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FILE NAME Orton ORT DATE 2007 DOC ORTO15 DOCUMENT DESCRIPTION Legal - Omnibus Declaration of Barry Castleman DAVID M. McCLAIN State Bar No. 54085 1 KAZAN MCCLAIN ABRAMS LYONS FARRISE & GREENWOOD 2 171 Twelfth Street Third Floor Oakland CA 94607 3 Telephone 510 302-1000 Facsimile 510 835-4913 4 STEPHEN M. SNYDER State Bar No. 054598 5 JAMES L. MILLER State Bar No. 071958 JENNIFER L. SHODA State Bar No. 194469 6 SNYDER MILLER & ORTON LLP 111 Sutter Street Suite 1950 7 San Francisco CA 94104 Telephone 415 962-4400 8 Facsimile 415 962-4401 9 KELLY C. WOOSTER State Bar No. 041196 112 Rock Creek Court P.O. Box 62 Copperopolis CA 95228 10 Telephone 209 785-2437 Attorneys for Plaintiffs 12 SUPERIOR COURT OF CALIFORNIA UNLIMITED JURISDICTION COUNTY OF ALAMEDA 15 BARBARA GILLETT et al Plaintiffs 17 VS. 18 2200 21 22 22 223 4 METROPOLITAN LIFE INSURANCE COMPANY MARY RAMIREZ Defendants Plaintiff VS. METROPOLITAN LIFE INSURANCE COMPANY Case No. 768722 Lead Case OMNIBUS DECLARATION OF BARRY I. CASTLEMAN IN OPPOSITION TO DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT Case No. 841663-8 2525 Defendants 27 2827 Snyder Miller & Orton LLP 1 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 3. My book Asbestos Medical and Legal Aspects now in its fifth edition is a treatise 2 on the public health history of the asbestos industry and the development of knowledge about 3 asbestos and its hazards The book is the result of many years of research into the history of the use 4 of asbestos the use of asbestos products in various industries the early manufacturers and suppliers 5 of asbestos and containing products and the effects asbestos has on humans My book 6 references thousands of articles books congressional hearings industrial and scientific material and 7 corporate documents which I have read and analyzed It is cited as Exhibit 1 Castleman " 8 hereafter 9 11 12 1618 19 20 2021 22 22 2324 25 2526 2288 Snyder Miller & Orton LLP 4 In addition to relying upon my research and investigation into corporate documents and other sources described above I have reviewed sworn testimony given by Dr. David Egilman in trial against Metropolitan Life Insurance Company Met Life conducted in 2001 in cases entitled Aaron et al v Abex Corporation No. 2110-2 and Bright et al v Owens Corning et al No. 11414 BH00 in the District Court 23rd Judicial District Brazoria County Texas Dr. Egilman is a medical doctor with a medical degree from Brown University in 1978 and a Master's degree in public health from Harvard School of Public Health in 1982. He completed three medical residencies in internal medicine occupational medicine and preventative medicine He practiced medicine and taught at Brown University in Providence Rhode Island He also worked with the National Institute of Health and was assigned to Public Health School to learn occupational medicine and regulation of worker health among other things He became a medical officer with the National Institute for Occupational Safety and Health I. MET LIFE'S EARLY KNOWLEDGE OF THE HAZARDS OF ASBESTOS 5 By the early 1920s Met Life had knowledge that asbestos exposure by humans could lead to fatal asbestos diseases Met Life knew in 1921 that asbestos workers were in a hazardous occupation because of exposure to harmful inorganic dusts like asbestos dust Exhibit 2 Occupational Hazards and Diagnostic Signs a Guide for Medical Examiners Metropolitan Life Insurance Company 1921. Copies of exhibits referred to are submitted as Plaintiffs Omnibus Exhibits to the Declaration of Barry Castleman in Opposition to Defendant Metropolitan Life Insurance Company's Motion for Summary Judgment This Met Life publication in 1921 3 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION described asbestos work as a hazardous occupation because of exposure to harmful inorganic dust 2 The publication listed cough dyspnea clubbed fingers rales and fibrosis as symptoms to look for in 3 persons exposed to inorganic dusts such as asbestos workers Many of the symptoms listed are the 4 same symptoms found in persons suffering from asbestosis Met Life was also aware of high claim 5 rates for lung disorders made at one of its group policyholders An actuary noted in 1935 that claims 6 were exceeding premiums at Johnson's Co. a company engaged in asbestos quarrying and 7 manufacture An analysis of the claims shows a preponderance of lung disorders The company is 8 engaged in the quarrying and manufacturing of asbestos and we feel there is a decided occupational 9 hazard here Exhibit 3 Memo May 27 1935 G.W. Fitzhugh to Dr. McConnell Met Life raised the premiums for asbestos miners by 40 percent for accident and health coverage compared with hazardous industries in order to make insuring asbestos workers a profitable business Exhibit 10 4 Memo August 22 1939 D.C. Buell to Dr. McConnell II THE EARLY MET LIFE SPONSORED RESEARCH - KEPT UNDER WRAPS 15 18 2020 212 24 2255 28 . Snyder Miller & Orton _ LLP A. The Canadian Studies 6 In 1926 Met Life determined to provide funding to establish an industrial hygiene department at McGill University in Canada Met Life went into this program on the basis that there would be a definite tangible quid pro quo Exhibit 5 Memo January 19 1926 Dr. Wright to Dr. Knight Exhibit 6 letter January 7 1926 medical director to Dr. Charles F. Martin Exhibit 7 letter January 19 1926 C.F. Martin to Augustus Knight 7. The new McGill group produced a study of examinations of asbestos mine workers in Asbestos and Thetford Mines Quebec dated November 1930. The study involved 141 employees of Canadian Manville Of 195 workers 42 had asbestosis Frank G. Pedley M.D. Report of the Physical Examinations and Ray Examinations of Asbestos Workers in Asbestos and Thetford Mines Quebec 1930. Exhibit 8. Dr. Pedley had noted that the study was being carried on with the cooperation of the Metropolitan Life Insurance Co. and it is expected that valuable information on the subject of asbestosis will be forthcoming He also hoped that permission to publish the results will be obtained Pedley Report of the Activities of the Industrial Clinic Montreal General Hospital for the year September , 1929 to August 31 1930 pp 2-3 Exhibit 9. Dr. Pedley 4 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 pointedly reiterated to Met Life that an interesting state of affairs was disclosed which was reported 2 to Dr. A.J. Lanza of the Metropolitan Life Insurance Company but to date permission has not been 3 secured to publish the results of the study Exhibit 10 letter October 11 1932 Dr. Pedley to N.L. 4 Burnette of Met Life p 2. Pedley never did publish his 1930 findings Exhibit 1 Castleman p 5 19. 6 8. Met Life prepared its own report of the Canadian studies which included dust study 7 information as well entitled Effects of the Inhalation of Asbestos Dust Upon the Lungs of Asbestos 8 Workers Canadian Study Exhibit 11. Met Life sent a copy to attorney Allan Wardwell on July 9 9 1931 with the caveat that the report would be given no publicity by us except with the consent of 10 the firms concerned Exhibit 12. Many of the dust counts were well under what became the Threshold Limit Value TLV of 5 million particles per cubic foot " MPPCF This report was 12 15 17 18 2019 20 21 2222 23 2244 25 26 2527 28 Snyder Miller & Orton | LLP never published B. The United States Studies 1929-1931 Five Plant Study 9 According to Met Life in 1929 Met Life was approached by firms representing the asbestos industry in the United States with the request that a hygiene study be made of that industry Met Life studied five plants of which one was a M plant Met Life conducted asbestos dust counts and did ray examinations of 126 workers selected more or less at random from among those having more than three years employment in the industry Effects of the Inhalation of Asbestos Dust Upon the Lungs of Asbestos Workers p 12 