Document 6wVorKNZXNp1x64JJjkvqjQLE

00001 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF CONTRA COSTA 3 4 CHRISTOPHER DANA REMBOLDT, ) ) 5 Plaintiff, ) ) 6 vs. ) Case No. C-04-00739 ) 7 CHEVRONTEXACO CORPORATION, a ) Delaware corporation; et al., ) 8) Defendants. ) 9 __________________________________) 10 11 12 13 14 15 DEPOSITION OF JOHN WHYSNER, M.D. 16 Los Angeles, California 17 Friday, May 19, 2006 18 19 20 21 22 23 Reported by: 24 REBECCA CORRAL CSR No. 7021 25 Job No. 634446 00002 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF CONTRA COSTA 3 4 CHRISTOPHER DANA REMBOLDT, ) ) 5 Plaintiff, ) ) 6 vs. ) Case No. C-04-00739 ) 7 CHEVRONTEXACO CORPORATION, a ) Delaware corporation; et al., ) 8) Defendants. ) 9 __________________________________) 10 11 12 13 14 Deposition of JOHN WHYSNER, M.D., 15 taken on behalf of Plaintiff, at 633 W. 16 5th Street, Suite 700, Los Angeles, 17 California, beginning at 9:00 a.m. and 18 ending at 4:00 p.m. on Friday, May 19, 19 2006, before REBECCA CORRAL, Certified 20 Shorthand Reporter No. 7021. 21 22 23 24 25 00003 1 APPEARANCES: 2 3 4 For Plaintiff: 5 METZGER LAW GROUP BY: RAPHAEL METZGER 6 Attorney at Law 401 E. Ocean Boulevard, Suite 800 7 Long Beach, CA 90802 (562) 437-4499 8 For Defendant Chevrontexaco: 9 STEPTOE & JOHNSON 10 BY: LAWRENCE P. RIFF RUTH D. KAHN 11 SONIA O. WILLIAMS Attorneys at Law 12 633 W. Fifth Street, Suite 700 Los Angeles, CA 90071 13 (213) 439-9400 14 For Defendant Berry Petroleum: 15 WALSWORTH, FRANKLIN, BEVINS & MCCALL LLP BY: HANA CHIN 16 Attorney at Law 550 Montgomery Street, 8th Floor 17 San Francisco, CA 94111 (415) 781-7072 18 (via telephone) 19 For Defendant U.S. Oil and Refining Company: 20 KENNEY & MARKOWITZ, LLP BY: KIMBERLY MCINTYRE 21 Attorney at Law 255 California Street, Suite 1300 22 San Francisco, CA 94111 (415) 397-3100 23 (via telephone) 24 25 00004 1 INDEX 2 WITNESS: EXAMINATION 3 JOHN WHYSNER, M.D. 4 5 BY MR. METZGER 5 6 7 8 EXHIBITS 9 PLAINTIFF 10 1 Curriculum Vitae of Dr. Whysner 7 11 2 Trial Testimony: Last 10 Years of 7 Dr. Whysner 12 3 Literature Citations 97 13 4 Letter dated 5-16-06 to Dr. Whysner from 98 14 Danya Gonzales 15 5 Literature Produced by Plaintiff's Experts 101 16 6 Billing statements 157 17 7 Article entitled "Benzene increases the 158 lymphoma-related translocation t(14;18) in 18 exposed workers, but not translocations involving the MLL gene associated with 19 topoisomerase II inhibition" 20 8 University of Ottawa, Benzene State of the 158 Science Workshop 21 9 Article entitled "Benzene Metabolism and 158 22 Genotoxicity" 23 INFORMATION REQUESTED 24 (None) 25 00005 1 Los Angeles, California, Friday, May 19, 2006 2 9:00 a.m. - 4:00 p.m. 3 4 BY MR. METZGER: 5 Q Good morning, sir. Would you introduce 6 yourself. 7 A Good morning. John Whysner. 8 MR. RIFF: Shall we state appearances for the 9 record? 10 MR. METZGER: Excuse me, go right ahead. 11 MR. RIFF: Please. 12 MR. METZGER: I am Rafael Metzger. I represent 13 the plaintiff, Christopher Remboldt. 14 MR. RIFF: Lawrence Riff and Sonia Williams, 15 Steptoe & Johnson for various defendants. And on the 16 phone we have Kimberly McIntyre, Kenney & Markowitz for 17 U.S. Oil and Refining Company. 18 MS. CHIN: Hana Chin from Walsworth, Franklin, 19 Bevins & McCall for Berry Petroleum. 20 MR. RIFF: Is that it? May we have a 21 stipulation that the objection of any defense counsel 22 actually attending the deposition shall be deemed the 23 objection of all such counsel attending the deposition. 24 MR. METZGER: Absolutely. 25 MR. RIFF: With that, shall we proceed. 