Document 6Zoj8L6qQR5v3562aKoJR4E3

1 IN THE CIRCUIT COURT FOR THE THIRD JUDICIAL CIRCUIT MADISON COUNTY, ILLINOIS 2 3 RONALD R. THOMPSON, ) ) 4 Plaintiff, ) 5 vs. ) ) CAUSE NO. 05-L-301 6 MIDAS, INC., et al., ) ) Asbestos Personal Injury ) 7 Defendants. ) 8 9 DISCOVERY DEPOSITION OF DR. SHELDON H. RABINOVITZ 10 Taken on behalf of the Plaintiff 11 January 31, 2006 12 13 14 15 Kevin J. Weichman, CSR, CCR 16 ILLINOIS CSR NUMBER: 084-003189 MISSOURI CCR NUMBER: 915 17 18 19 20 21 22 23 24 25 1 1 INDEX OF EXAMINATION EXAMINATION BY MR. O'BRIEN ........................................................ 7 2 3 EXHI B I TS 4 Exhibit 1 - 1/26/06 e-mail from Mr. Krause ........... 8 with attachments 5 Exhibit 2 - Records of purchase of ..................................8 asbestos by Unarco 6 7 (ORIGINAL EXHIBITS RETAINED BY REPORTER TO BE ATTACHED TO MR. KRAUSE'S TRANSCRIPT.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 IN THE CIRCUIT COURT FOR THE THIRD JUDICIAL CIRCUIT MADISON COUNTY, ILLINOIS 2 3 RONALD R.THOMPSON, ) ) 4 Plaintiff, ) 5 vs. ) ) CAUSE NO. 05-L-301 6 MIDAS, INC., et al., ) ) Asbestos Personal Injury ) 7 Defendants. ) 8 THE DISCOVERY DEPOSITION OF DR. SHELDON R. RABINOVITZ, produced, sworn and examined on behalf of 9 the Plaintiff, on Tuesday, January 31, 2006, between eight in the forenoon and five in the afternoon, at the 10 BWI Airport Marriott, 1743 West Nursery Road, Baltimore, Maryland, before KEVIN J. WEICHMAN, a Certified 11 Shorthand Reporter within and for the County of St. Louis, State of Missouri. 12 13 A P P E A R A N C E S 14 The Plaintiff was represented by Mr. Andrew A. O'Brien, of the O'Brien Law Firm, PC, One Metropolitan 15 Square, 211 North Broadway, Suite 1500, St. Louis, Missouri 63102. 16 17 APPEARING TELEPHONICALLY: The Defendant, Pneumo Abex Corporation, was represented by Ms. Anita 18 Kidd, of the law firm Armstrong, Teasdale, LLP, One Metropolitan Square, Suite 2600, St. Louis, Missouri 19 63102-2740. 20 The Defendants, Ford Motor Company, General 21 Motors Corporation, and DaimlerChrysler Corporation, were represented by Mr. Robert S. Krause, of the law 22 firm Dickinson Wright, PLLC, 500 Woodward Avenue, Suite 400, Detroit, Michigan 48226-3425. 23 24 25 3 1 APPEARING TELEPHONICALLY: The Defendants, Riley Stoker Corporation, CertainTeed Corporation, 2 McKesson Corporation, and DaimlerChrysler Corporation, were represented by Mr. James J. Bentivoglio, of the law 3 firm Heyl, Royster, Voelker & Allen, Mark Twain Plaza II, 103 West Vandalia, Suite 100, P.O. Box 467, 4 Edwardsville, Illinois 62025. 5 APPEARING TELEPHONICALLY: The Defendant, 6 Volkswagen of America, Incorporated, was represented by Mr. James Toohey, of the law firm Johnson & Bell, Ltd., 7 33 West Monroe Street, Suite 2700, Chicago, Illinois 60603-5404. 8 9 APPEARING TELEPHONICALLY: The Defendant, T.H. Agriculture & Nutrition, LLC, was represented by 10 Mr. Peter Maginot, of the law firm Lathrop & Gage, LC, 10 South Broadway, Suite 1300, St. Louis, Missouri 11 63102. 12 APPEARING TELEPHONICALLY: The Defendant, 13 Mazda, was represented by Mr. Kevin Marquitz, of the law firm McGlynn & Luther, 500 North Broadway, Suite 1515, 14 St. Louis, Missouri 63102. 15 APPEARING TELEPHONICALLY: The Defendants, 16 John Crane, and Cleaver Brooks, were represented by Mr. Mark Tivin, in association with O'Connell, Tivin, 17 Miller & Burns, LLC, 645 Tollgate Road, Suite 220, Elgin, Illinois 60123. 18 19 APPEARING TELEPHONICALLY: The Defendants, Ford Motor Company, and General Motors Corporation, were 20 represented by Mr. Ryan McQueeney, of the law firm Sanchez, Daniels & Hoffman, 333 West Wacker Drive, Suite 21 500, Chicago, Illinois 60606. 22 23 24 25 4 1 APPEARING TELEPHONICALLY: The Defendant, Midas, Incorporated, was represented by Mr. Keith 2 Whitson, of the law firm Schnader, Harrison, Segal & Lewis, LLP, 2700 Fifth Avenue Place, Pittsburgh, 3 Pennsylvania 15222. 4 APPEARING TELEPHONICALLY: The Defendants, 5 DAP, Incorporated, Zurn Industries, Foster Wheeler Energy Corporation, and Flowserve US, Incorporated, 6 f/k/a The Duriron Company, were represented by Mr. Jason Kennedy, of the law firm Segal, McCambridge, Singer & 7 Mahoney, 330 North Wabash, One IBM Plaza, Suite 200, Chicago, Illinois 60611. 8 9 The Defendant, Borg-Warner Corporation by its Successor in Interest, BorgWarner Morse TEC, Inc., was 10 represented by Ms. Pamela T. Broach, of the law firm Sennes, Bower, Sennes, 250 West Pratt Street, Baltimore, 11 Maryland 21201. 12 APPEARING TELEPHONICALLY: The Defendant, 13 American Honda Motors, was represented by Mr. Anthony Goldner, of the law firm Wilson, Elser, Moskowitz, 14 Edelman & Dicker, LLP, 120 North LaSalle Street, 26th Floor, Chicago, Illinois 60602. 15 16 17 18 19 20 21 22 23 24 25 5 1 IT IS HEREBY STIPULATED AND AGREED by and 2 between Counsel for the Plaintiff and Counsel for the 3 Defendants that this deposition may be taken in 4 shorthand by Kevin J. Weichman, a Certified Shorthand 5 Reporter, and afterwards transcribed into typewriting, 6 and the signature of the witness is waived by agreement 7 of counsel and the witness. 8 9 ***** 10 11 MS. BROACHE: I just want to put something 12 on the record real quickly. This is Pamela Broache. 13 I am an attorney for Borg-Warner Corporation, with 14 Sennes locally. 15 I just want to place on the record that 16 Borg-Warner has designated Dr. Rabinovitz as an 17 expert witness for the purposes of this case. 18 19 DR. SHELDON H. RABINOVITZ, 20 of lawful age, being produced, sworn, and examined on 21 the part of the Plaintiff after answering "I do" to the 22 oath administered by the court reporter, deposes and 23 says: 24 25 6 1 [EXAMINATION BY MR. O'BRIEN:] 2 3 Q. (BY MR. O'BRIEN) Would you state your name 4 for the record, please. 5 A. Sheldon H. Rabinovitz. 6 Q. You heard the comments by counsel at the 7 beginning of the case. Are you aware that you were 8 endorsed by Borg-Warner? 9 A. I talked to her about a half-hour ago and 10 she mentioned that. 11 Q. So when is the first time you became aware 12 that you were endorsed as an expert witness by 13 Borg-Warner in this case? 14 A. About a half-hour ago. 15 Q. I will try and talk to you about the case, 16 and sometimes we will get into some general 17 information. So it may go a little back and forth, 18 okay, Doctor? 19 A. Yes. 20 Q. Did you bring a current CV? 21 A. It's coming. I don't have it right at the 22 moment. 23 Q. But there is one on its way and I can bring 24 it home with me? 25 A. Certainly. 7 1 Q. Can you tell me what you brought with you 2 today that would constitute your file in this case? 3 A. First, there are two depositions of 4 Mr. Thompson. There is a Plaintiff Answers to First 5 Set of Interrogatories. There is one page that 6 indicates what we received from the attorneys. 7 There is our billing records for this case, 8 some transmittal letters, Social Security 9 Administration records. There are some notes that 10 one of the people, who works with me and helped me 11 with this case, prepared. 12 And then there is the report that we 13 prepared and notice of deposition. And I also, a few 14 days ago, received part of the deposition of Wesley 15 Erps, who worked at a Unarco plant where Mr. Thompson 16 also worked. 17 I also had in my file some records of 18 purchase of asbestos by the Unarco, which then 19 became, I think, Owens-Illinois or something like 20 that. 21 MR. O'BRIEN: Okay. Can I mark the last two 22 items as exhibits, please. 23 (PLAINTIFF EXHIBIT NOS. 1 AND 2 WERE 24 MARKED FOR IDENTIFICATION.) 25 Q. (BY MR. O'BRIEN) Doctor, did you prepare a 8 1 report in this case? 2 A. Yes. 3 Q. What's the date of that report? 4 A. The date is January 13th, 2006. 5 Q. And did you prepare that report on your 6 understanding that you would be in -- contacted and 7 retained to be an expert witness in this case? 8 A. Yes. 9 Q. Who did you prepare that report on behalf 10 of? 11 A. It was prepared at Mr. Krause's request, 12 and, my understanding, it was to look at potential 13 exposures Mr. Thompson had to asbestos with regard to 14 his work as a mechanic, primarily American automobile 15 manufacturers. 16 Q. And the date of that report is January 13th, 17 2006? 18 A. Yes. 19 Q. And that's the report that was provided to 20 me by the -- General Motors, Ford and Chrysler 21 pursuant to your endorsement. 22 In that report it itemizes on Page 1 the 23 materials you said you reviewed. And if you can look 24 at Page 1 of your report. 25 A. Yes. 9 1 Q. It says, "Answers to Defendant's First Set 2 of Interrogatories," and then it mentions two 3 depositions of Ronald Thompson; is that correct? 4 A. Yes. That's correct. 5 Q. You said, before the deposition, you have 6 Social Security records. Did you receive them at the 7 time and did you review them prior to preparing this 8 report? 9 A. I didn't look at them until -- I don't know 10 exactly when we got them, but I looked at them after 11 I prepared the report. 12 Q. So you didn't rely on those in preparing 13 your report and generating your opinions in your 14 report in this case? 15 A. That's correct. 16 Q. What we have marked as Exhibit 1 and Exhibit 17 2, did you review them prior to your preparing your 18 report and giving your case-specific opinion in this 19 case? 20 A. No. 21 Q. And when did you actually receive them? 22 A. The deposition, I think there is some e-mail 23 dates on there. I think we got those a few days ago. 24 Q. January 26? Maybe you can look at it and 25 tell me, Doctor. 10 1 A. That sounds about right. 2 Q. And if you look at Plaintiff's Exhibit 2, 3 when did you receive those documents? 4 A. I received those this morning. 5 Q. And this is January 31st. 6 And had you prepared any supplement to your 7 report in this case? 8 A. No. 9 Q. Let me ask you, when did you first get 10 contacted in this case? 11 A. I can't tell you the exact date, but we got 12 materials around November 21st of 2005. 13 Q. Do you have your billing records, Doctor? 14 A. Yes. 15 Q. Can you just look at those and tell me when 16 you did the work in this case to generate this 17 report. Would those billing records let you give me 18 that answer? 19 A. I will tell you in a second. The first 20 entry is getting the documents, so that is 11/21. It 21 looks like this is just the first bill, and it looks 22 like what it has is some of the -- yeah, it looks 23 like -- I would say that is about when we got it. 24 Q. May I look at the billing, please? 25 A. Yes. 11 1 Q. From looking at the billing records, can you 2 tell me when you first looked at this case and when 3 you would have signed off on the report? 4 A. It looks like I initially looked at it 12/02 5 and reviewed some of the materials, and then on 1/13 6 some additional review and -7 Q. Tell me -- sorry, Doctor. Tell me what you 8 did on 12/02, how much time you put in reviewing this 9 matter. You yourself. 10 A. Has an hour and a half for reviewing 11 material. 12 Q. From your billing records, the next time 13 that would indicate that you reviewed this matter 14 was, what, January - 15 A. 13, where I also prepared the report. 16 Q. What did you bill on January 13th? 17 A. Three hours. 18 Q. So in the time-preparation report, you 19 billed four and a half hours for your review in the 20 matter? 21 A. Yes. 22 Q. And three of those were on the date of the 23 report issued, January 13th? 24 A. Yes. 25 Q. Thank you, Doctor. Is that a typical amount 12 1 of time that you would spend preparing a report 2 yourself, the time you would put into it? 3 A. Depending on the case and the amount of 4 material, that is somewhat typical. 5 Q. If you were to have supplemented, in this 6 case, your report, do you think you could have done 7 it within two to three hours, of your work product? 