Exhibit 13. Films were read conservatively and only those were classed as positive about which there was no major disagreement pp 12-13 Of the 126 workers 67 were diagnosed with asbestosis and 39 were doubtful Most with doubtful or negative readings complained of shortness of breath and cough p 14 Exhibit 1 Castleman p 147. The report reflected nine cases of asbestosis in spinning yet three of the four plants with measurements in spinning areas had dust counts below 5 MPPCF Table 1 and p.15 Table 5 Lanza sent this report to Mr. Wardwell noting that it was confidential and will be given no publicity by us except with the consent of the firms concerned Exhibit 14 letter March 20 1931 Lanza to Wardwell 5 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 10 The first of the dust surveys for the asbestos industry was done at the Manville New 2 Jersey plant of Manville in 1929. Met Life found that dust exposures at Manville were 3 overall far below the 10 Million Particles per Cubic Foot MPPCF of air the concentration of 4 respirable particles then regarded as the permissible limit for silica dust a recognized lung scarring 5 hazard The highest dust count for the textile operations was 2.5 MPPCF with two thirds of the dust 6 counts 14/21 below 1 MPPCF Effects of the Inhalation of Asbestos Dust Upon the Lungs of Asbestos Workers p 12 Exhibit 13. 7 11. The 1931 Met Life report on U.S. plant studies concluded that prolonged exposure to 9 asbestos dust causes a pulmonary fibrosis of a definite type distinct from silicosis demonstrable on ray films 10 Conclusion No. 6 was 13 It is not practicable as yet to establish standards for the dust content of air and in view of the many low dust counts in this report compared with the U.S. Public Health Service standard for silica dust it is possible that asbestos may cause pneumoconiosis more readily than free silica Si02 Emphasis supplied 17 12 In an unpublished address entitled Comments on Asbestos to proceedings of the November 1933 meeting of The Home Office Underwriters Association Lanza commented on this 1819 2200 2121 study and remarked We made a great many dust counts in these mills and in the main the amount of dust in the air did not seem excessive as judged by the standards or what we had been accustomed to find in making dust counts for silica dust p 298 Exhibit 15. Emphasis supplied 22 2223 24 25 2526 27 28 28 Snyder Miller & Orton LLP 13. The foregoing observations are significant because they show a considerable asbestos disease - over 50 of the workers affected - with b relatively low dust counts as compared with silica counts and standards Met Life apparently recognizedrecognized that whatever the safe level for asbestos would be it should be lower than that for silica 14 Silicosis was caused by silica dust which produced a progressive fibrosis which itself could cause disability and death Studies were in agreement in showing extraordinarily high mortality rates from tuberculosis for industries and occupations in which large numbers of men are 6 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 known to be exposed to a real silica hazard A.J. Lanza and R.J. Vane Industrial Dusts and the 2 Mortality from Pulmonary Disease 1939 Exhibit 16 p 423 In this text Lanza wrote that one of 3 the confusing aspects of asbestosis was that none of the cases published were in asbestos miners 4 The McGill findings of asbestosis in the Canadian mines had been suppressed 5 15 Lanza commented on the medico aspects of silicosis and asbestosis in the first 6 years of the Great Depression 7 Silicosis and asbestosis burst upon the amazed consciousness of American 8 industry during the period 1929-1930 out of the period of phenomenon economic depression the situation with respect to silicosis and asbestosis 9 became manifest as a medico of a scope and intensity that was at once preposterous and almost unbelievable Damage suits 10 under the common law were instituted against employers by employees alleging pulmonary dust diseases in industrial centers all over the United States to an amount in excess of 100 million dollars 12 15 18 1819 2200 2211 Exhibit 17 Lanza A.J. ed Silicosis and Asbestosis London and New York Oxford Univ Press 1938 pp 405-406 reprinted in Exhibit 1 Castleman p 144. 16 Silicosis was viewed by at least one industry lawyer as our greatest industrial hazard which if not properly controlled will result in the financial ruin of many companies The problem was this flood of pneumoconiosis cases regarded as a racket generated by shyster lawyers and their twin brothers in iniquity the quack doctors The Problem by Alfred P. Hirth pp 8-9 1935 Exhibit 18 Speech given at meeting of forming the Industrial Hygiene Foundation 1932 M Study Manville New Jersey 17. The following describes the 1932 Manville plant study entitled Physical Examinations at Manville Factory Manville New Jersey Exhibit 19 as set forth in Exhibit 1 222 2625 26 2727 Snyder Miller & Orton LLP Castleman pp 21-22 In 1932 medical examinations were conducted for all 1,140 employees of Manville's factory in Manville New Jersey Guidance was obtained from Metropolitan Life doctors Lanza and Fellows in designing the survey Interpretation of chest rays was done by Dr. F.V. Meriwether chief of the U.S. Bureau of Mines clinic in Picher Oklahoma however Dr. Meriwether was not provided with information on the occupational exposure histories of the workers after their hire by Manville The called report of this unpublished study shows 327 of the workers had ray evidence of pneumoconiosis which was called asbestosis if the workers had had no prior history of exposure to occupational dust hazards The 7 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION company separately tabulated length of service and length of exposure 1 while noting asbestosis among a number of workers listed as having no exposure Some of the employees diagnosed by ray as having asbestosis 2 whose exposure at Manville was recorded as none were a watchman a wright packing and shipping department workers and machinists 3 Thus Manville plant workers exposed as bystanders were identified as asbestosis victims before any such cases were reported in the published 4 medical literature 5 18 The 1932 Manville study provided further evidence that asbestos disease could and 6 did result from exposures which were low It was noted that 16 percent of the asbestosis cases were 7 in the textile department the building where Met Life's 1929 report had found exposures to 8 respirable dust to be 2.5 MPPCF and below 9 III TLV HISTORY 11 12 17 2200 2121 222 24 2626 227 8 Snyder Miller & Orton LLP A. The 1935 Met Life Report Effects Of the Inhalation of Asbestos Dust On the Lungs of Asbestos Workers and Its Sequelae 19. At meetings held at M's offices on November 28 1933 and January 4 1934 it was proposed and agreed among M and Manhattan executives and Met Life that Met Life would complete its investigation and survey instituted in 1929. Exhibit 20 Memo November 28 1933 Exhibit 21 Memo January 4 1934 The correspondence trail shows what happened next 20 Vandiver Brown corporate attorney at M wrote Lanza on December 10 1934 and commented upon galley proofs of the upcoming report Brown wanted included a sentence which had appeared in the 1931 unpublished report to the effect referring to asbestosis that clinically it appeared to be of a type milder than silicosis Exhibit 22. 