, Plaintiffs' 0-60, 10 and he says, among other things, the results of the 11 investigations with animals show that Kaylo dust is 7.2 capable of producing peribronchiolar fibrosis typical 13 of asbestosis . 14 There's a section here I didn't highlight, 15 but I want to go there with you . He says although 16 extrapolation from animal to human experience is 17 difficult -- what does that word mean, extrapolation? 18 A Transfer, trying to use that information fox' 19 the purposes of evaluating human health . 20 Q All right, He says although extrapolation 21 from animal to human experience .is difficult, 7349 1 nevertheless, the results of the study indicate that 2 every precaution should be taken to protect workers 3 against inhaling the dust . 4 You would agree, would you not, that among 5 what could be every precaution would be respirators, 6 vacuum equipment, ventilation equipment, educating 7 workers? S You would agree all of that is part of every 5 precaution, giving workers every precaution to protect 10 them from inhaling the dust? 11 A I don't know what every precaution would 12 mean . 'That would certainly not necessarily be 13 inclusive of everything that you said . It depends on 14 the use and the potential exposure . You may not need 15 to use exhaust or respirators . 16 Q It depends on the dust levels in your 17 opinion, correct? 18 A Yes, six' . 19 Q You would agree, wouldn't you, that if Kaylo 20 was producing 90 million particles per cubic foot when 21 it was being cut or sawed or handled or used, that 7350 1 workers would need to be educated about the danger, 2 exhausts would be need to be provided, vacuum 3 equipment would need to be provided, respirators would 4 need to be provided in order to protect them from dust 5 levels like that? 6 A Well, it would depend on what the 7 composition of the dust is and --8 Q We're talking about Kaylo dust, Doctor . 9 A Okay . But .it would matter what the overall 10 composition of asbestos in that dust was and the 11 length of exposure to that dust . That is, .if .it was 12 on a daily basis, for many hours or not . 13 Q And the only way to know that would be to 14 measure the dust when the product is in use, correct? 15 A Or to evaluate it based upon the knowledge 16 you would have about. the use of the product in the 17 field . 18 Q Have you been provided any dust tests, air 19 monitoring tests of any kind from Owens-Illinois to 20 show what the dust -- showing what the dust levels 21 were from the use of this product in the field? 7351.1 1 A No, sir . 2 Q None? The only information you had is in 3 that one 1951 report they gave you in terms of dust 4 counts, correct? 5 A Yes, sir . 6 Q They say here we hope to publish this study 7 either separately or in combination with similar 8 studies pertaining to either dust . 9 In doing so, however, reference will be made 10 only to hydrous calcium silicate and not to Kaylo . 11 Thus, the interest of your company will be 12 safeguarded . 13 Of course, the final manuscript will be 14 forwarded to you for review before being released to 15 the publisher . Your comment in this regard would 16 assist us greatly .in preparing the manuscript . 1'7 Did you ever see that before today, sir? 1d A Actually that sounds familiar . You can't -19 can you tell me if. that's an exhibit to Hazard? 20 Q I honestly don't know . 21 MS . MOR$TZ : It corresponds with a Hazard 73521 1 exhibit . It is 2 A I have seen that . 3 Q So you've seen that before today? 4 :S Yes . 5 Q Now, you have never seen arty documents, have 6 you, Doctor, one way or the other, as to what changes, 7 if any, Owens-Illinois may have made in the 8 manuscript? 9 You don't know one way or the other what 10 they did, correct? All we have are the documents . 11 A That's correct . To the best of my 12 knowledge, Owens-Illinois did not .receive the 13 manuscript prior to publication . 14 Q On what basis, sir, do you make that 15 statement? I want to go back to this one here . It 16 says, of course, the final manuscript will be 1'I forwarded to you for review before being released to 18 the publisher . 19 Do you see that? 2. 0 A Yes, I do . 21 Q On what do you base the statement, Doctor, 73531 1 that what they said they were going to do in the 2 letter they never did? 3 A Based on the documents that I have, there is 4 no indication that it was ever sent to Owens-Illinois . 5 Q And there's no indication that it wasn't 6 sent, is there? A There is not . 8 Q Right . So you just assumed that it was 9 never done? 10 A Well, based upon the correspondence, it 11 . talks about forwarding the manuscript or the 12 publication to Owens-Illinois, so I assumed that it 13 was not done . 14 Q Well, Doctor, didn't you make the 15 assumption, contrary to what it says in [his letter, 16 didn't you make that assumption because that is what 17 would be most helpful to Owens-Illinois in this 18 situation, would be to assume they never got and 19 edited the transcript? 20 M5 . MORETZ : Objection, Your Honor . 21 THE COURT : Overruled . 73541 1 A No, I didn't do that . 2 Q Let's look if we can, sir, at what's in 3 evidence as Plaintiffs' 0-73 . This is on 4 Owens-Il linois stationery . 