8 A. Yes. 9 Q. And you haven't done that before today? 10 A. Supplement? 11 Q. Yes. 12 A. I haven't supplemented this report. 13 Q. Thank you, Doctor. And just a little bit on 14 your background. 15 You are currently employed by S-O-M-A? 16 A. Which stands for Sandler Occupational 17 Medicine Associates. 18 Q. When did you join them? 19 A. I did some consulting work with them, 20 starting in around 1984, and then joined full-time in 21 1989. 22 Q. Has that been your sole and full-time 23 employment since that time? 24 A. Yes. 25 Q. When did you acquire or have you acquired a 13 1 part-ownership interest in that company? 2 A. I think within the first two years. 3 Q. Let me ask, why did you become an owner of 4 the company or a part owner? 5 A. I believe there was -- I don't remember 6 whether I came in owning anything or not, but there 7 were certain dollar volumes. If I generated so much 8 business, it would increase the amount of ownership. 9 Q. And would that include business you would 10 work directly and business you would generate, to 11 people having work for you in the company? 12 A. Yes. 13 Q. And when you joined SOMA, how big was the 14 business? 15 A. How large was SOMA? 16 Q. Yes. 17 A. I believe it was about six or seven people. 18 Q. And how big is it now? 19 A. Now, I believe we're over 30. 20 Q. And do you believe that your work at SOMA 21 has contributed to the growth of the company? 22 A. Yes. 23 Q. Let's take since -- and has that been a 24 steady growth over time? 25 A. I wouldn't say steady, no. 14 1 Q. Tell me real quick how SOMA has grown. 2 A. I think the last five years, six years, 3 there has been considerably more growth than in the 4 previous -- in the whole time the company was in 5 existence. 6 Q. Would you attribute a lot of that growth to 7 your work in the company? 8 A. I think there is a distribution. It is 9 certainly not just me. 10 Q. And do you have people that have worked for 11 you and report to you in the work of SOMA? 12 A. Yes. 13 Q. If I've got this right, Doctor, you were 14 born in 1944? 15 A. Correct. 16 Q. And you are now, what? Excuse me for 17 asking. 18 A. 61. 19 Q. So the greatest growth that you have seen in 20 the company in the last five or six years has been 21 since you have been 55 and older? 22 A. Yes. 23 Q. Did you plan -- when you were 55, was it 24 your thought that you should slow down and retire? 25 A. If I had enough money, I would have slowed 15 1 down, yes. 2 Q. Do you have any plans in the future to 3 retire or leave the company? Have you made any plans 4 at this time? 5 A. No. 6 Q. Thank you, Doctor. 7 A. I still have kids in college. 8 Q. I take it you still enjoy your work? 9 A. I do. 10 Q. In preparation for this deposition, have you 11 had any conversations with attorneys that retained 12 you in this case? 13 A. Yes. 14 Q. Have you had conversations with anybody 15 other than attorneys working on this case? 16 A. Not other than an assistant who helped me 17 prepare this. 18 Q. Have you had any conversations with any 19 other experts retained in this case? 20 A. No. 21 Q. And when did you first have conversations 22 about the case? 23 A. I don't remember the -- I think Mr. Krause 24 called me and -- it was a short conversation. And 25 then there were some other brief conversations about 16 1 scheduling a deposition. 2 And then this morning I talked to 3 Mr. Krause, and we had some local counsel attorneys 4 on the phone for a little while. 5 Q. And just so I know, who was on the phone? 6 Who did they represent, do you know? 7 A. I'm assuming Ford, but I don't know for 8 sure. 9 Q. And what did you talk about this morning? 10 A. They asked me -- they already had my report 11 and I just reiterated my opinions about this case. 12 And they also asked me if I read the deposition for 13 Mr. Erp, and I said yes. 14 Then they provided me with some records 15 regarding the purchase of amosite by the company 16 where he worked. And I provided them with opinions 17 of what I thought his exposure might have been while 18 working for Unarco. 19 Q. And tell me exactly what you did to 20 calculate your opinions at the time this morning. 21 A. Well, I had already reviewed the depositions 22 and Mr. Thompson had already talked about handling 23 insulation at the plant in his work as a maintenance 24 person, and he described handling specifically some 25 insulation that he believed was manufactured at the 17 1 plant. 2 Mr. Erp talked about some of the operations 3 that included how the raw asbestos was handled, how 4 products were made, how products were sanded. 5 He described a number of operations which 6 would suggest a significant potential for airborne 7 fiber release, and he also at several points 8 indicated that the general plant environment was 9 quite dusty. 10 Q. Did he indicate that he ever worked with 11 Mr. Thompson? 12 A. I don't recall him saying he ever worked 13 with Mr. Thompson. 14 Q. And when did you receive those -- let's move 15 on, Doctor. 16 It is my understanding that you are not a 17 medical doctor. 18 A. That's correct. 19 Q. And you do not give medical opinions in 20 cases? 21 A. I do not give medical opinions, no. 22 However, as a toxicologist, I do have knowledge of 23 physiology. 24 Q. Let me talk to you about -- let me just 25 finish the medical-doctor-type questions. 18 1 A. Okay. I am only mentioning that because 2 there could possibly be some overlap. 3 Q. Maybe I will see if I can tailor my 4 questions and see how the answers come out. 5 So you don't give medical opinions. You are 6 not able to give a medical opinion as to whether or 7 not Mr. Thompson has an asbestos-related disease? 8 A. No. I rely on others for that. 9 Q. You personally have not reviewed any medical 10 records in this case? 11 A. No, I have not. 12 Q. And you don't have a medical opinion as to 13 whether or not he has mesothelioma? 14 A. No, I have not personally attempted to make 15 that determination. 16 Q. So you would not be able to give an opinion 17 to either one of those matters in this case? 18 A. No, I would be relying on others. 19 Q. When I look at your report provided to me in 20 this case, January 13th -- and you are familiar with 21 the report you wrote? 22 A. Yes. 23 Q. And you reviewed it. To the extent you, on 24 Page 7, you set out, it starts out with -- it says, 25 Expert opinion. 19 1 Do you see that, Doctor? 2 A. Yes. 3 Q. And I think the opinions are set out in four 4 pages with a conclusion at the end that goes on to a 5 fifth page? 6 A. Well, the actual opinion, I believe, is in 7 the very first paragraph, and there is a 8 summarization and the conclusion that not only 9 reiterates my opinion, but also describes some of the 10 bases for the opinion. 11 Q. And would you agree with me that all of 12 those five pages that deal with your opinions offered 13 in this matter deal with the subject of 14 Mr. Thompson's working with friction products, which 15 would include brakes, clutches, gaskets, and 16 mufflers? 17 A. I don't believe gaskets are considered 18 friction products. 19 Q. Let's say -- let's make it friction 20 products, brakes, clutches, mufflers, and, 21 additionally, gaskets. That's what you addressed in 22 your opinions in that report, the five pages? 23 A. Yes. 24 Q. Nowhere in your opinions did you address, in 25 that section, his work at the Unarco plant? 20 1 A. It is not in the opinion section. It is 2 addressed in the background section. 3 Q. Let's look at what's in the background 4 section. In the background section, on Page 4 of 5 your report -- and when I say "Page 4," I am going by 6 the numbers in the top left-hand corner. Okay, 7 Doctor? 8 A. Yes. 9 Q. If I am correct, it looks like the second 10 full paragraph, which has "Beginning in the summer of 11 1970," and then there are two full paragraphs that, 12 from my looking at this, seem to deal with the Unarco 13 plant. Is that correct, Doctor? 14 A. Yes. 15 Q. And when looking at that, and once -- when 16 you had that information you recited in the report, 17 were you prepared at that time, with the information 18 you had, to offer an opinion as to his work at the 19 plant? 20 A. I am getting a little confused with what you 21 are saying. 22 Q. You called it the background section. There 23 are two paragraphs in this background section that 24 deal with Mr. Thompson's work at this plant, the 25 Unarco plant. 21 1 I want to know, with that background, were 2 you prepared to offer an opinion in this case as to 3 his work at that plant? 4 A. An opinion regarding the degree of his 5 exposure to asbestos? 6 Q. Yes. 7 A. No. I needed the supplementary information. 8 Q. So you have told me you've addressed it, the 9 background. But what you had in there was not going 10 to lead you to offer an opinion in this case as to 11 that exposure? 12 A. Certainly not the opinion I have after 13 reading it. 14 Q. Well, if you have an opinion, can you tell 15 me where you expressed an opinion about exposure in 16 this report? 17 A. I just put some background information. It 18 doesn't actually -19 Q. I want to be clear. Did you express an 20 opinion about that background information, about 21 apparent exposure or nonapparent exposure, in the 22 report? 23 A. No. 24 Q. Thank you, Doctor. 25 I want to talk to you on -- and I believe I 22 1 will later get a copy of your CV, but are you an 2 industrial hygienist? 3 A. Yes. 4 Q. And I believe you have a certification as an 5 industrial hygienist? 6 A. Yes. 7 Q. So it is a field that you can receive a 8 certification? 9 A. Yes. 10 Q. And do you continue to hold that 11 certification? 12 A. Yes. 13 Q. And how long have you been a certified 14 industrial hygienist? 15 A. Since 1974. 16 Q. And if I was to see your current CV, would 17 it reference papers that you have written as an 18 industrial hygienist? 19 A. It would reference all of the papers that I 20 have written, yes. 21 Q. Would it reference the associations that you 22 belong to, professional and trade associations? 23 A. Yes. 24 Q. Are all the trade or professional 25 associations you belong to industrial hygienist 23 1 associations? 2 A. Yes. 3 Q. You mentioned toxicology. Do I take it that 4 you are not a medical toxicologist? 5 A. I don't have a medical degree. 6 Q. You have a Ph.D.? 7 A. Yes. 8 Q. And what's the title of that Ph.D.? 9 A. The title is Doctorate in Physiology and 10 Pharmacology with a major in toxicology from Wayne 11 State University Medical School. 12 Q. And if I was to ask you to show me where it 13 indicates you received the major in toxicology, what 14 would you show me? 15 A. It wouldn't show you anything. You would 16 have to look at -- my doctoral thesis was toxicology. 17 You would have to look that -- I was also supported 18 and grants came from the Department of Occupational 19 Environmental Health, which is related to industrial 20 hygiene and toxicology. 21 Q. And is it your view, is there a lot of 22 overlap between industrial hygiene and toxicology? 23 A. No. The doctorate is almost all -- it is 24 not industrial hygiene because it all dealt with 25 toxicology. 24 1 Q. And in the course of preparing your Ph.D., 2 how many courses did you actually take on the subject 3 matter of toxicology? 4 A. I think there was two or three. 5 Q. And since finishing the Ph.D., have you 6 joined or attempted to join any toxicology trade or 7 professional associations? 8 A. No. 9 Q. Have you attempted to take any test that 10 would have you certified as a licensed toxicologist? 11 A. No. 12 Q. Have you published any paper that you would 13 say to me is in a toxicology journal and deals 14 primarily with the subject matter of toxicology? 15 A. No, not in a toxicology journal. 