21 Brown sent the galley proofs to George Hobart a Newark attorney Hobart wrote a letter of December 15 1934 taking issue with several statements Exhibit 23. M got them changed One reference was that Plant E was unnecessarily dusty The comment appears in the 1931 report Exhibit 13 p 11 10-1a1bove and does not appear in the final published report Exhibit 24 p 6 Hobart concurred with Brown that the conclusions should reflect that clinically asbestosis was or appeared to be milder than silicosis Hobart wanted this included to show there was a substantial difference between silicosis and asbestosis since M was opposing inclusion of asbestosis as a compensable disease before the New Jersey legislature and defending lawsuits brought 8 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 on negligence theories This conclusion was not included in the galleys the correspondence makes 2 clear It reappeared in the final published report 3 Hobart also did not like the possibility that a pneumoconiosis could arise more readily from 4 asbestos than from granite dust i.e. silica dust He therefore stated that we should if possible 5 eliminate all that part of conclusion No. 6 following the semicolon after the words of .... 6 Exhibit 23 Letter December 15 1934 Hobart to Brown 7 22. Brown under date of December 21 1934 Exhibit 25 sent Hobart's letter to Lanza 8 He stated that no one was suggesting that Lanza alter by one jot or tittle any scientific facts or 9 inevitable conclusions But he asked that all of the favorable aspects of the survey be included and that none of the unfavorable be unintentionally pictured in darker tones than the circumstances 11 justify Brown closed with the sentiment that he felt confident we can depend upon you and Dr. 12 McConnell to give us this break 23. Met Life did make the change to conclusion No. 1 that asbestosis was milder than silicosis and deleted the offending passage from conclusion No. 6 to remove the point that asbestos 14 may cause disease more readily than silica The latter conclusion was made in both the unpublished 1931 report and in the galley proofs of Lanza's article The final Met Life article published on 17 117 8 1919 20 220 1 2323 2425 January 4 1935 by the U.S. Treasury Department Public Health Reports omitted that conclusion Exhibit 24. 24 | The companies with asbestos and silica hazards wished to promote a TLV to help them defend lawsuits Exhibit 26 letter January 22 1935 V. Brown to M.F. Judd with Memorandum Exhibit 27 letter March 22 1935 L.R. Thompson of Illinois to L.R. Thompson USPHS see enclosure 5 p.1 plan at outset of Industrial Hygiene Foundation to set up authoritative and approved standards for control of dusts which if complied with will act as a defense against personal injury suits The TLVs also were misconstrued as a guarantee of safety by some of the people whom they were intended to serve Exhibit 28 Castleman and Ziem American Conference of Governmental Industrial Hygienists Low Threshold of Credibility 26 American Journal of Industrial Medicine 133 142-143 This is because they came to be widely represented and accepted as scientifically limits that would protect virtually all workers from health 9 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 impairment over a lifetime of exposure on the job Exhibit 29 Castleman and Ziem Corporate 2 Influence on Threshold Limit Values p 25 Met Life knew from the 1930-1932 studies that a TLV 3 of 5 MPPCF was not safe for containing dust and that if there was a safe level it was below 4 that concentration Exhibit 30 Aaron Tr 2-05-01 pp 53-81 But the 1930-1932 studies were 5 concealed and Met Life changed the critical conclusion suggesting that the TLV be lower for 6 asbestos than for silica dust Foundation's 7 25. The Air Hygiene medical committee chaired by Lanza suggested a | 8 TLV of 5 MPPCF for silica dust although they separately doubted the adequacy of scientific 9 knowledge for setting a threshold to prevent silicosis M then succeeded in holding the limit at 5 10 MPPCF value for asbestos dust based on the assertion supported by Lanza's induced changes 11 to the 1935 report that asbestosis was a less serious disease than silicosis Exhibit 31 Markowitz and Rosner Public Health Then and Now The Limits of Thresholds Silicon and the Politics of 12 Science 1935 to 1990 Vol 85 No. 2 p.255 M's Vandiver Brown suggested that the 5 MPPCF asbestos dust limit was selected with it well in mind that this was the level prescribed for silicosis 15 Exhibit , Castleman p 235 U.S. Public Health Service surveys of three North Carolina asbestos textile mills by Dreessen Miller et al which formed the principal basis for the TLV were hampered 17 because the mills had fired 150 workers out of less than 600 suspected of having asbestosis Of the 18 19 20 220 1 222 2233 2424 25 25 2727 28 Snyder Miller & Orton LLP fired employees that were located 43 of 69 had asbestosis but no attempt was made to assess their exposures at the plants Exhibit 1 Castleman p 236. The Dreessen report concluded that 5 MPPCF may be regarded tentatively as the TLV until better data are available Exhibit , Castleman p 238. While industry and government hygienists endeavored to set a TLV neither M nor Met Life revealed the findings from the 1930-32 plant and mine worker studies and information deleted from the 1935 published report In one medical book Industrial Medicine by Clark and Drinker the authors stated that on the basis of abundant experience McConnell of Met Life preferred to see the dust count below 5 million and welcomed still lower figures This was referenced to a personal communication Exhibit 32. The book does not suggest that McConnell shared with the authors the basis for his preference or the data withheld from the 1935 Met Life report on this issue 10 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 and the reference stands as further confirmation that Met Life knew the 5 MPPCF standard was 2 unsafe 3 26. The book Silicosis and Asbestosis 1938 edited by Lanza referred to the study 4 commenced in 1929 and published in 1935. The book repeated the conclusion that asbestosis 5 clinically appears to be milder than silicosis Exhibit 17 p 59 It did not disclose that this 6 conclusion was inserted at the behest of M nor did it disclose that the original conclusion that the 7 safe level was likely less for asbestos than silica dust had been deleted at M's behest although it 8 referred to the 5 MPPCF as a threshold limit suggested by Dreessen Miller et al Exhibit 17 p 59 9 27. Met Life knew from its studies in 1929-1932 that the safe level for asbestos should be set below 5 MPPCF Exhibit 30 Aaron Tr 2-05-01 pp 54-57 Nonetheless Lanza wrote to 10 Manfred Bowditch Director Division of Industrial Hygiene Massachusetts on December 13 1937 and agreed that 5 million particles was a pretty fair threshold for the asbestos industry Exhibit 33. B. The 1947 Hemeon Report 15 28. The Industrial Hygiene Foundation IHF was formally founded in 1936 as Air Hygiene Foundation Exhibit 1 Castleman p 681. Industry people met at the Mellon Institute including Alfred Hirth The Problem speech Lanza and Vandiver Brown on January 15 1935 Problems identified according to Brown were the menace of ambulance chasing lawyers in 18 combination with unscrupulous doctors and desirability of covering dust diseases under workers 2200 compensation to eliminate juries and the shyster lawyer and the quack doctor Memorandum 2121 Re Mellon Institute of Industrial Research Symposium on Dust Problems - Pittsburgh Jan. 15 22 1935 dated January 18 1935 by Vandiver Brown Exhibit 26. Mr. Brown characterized the Air 223 Hygiene Foundation as the creature of industry and the one institution upon which employers can 24 rely completely for a sympathetic appreciation of their viewpoint Exhibit 34 letter December 4 25 2526 1936 V. Brown to C.J. Stover 29. Lanza was on the IHF board of trustees and chairman of its medical committee from 27 2728 Snyder Miller & Orton LLP the 1930s to the 1950s 11 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 30. In 1947 W.C.L. Hemeon head engineer of the IHF conducted an industrial hygiene 2 investigation for the Asbestos Textile Institute He studied dust levels and disease in ten plants 3 including M Exhibit 35. Hemeon's observations on the inadequacy of the MP CMF PPCF TLV 4 standard are excerpted in my book Exhibit 1 at p 254 5 6 7 9 10 11 12 14 1719 20 20 21 2 223 24 The maximum