00006 1 BY MR. METZGER: 2 Q All right. Good morning, Mr. Whysner; correct? 3 A Yes. 4 Q Am I pronouncing the last name correctly? 5 A Yes. 6 Q We are here for your deposition, and have you 7 given depositions before? 8 A Yes. 9 Q About how many? 10 A Approximately about 20 times. 11 Q Do you feel comfortable with the process so I 12 don't need to tell you all those things lawyers usually 13 do at the beginning of the depositions? 14 A I think so. 15 MR. RIFF: If you don't understand the 16 question, tell him you don't understand. Okay. You are 17 under oath, you understand that, don't you? 18 THE WITNESS: Yes. 19 MR. METZGER: He is doing it for me. 20 MR. RIFF: Do your best to answer a question no 21 matter how stupid you think the question is. Can you do 22 that? Laughter abounded. 23 BY MR. METZGER: 24 Q Okay. Dr. Whysner, is this your current 25 curriculum vitae? 00007 1 A Yes. 2 MR. METZGER: We'll mark this as Exhibit 1. 3 (Plaintiff's Exhibit 1 was marked for 4 identification by the court reporter.) 5 BY MR. METZGER: 6 Q And does Exhibit 1 contain a current list of 7 all of your publications? 8 A Yes. 9 Q Are there any publications of yours from any 10 time in your life that you have written which are not 11 listed on here? 12 A Not that I recollect, no. 13 Q And is Exhibit 2 a list of cases in which you 14 have testified during the last 10 years? 15 A Yes. 16 (Plaintiff's Exhibit 2 was marked for 17 identification by the court reporter.) 18 BY MR. METZGER: 19 Q And at the top of Exhibit 2 it says, "Trial 20 Testimony: Last 10 Years." Is every one of these cases 21 here a case in which you actually testified at trial? 22 A No. 23 Q All right. I would like to just -- it is not 24 that long of a list. I would like to go through it, if 25 you could just tell me generally what each case was 00008 1 about, I will ask you some questions one by one. 2 A Okay. The first one, Charles Robinson vs. 3 Rockwell was a case involving PCB's in the mud river in 4 Kentucky, and it was a case -- the suit was for medical 5 monitoring, as well as property damage. 6 Q Just a moment. Did you give a deposition in 7 that case? 8 A No. 9 Q It is indicated here there was a Daubert 10 hearing. Did you provide a written declaration or 11 affidavit for a Daubert hearing? 12 A I believe so. I believe so. 13 Q Did you also provide testimony at a Daubert 14 hearing? 15 A Yes. 16 Q This case, it indicates that there was a trial? 17 A Yes. 18 Q Did you testify at trial? 19 A Yes. It is real complicated. The Daubert 20 hearing -- after the Daubert hearing, the case for 21 medical monitoring was dismissed, and so the trial went 22 on for property damage, but there were issues related to 23 toxicology and PCB's that I was asked to testify about. 24 And as you asked about it, a deposition, I 25 don't believe there was a deposition. It is not on this 00009 1 list, and -- but it's been a while and this was almost 2 10 years ago. 3 Q I see. Okay. Now, in that case, did you give 4 any testimony regarding leukemia or lymphoma? 5 A No. 6 Q Or benzene? 7 A No. 8 Q All right. The next case, Maertin. Can you 9 tell me what that was about? 10 A This was a case involving PCB's again in 11 ceiling tiles in a college in New Jersey, and there 12 were, I think, 13 plaintiffs who had various forms of 13 cancer. And this is, again, a while ago and I haven't 14 looked at that because I have been asked about this 15 recently, I can't remember, but I think one of the cases 16 was either leukemia or possibly a lymphoma, but I don't 17 recall specifically. 