16 Q. Subsequent to your Ph.D., how many -- let's 17 take ongoing academic education -- how much ongoing 18 academic education have you pursued in the field of 19 toxicology? 20 A. I took a short course in toxicology. I 21 think that might be the only pure toxicology short 22 course. 23 Q. And when you say "short," can you define 24 "short" for me? 25 A. Three to five days. 25 1 Q. When was that, Doctor? 2 A. Sometime around, I would say, '75, '76, that 3 time frame. 4 Q. Since then you've not actively pursued or 5 taken any course that's specific to toxicology? 6 A. That's correct. 7 Q. And forgive me if I've asked you this 8 question, but you have not published in any text or 9 peer-review literature on the subject matter of 10 toxicology? 11 A. Not peer of toxicology, no. 12 Q. And what about industrial hygiene? Have you 13 published in industrial hygiene journals? 14 A. Not peer-review journals. 15 Q. Have you published in the area -- or paper 16 that would deal primarily with the subject matter of 17 industrial hygiene? 18 A. Well, if I work with the federal government, 19 there has been some documents that I either prepared 20 or assisted in preparing that I think would be 21 considered industrial hygiene. 22 There was also, with others, prepared 23 something on the American Industrial Hygiene - 24 sponsored by the American Industrial Hygiene 25 Association. I would have to look at the -- go 26 1 through the list. 2 MR. KRAUSE: Off the record. 3 (AN OFF-THE-RECORD DISCUSSION WAS HELD.) 4 Q. (BY MR. O'BRIEN) Let me do this. If I can 5 focus on your report, beginning on Page 7. To the 6 extent that I can, I will try and walk through this a 7 little bit. Okay? 8 You said the first paragraph essentially 9 embodies your opinions; is that right? 10 A. Yes. 11 Q. The first sentence says you reach a 12 conclusion to a reasonable degree of scientific 13 certainty. 14 Is that from your expertise in the field of 15 industrial hygiene? 16 A. Yes, it is in industrial hygiene, because 17 remember, also, industrial hygiene includes knowledge 18 of toxicology and epidemiology. 19 Q. Would you say, Doctor, the main source of 20 your opinions are from your work in the field of 21 industrial hygiene? That's what you have been 22 certified for for 30 years? 23 A. In this particular situation, with what I 24 have been asked to do, yes, that's true, but it 25 includes all my knowledge. 27 1 Q. And if I look at the end of the first 2 sentence, Doctor, it says, if I can begin, "Did not 3 cause or significantly contribute to cause his 4 alleged asbestos-related disease." 5 There are two parts of that, whether or not 6 he has the disease, you say "alleged," because you 7 don't give medical opinions whether or not he has the 8 disease? 9 A. Correct. 10 Q. And on the issue of cause, you say, "and 11 does not agree that medical doctors would not 12 attribute whether or not somebody has the disease and 13 the actual cause of the disease." 14 That's a medical opinion? 15 A. Whether someone actually has the disease, I 16 would say that's a medical opinion. 17 Q. And the actual cause of disease, would you 18 not agree that's a medical decision -- opinion in a 19 specific case, in Mr. Thompson's case? 20 A. No. I believe that some aspects of 21 industrial hygiene and toxicology can also be used to 22 support that conclusion. 23 Q. Can you tell me -- can you point me to one 24 time in your career when you issued a report to a 25 company saying "This is what caused a specific 28 1 person's disease"? 2 A. What caused? 3 Q. Yeah. I would like to know if you can tell 4 me when you have, in your career, issued a report to 5 a company saying "This is what caused this specific 6 person's disease. I am defining here is the disease 7 and here is the cause of it." 8 A. I can't think of anytime when I specifically 9 did that. 10 Q. Let me ask you this. If you can't think of 11 it, can you tell me if you have ever done that? 12 A. I say because I can't think of one, I can't 13 tell you whether I did or I didn't. 14 Q. All right. Thank you, Doctor. 15 Then if we look at the next two lines, 16 Doctor, maybe if I am smart enough, I will see if I 17 can break this down. 18 Does one deal with dose and then one deal 19 with the field of epidemiology studies? Would that 20 be a fair characterization that they broke down the 21 remainder of that paragraph into two areas? 22 A. Yes. 23 Q. Then maybe if you can tell me, so I can 24 figure out how to address the rest of it, do you 25 then, in the remainder of the opinion section, just 29 1 kind of put more flesh under your opinions or -- I am 2 trying to figure out how to go through the remainder 3 of the report with you, Doctor? 4 A. I think the next couple of paragraphs just 5 talk about my experience, and mentions education, to 6 put me in a position to draw those conclusions. Then 7 the final two paragraphs talk about my knowledge of 8 reviewing literature and some of the things said by 9 that literature. 10 Q. If you can, do you think it is possible that 11 you can show me what part of the opinion report deals 12 with epidemiology and what part deals with dose, and 13 I will try to separate my inquiring in both those 14 areas, or do they overlap? 15 A. There is some overlap. I mean, pretty much 16 when I refer to "epidemiology," it will say 17 "epidemiology." 18 Q. Okay. Thank you, Doctor. 19 Were you attempting to do a dose 20 reconstruction here? Or like when you address dose, 21 how were you attempting to address dose in this case? 22 A. I have quite a bit of familiarity in knowing 23 how much asbestos mechanics are exposed to when they 24 are replacing brake assemblies. 25 So what I did in this case is I used that 30 1 knowledge, and then looked at what Mr. Thompson said, 2 how he replaced brakes, what he replaced them on, and 3 how long he did it. 4 So that permitted me to conclude that, on 5 the days when he was doing brake work, it was most 6 likely that he was exposed to some level less than 7 point one fibers per cc of chrysotile asbestos. 8 It appears that he did that full-time work 9 as a mechanic, where a certain percentage would be 10 the replacement of brakes and some work with gaskets, 11 where that was done for around 10 years, give or 12 take. 13 Q. You say 10 to 15, in that range? 14 A. In somewhere, but possibly maybe a little 15 more closer to 10. I am not saying that's exactly 16 what it was. 17 What that tells me is that, number one, that 18 would be a fiber-year dose that would not be 19 significant in causing an increased risk of 20 mesothelioma, based on epidemiology studies which 21 have looked at cohorts of mechanics, many of which 22 would have worked longer in the field, some of which 23 would have worked less. The results of those studies 24 basically don't see an increased risk in getting 25 mesothelioma. 31 1 So Mr. Thompson falls within the category of 2 mechanics where they have been studied and 3 determinations have been made that they are not at 4 increased risk. That complements the studies of 5 exposure showing that they are exposed to very little 6 asbestos. 7 Q. You are not saying that Mr. Thompson was 8 part of any study or has been studied to reach that 9 conclusion? 10 A. No. What I attempted to determine is that 11 he fit in a category of mechanics who have been 12 studied. 13 Q. But are they the steps you went through to 14 create, in your mind, your belief of the dose that he 15 might have been exposed to from that work over the 16 years? 17 A. What's the question? 18 Q. I'm sorry, I withdraw the question. 19 Is that the process you went through and - 20 the evaluation process that you went through, about 21 facts and literature, to evaluate what you believe to 22 be his dose in this case? 23 A. I look at what he did to determine dose or a 24 dose range and make a determination that that's 25 within the cohorts of mechanics who have been 32 1 studied, and we look at their risk of getting 2 disease. 3 Q. And when you say "within the cohort," are 4 you trying to match apples to apples or are there 5 some figures and actual measurements that you are 6 trying to compare them to import into your analysis? 7 A. I just know that the various cohorts of 8 mechanics who have been in epidemiology studies 9 that -- some have done more work, some have done less 10 work. 11 I wanted to make sure that Mr. Thompson 12 wasn't in a group that perhaps would have been 13 exposed to more asbestos from the brake work he did 14 than would be the bulk of the mechanics. 15 Q. I am trying to find out what's more or 16 what's less. Are there numbers that you are relying 17 on that you could point me to? 18 A. Again, it's -- from reading the epidemiology 19 studies and reviewing the descriptions of the people 20 in the cohorts, I saw that some have worked all their 21 lives, some have worked 10 or 20 years, and some have 22 worked shorter time periods. Some have worked with 23 trucks and worked on cars. 24 Q. I get it, but I am trying to maybe ask -25 maybe I am not asking the right question. 33 1 You gave me a measurement of below point one 2 fibers per cc; is that right, Doctor? 3 A. Yes, as a daily time-weighted average. 4 Q. When you say you're comparing him to others 5 and cohorts and you are trying to define more or less 6 and what are the measurements that you are relying on 7 for those cohorts or if there is another source of 8 measurements, can you tell me what that source is? 9 A. The measurement issue, on a daily basis, 10 comes from my studies and many other people's studies 11 which demonstrate that mechanics, while working on 12 brakes, and that also includes clutches, are exposed 13 to very low levels of asbestos. Again, less than 14 point one. 15 Q. I am going to ask you about your studies - 16 tell me about other people's studies, which ones you 17 relied on, that I can look for, to see that 18 measurement that's been made. 19 A. There's a study by Blake. There's -20 Q. Is that referenced in your report, Doctor? 21 A. I believe it is. 22 Q. All right. So that was part of what you 23 considered and relied on in making your opinion? 24 A. Yes. There is a study by Rovelsburger. 25 There are several NIOSH studies. They are not 34 1 referenced. There are a number of NIOSH studies 2 where there are calculations of employee exposure was 3 also less than point one. Not in all cases. There 4 were some that were slightly higher, but there were 5 those that were below point one, and there are my own 6 personal studies. 7 Q. So when I am trying to -- in my mind you 8 told me what you relied on from the literature to 9 come up with the perceived dosage by way of 10 measurement. 11 Let me talk about your studies, Doctor, that 12 you have done that you would be relying on to make 13 that calculation or at least have numbers that you 14 can rely on? 15 A. I just did. 16 Q. You said "my studies." Can you tell me what 17 they are? 18 A. My studies? 19 Q. Yes. 20 A. That's primarily a study I did associated 21 with the postal service, where over a year and a half 22 period we went into vehicle maintenance facilities 23 once every six months. 24 Q. That's one study. I don't mean to 25 interrupt. Any other studies that you classify -- 35 1 A. I did one other study while I was at Ford, 2 but I am not going to really use that because all - 3 I remember that it was below the limit, but I don't 4 remember the actual number. 5 Q. So you are not going to rely on that? 6 A. Other than to know that it was a low number. 7 Q. Then I will not talk to you about that then. 8 Any other ones? 9 A. That's it. 10 Q. Okay. 11 A. Well, I have actually done some studies on 12 overhead crane brakes which is not exactly the same 13 but it is similar. The brake pad is actually 14 similar, although on overhead crane brakes the pad 15 tends to be on the outside of the drum instead of the 16 inside of the drum. 17 Q. When was that, Doctor? 