5 MS . MORETZ : I have it right, Doctor . 6 THE WITNESS : 'Thank you . 7 Q Have you received this document, sir? 8 A Yes, I have . 9 Q This is October 5th, 1955 ; .is that correct? 10 A That is correct . 11 Q And who is --- who signed this document? Is 12, this Mr . Hazard? 13 A It's not signed by anybody . 14 Q Okay . Well, let me go over it with you, if 15 we can . 16 It says in 1943, you will recall animal 17 experiments were begun at Saranac Laboratory to 18 determine the health aspects of Kaylo dust . 19 These continued fox' some years with the 20 Saranac group sending us reports from time to time . 21 Just as they reached their conclusions, Dr . Gardne .r, 7355 L director of the laboratory, died . 2 We had hoped the Kaylo results would 3 eventually be published . We felt this would be the 4 proper procedure for the long run, even though the experiments did not show Kaylo to be lily white . 6 They showed, to be specific, that Kay7.o dust 7 could cause asbestosis, an uncurable lung condition . 8 Let me just jump down here to the bottom . 9 Lt says --- they refer to the fact that -1.0 this is a quote from the article . 11 It seems likely that the chrysotile asbestos 12 component of the commercial product, rather than the 13 hydrous calcium silicate, was the cause of the 14 deleterious effects on the tissues of the experimental 15 animals . 16 This means that Kaylo is no more harmful 17 than the universally used heat .insulation asbestos, in 18 fact, less so, since Kaylo contains a very small 19 percentage of asbestos . 2.0 The names Kaylo and Owens--Illinois appear 21 nowhere in the article . It's completely anonymous . 73561 1 Do you see that? 2 A Yes, sir . 3 Q Now, did you find any documents, one way or 4 the oth er., that explained why the words Kaylo and 5 Owens-I llinois don't appear in the article? 6 There' ;, nothing to explain, one way or the 7 other, why those names aren't in there, correct? 8 A There are not . 9 Q And you weren't around at the time to know 10 who tal ked to who or made what requests to who, if 11 any, as to how this article would be written, correct? 12 A That's correct . 13 Q [Vow, let me show you what's in evidence as 14 Plainti ffs' 210-04B and ask you if you were provided 15 with -- now, were you provided with that document, 16 sir? 17 A I'm sorry . Is this an exhibit to the 18 Hazard? 19 Q Again, I'm not sure . I yet my documents 20 from -21 MS . MORE'PZ : What are you referring to? 7357 1 MR . HOFFMAN : This is Plaintiffs' 210-04B . 2 Q That's 210-04B ; is that correct? 3 A Yes, sir . 4 Q Now, what is the date of that advertisement 5 about Kaylo? 6 A 1952 . 7 Q Now, can you see the date on there? 8 A Yes . 9 Q Okay . And it's April of 1952? 10 A Yes, sir . 11 Q And that is about four months after the last 12 report from the Saranac Laboratory to Owens-Illinois ; 13 is that correct? 14 A That's about right . 15 Q Okay . And now, this reports -- this 16 advertisement for Owens-Illinois Kaylo .in 1952 17 indicates, among other things, that Kaylo material is 18 non-irritating to the skin and nontoxic . 7. 9 Do you see that? 20 A Yes, sir . 21 Q You do agree, do you not, Doctor, that 73581 1 under certain circumstances, the use of Kay7.o, 2 depending upon how much dust it's generating, can be 3 toxic? 4 A Under certain circumstances of exposure 5 experimentally, it certainly can be . 6 4 Well, you also agree, do you not, that 7 exposures above the threshold limit value would be 8 toxic exposures? 9 A No, it would have to be some level above the 10 threshold limit value . It would have to be in orders 11 of magnitude above that . 12 Q All right, Doctor . In all the Saranac 13 documents that you have, would you tell ms where in 14 those documents it says it has to be orders of 15 magnitude above the threshold limit value before Kaylo 16 dust is toxic? 1% A It doesn't say that in the document . You 18 asked me my opinion . 19 My opinion, based on the knowledge of the 20 development of a threshold limit value, there is a 2]. margin of safety, so, as I discussed earlier, going 73591 1 above the threshold limit value does not necessarily 2 produce toxicity . 3 Q Does it anywhere in any of these documents, 4 Doctor, say that the threshold limit value -- does it 5 anywhere in any of these Saranac documents or 5 Owens-Illinois documents say that Kaylo is nontoxic at 7 levels above the threshold limit value? B A It does not . N Q Now, let me hared you what Ms . Moretz has 10 given to me as page ?, of a document we had before . 1 :1 MS . MORE'I'Z : Here's the complete document . 12 Q I don't have a page 2 . 13 MR . HOFFMAN : Mr . Slide, we need to make 14 sure what's .in evidence as plaintif fs' -15 Q Go to the second page of that document, 16 Doctor, at the top of the paragraph there . 17 I owe you are apology . 18 The top paragraph of that document 7.9 indicates, does it not, at last at the time it was 20 written, that this final report was published without 21 the final report being reviewed by Owens-Illinois'? 7360' 1 A Yes, sir . 