permissible dustiness for asbestos is commonly taken to be five million particles per cubic foot This represents good attainment in the dust control program It is emphasized however that dust elimination to this extent does not positively insure that no asbestosis will develop in some workers after a long working life greater than 20-25 years Scientific evidence is obscure on this point It is recommended therefore that studies be initiated aimed to develop another yardstick because it is suggested that when control below five million is attained present dust count methods may not properly measure the remaining hazard This point is repeated throughout the text Some examples dust count investigations cannot in the present state of knowledge give us assurance as to the extent of our success in eliminating the hazard ... the U.S. Public Health Service study there were abnormally few who practically had been exposed for more than 15 years and none over 20 years These facts seriously affected the conclusions that could be drawn The information available does not permit assurance that five million is thoroughly safe nor has information been developed permitting a better estimate of safe dustiness This report remained confidential and the companies studied received a copy as well as a short supplemental report specific to their plants included in the study Exhibit 30 Aaron Tr 2-05- 01 pp 86-88 The Saranac Studies on Asbestos and Cancer 31. Lanza was of the view that he and Royd Sayers U.S. Public Health Service were instrumental in establishing Saranac Laboratory in the industrial consultation field Exhibit 36 memo October 18 1935 Lanza to Dr. Armstrong Met provided key funding to Saranac during the years 1929-1933 before industrial contract work came in to fully support the laboratory in upstate 2525 227 7 Snyder Miller & Orton LLP New York 32 In 1936 ten asbestos companies agreed to underwrite experiments with asbestos dust to be conducted by Dr. Leroy Gardner Director of the Saranac Laboratory Exhibit 37 Memorandum of Agreement November 20 1936. Vandiver Brown of M on behalf of the 12 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 group wrote Gardner authorizing the research His letter confirmed that results obtained would be 2 considered the property of those advancing the funds who will determine whether to what extent 3 and in what manner they shall be made public Exhibit 38 letter November 20 1936 V. Brown to 4 L. Gardner Gardner wrote back agreeing the results shall become the property of the contributors 5 and manuscripts will be submitted for their approval before publication Exhibit 39 letter November 30 1936 Gardner to Brown 6 33. On February 24 1943 Saranac's Gardner sent to Brown an outline of a proposed 8 monograph He noted that the question of cancer susceptibility now seems more significant than I 9 had previously imagined Exhibit 40 letter February 24 1943 Gardner to Brown The 10 monograph outline noted there were ten cases of lung cancer in asbestos workers in the published 11 literature and concluded that the human data were suggestive but not conclusive that asbestos caused lung cancer Of particular significance Gardner described a Saranac study wherein of 11 mice 12 inhaling long fiber asbestos 81.8 developed tumors in their lungs compared with an 18.8 rate in mice exposed for comparable periods to other dusts Gardner concluded the incidence rate 81.8 is excessive Exhibit 40 letter February 24 1943 Gardner to Brown p 8 He wrote that these 16 observations were suggestive but not conclusive evidence of a cancer stimulating action by asbestos dust Gardner also noted that the tentative standard of 4-5 MPPCF is probably unreliable because 1819 the measurement methodology used did not collect most of the fibers that are the source of the 2020 2121 232 24 25 25 2727 Snyder Miller & Orton LLP hazard Exhibit 40 letter February 24 1943 Gardner to Brown p 10 34. | Gatke Corporation one of the sponsors began pushing for publication of a Saranac report because it indicated that damage was caused by longer fibers which could be arrested through use of respirators Exhibit 41 letter August 12 1946 T. Gatke to J.F.D. Rohrback of Raybestos- Manhattan Gatke envisioned such a report without injections of possibilities of cancer etc. etc. with which the companies could combat compensation claims 35. M well was pushing for publication because there was a real ferment underway in Quebec on the whole subject of industrial health with people taking positions that might get the 13 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 mining industry and M in particular into real difficulties Exhibit 42 letter June , 1948 J.P. Woodard to A.J. Vorwald bcc Lanza 3 36 Gardner died in October 1946. By the year's end Lanza was made a member of the 4 Board of Trustees of the Trudeau Foundation parent of the Saranac Laboratory Exhibit 1 5 Castleman p 53. Saranac sent Gardner's notes to Lanza for suggestions Lanza wrote Kenneth 6 Lynch of the Medical College of the State of South Carolina seeking his assistance Exhibit 43 7 letter December 6 1946 Lanza to Lynch Lynch agreed to look at the material Exhibit 44 letter 8 December 9 1946 Lynch to Lanza 9 37. A meeting of M executives and Lanza took place on January 21 1947 to hear Lanza's report on Saranac Lanza reported on his dealings with Dr. Lynch to see if Gardner's work 10 could be put together in publishable form M was of the view that the company had a definite job to do in Canada to counter the effects of a lot of propagandizing done in relation to asbestos dust and 12 a report could be of material help Within a month a major strike would start at M's mine and close down most of the asbestos mines in Canada for five months Brown reminded the group that no publication could take place without the companies consent and he hoped Lynch would not 17 include objectionable material for example anything about the relationship between asbestos dust and cancer Lanza assured him that any report prepared by Lynch first would be submitted to M 18 before being published Exhibit 45 Minutes of Meeting Held January 21 1947 by J.R. Hamilton 38. On March 18 1947 Manfred Bowditch of Saranac wrote to Brown in response to his 2200 March 12 letter and listed points in Gardner's notes which had been transcribed and sent to Lynch 2211 Among them was paragraph 4 that 81.8 of the mice inhaling long fiber asbestos developed lung 22 cancer Exhibits 46 47. Brown replied under date of March 21 1947 exclaiming that he was 2223 very much concerned by paragraph numbered " as to which in a blind cc to M executive Vice 24 President J.P. Woodard the usually carefully spoken Brown wrote The finding referred to looks 2525 26 27 2828 Snyder Miller & Orton LLP like dynamite Exhibit 48. 39. Lynch decided that the partially completed manuscript could be and should be published just as Gardner had written it with an explanation of his sudden demise Exhibit 49 letter June 30 1947 Lynch to Lanza Lynch sent the manuscripts back to Lanza arranged joined and 14 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION titled as a single publication Exhibit 50 letter July 23 1947 Lynch to Lanza Dr. Lynch adhered 2 to the view which he expressed to Lanza that Gardner's material was publishable as it stood and 3 revisions by others might not truly represent him Exhibit 51 letter August 7 1947 Lynch to 4 Lanza Dr. Herbert Abrams Chief of the Bureau of Adult Health at the time this occurred later 5 wrote How many lives would have been saved if Gardner's observations including those on lung 6 cancer and asbestos had been reported without censorship Exhibit 52 Some Hidden History of 7 Occupational Medicine p 27. 8 40. Saranac prepared a report dated September 30 1948. It reflected in paragraph 75 the 9 striking feature that 9 of 11 mice got tumors and in paragraph 92 that Gardner's notes called attention to the high incidence of lung cancer among mice inhaling fiber asbestos Exhibit 11 53. 