18 A. I did a couple of studies. One was in 1990 19 and one was in 1984, I believe, or '85. 20 Q. And any other studies that you would be 21 relying on in whole or in part? 22 A. That's all. 23 Q. Let me do them chronologically. Which would 24 be the first one? 25 A. The post office study. 36 1 Q. That predates the Ford one? 2 A. Yes. I'm sorry, Ford was first. 3 Q. Were you studying a group of mechanics or 4 what were you studying? 5 A. No, it was one mechanic who took a personal 6 sample while he changed a set of brakes. 7 Q. Did he change all the brakes in a car? 8 A. I don't remember. 9 Q. Do you have the study with you so I could 10 look at the measurements? 11 A. No, that's why I don't know the number. 12 Q. Do you know if they ground the brakes? 13 A. I don't remember. I am virtually positive 14 that they didn't grind the brakes because that was a 15 period of time when it is not necessary to grind 16 brakes when replacing brakes on cars. 17 Q. When you say "study," did you consider it 18 part of a group that you were studying or was it one 19 of a test measurement. I don't know if that's the 20 right word, Doctor. 21 A. Well, it was a study to determine what the 22 exposure was to a mechanic who was replacing brakes 23 on a car. 24 Q. How long did that take? 25 A. I believe it took less than four hours. 37 1 Q. Was there more than one brake job involved? 2 A. There was not more than one brake job. I 3 just don't remember if there was one axle or two 4 axles. 5 Q. Two axles being both the front and back of 6 the vehicle, one axle being just one end of the 7 vehicle; is that correct, Doctor? 8 A. Yes. 9 Q. Did you ever keep that -- I mean, if you 10 were to go back to your file, do you have that study 11 or was that your memory of doing it at the time? 12 A. Just my memory. 13 Q. Why did you do it, do you know? 14 A. I was told to do it. 15 Q. Who told you to do it? 16 A. A supervisor. 17 Q. And were you working for Ford at the time? 18 A. Yes. 19 Q. Let's take the next one in order. When did 20 you work for Ford? 21 A. I worked from 1973 through '78. 22 Q. Was it during the course of your employment 23 that you did that study? 24 A. Yes. 25 Q. The U.S. Postal Service study, and when did 38 1 you do the work? 2 A. Early '80s. 3 Q. Sorry, my last question of Ford. Did you 4 publish the results of that Ford test or study? 5 A. No. 6 Q. The U.S. Postal Service study, are those 7 results published anywhere? 8 A. No. 9 Q. And let's talk about the study then. Who 10 were you working for when you did the study? 11 A. Science Applications -- SAIC which was known 12 as JRB. I was with the subsidiary of JRB that was 13 then folded into SAIC later. 14 Q. And what time period did you do the work? 15 A. Early '80s. 16 Q. I think you told me it was over a year and a 17 half time period? 18 A. It was a year and a half study. 19 Q. How did you do the study? 20 A. We went into 56 vehicle maintenance 21 facilities. We called them and told them that we 22 were going to be coming and we were going to sample 23 an employee, a mechanic, who would be spending the 24 day replacing brakes on a vehicle, and that they were 25 to do it in their normal procedure and we would be 39 1 taking both area and personal samples while they did 2 it. 3 Q. Why were you doing the study? Who wanted it 4 done? Was it the employers of the people at the U.S. 5 Postal Service? 6 A. It was the U.S. Postal Service. 7 Q. What was their purpose in requesting the 8 study? 9 A. They told me -- the OSHA standard requires 10 employers to provide physicals for employees who work 11 with asbestos over the reaction level, which was 12 point one fibers per cc. So they wanted to know if 13 they would, under OSHA, be required to give all their 14 mechanics medical studies or medical exams. 15 Q. And if the results came in to show that it 16 was below that number, then they would not be 17 required to give that physical; is that correct? 18 A. Based on the OSHA standard, that would be 19 correct. 20 Q. And when you say "called ahead," who would 21 you be calling or why would you be calling ahead? 22 A. We would call ahead to the manager of the 23 facility to make sure that they would schedule a 24 mechanic to replace brakes because they didn't 25 necessarily replace brakes on vehicles on a daily 40 1 basis. 2 Q. And where were these -- you said 56 3 locations? 4 A. Yes. 5 Q. Were they in a certain state or were they 6 across the country? 7 A. They were in the Eastern region of the 8 postal service which was Pennsylvania, Maryland, 9 Virginia, Delaware. It might have been New York but 10 I don't remember. 11 Q. 56 sounds like a lot of locations. Did you 12 personally do the work or did you have a team? 13 A. We had a team and I was one of the members 14 of the team. 15 Q. How big was the team? 16 A. It varied depending who was available. I 17 would say we -- I don't remember the exact number in 18 the chain, but about four to six people participated. 19 Q. Were you responsible for a certain number of 20 sites or how did you break down your 21 responsibilities? 22 A. I was the manager of the whole project and 23 other people just did surveys, but I also did some of 24 the surveys but I prepared the reports, handled the 25 data. 41 1 Q. So in that 18-month period, was it daily 2 ongoing or - 3 A. We would schedule the 56 sites and do them 4 as fast as we could. But like I say, there were from 5 four to six people doing it. I think it took several 6 months to get all 56. I don't remember the exact 7 amount. And then six months later we started it and 8 do it again. 9 Q. Where were you based if you were in command 10 of the project? Were you at a central location or - 11 is that where you were based most of the time? 12 A. I worked out of my office except on that 13 project when I was out doing those surveys. 14 Q. How often did you do the surveys? 15 A. I have the data sheets from those surveys, 16 and if they represent all of them, I think I did 17 about 10 of them. 18 Q. So your direct observations are from the 10 19 that you would have done; is that right? 20 A. Well, I also reviewed everybody else's data. 21 Q. Of the 10 that you did, did you see -- were 22 you in the presence of actual mechanics working on 23 friction products, brakes, clutches and the like? 24 A. Not clutches. This was just brakes. 25 Q. Just brakes, okay. 42 1 Was that the sole purpose or were you trying 2 to evaluate any other work procedure that they were 3 performing? 4 A. No, just replacement of brakes. 5 Q. And were they installing new brakes at the 6 same time? 7 A. It was a brake relining operation, although 8 it may have included rebuilding the wheel cylinder 9 also. 10 Q. There was a removal part of the process on 11 the install part? 12 A. Yes. 13 Q. From your memory in that process, did you 14 observe people grinding or arcing brakes? 15 A. I don't remember in mine any arcing being 16 done. 17 Q. And what about grinding? 18 A. No. 19 Q. And I apologize, did you say the time frame 20 was in the mid '80s? 21 A. Early '80s. 22 Q. Had you ever observed arcing or grinding of 23 brakes before that time? 24 A. I've seen the machine. I don't know if I 25 have actually seen it being used. 43 1 Q. You yourself never used it? 2 A. No. 3 Q. Your memory is you haven't seen it in use? 4 A. That's correct. 5 Q. Excuse me if I go back and forth a little 6 bit. Are you familiar with any OSHA regulations that 7 deal with the use of brakes while working with a 8 grinder or an arcing machine? 9 A. I believe the newer OSHA standards talk 10 about ventilation and specific practices, but the 11 1972 standard, which was in effect until 1986, I 12 don't believe had any requirements for grinding other 13 than to prevent employees from being exposed over the 14 limit. 15 Q. Do you know of any -- if OSHA has ever made 16 any recommendations on the use of a grinder or an 17 arcing machine in working with brakes? 18 A. They have some pamphlets out. They may 19 have. 20 Q. If you know, has the EPA ever considered 21 recommendations on the use of an arcing machine or a 22 grinder when working with brakes or friction 23 products? 24 A. I believe that they do have some 25 recommendations. I believe that they were influenced 44 1 by some work that was done at Mount Sinai which I 2 believe later has been shown that some of that work 3 was not accurate and overestimated some of the 4 exposures that were associated with mechanics 5 replacing brakes. 6 Q. And what do you believe the EPA's 7 recommendations were or their position they wanted to 8 take on it? 9 A. They issued some guidelines for mechanics 10 replacing brakes, on how to do it. 11 Q. In the course of litigation, have you ever 12 been retained by a company that made an arcing 13 machine - 14 A. No. 15 Q. -- or a grinder that might be used in 16 friction products - 17 A. No. I think, and I am hesitating because I 18 know I was reviewing some material about some 19 grinders, but I believe it was still associated with 20 a mechanic who used the grinder, but I believe it was 21 -- I believe the client was still a brake 22 manufacturer and not the grinder manufacturer. 23 Q. Have you ever been -- sorry. Has anybody 24 ever produced to you studies that have been done 25 specifically when somebody is arcing or grinding 45 1 friction products? 2 A. Well, the Blake study has some measurements 3 associated with grinding. 4 Q. And what about arcing, do you know of 5 anyplace that you have seen measurements taken while 6 arcing was being performed on a friction product? 7 A. It is my understanding that arcing is a 8 grinding operation. 9 Q. Let me get back to the postal service for a 10 second. You say you have that information -- that's 11 not a study you brought with you today -12 A. No, I didn't bring it with me. 13 Q. But it is part of your file? I mean your 14 general -15 A. I have some of the original data sheets that 16 I filled out while I was conducting those studies. 17 Q. I think you said the study wasn't published. 18 Is there a report that you generated that I could 19 review? 20 A. There were reports that were generated and 21 provided to the clients so we could get paid, but 22 they are not available. 23 Q. So am I looking for -- even though I'm a 24 savvy guy, I probably wouldn't be able to find it -25 A. Others have tried. I went to the post 46 1 office, I went to the Eastern region and they all 2 said they couldn't find it. 3 Q. How would you describe what's the best 4 available material that's left of the result of that 5 work? 6 A. The only thing that I have are my data 7 sheets. 8 Q. And would they encompass all the data that 9 you received during the course of this study or is it 10 just data that you would have generated - 11 A. It is just the data sheets that I prepared 12 when I was out there doing the sampling. 13 Q. Okay. So that if I reviewed that data, it 14 would be from the ten or so times that you told me 15 you were out -- the observations that you made 16 directly and the measurements that you made? 17 A. Correct. 18 Q. So none of those measurements were of 19 anybody grinding or arcing a brake? 20 A. I don't think so. 21 Q. Can you tell me what the nature of the 22 measurements you were making were? I think you 23 mentioned air sampling and - 24 A. Personal breathing zone and area air 25 sampling. 47 1 Q. And roughly, do you know - 2 A. Also peak and time-weighted average 3 exposures. 4 Q. If you can remember -- I know you don't have 5 the documents in front of you -- did you do both 6 types of testing all the time or did you do 7 alternating - 8 A. They were always the same procedure. There 9 were always a personal sample and an area sample and 10 there was always a peak sample and a time-weighted 11 average sample. 