18 Q Who asked you about this recently? 19 A I believe it was my deposition in Ringstaff. 20 Q Who took your deposition in that case? 21 A But it could have been the Fullen case. 22 Ringstaff, the deposition was -- I really don't have a 23 good memory for the names of the plaintiff's law firms, 24 I am sorry, but all I can tell you is that a Texas law 25 firm and it was a fairly prominent one, from what I had 00010 1 been told. 2 Q Baron & Bud? 3 A It wasn't Baron & Bud. It was the Avis, I 4 guess, the No. 2, that's what I was told or something. 5 Q We'll get to that, that's on the list. 6 Do you happen to know who took your deposition 7 in the Maertin case? 8 A No, I don't remember. 9 Q Next case, Smith vs. Tucson Airport. What was 10 that about? 11 A TCE, trichlorethylene. And, again, that was a 12 case for, I believe it was medical monitoring, and I do 13 remember who took my deposition, that was Fred Baron. 14 Q All right. Ballinger vs. -- well, I am 15 familiar with that case. That's fine. 16 We'll go on to Hudson Riverkeeper. What was 17 that case about? 18 A PCB's, and the former Anaconda copper and wire 19 facility in Hastings, New York. 20 Q A case involving cancers? 21 A No, this was a case that had to do with 22 remediation and cleanup. 23 Q Who took your deposition, do you recall? 24 A It was a professor at one of the local 25 universities. I will think of the name in a minute, but 00011 1 it was sort of, kind of interesting because he had his 2 students there and it was like one of these kinds of 3 things. 4 Q All right. Then the San Jose IBM workers 5 litigation, I don't need to ask you about. I see you 6 gave a lot of depositions and a lot of trial testimony? 7 A I know who deposed me there, Amanda Hawes. 8 Q I was going to guess that. Krutsinger vs. 9 Pharmacia? 10 A Was a PCB case again, alleged PCB exposure that 11 involved somebody who was crawling inside of a 12 transformer and got a rash and then got sick and was 13 suing for, you know, medical damages. 14 Q Who took your deposition in that case? 15 A I have to memorize all these names in the 16 future. I don't remember. 17 Q I am looking at Illinois, Southern District of 18 Illinois. Would that have been somebody from Simmons & 19 Cooper, do you recall? 20 A No. 21 Q All right. Cooper is Mr. Riff's case or, 22 actually, I guess Phil Harley's case. I don't need to 23 ask you about that. 24 So now tell me about Fullen, if you would? 25 A Okay. Fullen is a case involving 10 plaintiffs 00012 1 and I only testified regarding three of them. One of 2 them was an alleged exposure to beryllium, alleged 3 chronic beryllium disease. 4 One of them was a lung cancer with -- when I 5 was testifying about the toxicology of arsenic and 6 cadmium. And one of them was a CML case and there was 7 alleged exposure to solvents, various petroleum-based 8 solvents in that case. 9 Q And you gave your deposition in that case in 10 January of this year? 11 A That is correct. 12 Q Who deposed you? 13 A Again, I can't remember. 14 Q West Virginia, Dean Hartley? 15 A That name sounds familiar. It might be. 16 What's the firm name? 17 Q Hartley & O'Brien. 18 A It might be. 19 Q Okay. And, lastly, Ringstaff? 20 A Correct. Ringstaff was a case of CLL and, 21 again, alleged exposure to -- this is -- I think it was 22 primarily benzene. 23 Q And as you sit here now, can you recall who 24 took your deposition? 25 A I know the attorneys on my side. 00013 1 Q Who were they? 2 A Well, this started out being Stan Perry and -3 but they went out of the case and then it became Phillip 4 Warner, of Warner & Carrigan. 