41. | The companies called a meeting at Manville's Boardroom for November 11 13 1948. Exhibit 54 letter October 27 1948 V. Brown to companies The meeting resulted in the unanimous opinion that the references to cancer and tumors should be deleted as a point they would insist upon All copies of the draft report were to be returned Exhibit 55 letter November 12 17 1948 V. Brown to American BrakeBlok Dr. Lanza agreed to take up with Saranac the matter of revising the report and putting it in the shape they had agreed upon Exhibit 56 letter November 30 18 18 19 2200 1948 J.P. Woodard to T. Gatke 42. In December 14 1948 letter to Arthur Vorwald Saranac Director Lanza instructed that all references to cancer or tumors should be omitted as well as any related tables Exhibit 57 2211 letter December 14 1948 Lanza to Vorwald And they were Dr. Vorwald's marked up copy 22 2223 24 2222 shows the offending sections stricken out Exhibit 58 Revised Report A revised report was urgently needed in Canada Exhibit 59 letter December 16 1948 Lanza to Vorwald and was available by March 3 1949. Exhibit 60 letter March 3 1949 V. Brown to American BrakeBlok and others 2222 43 Dr. Harriet Hardy a famous pioneering doctor in the industrial medicine field met 27 2827 Snyder Miller & Orton LLP with Gardner at Saranac in the summer of 1946. Much later she and Dr. Egilman published information that Gardner's animal experiments indicated that asbestos caused cancer Gardner told 15 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 Hardy that the research sponsors would not permit him to publish that information Exhibit 61 2 Aaron Tr 2-13-01 pp 174-175 Exhibit 62 Corruption of Occupational Medical Literature The 3 Asbestos Example 4 44 The final version of the Saranac study was published in 1951 in the A.M.A. Archives 5 of Industrial Hygiene and Occupational Medicine authored by A.J. Vorwald T.M. Durkan and R.C. 6 Pratt with no references to cancer Exhibit 63. The Saranac study as published stated that it 7 presented for the first time a complete survey of the entire experimental investigation done by Dr. 8 Gardner This was not true The published paper left out the information about cancer and it left out 9 Gardner's remarks that the TLV was unreliable because it was based on flawed sampling methodology report 45. The published Saranac received wide circulation Exhibit 64 letter June 11 1951 Smith to McGraw It won the Industrial Medical Association's Merit in Authorship Award 10 and implied by omission that experimental animal studies failed to provide evidence that asbestos was carcinogenic to humans 46. As this paper went to press Vorwald was contracted to do another experimental asbestos inhalation study on mice by the Quebec Asbestos Mining Association QAMA This work 15 relative was agreed to in November 1950 at a meeting attended by a Manville executive Dr Lanza Dr. Vorwald and the QAMA lawyer Exhibit 1 Castleman p 67 The study started in March of 1951. The QAMA study was strongly positive but the 5.7 risk of the asbestos mice 2020 2211 22 2223 2424 2255 26 26 227 8 Snyder Miller & Orton LLP was not publicly disclosed until 1995 by Vorwald's successor at Saranac Exhibit , Castleman p 68-69 47. The TLVs including the TLV for asbestos were first adopted by the American Conference of Governmental Industrial Hygienists ACGIH in 1946. They were promoted as and were understood by many as stating a safe level of exposure The deletion of information about cancer from the published Saranac report is especially important in that if a substance causes cancer there is no safe level of exposure But if TLVs for carcinogens were to be set at zero or of they were to be dramatically lowered as recommended by U.S. authors for carcinogens including asbestos in the 1950s sales of containing products could drop drastically which is eventually what 16 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 happened Exhibit 30 Aaron Tr 2-05-01 pp 89 102-105 I have researched and written on the 2 subject of the TLVs and am knowledgeable about them Worker health standards in industry 3 enforced by the government had been inevitable since the New Deal era State government agencies 4 in California and other states were starting to codify limits on worker exposure to airborne dusts and 5 gases in the 1930s initially listed as advisory standards U.S. consumption of asbestos dropped 6 dramatically from its peak after 1973 following increased public and media awareness about 7 asbestos and government regulation by new federal authorities involving constant downward 8 pressure on permissible exposure limits Exhibit 1 Castleman pp 730-731 9 48. Lanza retired from Met Life at the end of 1948. He took a position at New York University which Met Life funded and Met life paid his expenses in the early 1950s Exhibit 61 10 Aaron Tr 2-13-01 pp 120-121 49. At the First National Cancer Conference in 1949 there was a panel discussion on 1419 20 2211 22 2223 24 2525 26 2276 asbestos and cancer The published account read The clinical work of Lanza and the experimental work of Vorwald have not revealed any carcinogenic properties which can be attributed to asbestos Evidently these doctors did not present Saranac's 81.8 percent lung cancer rate in mice and allow the participants at the conference to draw their own conclusions on how significantly this exceeded Gardner's comparison rate of 18.8 percent Exhibit 1 Castleman p 88 50. | Lanza was a member of the Cancer Prevention Committee of New York and spoke at the group's meeting in 1950 where cancer in asbestos workers was discussed In the published discussion Lanza took issue with the U.K. report that 13 percent of 235 workers dying with asbestosis also had cancers of the lung and pleura He said these lungs were searched with a microscope and suggested that there might be a lot of these tumors found in any population subjected to the same minute scrutiny Exhibit , Castleman pp 70-71 Lanza's unique viewpoint on this was cited by another doctor reporting a case of asbestosis and lung cancer who believed that in order to prove a material was carcinogenic it had to be demonstrated in experimental animals Like the rest of the world outside of a small circle including Lanza this writer did not know of the unpublished Saranac experiments on asbestos and cancer Exhibit , Castleman p 92 Exhibit 65 2288 Snyder Mitler & Orton LLP Asbestosis and Lung Cancer in the Case of an Asbestos Spinner 17 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 51. In 1952 Lanza published a paper entitled Asbestosis in which he noted that 2 authorities in Great Britain regarded cancer of the lungs as a frequent sequelae to asbestosis He 3 wrote that this is not the experience in Canada or the United States Lanza related that he had just 4 spent several days with the Manville medical director Kenneth Smith at the firm's large mine 5 in Asbestos Quebec Smith had showed him rays and told Lanza there was no unusual experience 6 with lung cancer Lanza suggested that the asbestos fibers in various parts of the world might have 7 different pathological results Exhibit 66. 