12 Q. And does any of your data indicate the peak 13 sample would have exceeded the point one fibers per 14 cc? 15 A. They did. 16 Q. How many did, do you know? 17 A. Estimating that the majority exceeded point 18 one. 19 Q. What about then time-weighted average? 20 A. Most of them were below point one. There 21 were a few that were above point one. On those that 22 came back above point one, because the sampling was 23 done by phase-contrast microscopy, the postal service 24 asked us to have them analyzed by electron 25 microscopy, which we did. 48 1 And the results for those that came back as 2 being over point one with the phase contrast were 3 found to be below point one when subjected to an 4 electron microscopy analysis. 5 Q. And do you have those electron microscopy 6 reports in your files? 7 A. No. 8 Q. When you say the time-weighted average, do 9 you calculate that over a 40-hour workweek? Tell me 10 what you meant when you -- I withdraw that question. 11 Sorry. 12 Explain to me the numbers you would achieve 13 and tell me what's the formula or technique that you 14 are using to reach those numbers. 15 A. In industrial hygiene, a time-weighted 16 average refers to a single shift. So it's done as a 17 day, not a week. 18 So a typical time-weighted average would be 19 an eight-hour time-weighted average. Adjustments are 20 supposed to be made if it is longer than eight hours. 21 But in this postal study, I believe the 22 shifts were eight hours, and so that is what we 23 calculated. We would put the sampler on and let it 24 go for the day, and then we also had some additional 25 samples for the peak sample. 49 1 Q. So correct me if I am wrong. We are talking 2 about the studies that you did -- personally 3 generated in the study; is that right, Doctor? 4 A. Pardon? 5 Q. You have been telling me the results that 6 you personally generated in this study? 7 A. No. I am telling you the results of all of 8 the work. 9 Q. I'm sorry. But in the documents that you 10 observed peak measurements in excess of one point 11 fiber per cc? 12 A. I don't know if they were mine. They might 13 have been others. I am talking about in -- I 14 reviewed all the data. And I am saying in reviewing 15 all of the data, not all of the eight-hour 16 time-weighted averages came out below point one when 17 using the phase-contrast analysis. 18 Q. So a number on the peak analysis exceeded 19 the point one fiber per cc? 20 A. Most. 21 Q. And then when you went over to the 22 time-weighted average numbers, even some of those 23 exceeded the point one fiber per cc, the initial 24 measurement? 25 A. There were some. 50 1 Q. And then they got reanalyzed by TEM, and you 2 were able to satisfy yourself that those 3 time-weighted average numbers came below the point 4 one fiber per cc? 5 A. That's correct. I don't remember if it was 6 TEM or SEM. 7 Q. Okay. Because there is a difference between 8 SEM and TEM, isn't there, Doctor? 9 A. Yes. 10 Q. In your experience, what would you expect to 11 be the difference, if you used SEM as opposed to TEM, 12 in determining a fiber count? 13 A. It depends on how you do it and what -- your 14 sampling protocols, but essentially the SEM is able 15 to identify specific fibers that are asbestos from 16 nonasbestos. 17 Q. How good would SEM be, as opposed to TEM, in 18 counting OSHA-classified fibers that are under five 19 microns? 20 A. It would be pretty good. The TEM has 21 greater resolving power. But if you are looking at 22 OSHA definitions, then the SEM would be fine. 23 Q. But if you were trying to reach those 24 measurements, the TEM would be a more specific finder 25 of those results? 51 1 A. TEM has greater magnification. 2 Q. And you don't know if they used SEM or TEM, 3 that's what you are telling me? 4 A. I just don't remember. 5 Q. Is it the net result of the U.S. Postal 6 Service study that you were able to give them results 7 that showed the numbers would come in in the 8 time-weighted average below the point one fiber per 9 cc? 10 A. That's correct, and the peak samples were 11 all below the limit for the peak sample at the time. 12 Q. And what was the limit for peak sample at 13 the time? 14 A. They were 10 fibers per cc. 15 Q. Do you know if any of your samples were 16 exceeding the peak sample -- the limit for peak 17 sampling at the time? 18 A. No, none of them. 19 Q. Did you have to readdress any of the peak 20 samples to go to TEM -- or SEM, sorry, whatever - 21 A. It may have been TEM. I am just saying I 22 don't know for sure. 23 Q. Do you know if any of the peak sample test 24 results were retested? 25 A. No. There was no reason to. 52 1 Q. The overhead cranes? 2 A. Yes. 3 Q. Let me just go back to the postal service. 4 When you were doing the personal monitoring, where 5 would the device be that you were doing the 6 monitoring? 7 A. It would be on the lapel. 8 Q. And where would the air measurement be? 9 A. The area sample was 10 feet away. 10 Q. And you believe in the measurements that we 11 talked about from the postal service, from your 12 memory, none of them were taken through the process 13 of grinding or arcing brakes that you observed? 14 A. None of the ones that I observed. 15 Q. And you can't tell me that any results that 16 anybody gave to you resulted from the grinding or 17 arcing on brakes? 18 A. I can't tell you. 19 Q. From your knowledge, do you think it would 20 be in the 1980s that arcing and grinding would not be 21 something that you expected from what you saw in the 22 field? 23 A. Certainly on passenger cars there is no 24 reason to do it. Some of these samples were also 25 conducted on trucks. Some larger trucks, it would 53 1 not be unusual to have some grinding done in the 2 early 1980s. 3 Q. Let's go to the overhead crane. You say - 4 is it two studies? 5 A. There were two studies. 6 Q. I think - 7 A. However, actually only one study involved a 8 mechanic changing a brake. 9 Q. Let's deal with that one. Which one was 10 that? 11 A. That was a 1990. 12 Q. And where did you do that study and who did 13 you do it on behalf of? 14 A. It was done on behalf of General Electric 15 Corporation. 16 Q. Was it in the course of litigation or other 17 consulting work? 18 A. No. It was for litigation. 19 Q. So did you publish that study? 20 A. No. 21 Q. You say that involved working with a brake? 22 A. It involved the mechanic -- it involved 23 several things, also determining asbestos emissions 24 associated with the operation of the overhead crane, 25 but it also included taking a personal breathing zone 54 1 sample while a mechanic changed an overhead crane 2 brake. 3 Q. Was there more than -- the measurements that 4 you took, was there more than one change of brake 5 involved? Was it multiple brake jobs or friction 6 product jobs or just one single job? 7 A. It was the brakes on one crane brake. 8 Q. Where were your samples taken from? Did you 9 do an area sample? 10 A. For the changing of the brake, it was just a 11 personal breathing zone sample. 12 Q. And you took that of the person who was 13 doing the work? 14 A. Correct. 15 Q. Then who set that up? You did? 16 A. You mean -- when you say "set up," I am not 17 sure what you mean. 18 Q. I apologize. The attaching of the personal 19 sampling device and - 20 A. I am the one who calibrated the pumps and 21 set everything up and attached it to the mechanic. 22 Q. In that -- did you observe the mechanic 23 doing his work? 24 A. Yes. 25 Q. Did he grind those brakes? 55 1 A. No. It was a replacement. 2 Q. When you say "replacement," did he remove an 3 old brake? 4 A. Yes. 5 Q. Did he blow it out with an air hose? 6 A. No. 7 Q. In the process of replacing, do I take it he 8 installed a used brake or he installed a new brake? 9 A. A new brake. 10 Q. And what preparation work did he do in 11 installing the new brake that he grinded? 12 A. He didn't grind it. 13 Q. Did he arc it? 14 A. No. 15 Q. I think you told me there is a distinction 16 in the physical workings of an overhead crane brake 17 as opposed to a vehicle? 18 A. Yes, typically. 19 Q. And can you describe to me what the 20 lining -- the lining is on the - 21 A. Outside of the drum in an overhead crane 22 brake, where it is typically on the inside of the 23 drum on a vehicle brake. 24 Q. Does that make a distinction, in your mind, 25 in the testing that you did? 56 1 A. Yes. 2 Q. So it wouldn't be a similar operation to 3 working on a vehicle's -- brakes in a vehicle? 4 A. There are similarities, but it is not 5 exactly the same. 6 Q. Do you have a copy of your results that you 7 generated from that study? 8 A. I have a report that describes that test. 9 Q. Did you do a peak measurement and a 10 time-weighted average measurement? 11 A. No. 12 Q. What measurement did you perform? 13 A. It was just a time-weighted average as they 14 replaced the lining. 15 Q. And tell me, when they replaced the lining, 16 was it a clip-on lining? 17 A. I believe there might have been some screws 18 that had to be taken off. It is not suspended the 19 same way a vehicle brake where there is springs that 20 sort of allow it to move more. 21 Q. It is - 22 A. It is hinged. 23 Q. Why would you not do a peak sample? 24 A. Because it didn't involve -- see, a peak 25 sample was taken on those operations in replacing a 57 1 vehicle brake where you would expect to have a peak 2 exposure. 3 And that operation is when you're pulling 4 the drum off and when you are taking an air hose or 5 you are cleaning the brake assembly. 6 In an overhead crane brake, because the 7 brake is on the outside of the drum, there is less 8 accumulation. So you are not taking anything off 9 that's going to cause a peak exposure. There is less 10 potential for a peak exposure, and that's why we 11 didn't do it. 12 Q. And forgive me, but going back to the postal 13 service, was there local exhaust, ventilation, being 14 applied by the postal service at the time? 15 A. There was a variety of conditions. There 16 was one post office, I believe, where they had a 17 local exhaust, but it ran the gamut to some 18 sophisticated controls to still using an air hose. 19 Q. So sophisticated controls might include, 20 what, use of a vacuum locally to soak up the - 21 A. It would have like an enclosure around the 22 brake assembly, and it would be exhausted. 23 Q. So you observed people using those exposure 24 control techniques when doing your postal service 25 work? 58 1 A. I don't believe on any of the ones I did. 2 In fact, I know on one I did, they were still using 3 an air hose. 4 Q. On the overhead crane job, was it done in 5 one day? 6 A. It was done in 20 minutes. 7 Q. Did you do any other work on that project? 8 A. Pardon? 9 Q. Did you do any other work on that study? 10 A. Yeah. That study also involved area 11 sampling right at the crane brake -- crane drum -- or 12 the brake lining/drum interface while it was 13 operating, and then also taking various area samples 14 around the overhead crane as it was operating and 15 using the brakes. 16 Q. How far would they be away, the overhead - 17 I'm sorry, the general-area samples, what kind of 18 distance are we talking? 19 A. Some of them were 30 feet away. 20 Q. During the operation of the actual vehicle 21 with the brake on it? 22 A. During the operation of the crane. But we 23 also had a filter that was within like a quarter of 24 an inch of the lining/drum interface. 25 Q. And what did your results show? 59 1 A. Very little. We didn't believe any asbestos 2 was measured on the floor and the concentration of 3 asbestos right at the interface was very low also. 4 Q. Is it your belief that the study did show a 5 measurement of asbestos from your measurements? It 6 was detected? 