2 Q So, in fact, at least in one document there, 3 there is an indication that this thing did not go to 4 Owens-Illinois before it was published? S A That's correct . 6 Q And I apologize for the inference to the 7 contrary before, but I wane to came back to my 8 previous question . 9 Is there anything anywhere .in any of these 10 documents, anything anywhere to suggest that Saranac 11 told Owens-Illinois that Kaylo was nontoxic? .1.2 Does .it anywhere say -- is there anywhere a 13 letter, a document, a paragraph, a statement anywhere 14 from Sa .ranac to Owens-Illinois saying that Kaylo is 7. 5 nontoxic? 1.6 A I don't know of any letter that specifically 17 says that, but based upon the consolidation of all the 18 information, .it would certainly be the conclusion 19 that, based upon the current use, it was not . 20 Q I understand that's the conclusion which you 21 would reach . There's nothing .in any of these 7361 1 documents anywhere, is there, Doctor, saying to 2 Owens-Illinois that Kayla is nontoxic, correct? 3 A There is nothing that specifically states 4 that, that is correct . 5 Q Now, were you provided with what's in 6 evidence as 0-210 .11, which is another advertisement? MS . MORETZ : What date is that? 8 MR . HOFFMAN : That's 1956 . 9 A And the question is did T receive this? 10 Q Correct . 11 A I don't believe so . 12 Q Let me just ask you, if :I can -- we'll put 13 this up . 14 Again, in 1956, this is a reference to Kaylo 15 block insulation manufactured by Owens-Illinois Glass 16 Company and distributed nationally by Owens-Corning 17 Fiberglas . 18 The reference here, the fact that the 19 material is lightweight, pleasant handling, 20 non-irritating, nontoxic nature make it a well-liked 21 workers' material . 73621 1 Do you see that, sir? 2 A I do . 3 Q Again, you would agree, would you not, that 4 it is important to inform people that, if they use a 5 product that is potentially toxic or hazardous, to 6 inform them about the potential danger so they can 7 take precautions in a situation where the danger might 8 arise? 9 You would agree with that, wouldn't you? Lv A It would only be appropriate if that danger L1 is realistic ox' relevant, otherwise, it would not . 1) Q And in the case of Kaylo, the only way to 13 know that is by monitoring and measuring the dust to 14 determine if the dust levels are above the threshold 15 limit value, correct? 1.6 A No . Or about knowing the use or the 1'7 application of the material and evaluating the use and 18 the application of the material as to whether or riot 19 it's possible to produce levels that would be 2.0 hazardous . 21 Q Doctor, you would agree, wouldn't you, that 73631 1 the best way to determine if hazardous levels of dust 2 are produced from sawing or cutting or handling Kaylo 3 is to saw it and measure the dust, cut it and measure 4 the dust, handle .it and measure the dust, correct? 5 A Sure, and that was done . 6 Q And you saw the levels of 91 million 7 particles per cubic foot and 44 million particles per 8 cubic .foo t, correct? 9 A That was total dust, that's correct . 10 Q Total dust, of which 15 percent or more is 11 asbestos .in Kaylo, correct? 12 A Yes, sir . 13 Q Thank you . We can put the screen down . I 19 have just a couple more questions . 15 Doctor, you talked about aspirin as an 16 example for the threshold limit value . Do you recall 17 that? 18 A Yes, six' . 19 Q Let me hand you a bottle of aspirin . 20 A I don't think I talked about it for the 21 threshold limit value . I used it as an example for 73641 1 the dose response relationship . 2 Q Okay . For dose response . 3 A But there is a TLV for it . 4 g What would that be? 5 A It's hundreds of milligrams per cubic meter 6 of air . 7 Q All right . And I hope I have not given you a and did not intend to give you a headache as a result 9 of my examination, but you're welcome to the aspirins 10 when we're done . 11 A Thank you . I don't have a headache . 12 THE COURT : With all due respect, unless a .L3 doctor recommends it, I won't let anybody take any 14 medicine in the courtroom . 15 Q Doctor, on the top of that there's a 15 paragraph called Directions -17 THE COURT : Medical doctor . Make that 18 clear . Medical doctor. . 7.9 THE WITNESS : Well, certainly a 20 pharmacologist, Your Honor . 21 THE COURT : Absolutely not . Unless you're 7365 1 allowed to prescribe medicine, you're not going to 2 tell anybody what to take . 3 THE WITNESS : I'm also a pharmacist . 4 THE COURT : T wouldn't ask you what to take . S Q Would you read the Directions paragraph at 5 the top there for us, please . 7 A Yes, sir . Adults, 1 to 2 tablets, not to 8 exceed 12 tablets in 24 hours . Take with water every 9 4 hours . Children as directed by a physician . 10 Q Why is it important to give people 11 directions when they use potentially hazardous or 12 toxic or_ dangerous materials, potentially hazardous, 13 even if they are healthful to begin with? 14 Why is it .important to give them directions? 15 A It is important to give them directions with 16 regard to aspirin so that they take an effective dose, 17 so that they take enough to produce an effect, and 18 it's also important to give directions so that they 19 don't take too much . 