52. The U.S. National Cancer Institute held a Conference on Environmental Carcinogens 9 in September 1955. The expert panel on asbestos consisted of Lanza's fellow NYU faculty member W.E. Smith Dr. Vorwald and Dr. Kenneth Smith of Manville The panel rated the epidemiological evidence with a question mark and indicated that there was 0 experimental data available Dr. W.E. Smith was unaware of the Gardner cancer experiment until 1989 and he communicated to me that it would have been of interest and importance at the time it was done Exhibit , Castleman p 72. When he heard of efforts to get NYU to rename the Anthony Lanza Research Laboratories in the late 1980s Smith commented that having the university laboratories named after Lanza was rather like dedicating a synagogue to Hitler Exhibit 67 Letter W. Smith to C. Patrick April 16 1988. Dr. Harriet Hardy agreed that NYU should change the name of the Lanza 18 building after seeing some of the papers that had been revealed in litigation " shiver to think what 19 the good Lord did with Lanza and Vorwald she wrote Exhibit 68 Letter H. Hardy to B. 20 Castleman May 15 1987 21 22 23 24 25 26 27 28 Snyder Miller & Orton LLP D. Braun Report 53. In 1956/1957 M's president was on the board of trustees of the IHF Met Life's Dr. Shepard was a member of its medical committee Exhibit 69 Industrial Hygiene Foundation Activities 1956-1957 Met Life also was involved with this IHF epidemiology study because it owned Sun Life Assurance Company of Canada which made available data for the study Exhibit 70 Aaron Tr 2-14-01 pp 183-184 Exhibit 71 Quebec Asbestos Mining Association An Epidemiological Study of Lung Cancer in Asbestos Miners Braun and Walmer September 1957 pp ii The IHF did this study of asbestos miners for the Quebec Asbestos Mining Association 18 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 The original unpublished report said that the 12.5 percent rate of lung cancer among workers dying 2 with asbestosis was significantly larger than would be expected The report suggested this may have 3 been due to underreporting of asbestosis which if such a statement was published would have 4 reflected badly upon industry medical clinics that had been publicly praised by Lanza Exhibit 71 5 Quebec Asbestos Mining Association An Epidemiological Study of Lung Cancer in Asbestos 6 Miners Braun and Walmer September 1957 pp 53-54 Exhibit 66 Asbestosis 7 54. For publication the draft report was modified to delete all references to the lung 8 cancer rate among workers dying with asbestosis Exhibit 72 letter December 30 1957 K. Smith of 9 M to I. Sabourin The final report entitled An Epidemiological Study of Lung Cancer in Asbestos Miners by Braun and Truan was welcomed for publication by editor Herbert Stokinger 10 and published in the AMA Archives of Industrial Health It concluded instead of the original finding that the lung cancer death rate in asbestotics was greater than expected and significant that on the 12 basis of what was represented to be complete and reliable data the miners do not have a significantly higher death rate from lung cancer than do comparable segments of the general 15 population Exhibit 73 p 651. 55 Dr. Stokinger was in the 1950s a key member of the Committee on Threshold Limits 17 of the ACGIH which published the TLVs He would become Chairman of the Committee from 1962 18 2020 2121 through 1977. Exhibit , Castleman pp 96-97 Stokinger was pleased to see that the conclusion of the Truan report was against the association of lung cancer and asbestos Exhibit 74 Letter Jan. 20 1958 H. Stokinger to D. Braun Stokinger had himself relied on the 1952 article published by Lanza in stating that workers in the US asbestos industry do not get cancer as do those in the 22 European industry Exhibit 30 Aaron Tr 2-05-01 pp 128-129 Exhibit 75 Stokinger Standards 223 for Safeguarding the Health of the Industrial Worker published in Public Health Reports January 24 1955 p 75 Exhibit 76 Stokinger Toxicologic Aspects of Occupational Hazards Annual Review 2525 of Medicine 7 177-194 1956. 26 2726 2828 Snyder Miller _ & Orton LLP 56. The original TLV for asbestos was created with Met Life's involvement The initial authors of the report that became the basis of the asbestos TLV included one Miller a pathologist who worked at the U.S. Public Health Service but whose entire salary was paid by Met Life 19 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION Exhibit 77 Aaron Tr 2-02-01 pp 59-61 Exhibit 78 Aaron Tr 2-12-01 pp 52-53 Met Life's Dr. 2 Lanza was one of the key players in organizing the IHF The IHF formation correspondence 3 indicates that industry planned the use the TLV in a legal defense to oppose compensation claims for 4 dust diseases of the lungs Exhibit 77 Aaron Tr 2-02-01 pp 115-116 5 57 Dr. Vorwald was on the ACGIH TLV committee from 1951-1956 He apparently did 6 not disclose the Saranac experimental cancer findings to that committee 7 E. Met Life's Influence 8 58 In 1927 Met Life was the largest insurance company indeed the largest financial 9 institution in the world according to Haley Fiske its president Its assets totaled 2.25 billion It insured fifth of the entire population of the United States and Canada The Metropolitan -a -a 10 Mother's Care for the Millions that Own It address of Haley Fiske November 21 1927 Los Angeles California Exhibit 79. 12 59. A book commissioned by Met Life in 1943 characterized the company as the largest financial corporation in the world Exhibit 80 Dublin A Family of Thirty Million p 5 14 Metropolitan Life Insurance Company 1943. At the end of 1938 it had assets of nearly 5 billion Exhibit 81 Marquis James The Metropolitan Life A Study in Business Growth p 349 Viking 17 Press 1947 60. Met life invested heavily in the asbestos companies including in particular M from 18 1929-1944 1947-1965 1966 is missing and 1967-1970 It invested in numerous others from 1938- 220 0 1974. Exhibit 82 letter February 7 1991 Ms. Duprel at Maples to B. Castleman 21 21 summarizing Met Life annual statements 22 61. Met Life provided a line of credit to M in the amount of 25 million annually from 2323 1947-1963 Exhibit 83 1948 M Annual Report p 11. 224 4 62. The chairman of the board of Pittsburgh was also the chairman of the board 25 of Corning Fiberglas both of which were companies making containing products 2526 That person was a member of the Met Life board of directors Exhibit 61 Aaron Tr 2-13-01 p 27 2728 Snyder Miller & Orton LLP 146. 20 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 63 Met Life sold group life insurance to the companies and offered accident and health 2 coverage to some with an extra loading for asbestos companies such as M Exhibit 1 Castleman 3 pp 654-655 4 64 Met Life had what has been characterized as the premier the biggest the best and in 5 some cases the only insurance consulting firm on occupational worker health issues in the United 6 States Exhibit 30 Aaron Tr 2-05-01 p 94. Lanza had tremendous influence in the community of 7 occupational health physicians Lanza and Drs Gardner and Vorwald were among the most well- 8 recognized authorities on dust diseases of the lungs in the country Exhibit 30 Aaron Tr 2-05-01 9 pp 115 155. 65. the time of crisis that led to the formation of the IHF many of the largest industries 10 in the country looked to Met Life as the place to go for help in dealing with the problem that at present is a serious menace to them from an economic standpoint Exhibit 84 Memo February 27 12 1935 Lanza to Armstrong 66 Soon after Lanza started working at New York University he brought over Dr. Gerrit Schepers from South Africa for training Dr. Schepers went around to asbestos plants and mines and 16 wrote up his findings intending to provide them to his government This report was required by Lanza as a thesis to complete work at NYU Then Lanza brought Schepers to see M corporate 18 1199 2200 attorney Vandiver Brown who was upset about the part on cancer in the workers and told him to suppress it The report did not see the light of day after it was submitted to the government in South Africa where asbestos mining was a major industry Exhibit , Castleman pp 64-66 Exhibit 85 2121 Testimony of Gerrit W.H. Schepers M.D. Bob Alan Speake v Manville No. 160993 22 2223 24 2525 26 27 2827 Snyder Miller & Orton LLP December 14 1981 67 By 1948 a Met Life policyholder manufacturing chromates had had a number of claims due to lung cancer due to chrome In 1951 Lanza met with the US Surgeon General concerning an epidemiology study authored by Dr. Wilhelm Hueper of the National Cancer Institute Lanza stressed that the government needed industry cooperation and following