7 A. I think at the interface there was something 8 detected. 9 Q. Then you mentioned one overhead crane brake. 10 A. It was done in '84, but it only involved 11 measurements of area sampling. Nothing of a mechanic 12 working on the brake. 13 Q. So is it fair to say you wouldn't be relying 14 on that study in your opinions here? 15 A. That's correct. 16 Q. You reference in your report, I think it is 17 the end of the second full paragraph, you may have 18 performed over 1,000 asbestos bulk samples in your 19 career? 20 MR. KRAUSE: That's on Page 7? 21 MR. O'BRIEN: Yes. 22 THE WITNESS: Bulk and their samples. 23 Q. (BY MR. O'BRIEN) And you classified that as 24 that work that you consider industrial hygiene work, 25 collection of those samples? 60 1 A. Yes. 2 Q. And within that, whatever that number - 3 1,000 or whatever the number is, have I missed any 4 sampling that you recall or know would have been of a 5 friction product or have we covered - 6 A. I also did some testing of brake pads in a 7 study I did where I was drilling holes in brake pads 8 and measured the exposure associated with drilling 9 holes in brake pads. 10 Q. Let me just -- maybe because I tend to go 11 back and forth too much, within those samples that 12 you reference in the bottom of the second full 13 paragraph, from your career, do you know of -- and I 14 am going to take into account the latest one you just 15 told me about, the drilling -- do you know of any 16 other samples among that group or samples you took or 17 remember to be from the use of friction products or 18 measurements taken on friction product operations? 19 A. Right now that's all I can think of. 20 Q. I apologize. It is a little noisy outside, 21 if you can't hear me. 22 A. It also smells good. 23 Q. You made reference to a drilling procedure 24 or whatever. You didn't reference that before, have 25 you, Doctor, that I have not missed or asked about 61 1 it? 2 A. Pardon? 3 Q. Is that something new that you have told me 4 about? 5 A. It is not something new. 6 Q. It is something that we haven't discussed 7 already in the deposition? 8 A. That's true. 9 Q. Tell me what it is that you are referring 10 to, what the study was, when. 11 A. The date was mid '90s, and I was asked to 12 determine what the exposures would be to a mechanic 13 who has to drill holes in brake pads in actually 14 relining the shoes using rivets. 15 Q. Who asked you to do that? 16 A. Otis Elevator Company. 17 Q. Was that in the course of litigation? 18 A. Yes. 19 Q. Was it a brake that would be associated with 20 elevators? I'm just thinking of Otis. Or was it a 21 brake involved in automobile work? 22 A. It was a brake used in elevators. 23 Q. Is that brake -- tell me, is that a similar 24 brake to -- a similar mechanism to automobile work? 25 A. It was a disc brake. 62 1 Q. Not a drum brake? 2 A. They did use drum brakes also, but the pads 3 that I was given to test were pads that would have 4 been for disc brakes. 5 Q. Did you do the test of a worker using them 6 in the field or did you do them -- later yourself 7 perform a test? 8 A. I did it myself. You know what? I am 9 making an assumption that they were disc brakes 10 because they were small, but now that I think about 11 it, even though they were small, they could have just 12 been parts of a drum brake. 13 So I take that back. They were smaller 14 pieces, but I don't know for sure if they were used 15 on a disc brake or a drum brake. 16 Q. How small? 17 A. I think they were about three inches by five 18 inches, something like that. 19 Q. When you did the manipulation, you didn't do 20 it out in the field to kind of simulate someone 21 working with it; is that right? 22 A. That's correct. I did it in -- we have an 23 exposure chamber in our office. 24 Q. Tell me what you did at your office. 25 A. I put the pad, I believe, in a vice and 63 1 started drilling holes in it. 2 Q. And what kind of drill did you use? 3 A. It was a regular drill. I don't remember 4 the bit size. It might be in the report. And I just 5 made the pad look like Swiss cheese. 6 Q. And then what measurement -- were you taking 7 a localized area measurement, or what measurement 8 sample? 9 A. I took a personal breathing zone sample on 10 myself. It might have been two actually. And one or 11 two area samples 12 Q. What did you get? What results? 13 A. The results were that the time-weighted 14 average was, I believe, less than one point fibers 15 per cc. 16 Q. Did you have a peak average? 17 A. There was a peak. 18 Q. What was the peak? 19 A. I don't remember the number, but it was 20 higher. 21 Q. Was it higher than the permissible OSHA 22 peak? 23 A. I don't remember. 24 Q. How long did you do the drilling for? 25 A. I think I stretched it out -- I don't 64 1 remember if I -- 10, 20 minutes. I would have to 2 look at the report to refresh my memory. 3 Q. And what was the asbestos content of that 4 disc? 5 A. I don't remember. It was a significant 6 percentage, but I don't remember the exact 7 percentage. 8 Q. Do you know who the manufacturer of it was? 9 A. No. 10 Q. So did you actually -- did you review 11 anything that told you what the product formulation 12 was, the content? 13 A. I don't remember if I took a piece and just 14 had it analyzed to determine the asbestos content or 15 not. I would have to refresh my memory by looking at 16 the report. 17 MR. O'BRIEN: Doctor, let me just check the 18 time. I need a little restroom break for a minute. 19 MR. KRAUSE: What about -- especially with 20 that noise out there. 21 MR. O'BRIEN: I was actually just trying to 22 see if I could just accomplish this and get it done. 23 I was going to look at my notes. How are we doing on 24 time, Bob? 25 MR. KRAUSE: It is quarter to 1:00. 65 1 MR. O'BRIEN: Let's go off the record. 2 (A SHORT BREAK WAS HELD.) 3 MR. O'BRIEN: Back on the record. 4 Q. (BY MR. O'BRIEN) You've consulted as an 5 expert in litigation for a number of years; is that 6 right, Doctor? 7 A. Yes. 8 Q. Would you say -- when did you first start? 9 A. I was working for Ford Motor Company when I 10 was first asked to testify. About 1975, 1976. 11 Q. And just broadly, how many times do you 12 think that you have given deposition or trial 13 testimony in an injury-related lawsuit? 14 A. Deposition and? 15 Q. And/or trial. 16 A. Very roughly -- well, hundreds of times. 17 Q. And let's say the types of agents that might 18 be involved in products. You've testified in 19 asbestos numerous times before? 20 A. Actually, very few asbestos trials, but a 21 fair number of depositions. 22 Q. And silica, silicosis cases? 23 A. Yes. 24 Q. And protective equipment cases? 25 A. Respiratory protection, yes. 66 1 Q. And benzene? 2 A. Yes. 3 Q. Lead? 4 A. Yes. 5 Q. And what other kind of agents or products 6 that you can recall off the top of your head? 7 A. Isocyanates, solvents, indoor air quality, 8 fungii, carbon monoxide. 9 Q. In any injury case, can you tell me if you 10 have ever testified that the product of the person 11 who retained you as an expert or the conduct of the 12 person who retained you as an expert, you ever 13 concluded or ever gave the opinion that their product 14 or conduct caused or contributed to cause disease in 15 the injured plaintiff? 16 A. Well, I have done plaintiff work, so in 17 those cases, yes. 18 Q. How many times have you done that? 19 A. I think six, seven times, somewhere in that 20 neighborhood. 21 Q. When did you do that and what was involved? 22 A. There was several carbon monoxide cases 23 against General Motors. There was a chlorine case. 24 There was a silica case. 25 Q. In those cases, were you prepared to give an 67 1 opinion that the person who retained you to give an 2 expert opinion, that their conduct or product 3 actually caused or contributed to cause the disease? 4 A. I was retained by the plaintiff to say that 5 the vehicle or heater or boat or actions of the 6 defendant caused the problem. 7 Q. In the rest of your cases, have you been 8 giving opinions on behalf of defendants? 9 A. Yes. 10 Q. And in any -- I mean the rest of the cases. 11 And has your opinion always been that the person who 12 retained you, that their conduct or product didn't 13 cause or contribute to cause the disease in the case? 14 A. If it went to the point of giving a 15 deposition or trial testimony, if I thought it did 16 contribute, I didn't do more work on the case. 17 Q. I think we met once before, right, Doctor? 18 A. I will be honest. I don't remember, but it 19 is possible. 20 Q. And I think it involved a respiratory 21 protective equipment case for Bullard? Do you 22 remember that now? 23 A. I have done respiratory work for Bullard, 24 but it's still -- this wouldn't be a St. Louis case. 25 Q. That would be right. I live in St. Louis. 68 1 In that case do you remember you were initially 2 retained by Bullard? 3 A. And then transferred to U.S. Silica. 4 Q. And I was going to get there. Your initial 5 opinion was Bullard's product had no role in causing 6 or contributing to cause the disease; is that right, 7 Doctor? 8 A. Probably. 9 Q. And after they resolved your opinion, you 10 were then endorsed by the sand companies to say that 11 their product didn't -- or their action didn't cause 12 or contribute to cause my client's disease, 13 silicosis; is that right, Doctor? 14 A. I believe they had adequate warnings, 15 something like that. 16 Q. That their conduct didn't cause or 17 contribute to cause my client's problem? 18 A. I don't remember exactly when it was and how 19 you are referring to it, but I do remember the jury 20 agreed with me. 21 Q. I know what happened. Thank you. 22 You've worked for Ford; is that correct? 23 A. Yes. 24 Q. And during the time that you worked for 25 Ford, did you become aware that they were aware of 69 1 the potential problem with asbestos in brakes, in 2 friction products? 3 A. That they were aware of a potential problem? 4 Q. Yeah. 5 A. Yes. 6 Q. And were you part of discussion groups as to 7 what Ford should do or should not do about that? 8 A. Well, I know my testing showed it wasn't a 9 problem. 10 Q. Was the purpose of your test to actually 11 allow Ford to determine whether or not there was a 12 problem with the brakes and what they should do? 13 A. I assumed that my results were used, in 14 part, in their knowledge of the hazards associated 15 with replacing brakes. 16 Q. And you think the results you generated 17 contributed to whether or not they decided to 18 continue putting asbestos -- or leaving asbestos 19 brakes? 20 A. I don't know for sure. 21 Q. And during the time that you worked for 22 Ford, do you have any other memory of being -- do you 23 have any memory of them coming to ask you to do any 24 additional work in the area of asbestos and asbestos 25 brakes, besides discussions and the work that you did 70 1 in that one brake study? 2 A. That was the only job I did. I know I also 3 assisted Mr. Lick when he was evaluating vacuum 4 cleaners for use in cleaning asbestos-related 5 material. 6 Q. And when did you do that? That was during 7 the course of your employment? 8 A. Yes. 9 Q. And tell me about when that happened and 10 what you participated in doing. 11 A. I don't remember the exact year, but he was 12 conducting some experiments, and I think I helped him 13 set something up, but he was the one principally 14 involved. 15 Q. Do you have memory of any results you 16 generated as a result of these experiments? 17 A. No, I don't remember the results. 18 Q. Do you know if, after that time, Ford ever 19 asked you to help them develop a policy or position 20 as to whether or not they should continue to have 21 asbestos in the friction products? 