20 Q And you would agree, would you riot, that the 21 same thing is true for a product like Kaylo? It was 73661 1 important to tell users, workers, customers that this 2 is Kaylo . 3 It contains asbestos . Using this product 4 will create dust . If dust above the threshold limit S value is created, avoid breathing the dust . 6 Wasn't that important to tell people so that 7 back at the time they could avoid the hazards and 8 dangers that ultimately produced asbestosis and lung 9 cancer and rnesoLhelioma marry years later? 7.U MR . PFEIFFER : Objection . 1 l. THE COURT : Overruled . 12 A I don't think it was important to provide 13 that kind of information because the use of the 14 product is not likely to result in the level that 15 would exceed the level that would produce harm . 16 Q And yet you would agree that nowhere in any 17 of the documents does it say that, correct'? There's 18 nothing in any of these documents from Saranac that 19 say these product won't create levels of dust above 20 dive million particles? 21 A It doesn't say that . However, the studies 73671 1 that were done by Saranac show that the levels were 2 below those that were in consensus would not produce 3 it . 4 Q except when you load the boxcars, where it's 5 40 to 50 million, or- when you cut it on one machine 6 where it's 44 million, or you cut it on another 7 machine where it's 91 million, even with exhaust 8 equipment and ventilation equipment and everything 9 else, right'? 10 A That's not quite fair because, remember, the 11 boxcar, only 10 to 12 percent of that was asbestos, so 12 it's really not 50 million particles . 13 Q Let me show you what is in evidence in this 14 case as Plaintiffs' 0-232, sir . 15 You have already indicated you're not an 16 industrial hygienist, are you? 17 A No, sir . 18 Q All right . Would you take a look at the 19 first --20 MS . MORE'CZ : What's the date of the document 21 you're referring to? 73681 1 MR . HOFFMAN : October 1969 . 2 Q Would you take a look at the top two 3 sentences on page 2 . Read along with me . 4 The current threshold limit value for dust 5 containing asbestos is five million particles per 6 cubic foot . The limit is set on the total amount of "7 dust present if it contains asbestos, regardless of 8 the amount of asbestos present . 9 You see that, don't you? 10 A Yes, sir . 11 Q Now -- well, you don't know -- now, as far 12 as you know, that was true back in 1946 or '58 . 13 You're not a member of the ACGIf[, the group that set 14 this level, are you? 15 A Okay . Two questions there . 16 Now, was it true in 1948? I think no . And 1'7 I don't think this is correct in 1969 either . I am 18 not a member of the ACGIH . 19 Q All right . Let me show you what's in 20 evidence as 0-301, sir, from 1960, nine years before 21 that . Take a look at that., sir, if you would, please . 73691 1 'Phil is a letter from a Mr . Shaw, and, in 2 fact, Mr . Shaw was referred to in some of the 3 Owens-Illinois documents we have talked about today, 4 correct? S A I don't recall that . Maybe . 6 Q Well, in this document Mr . Shaw writes, does 7 he not, that the threshold limit of five million 8 particles per cubic foot of air is recognized for 9 asbestos-containing airborne dust? 10 A I'm sorry . You're on the first page? 11 Q First paragraph . Yes, sir . iz A Yes, sir . 13 Q You're not telling us, Doctor, you're not 14 telling us that you are more knowledgeable than the 15 past chairman of the American Conference of 16 Governmental and Industrial Hygienists on what the 1'7 meaning of the threshold :limit value was, are you? 18 A Am T more knowledgeable? 3.9 Q Are you telling the Court and jury, sir, 20 that you are more knowledgeable than the past chairman 21 of the American Conference of Governmental and 73701 1 Industrial Hygienists as to what the threshold limit 2 value, five million particles per cubic foot, meant in 3 terms of counting dust containing asbestos? 4 A I don't know because I don't know him . 5 Q You don't know Dr . Dement? 6 A Do riot know Dr . Dement . 7 MR . HOFFMAN : May I have just a moment, 8 Your Hono r ? 9 THE COURT : Sure . 10 Q Doctor, there was a question earlier on 17. about -- I gave you a dictionary, do you remember 12 that, and :C said it was copyrighted in 1947, '48, '49, 13 'S0, 1S1, 'S2, 153, 1S4, 'S5, 1S6, 'S7, 158, and you 14 pointed out to me that it wasn't written, but this 15 version came out in '66, do you recall that? 16 A I do . 1"7 Q Doctor, are you telling the Court grid jury 18 that the definition of toxic or the definition of 19 poison changed in any material way between 194'7 and 20 1966? 21 A T don't know if it changed in the dictionary 73'71 1 or not, but I don't know of any substantial change in 2 the definition of toxic . 3 Q So in 1947, toxic meant poison, and in 1966, 4 toxic meant poison, correct? 5 A Well, it can, depending upon the use of the 6 word . Yes, .it could certainly mean poison, and it may 7 riot . 