this meeting Dr. Hueper was forbidden to do any more investigations into occupational cancer in American industries The chromate study was published without the name of Hueper as an author 21 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION enabling the industry to argue that the federal government had withheld its endorsement over 1 disagreements with the report This is discussed in Lanza's correspondence with executives at 3 Mutual Chemical and Diamond Alkali Met Life policyholders Exhibit 1 Castleman pp 73-74 4 68. In 1947 a study was planned by state government officials into the silicosis hazard at 5 Manville's diatomaceous earth facility in Lompoc California This was prevented when 6 Lanza gave assurances that the dust problem was under control Met Life Vice President William Shepard gave similar assurances to Dr. Herbert Abrams of the California Department of Public 8 Health even as workers compensation claims were being filed by employees Lanza and Shepard 9 continued to oppose disclosure independent study and dust control requirements at Lompoc 10 Exhibit 1 Castleman p 654 Exhibit 86 Testimony of Herbert K. Abrams MD In re Asbestos No. 888 April 19 1994 Exhibit 52 Some Hidden History of Occupational Medicine 12 69. | At New York University Lanza became enraged when Dr. W.E. Smith brought him an unpublished report on high lung cancer rates at a British asbestos plant in 1954. Smith wanted to do experimental animal studies on asbestos and cancer he did not know of the suppressed Saranac studies Dr. Smith was soon fired by the university and he believed that the exchange with Lanza 17 about asbestos was the immediate cause of that Exhibit 1 Castleman p 85 Exhibit 87 Deposition of W. Smith 70. An indication of Met Life's influence appears in a Claims Medical Manual of Aetna 18 Life and Casualty of December 1978. That manual reflects that Lanza's work suggested that 20 20 21 22 223 24 asbestos was not really a problem and it had the effect of dampening research in the area Exhibit 88. 71. Philip Enterline was a professor of biostatistics at the University of Pittsburgh Pennsylvania He has given an affidavit dated March 7 1991 Exhibit 89 reflecting that he reviewed all the medical literature published on asbestos and cancer from 1934-1964 prepared a 25 2525 27 book in 1978 updated in 1980. He conducted the review at the request of the Asbestos Information Association He had reviewed the 1951 article by Vorwald and Pratt He had written that in the United States there had been a twenty international lag in the acceptance of the causal connection between asbestos exposure and cancer The affidavit reflects that he had recently Snyder Miller & Orton LLP 22 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION reviewed the unpublished Gardner monograph Outline of Proposed Monograph on Asbestosis 2 Exhibit 40 which contained the findings about the 81.8 tumor incidence in mice exposed to 3 asbestos an incidence Gardner reported was excessive Enterline noted that finding was not reported 4 in the 1951 published article by Vorwald and Pratt He gave the opinion that if these Gardner 5 findings had been published in a reputable scientific journal that would have accelerated in this 6 country the acceptance of a causal relationship between asbestos and cancer I agree with that 7 opinion Exhibit 30 Aaron Tr 2-05-01 pp 111-116 8 III MET LIFE AND MANVILLE 9 A. Met Life Agreement to Perform Industrial Hygiene Services 72. Lanza attended a meeting on November 28 1933 at M's offices Lanza indicated 10 that if his survey could be approved Met Life could be counted upon to take dust counts at various plants do ray examinations of employees and make recommendations as to dust control Exhibit 12 20 Memo November 28 1933. 73 meeting on January 4 1934 M and Manhattan officials advised of their decision to avail themselves of the assistance offered by Met Life Met Life also agreed to train 15 company employees to make dust counts Lanza pointed out that Met Life representatives were as qualified as any to advise about respirators Exhibit 21 Memo January 4 1934. 74 M did not have its own corporate medical director until 1952 1819 75 On August 29 1933 M's S.A. Williams Vice President forwarded to A.R. Fisher 2200 21 21 manager of the Manville New Jersey M plant a Personal and Confidential letter enclosing a copy of questions asked of Lanza by M's physician at its Waukegan Illinois plant and his answers verbatim Exhibit 90. 2 2 2 Question 1 dealt with use of respirators Lanza advised in substance that they were not satisfactory 222222 Question 2 and the Lanza answer were as follows 2 222 2828 Snyder Milter & Orton LLP Question No. 2 Do you agree with my recommendation that employees definitely be made aware of the fact that asbestos dust is hazardous to their health My 23 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION idea is that a poster be placed at one or more conspicuous places in the 1 department signed by the physician stating that the dust is injurious advising the continuous use of respirators while at work and cleansing of 2 hands before eating lunch and after work 3 Your comment on this please and particularly is there any additional advice that should be given 4 Answer 5 This is partially answered by No. 1. I doubt if the hazard is sufficient 6 to justify warning posters as might be used where lead benzol or carbon monoxide are concerned This is especially true in view of the anything 7 extraordinary legal situation If is said at all it would be better to make a general statement that the Company is taking steps to control the 8 amount of dust in the air for general health purposes Any action contemplated at Waukegan would probablyprobably be influenced by the experience 9 experience at other plants of the Company 10 76. Clearly the M physician was proposing to warn the workers about the hazards of 11 asbestos dust Dr. Lanza advised against providing such a health warning about asbestos and 12 recommended instead a vague statement that M was controlling the dust for health purposes with 13 || the effect of misleading the workers This was prescribed by Dr. Lanza in view of the extraordinary 14 legal situation notwithstanding the medical reality of the health hazard from asbestos dust 15 77 the Waukegan document Question 5 to Lanza and his answer were 16 Question No. 5 17 a I have made diagnosis of asbestosis on an employee who has been is 18 working in the card room of the textile department six years This place is a extremely dusty He is not disabled In my judgment the best disposition 12 of such a case is to remove him from the dust and give him job in some other part of the plant From your remarks in Chicago I believe this was 12 your advise sic as to the disposition of such cases 22 Answer 22 It is difficult to answer this question I think it would depend upon the man's age the nature of his work his length of service and other in 222 considerations which might have some bearing he is well along in years and shows no disability it may be just as well to leave him alone One of 222 the difficulties and vexations in trying to deal with the problems of pneumoconiosis is that economic as well as production factors must be 222 balanced against the medical factors 26 27 28 Snyder Orton 24 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 Lanza thereby advised M's plant physician to leave some workers with asbestosis in dusty 2 operations evidently without even being informed of their diagnoses in weighing economic and 3 production factors against medical factors 4 C. The Manville 1945 Inspection 5 78. In 1945 the War Production Board ordered the New Jersey Department of Health to 6 investigate the M plant at Manville on the suspicion that there were unhealthy working conditions 7 there Met Life interceded by telling the Director of Industrial Hygiene for New Jersey that the 8 asbestosis hazard at that plant was under control and had been for many years New Jersey accepted 9 these findings and reported to the War Production Board The case was closed Exhibit 91 Annual Report of the Industrial Health Section 1945 pp 1-2 The Met Life allegations stood in stark 10 contrast to the confidential Hemeon study of the same plant in 1947 which found potential cases of asbestosis amounting to about 20 and poor dust conditions consistently throughout the plant 12 Exhibit 1 Castleman pp 254-255 D. M Followed the Met Life Path 14 Exhibit 79. M followed the path set for it by Met Life It did not post warnings in its plants or otherwise warn its workers about the dangers of asbestos dust M did not place warning labels on its asbestos insulation products until 1964 and on its sacks of asbestos until 1969. 