22 A. They did not ask me. 23 Q. Is it fair to say then you were not part of 24 the decision by Ford, if and when they made it, to 25 not have asbestos in the friction products? 71 1 A. No, I was not part of that. 2 Q. I think I have maybe seen this somewhere 3 before. You have worked on brakes in the course of 4 working on your own personal automobiles; is that 5 right? 6 A. Yes. I am a mechanic. 7 Q. And would you consider yourself a 8 professional mechanic? 9 A. I think I can do quite a bit. 10 Q. Do you think the work you did was, being a 11 member of -- strike that. 12 You didn't do that as part of your 13 employment or profession. 14 A. Correct. 15 Q. So what you did was a member of the general 16 population, you went off and worked on your own 17 vehicles; is that correct, Doctor? 18 A. It is, except that maybe I have done more 19 than -- I have a full car lift in my garage and an 20 engine puller and extensive equipment. 21 Q. At any rate, would you say that you have 22 done over 200-plus brake jobs in your time? 23 A. I know it is over 100. Whether it is 24 approaching 200, I can't be sure. 25 Q. Have you ever yourself tried to do any 72 1 monitoring on measurements as to the release of 2 asbestos when you've worked on brakes? 3 A. No. 4 Q. Do you employ any techniques or any -- I 5 don't know what you call them in respiratory 6 protection programs since it is not on the job site, 7 but do you employ any devices when you are working on 8 brakes, such as opening the doors or using a vacuum 9 system exhaust, opening the windows? 10 A. Since I have been a part of studies that 11 show that there is no hazard associated with working 12 on brakes, that even when brakes still contained 13 asbestos -- and I did my last brake replacement on an 14 asbestos brake in 1984, I dropped the drum right on 15 the cement, cleaned it up, and the dust went flying 16 all over, because I know it is not harmful. 17 Q. And in that process then, would you keep the 18 door closed and the garage sealed? 19 A. I actually like keeping the door open, if 20 the weather is nice, but if the weather is not nice, 21 no, the door is closed and it is not a problem. 22 Q. Did you ever use a grinder? 23 A. I have never found a need to use a grinder. 24 There was one time when it was an extremely tight fit 25 getting the drum over the linings, and within the 73 1 first couple of using the brakes, it's a perfect fit, 2 and that's the easy way to do it. 3 Q. So you are familiar -- you do what you did, 4 and when you put the brakes on, you might get a 5 squeal out of them for the first number of times you 6 used the brakes? 7 A. I am saying 99.9 percent of the time there 8 was no problem. One time it was a tight fit, and 9 just the normal use of the brakes for the first few 10 miles wore down to a good fit. 11 Q. How could you tell you're wearing down 12 the -- did you hear like a squeal from the brakes? 13 A. When I first put it on, there was a little 14 brake drag, until it wore down. 15 Q. Have you ever testified for Borg-Warner 16 before? 17 A. I believe I have given reports and 18 depositions where Borg-Warner was involved. 19 Q. And have you, in your working as an expert 20 in friction product cases -- would that include 21 clutches? 22 A. Yes. 23 Q. And is it your belief that the asbestos 24 fiber used in friction products was exclusively 25 chrysotile? 74 1 A. Yes. 2 Q. So have you ever reviewed or received any 3 document from any of the companies that have retained 4 you as an expert that would show they ever used 5 anything other than chrysotile in friction products, 6 that would include either brakes and/or clutches? 7 A. I have not received anything; although, it 8 is my understanding, in Australia, they have used 9 amphiboles in friction products. 10 Q. And would you agree with me Borg-Warner's - 11 their primary base is in the United States and not - 12 when you are referring to Australia, you are not 13 talking about Borg-Warner? 14 A. I am not talking about Borg-Warner. I don't 15 know if they do work there or not. 16 Q. What about General Motors? Have they ever 17 told you that they used anything -- or any other 18 fiber-type materials for brakes or clutches other 19 than chrysotile? 20 A. No. 21 Q. That includes clutches that are either 22 automatic or manual form? 23 A. Yeah. In fact, I did do some testing for 24 Ford, automatic clutches for asbestos, but that was 25 phase contrast, so I wouldn't know which fiber type. 75 1 I have not heard anything other than chrysotile. 2 Q. In your work as an industrial hygienist, 3 when you're making measurements to try and attempt to 4 determine the exposure level, is there a level at 5 which you think it is acceptable, under OSHA's 6 guidelines, that somebody could be exposed to an 7 amphibole -- I withdraw that question. 8 Do OSHA guidelines set out acceptable 9 exposure limits for all types of asbestos between 10 chrysotile and the amphiboles in commercial variety? 11 A. Wait. What's the question? 12 Q. I withdraw it. 13 As an industrial hygienist, and when you are 14 evaluating exposures, you are trying to evaluate if 15 you can have them comply with OSHA standards? Is 16 that primarily what you're doing? 17 A. I wouldn't call it primarily. Primarily 18 what you are doing is you are evaluating exposures to 19 determine if the people doing the work are at risk of 20 being harmed. 21 But certainly OSHA compliance is the law of 22 the land. They are not always the same tasks. 23 Q. What's your primary guiding source, when you 24 are making measurements for clients? Is it to 25 determine whether or not for OSHA compliance, like 76 1 the studies we discussed? 2 A. I would say it is two-fold. I consider it 3 my job to determine if that job is going to put them 4 at an increased risk of becoming ill, and, also, the 5 company must comply with OSHA standards. 6 Q. Is there OSHA standards that govern the 7 acceptable exposure levels for all types of asbestos? 8 A. I don't know about all types, but they 9 identify a number of types in the standard. 10 Q. Do you have set limits that you believe - 11 because you said OSHA is only a component of it - 12 that you can point me to that says, okay, for 13 amphiboles, here is the number of low which I think 14 is acceptable to exposure, there won't be disease? 15 A. Say that again. 16 Q. You said part of your job is to advocate the 17 law of the land. 18 A. Yes. 19 Q. You indicate there is another part of your 20 job, in determining what's acceptable or not 21 acceptable with exposure levels. 22 Can you tell me what exposure level, to you, 23 is acceptable to amphiboles? 24 A. I don't know the actual limit where you are 25 going to separate an increased risk from an 77 1 essentially safe condition for amphiboles. There is 2 literature out there suggesting that if the dose is 3 below somewhere between one and four fiber years, 4 that does not constitute an increased risk. So you 5 could backtrack that into what would be a safe 6 exposure limit. 7 For chrysotile, though, we also don't know 8 the exact number, but there, fortunately, we have the 9 epidemiology studies on mechanics which clearly show 10 us that the point one number is completely safe. 11 And so for the first time, we have 12 epidemiology on low-dose exposure. I'm not aware of 13 the same type of epidemiology for low-dose 14 amphibole-exposure studies. 15 Q. Do you believe that actually those 16 thresholds are out there and you can point me to 17 literature that defines them? 18 A. Again, I am not saying point one is the 19 actual threshold. The number actually may be higher. 20 What I am saying is there are epidemiology studies of 21 people, for the first time, who have been exposed to 22 low levels of asbestos. 23 So it permits us to see that there is not an 24 increased risk of getting disease when your exposure 25 to chrysotile is below point one. It may be possible 78 1 that you can be exposed to something above point one 2 and still be safe. I just don't know how much more. 3 Q. And is the area of material that you think 4 that you are getting that from in what you are 5 calling the epidemiology? 6 A. Yes, I am getting it from the epidemiology 7 studies. 8 Q. You are not an epidemiologist? 9 A. I am not an epidemiologist, but I have 10 familiarity with... 11 Q. Have you participated in any epidemiology 12 studies you would rely on to give that opinion? 13 A. I haven't participated in any of the 14 epidemiology studies on asbestos. 15 Q. Have you participated in any epidemiology 16 study on chrysotile? 17 A. No. 18 Q. On tremolite? 19 A. No. 20 Q. On crocidolite? 21 A. No. 22 Q. Amosite? 23 A. No. 24 Q. Talc? 25 A. No. 79 1 Q. Have you ever participated in the process of 2 lung burden analysis or observing what asbestos is or 3 is not present in lung tissue? 4 A. No, I have done no tissue digestion or 5 analysis. 6 Q. What about the same for pleural, the pleural 7 areas of pleural surfaces? 8 A. No, I have not done that either. 9 Q. Doctor, in your experience in the field of 10 occupational and environmental health, do you believe 11 it is accepted that asbestos causes mesothelioma? 12 A. Clearly, there is enough information to show 13 that, with sufficient exposure to amphiboles, there 14 is an increased risk of getting mesothelioma. 15 For chrysotile, I believe there are some 16 epidemiology studies that really don't suggest 17 chrysotile causes mesothelioma, but there are cases 18 of mesothelioma in those cohorts. 19 If you aren't able to explain those by 20 either tremolite contamination or for some other 21 reason, if you wanted to be conservative and conclude 22 that those few cases were caused by chrysotile, then 23 the conclusion would be that it has some slight 24 potential, but it would take a very high exposure. 25 Q. When do you believe it became accepted -- do 80 1 you believe that asbestos causes mesothelioma? 2 A. As far as asbestos, there was Wagner studies 3 in the early '60s that were suggesting an 4 association, but just because you have someone coming 5 out with a paper on that -- just like when Selikoff 6 was announcing the increase in lung cancer associated 7 with insulators in the middle '60s, it's not accepted 8 by the occupational health community. So it takes 9 time. 10 Q. When did you accept it? Or have you 11 accepted it? 12 A. When have I accepted that asbestos causes 13 cancer? 14 Q. Mesothelioma. 15 A. Well, you are talking about all forms of 16 cancer or all forms of asbestos? 17 Q. Yeah. 18 A. Well, it was an evolving process of when the 19 occupational health community, and my following of 20 it, concluded without a doubt that it was a known 21 human carcinogen. And I can't pinpoint an exact 22 year. 23 Certainly by the time I was a practicing 24 industrial hygienist in the early '70s, the 25 suggestion was out there, but there were more studies 81 1 that needed to be done and more work that needed to 2 be done. 3 And as the '70s went on towards the later 4 '70s -- and I can't give you an exact time -- is when 5 I agreed, and others in the occupational health 6 community agreed, that asbestos was a known human 7 carcinogen. 8 Q. Did you accept that at the time that you 9 were working for Ford? Had you evolved, in that 10 process, to be acceptance at that stage? 11 A. At that point I think there was a lot of 12 talk and suggestion that it certainly might be, but I 13 don't know if it was absolutely confirmed during that 14 period of time. 15 Q. So in the time that you were at Ford and the 16 discussions came up, did you offer an opinion? 17 A. When you say offer an opinion, I am not sure 18 which -- I mean, it's not like executives at Ford 19 came into my office and said, "Tell us about 20 asbestos." I don't understand what you mean. 21 Q. But you hadn't fully evolved in accepting 22 that premise at that time? Would you please answer 23 my question? 