8 Q And you would agree, would you not, that 9 telling a working person, man or woman of_ everyday 10 experience and everyday learning, if you tell them 11 that something is nontoxic, what that communicates to 12 them is it's safe, there's no problem, there's no 13 danger, there's nothing to worry about .in however 14 you're going to use the product? is Isn't that what it says to them when you 16 tell them it's nontoxic? 17 MR . PFEIFF'ER : Objection . 18 THE COURT : Overruled . 19 A I wouldn't agree with that . 20 Q You would riot agree with that? 21 A i would not . 73721 1 MR . HOFFMAN : I don't have any more questions, Your Honor . 3 MR . PALMER : I don't have any questions . 4 MR . NICHOLL : I don't have any questions, 5 Your Honor . 6 THE COURT : Ms . Moretz, any redirect? 7 MS . MORETZ : Yes, Your Honor . 8 REDIRECT EXAMINATION 9 BY MS . MORETZ : 10 Q Let me hand you Plaintiffs, 0-73, which is 11 Hazard Exhibit 18, and just to make sure that we've 12 got it cleared up, does that letter indicate whether 13 or not Owens-Illinois received a copy of the article 14 to be published prior to the time it was published? 15 A The document indicates that Owens-Illinois 16 did not receive a copy of the publication prior to its 17 publication by Saranac . 18 Q Thank you, Doctor . 19 Doctor, I'm going to hand you this ".J 0 dictionary back . If you would, would you look up 21 asbestos in this dictionary and read to the jury what 73731 1 the definition of asbestos is in 1966, according to 2 this dictionary? 3 A I need help spelling it . I'm sorry . You 4 want me to read the definition? 5 Q If you will, please . 6 A A mineral, a fibrous amphibole used for 7 making .incombustible or fireproof articles . Used for 8 making theater curtains, firemen's gloves and so 9 forth . 7.0 Q All right . Thank you, Doctor . 11 Now, how would you as a toxicologist define 12 the ter m toxic? 13 A Toxic is the potential to produce harm as a 14 result of sufficient exposure or a sufficient 15 concent ration of the material . 16 Q Let's yo back to the Kaylo dust studies and 1'7 the ani mal studies that we have balked about . 7.8 How does the level of exposure that the 19 guinea pigs and rats were exposed to compare with the 20 TLV for asbestos'? 21 MR . HOFFMAN : Objection . There .is no TLV 73741 1 for guinea pigs and rats . 2 MR . PFEIFFER : Depends on your definition 3 for rat . 4 THE COURT : This is a civil trial, not a 5 criminal trial . 6 All right . Let's proceed . 7 MS . MORETZ : Is the objection overruled, 8 Your Honor . 9 THE COURT : I thank I know what Ms . MoreCz 1v is asking . Perhaps what she's asking is can there be a 1l extrapolation of the TLV from the exposures to rats to 12 humans . 1:3 MS . MORE'PZ : I think I'll rephrase the 14 question because I don't think that's what I was 15 asking, Your Honor . I'll rephrase . 16 THE COURT : Okay . Perhaps I'm not hearing 1'7 it as well, so let's rephrase the question and then 18 let's see if there's an objection . 19 MS . MORE'I'Z : All right . 20 Q What was the level of the exposure that the 21 animals received iii the Kaylo dust studies, Doctor'? 73751 1 A It was in excess of a hundred million 2 particles per cubic foot of air . 3 Q And, Doctor, what is the 'PLV, or what was 4 the TLV for asbestos from 1948 to 1958? 5 A It was five million particles per cubic foot 6 of air . 7 Q All right . You were asked -8 THE COURT : I didn't hear an objection to 9 that question, so I'm not ruling on .it, but I don't 10 think the question was very clear, Ms . Moretz . 11 MS . MORET7 : Well, Your Honor, if there was 12 no objection, I'll go on . 13 Q You were asked some questions on direct and 14 their on cross-examination about Owens-Illinois Exhibit 15 45 . Show that to you again . 16 I think, if you'll turn to page 6, first, 1'7 for the jury's sake, who wrote that document, or where 18 was that document generated? 19 A This was generated by Saranac Laboratories, 20 by Dr . Vorwald . 21 Q And did Saranac Laboratories in this report 73761 1 to Owens- Illinois refer to the threshold limit value? 2 A They did . 3 Q Okay . And in their reference to the 4 threshold limit value in their report, what do they 5 refer to? What were the numbers that they rifer to? 5 A Five million particles per cubic foot of 7 air . 8 Q Was that the threshold limit available for 9 asbestos? 1.0 A Yes, it was . 11 Q Okay . Did they have -- did they refer 12 Owens-Ill inois to other. numbers as far as the 13 threshold .limit values were concerned? 14 A They did . 15 Q And what other numbers was Owens-Illinois 16 referred to in that document generated by Saranac 17 Laborator y? 18 A Referred to total dust of 50 million 19 particles per cubic, foot of air, and than to silica, 20 which ran ged from S to 50 million particles per cubic 21 foot of air . 73771 1 Q All right, Doctor . You were asked about a 2 quote in some of the correspondence about the findings 3 of the Kaylo studies being less favorable than what 4 was anticipated . 5 Why were those findings less favorable than 6 what. was anticipated'? 7 A What was anticipated is that the mixing of 8 these materials to produce the new product would make 9 them less likely to produce lung damage or lung 10 injury, and, therefore, what was anticipated was an 11 absence of or a less likely result of pulmonary 12 fibrosis, and that's not what was found . 