1 Castleman p 611. 18 80. M did not inform its employees when their medical examinations revealed 2200 asbestosis as a matter of company policy until 1971 or 1972 at least at M's Pittsburg California 21 plant Exhibit 1 Castleman p 612 Exhibit 92 Sworn Statement of Wilbur Ruff Jan. 11 1978. In 21 1949 M's Smith found four normal rays out of 708 of Canadian miners and decided not to tell 22 their the workers so the company could benefit from experience Exhibit 30 Aaron Tr 2-05-01 223 4 p 142. 25 25 26 228 8 Snyder Miller & Orton LLP 81. Mr. Charles Roemer has submitted an affidavit in which he described a meeting with M officials including Vandiver Brown and the M president Lewis Brown in 1942 or 1943 Vandiver Brown advised that M's physical examination program produced evidence of asbestos disease among workers It was M's policy to not tell employees of the positive ray findings 25 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 Brown pointed out that if the workers were told they would stop working and file claims against J- 2 M and it was M's policy to let them work until they quit work because of asbestosis or died as a 3 result of asbestos diseases Exhibit 93 Charles H. Roemer Affidavit September 29 1982 4 reprinted in Exhibit 1 Castleman pp 160-161 S My book at p 489 also contains an excerpt from a deposition of Mr. Roemer Exhibit 94 6 I'll never forget I turned to Mr. Brown one of the Browns made this crack 7 that Unarco managers were a bunch of fools for notifying employees who had asbestosis and I said Mr. Brown do you mean to tell me you would 8 let them work until they dropped dead He said Yes We save a lot of money that way 9 Testimony of Charles H. Roemer about the meeting of Unarco officials with Manville President Lewis Brown and his brother Vandiver in 1942 or 1943. Deposition taken April 25 1984 Manville Corp. v United States U.S. Claims Court Civ No. 465-83C 10 82 M's policy to not advise its workers of their asbestos illnesses continued and became perpetuating with ever increasing numbers of workers who were affected were not told and were still working A January 12 1963 internal Manville document written by an official who 16 employees appears to have been at the Waukegan plant reflects the dilemma 1 From a moral standpoint identified as having pneumoconiosis should be told of their condition promptly 18 18 2 From an ethical standpoint Doctors should tell these people of their 19 condition promptly 20 20 3 From a practical standpoint if we tell 25 persons they are pneumoconiotic within the next two to six weeks there may be an undesirable panic or panic 21 2222 Exhibit , Castleman p 186 Exhibit 95 January 28 1963 Confidential memorandum entitled 23 Pneumoconiosis Cases This same memorandum reflects there were 71 red slip cases people 224 4 who had been medically identified as having one of three stages of pneumoconiosis and 25 approximately 225 pink slip cases people possibly showing signs of pneumoconiosis where in 2526 each case a doctor advised management to keep the employee out of toxic dust Management 27 couldn't handle the problem of telling these workers about their possible condition so it was 28 28 Snyder Miller &Orton LLP decided to collect all pink slips from safety and personnel departments and destroy them along 26 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION 1 with all records or codes that refer to pink slip cases The only information about pink slips was 2 to be in the medical records 3 83 A 1979 M memorandum to the Board Chairman noted that the company's credibility 4 with legislators juries and the public was being undermined by evidence contrary to M's public 5 statements One example given was that the M position was that since 1964 the corporation had 6 come clean with employees about asbestos hazards The memo contrasts this with the FACT 7 that according to employees people worked for 35 years at M and were never told about the 8 dangers and it was company policy into the early 70's not to tell a person about his illness Exhibit 9 96 January 12 1979 M Internal Correspondence C.G. Links to A McKinney 84. I have been involved in historical research on asbestos and expert testimony in 10 asbestos litigation for over 30 years and I have never encountered a case where an historic document I had been presented with turned out to be forged or fraudulent I therefore have every reason to 12 believe that the historic documents referred to herein and in my writings are all true copies and are exactly what they appear to be 14 CONCLUSIONS 1. M knowingly inflicted asbestos dust upon its workers at levels that it knew caused 18 19 20 20 disease and death for decades commencing no later than 1929 and continuing through at least the 1960s It did so deliberately not warning its workers about the hazards and leaving them in dangerous asbestos dust conditions when management knew many of them suffered from asbestos- 22 related diseases 322 32 322 Snyder Miller & Orton LLP 2 workers Met Life knew that the conduct of M constituted a breach of its obligations to its 3 Met Life gave substantial assistance to M in breaching its duties to its workers by among other things referred to above a knowingly assisting in the development and promulgation of unsafe TLV of 5 MPPCF b deliberately doctoring the published report of its 1929-1931 plant studies at M's behest to remove the information that the safe level for asbestos dust should be less than for silica which Met Life knew to be true c by carrying out the wishes of M and other 27 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION . 13-2007 13-2007 26P FROM : - TO 14159624401 2/2 1 asbestos companies to instruct Saranac to delete from its published study the information that 2 asbestos caused cancer in micc d by participating in the alteration of the Braun IHF report 3 that omitted key cancer findings and c by advising M not to warn its workers about the hazards of 54 asbestos dust and not to remove affected workers from the dusty conditions 4. Met Life supplied information of certain facts about the results of exposure to asbestos dust but suppressed other facts in particular the unsafe nature of the TLV and the information that 7 asbestos had been shown to cause cancer such that what it did supply was likely to mislead people by 8 reason of the failure to communicate the facts suppressed 9 5. Met Life undertook to speak about health effects of exposure and safe levels of 10 10 13 1516 exposures but suppressed material facts 6. Met Life knew that M was consciously or without reasonable care concealing material facts regarding the dangers of asbestos and gave substantial assistance to M in doing so 7. The conduct of Met Life as it affected plaintiff plant workers through the conduct of M substantially increased the risk of harm to those plant workers I declare under penalty ofperjury under the laws the State of California that the foregoing is true and correct 1717 Executed this 13 day of April 2007 at Garrett Park Maryland 18 210 9 Barry I. Castleman Sc.D. 21 22 223 24 25 25 26 2727 28 28 28 CASTLEMAN DECLARATION IN OPPOSITION TO MET LIFE'S SUMMARY JUDGMENT MOTION