24 A. I would agree that I had fully accepted it. 25 Q. Does asbestos cause mesothelioma in what we 82 1 call secondary exposure, just in household family 2 members? 3 A. It is a dose-response relationship. It 4 depends on fiber type. If you satisfy that 5 dose-response relationship, then it can occur. 6 Q. That was my question. You accept that 7 that's an acceptable -- that's acceptable in the 8 scientific community, that household exposures can 9 result in asbestos-related mesothelioma? 10 A. I didn't say that. What I said -11 Q. If you don't agree with that, let me know. 12 A. Well, I am trying to answer your question. 13 Q. Yeah. Sorry, Doctor. 14 A. What I am saying is that it is a dose 15 response. If you have a sufficient dose, you will 16 increase the risk. So the question is, what is the 17 dose of the secondary exposure, and you have to make 18 that determination. 19 Q. Okay. Beyond that dose equation, do you 20 believe that it is documented in the literature that 21 household exposures have caused mesothelioma? 22 A. No. 23 Q. Okay. So you don't - 24 A. Because I haven't seen a dose calculation 25 that met the requirement to increase the risk. 83 1 Q. So to your satisfaction, you don't believe 2 the mixture is established, to your satisfaction? 3 A. It hasn't, because if it did, it would 4 suggest that trivial exposures can increase the risk. 5 For chrysotile, we have scientific data to show that 6 that can happen. 7 Q. Let me just go over your -- I don't think I 8 have asked this. Let me follow up. 9 By way of any publications you might have 10 published -- I don't have your CV, which is fine - 11 have you published any books or chapters in books on 12 the subject of asbestos? 13 A. Chapters in books or books, no. 14 Q. Have you published any peer-reviewed 15 literature, which could be a peer-reviewed academic 16 publication, on the subject of asbestos? 17 A. No. 18 Q. And have you published any paper that you 19 can direct me to that's been published in either a 20 medical or an industrial hygiene journal on the 21 subject of asbestos? 22 A. That I have written? 23 Q. Yes. 24 A. There was a couple of non-peer-review 25 magazines or newsletters in which I have published 84 1 something. 2 Q. Is "a couple" two? 3 A. Two. 4 Q. So that's what I'm interested in today. 5 But that's current, and after that is still true 6 today? 7 A. Yes. 8 Q. Do you have any that are in the works? 9 A. No. 10 Q. I'm going to try to meet my deadline, and if 11 you can give me a minute or two, I'm going to try and 12 just do some things here. 13 You've addressed Mr. Thompson's exposure in 14 friction products and gaskets, in your report. Let 15 me ask this, and I think you've put it around a 10 or 16 15-year ballpark. 17 If he had worked as a mechanic for twice 18 that, let's say twice whatever it is, 10 to 25 years, 19 would it change your opinion as to whether or not he 20 would have had a sufficient dose, as a hypothetical, 21 Doctor; that is, exposure to those products could 22 play any role in causing the disease? 23 A. No, and the reason for that is that the 24 epidemiology studies on mechanics cover mechanics who 25 have essentially been life-long mechanics. 85 1 The fact that he did it for a lesser period 2 of time just makes it a little easier to ensure 3 myself that he fits within that category that's been 4 studied. 5 Q. So if I put this in for the maximum amount 6 of time, having a mechanic that worked with brakes 50 7 years in the course of their career, no matter how 8 much they did in a day, you don't think that those 9 could ever raise the level of causing asbestos 10 disease? 11 A. What I would have to do, if you start 12 getting into a situation that's beyond the normal 13 mechanic, I would have to review the epidemiology 14 studies again and pay a little more attention to the 15 make-up to see if it also included, within the 16 cohorts, people who would be similar to what you 17 would be describing. 18 Q. Put it this way. Under your current 19 understanding of what a mechanic could or could not 20 have done in their lifetime, be it a 50-year ordinary 21 mechanic, you think the answer is you cannot conceive 22 of a dose that would lead to asbestos disease? 23 A. If we are talking about a normal mechanic 24 situation, then it is correct, I don't believe that 25 they would be exposed to a dose -- 86 1 (AN OFF-THE-RECORD DISCUSSION WAS HELD.) 2 (THE REPORTER READ BACK THE FOLLOWING 3 QUESTION: 4 "If we are talking about a normal mechanic 5 situation, then it is correct, I don't believe that 6 they would be exposed to a dose --") 7 THE WITNESS: Of asbestos that could 8 increase their risk of getting disease. 9 Q. (BY MR. O'BRIEN) And in reaching your 10 opinions in this area of friction products, Doctor, 11 do you rely on Dr. Lemmon's work? Are you familiar 12 with it? 13 A. I am familiar with it. 14 Q. Do you rely on it in reaching your 15 opinions or do you think he has contrary opinions to 16 you? 17 A. I think he has contrary opinions. 18 Q. Have you reviewed Dr. Susuki's work? 19 A. I have reviewed some of his work. 20 Q. Do you find it reliable and do you rely on 21 it in forming your opinions? 22 A. I would have to look at individual things he 23 said to make a determination of what I might agree 24 with or what I might not agree with. 25 Q. Isn't his observations and studies on what 87 1 types of fibers may migrate to the pleura? Are you 2 familiar with that? 3 A. Again, I have read some of his work. I 4 would have to look at exactly what he said to comment 5 on it. 6 Q. Would it be fair to say that you are not 7 relying on his work in forming your opinions? 8 A. That would be correct. 9 Q. And if you know, do you think that he may 10 have contrary -- that's okay. I take that back. 11 Strike that question, Doctor. 12 Have you reviewed product testing by 13 Dr. Longo or Dr. Hatfield in this area, on friction 14 products? 15 A. Yes. 16 Q. Do you rely on the work they have done in 17 forming your opinions, or not? 18 A. I have had the opportunity to visit their 19 facility and -- how they conduct their tests. I have 20 some concerns about how they generate their data. So 21 because of that, there are things that they have 22 concluded that I do disagree with. 23 Q. Would it be fair to say you don't, 24 therefore, rely on their work in forming your 25 opinions? 88 1 A. I looked at it and I reviewed it, but it is 2 true that I didn't agree, basically, with some of 3 their conclusions. 4 Q. You make a comment in your report that there 5 are fibers that may be greater or less than five 6 microns in length? 7 A. Yes. 8 Q. Can you point me to any studies -- any 9 studies in the '80s by Stanton that you would be 10 relying on in forming your opinion that fibers of 11 less than five microns in length you don't view as 12 disease-causing? 13 A. You mean in addition to Stanton? 14 Q. Yes. 15 A. I also reference a study by Growth who was 16 at NIOSH. 17 Q. When was that? I'm sorry. 18 A. That was a 1985 article. And also the EPA 19 has just published a draft document, the Berman-Crump 20 model, that suggests that the cutoff for when fibers 21 are toxic shouldn't be five microns. It should 22 actually be 10 microns. That fibers less than 10 23 microns are not toxic. 24 Q. The EPA has not adopted that position as of 25 this date, has it? 89 1 A. They have put it on their website and 2 published it as a draft standard. And in the 3 beginning it says that the EPA is saying this is for 4 use by people who want to evaluate asbestos health 5 hazards. 6 Q. It has not been adopted by the EPA today, 7 that you know of, as a position? 8 A. Again, they are the ones who have made it 9 available and talked about scientists using it to 10 assist them in identifying health hazards associated 11 with asbestos. 12 Q. When did you see that first? 13 A. Last summer. 14 Q. And if I asked you before you saw that 15 report, whether or not you thought fibers of five 16 microns in length could or could not be -- have an 17 injurious effect, what would you have answered me? 18 A. I would have said that fibers less than five 19 microns do not have an injurious effect because there 20 have been studies to support that. 21 Q. Has that always been your position? 22 A. It has always been my position from the time 23 I have seen those studies. 24 Q. And the studies we're talking about are the 25 1980 studies, Stanton and Grove? 90 1 A. There are those studies. Prior to that 2 time, there had already been statements, that I have 3 been made aware of, that fibers less than five 4 microns are not toxic; however, I don't remember the 5 source of those studies. 6 Q. Would you agree with me also it was thought 7 that there can be -- there's legitimate literature 8 that they are suggesting fibers shorter than five 9 microns were problematic or injurious? 10 A. That there were some people who make that 11 claim? 12 Q. Yes. 13 A. Yes, I am aware of that. 14 Q. In your measurements that you personally 15 did, did you measure fiber length? 16 A. When you say that I personally did -17 Q. Yeah. 18 A. -- I am not sure. All of the thousands -19 Q. The studies -- let me bring it down to the 20 studies that you talked -- that you referred to as 21 your studies, the postal service, the one at Ford; 22 did you do a fiber-length analysis? 23 A. To the extent that anything that's done with 24 phase-contrast microscopy, five is essentially the 25 limit of the microscopic method, and it was also the 91 1 OSHA standard. 2 Q. So when you were counting, you were counting 3 like five -- in excess of five microns and you 4 weren't counting those less than five microns? 5 A. That's correct. 6 Q. I think that covers that. 7 (AN OFF-THE-RECORD DISCUSSION WAS HELD.) 8 MR. O'BRIEN: I tell you what, Doctor. I 9 told you that it seems to be complete at this time. 10 That's all my questions. 11 MR. KRAUSE: Do you have any questions? 12 MS. BROACHE: No. 13 MR. KRAUSE: Does anyone on the phone have 14 any questions? 15 MR. BENTIVOGLIO: Andrew? 16 MR. O'BRIEN: Yes? 17 MR. BENTIVOGLIO: This is Jim Bentivoglio. 18 Just to clarify, Rob or Ron in your office yesterday 19 had asked for Dr. Rabinovitz's CV, and I had sent 20 that to him. 21 MR. O'BRIEN: That's okay. We've talked 22 about it. It wasn't here at the deposition, but that 23 is not a -- I don't have a problem about that. 24 MR. BENTIVOGLIO: Okay. Just wanted to make 25 sure you knew you had it, at least at your office. 92 1 MR. O'BRIEN: Appreciate that. Thank you. 2 MR. KRAUSE: Thank you very much, Doctor. 3 THE WITNESS: Thank you. 4 (DEPOSITION ADJOURNED AT 12:28 P.M.) 5 (WHEREUPON THE SIGNATURE WAS WAIVED AND 6 THE WITNESS EXCUSED.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 93 1 CERTIFICATE 2 I, KEVIN J. WEICHMAN, CSR, CCR, do hereby certify 3 that there came before me at the BWI Airport Marriott, 4 1743 West Nursery Road, Baltimore, Maryland, 5 6 DR. SHELDON H. RABINOVITZ, 7 who was by me first duly sworn; that the witness was 8 carefully examined, that said examination was reported 9 to myself, translated and proofread using computer-aided 10 transcription, and the above transcript of proceedings 11 is a true and accurate transcript of my notes as taken 12 at the time of the examination of this witness. 13 I further certify that I am neither attorney nor 14 counsel for nor related nor employed by any of the 15 parties to the action in which this deposition is taken; 16 further, that I am not a relative or employee of any 17 attorney or counsel employed by the parties hereto or 18 financially interested in this action. 19 Dated this 2nd day of February, 2006. 20 21 22 KEVIN J. WEICHMAN, CSR, CCR 23 24 25 94