13 Q Referring back to page 4, I believe, of that 14 article, that's the dust levels, is that correct, that 15 were done in the dust samples at the Sayrevil7.e plant 16 of Owens-Illinois? L'7 A Yes . 18 Q There is a reference to a rour_er machine . 19 Do you know what a x'outer machine .is, Doctor? 20 A I believe it's like a cutting machine that 21 separates materials . 73781 ]. Q Like a saw? 2 A Yes . 3 4 Okay . What was the dust concentration, the 4 total dus t concentration, for the samples taken at the 5 router ma chine? 6 A 4 .4 million particles per cubic foot of air . 7 Q Okay . And what was the percent of the 8 asbestos in that dust sample taken at that router 9 machine? 10 A 6 to 12 percent . 11 MS . MORETZ : Your Honor, may I approach the 12 witness? 13 THE COURT : Sure . 14 MS . MORETZ : I only have one copy of this 15 document . 16 Q Mr . Hoffman asked you about a document that 17 was marke d as 0-83 .1, and you .indicated that you 18 hadn't se en that document before, before Mr . Hoffman 19 showed it to you? 20 A I believe that's correct . 21 Q Okay . If you will look at page 2 of that 73791 1 document and read the description section of those air 2 samplings . 3 A Read the whole thing? 4 Q Yes . 5 A To assist in the .interpretation of the above 6 dust counts, we would like to point out that the 7 maximum acceptable concentration of the dust, which is 8 100 percent free silica from 100 percent asbestos, is 9 5 million particles per cubic font of air . 10 As we know, the dust here is considerably 11 less than 100 percent free silica or 100 percent 12 asbestos . The maximum acceptable limit generally has 13 beets established as 10 million particles for an 14 operation of this type . 15 With reference to the above, our results of 16 air sampling show that a number of counts are above 17 that . 18 Q Doctor, in reading that and in looking at 19 the numbers, was this a measure of asbestos dust or 20 total dust? 21 A This was a measure of total dust . 73801 1 Q Under what circumstances, according to your 2 reading of the Kaylo studies, was Kaylo dust deemed to 3 be toxic? 4 A Under the conditions of exposure to hundreds 5 of million s of particles per cubic foot of air for a 6 lifetime . 7 Q Kaylo exposure, within that threshold limit 8 value, wou ld that be considered a toxic dust? 9 A It would not . 10 Q Why not'? 11 A Because the concentration or the level would 12 be insuffi cient to produce harm as a result of that 13 exposure . 14 MS . MORETZ : If I may have just a moment, 15 Your Honor . 15 THE COURT : Go ahead, please . 17 MS . MORETZ : That's all the questions I 18 have . 1) THE COURT : Okay . Thank you, Ms . Moretz . 20 Any redirect -~ recross? 2]. MR . HOFFMAN : ,Just quickly, Judge . 73811' 1 THE COURT : Mr . Hoffman . 2 RECROSS-EXAMINATION 3 BY MR . HOFF'MAN : 4 Q Do you have that same document, 0-83 .1, in 5 front of you that Ms . Moretz just used? 6 A Yes, sir . 7 Q Let me just ask you to take a look at it, 8 and you read the paragraph at the bottom of page 2 . 9 Do you recall that? ].0 A Yes, sir . L1 Q They did 12 dust samples at the 12 Owens-Illinois Kaylo plank in this document, correct, 13 air samples 1 through 12? 1.4 A Yes, sir . 15 Q Using the discussion at the bottom of the 16 page, 6 of the 12 samples are above what they describe 17 as their maximum acceptable concentration of dust 18 containing asbestos, correct? 19 There's one at 91 .8 million, one at 46 .3 20 million, one at 16 .3 million, one at 10 .2 million and 21 one at 20 million, correct? 73821 1 A Yes, sir . 2 Q All of those are above, 6 of 12 in 1958, 3 above the level that the authors of this study say are 4 acceptable, and that's with the ventilation and the ti exhaust equipment, correct? 6 A Yes, sir . Z believe so . 7 Q Now, in the dictionary you were asked to 8 read the word asbestos, the definition . Do you recall 9 that? 10 A Yes, sir . 11 Q Nothing in there saying asbestos causes 12 disease, is there? 13 A No, si .r . 14 Q Nothing in there saying asbestos causes 15 lung cancer, is there? 16 A No, sir . 17 Q Nothing in there saying asbestos causes 18 mesothelioma, is there? 19 A No, sir . 20 Q If a worker was using a product containing 23 . asbestos and he went to the dictionary to try and 7383 1 figure out whether asbestos could be harmful, if they 2 went to that dictionary they wouldn't learn anything 3 at all., would they? 4 A Well, that's not true . 'They would learn 5 that it's in gloves, it's in curtains at theaters . 6 'They would learn that .it's a mineral, so yes, they 7 would learn something about asbestos . 8 Q I must have misspoken myself . 9 If a worker was using a product containing LO asbestos and they wanted to know whether the asbestos 1 :1 in the product was in any way dangerous or hazardous 12 or toxic, if they go to that dictionary, they won't 13 learn anything about whether the asbestos is dangerous 14 or hazardous or toxic or causes lung cancer or 15 mesothelioma, will they? 16 A Not from this dictionary, no . 1'7 Q So they got to find out from the company 18 that makes the product as to whether there's any 1.9 dangers from the ingredients in the products, don't 20 they, or the distributors or whoever it is that knows 21 the most about the product? 73841 1 MR . PFFIFFER : Objection . 2 THE COURT : Overruled . 3 Q It's not in the dictionary, is it'? 4 THE COURT : You may answer . 5 A It's not in the dictionary . 6 MK . HOFFMAN : Thank you . THE COURT : Is that all, Mr . Hoffman? 8 MR . HOFFMAN : Yes, sir . Thank you . 9 THE COURT : Okay . You may step down . L0 MS . MORETZ : Just one more question . 11 THE COURT : No more . Absolutely not . 12 MS . MORE'I'Z : Your Honor, if he got to do -3.3 THE COURT : I said absolutely riot, Ms . 14 MoreCZ . No more questions . You've had your two 15 opportun ities . 16 I don't want you to break your pen as you 17 throw it on the table . 3.8 And the reason the Court said that .is 7. 9 nothing that was covered on recross was new ground 20 covered which opened up any areas that mould not have 21 been cov ered on redirect . 73$5I 1 Dr . Harbison, you may be excused, six' . You 2 may step down . 3 MS . MORE'I'Z : Your Honor -- I'm sorry . 4 THE COURT : You may step down . 5 Members of the jury, since you didn't have a 6 break this afternoon, we're going to let you have a 7 break now . We're going to take our recess for the 8 day . 9 Leave your material on your seats . Please 10 do not discuss the case among yourselves or with 11 anyone else, acid return tomorrow morning at the normal 1-2 time . Get laid and then return here . 13 We will continue with the presentation of 14 evidence by the defense . We will start as close to 15 9 :30 as possible . 16 Have a good evening . You should have. some 17 new cards back there, by the way . 7. 8 (Whereupon, the jury left the courtroom .) 19 THE COURT : Ms . Moretz? ZO MS . MORETZ : Your Honor, if I could, I would 21 like to recall Dr . Harbison to the stand so that I can 73861 1 make a proffer of the last question that I would have 2 offered him on recross, re-recx'oss since Mr . Hoffman 3 had the opportunity for re-redirect . 4 THE COURT : With all due respect, he did riot 5 have an opportunity on any witness, more than two 6 occasions, that I can recall during this trial . No one has had that opportunity, Ms . Mo.retz . II I beg your indulgence, but point out to me 9 where any counsel has had the opportunity of more than 10 two times at any witness in this case . 11 MS . MORk:TZ : Very well, Your Honor . 7.2 Also, I would like to note for the record 13 that I would object to the comments made by the 14 Court --- very respectfully object to the comments made 15 by the Court as to the doctor's qualifications in 15 response to Mr . Hoffmari's comments on the record, 1'7 which were also inappropriate, about taking aspirin 18 and diving people headaches, and the Court's comment 1y about qualification and the exchange between the Court 20 and the doctor with regard to his qualifications in 21 prescribing medication . 7387 1 I think they were improper comments in front 2 of the jury . 3 THE COURT : Are you suggesting that I was 4 incorrect ax- inaccurate in stating that he as a 5 pharmacist does not have a license to dispense 6 medicine? 7 MS . MORETZ : I think if the witness would S have been asked what his qualifications were to 9 dispense medicine, I think there are certain types of 10 medicine that he can dispense, and I think it's 11 irrelevant to this situation, but I think it was an 12 inappropriate exchange by the Court with the witness . 13 THE COURT : Ms . Moretz, you've been in this 14 trial .from the very beginning and there has been that 15 type of repartee between the Court and counsel, as 16 well as the Court and the jury and the Court and the 17 witnesses on issues that have nothing to do with this 18 tease . 19 If I have said or done anything that would ?_0 in any way leave a misimpression with the doctor, then 21 I'll apologize to the doctor, but I don't think I said 73881 1 anything to the doctor that was inappropriate . 2 He hasn't said anything to me that he was 3 offended by what I said to him, and I certainly didn't 4 intend fox' any offense to be taken . 5 MS . MORETZ : Your Honor, I'd just like to 6 THE COURT : The record reflects that, and 7 the record should also reflect that the Court is 8 overrulin your objection . 9 MS . MOKETG : I understand that . 10 THE COURT : Keep in mind that I tell the 11 jury that nothing the Court say : or does has any L2 influence on the outcome of this case anyway . 13 Now, I believe Ms . Halatad wants to say 14 something . Go ahead, Ms . Halstad . 15 MS . HALS'1'AD : Your Honor, I'm going to join 16 Ms . Moretz' objection because the jury may choose to 17 interpret that as a point of view of the Court, 18 negative comments towards defense witnesses . 19 THE COURT : Ire what respect? 20 MS . HP.LSTAD : T think that no other expert 21 witness offered by the plaintiffs received a comment 73891 1 from the Court that the Court would not take medicine 2 from them, and I don't think it was appropriate to 3 interject that with respect to a defense witness, and, 4 therefore, I make my objection . 5 I suspect .it may and probably will be 5 misinterpreted by the jury . '7 THE COURT : Anyone else wish to join, make B any comments? 9 MR . PFCIFFER : I'll join in the: objection . 10 THE COURT : Anyone else? 11 The objection is overruled . Nothing that 12 the Court said in any way imparts or will have any 13 impact on what the qualifications were of the doctor 14 and the opinions which he rendered, and the Court made 15 no comment at all concerning the doctor's opinions as 16 he was questioned by both counsel . 17 Ms . Moretz, why don't you put on record what 18 the question was you wanted to ask the doctor . I' m 19 not going to let you recall him . 20 I'll let you put on record what the question 21 was and what you hope his answer would have been so 7390 1 you can at least have the record proffer -- show what 2 your proffer is . 3 MS . MORETZ : Thank you, Your Honor . That's 4 what I wanted to do . 5 With regard to Exhibit v-83 .1, I would have 6 asked the doctor. does this document indicate what the asbestos dust counts were . And this is document is 8 an April. and May 1958 report from Aetna, which is a 9 document entered over defendants' objections . 10 His answer, I presume, would have been since 1z the document does not indicate that there is airy 12 asbestos dust counts, just total dust counts, that no, 13 the document does not tell us what the asbestos dust 14 counts were . 15 THE COURT : Okay . The record so reflects . l. 6 MS . MORETZ : Thank you, Your Honor . 1'7 THE COURT : Anyone else wish to put anything 18 on record before we recess for the day? 19 Mx' . Loker? 20 MK . LOKER : Not on this topic, I hasten to 21 stress . 73911 1 THE COURT : On any topic anyone wants to put 2 on . I don't know what's in the minds or hearts of 3 counsel . 4 MR . LOKER : I'm not sure what the order is . 5 I want to bass up to the Court, and I will distribute 6 Co counsel various objections and counter-designations 7 and so forth with respect to evidence designated for 8 tomorrow, I believe, by Owens-Corning relating to 9 National Gypsum . 10 I am not asking the Court to do anything 17 . with .it certainly now, or even tomorrow morning . I 12 just wanted the Court to have it .for whenever the 13 Court wanted to get into it . 7.4 There is one transcript that I have sort of 15 a global objection to, and that i one that relates to 16 a former secretary at National Gypsum whose name was 17 Christy Henderson . 18 In addition to the written reasons, this is 19 a witness who has never appeared on anyone's, 20 plaintiffs or defendants, witness list . 21 And for that sort of early and preliminary 73921 1 reason, I don't think we need to get into the merits 2 of the objection, but I will tender that to Mr . Slide 3 and the Court can deal with it as it wants to, and 4 I'll be ready at that point . 5 THE COURT : Well, if I understand you, 6 nowhere on any list that has been supplied by either 7 side up to this point does Chri.sty Henderson appear? 8 MR . LOKER : Correct . And that would include 9 the names read, the hundreds of names read during voir 1v dire . 11 TIME COURT : Who is sponsoring Christy 12 Henderson's deposition? 13 MK . PFETFFER : Your Honor, Mr . Lockwood has 14 made the designation . 15 I must plead ignorance as to who she is, but 16 I can have Mr . Lockwood here and available tomorrow to 17 address the Court if and when we're .ready to put that 18 evidence on . 19 THE COURT : All right . So you pass the 20 buck . 21 MK . PFEIFFER : I'm passing the buck as best 73931 1 I can . 2 MR . LOKER : That's all I had, thank you, and 3 I'll pass these up when we recess . 4 THE COURT : Okay . Anyone else? 5 All right . Everyone have a good evening . 6 I'll see you if you're in your places at 9 :25 . We'll 7 resume at 9 :30 . 8 Have a good evening, everyone . 9 (Whereupon, proceedings adjourned fox' the 10 day .) 11 12 L3 14 15 L6 17 18 19 20 21 73941 1 State of Maryland 2 City of Baltimore 3 I, Sharon Mech, a Notary Public of the State 4 of Maryland, City of Baltimore, do hereby certify that 5 the within-named witness personally appeared before me 0 at the time and place herein set out, and after having been first duly sworn by me, according to law, was 8 examined by counsel. . 9 I further certify that the examination was 10 recorded stenographically by me and this transcript is ii a true record of the proceedings . 12 I .further certify that I am nod of counsel 13 to any of the parties, nor an employee of counsel, nor 14 related to any of the parties, nor in any way 15 interested in the outcome of. the action . 1.6 As witness my hand and seal this 21st day of 17 June, 1994 . 18 19 Sharon Mech zo My Commission Expires 10-28-94 21 73951 1 INDEX 2 June 21, 1994 3 4 WITNESS : Raymond Ha .rbison, Ph .D 5 EXAMINATION : DIRECT CROSS REDIR RECROSS VOIR DIRE 6 Ms . MoreLz 7178 7372 Mr . Hoffman '7278 7381 7203 Mr . Palmer "7210 9 10 Document Presentation by Owens-Illinois 1 ]. 12 EXHIBITS 13 Plaintiffs 0-240 14 OI-45 7165 RECEIVED 7341 7166 15 16 17 18 19 (This transcript consists of gages 7126 through 7395 .) 20 David Slide, Court Clerk 21