5 Q That case went to trial. I see that was -- you 6 gave your deposition in March. It went to trial? 7 A Went to trial and it settled during jury 8 deliberation. 9 Q All right. Other than the cases which you just 10 discussed, is there any -- are there any other cases in 11 which you have given deposition or trial testimony in 12 the last 10 years? 13 A No, not that I recollect. 14 Q With respect to these cases that we have 15 discussed, in any case, did you ever testify on behalf 16 of a worker claiming to be injured? 17 A No. 18 Q Did you ever testify on behalf of any person 19 claiming to be injured? 20 A No. 21 Q In every case where you testified, were you 22 testifying on behalf of a company that was being sued? 23 A Well, with the exception -- and, again, this 24 John Smith, underwriter, Lloyds of London, it was an 25 insurance dispute and I am not really sure how to answer 00014 1 that question. I think that the insurance company 2 didn't agree with the settlement that the airport had 3 agreed to and I was testifying on behalf of the 4 insurance company. 5 Q Okay. Now -6 A And the Hudson River case was a case about a 7 cleanup, so -8 Q And were you testifying on behalf of Arco in 9 this case? 10 A Yes. 11 Q All right. Now, when is the first time that 12 you ever gave a deposition? 13 A It would have been, I think, in the earlier 14 '90s and it was with regard to the Paoli litigation 15 case. 16 Q On whose behalf did you testify in that case? 17 A The three railroad companies, SPTA, which is 18 Southeastern Pennsylvania Transit Authority, Amtrak, and 19 at that time, I think it was called Penn Central, and 20 also Monsanto and General Electric. 21 Q Now, other than the cases that we have 22 mentioned, are there any other cases in which you have 23 testified at all regarding benzene? 24 A No. 25 Q Are there any other cases in which you have 00015 1 testified about solvents? 2 A There is a case that I was asked to testify 3 about cutaneous absorption issues that involved 4 solvents, but I wasn't testifying about health effects. 5 Q Do you recall the name of that case? 6 A No. 7 Q Any other cases that you recall testifying 8 about solvents? 9 A No. 10 Q Are there any other cases that you recall 11 testifying about leukemia? 12 A No. 13 Q Are there any other cases that you recall 14 testifying about lymphoma? 15 A Well, let me just say that some of my earlier 16 PCB cases had to do with the general question of whether 17 or not PCB's caused any form of cancer. So in that 18 context, yes, I mean, but these weren't injury cases 19 where the -- there was a plaintiff who had one of those 20 kinds of cancers. 21 Q I asked you about these 10 cases. Now I want 22 to broaden it. Over your entire career, have you ever 23 testified on behalf of a worker claiming to have been 24 injured? 25 A No. 00016 1 Q Or a person claiming to have been injured? 2 A No. 3 Q All right. Now, let's talk about some other 4 kinds of testimony. Have you ever testified before any 5 governmental agencies? 6 A I have done -- I have testified in front of, I 7 guess you would call it governmental agencies, regarding 8 permitting of some power plants. It was an 9 administrative judge-type hearing. 10 Q Where and when was that? 11 A These would have been in the early to mid-'90s, 12 and one of them was in Bucksport, Maine, one of them was 13 in Orlando, Florida, one of them was in Puerto Rico. 14 That's all I can remember. 15 Q And what was the general rest of your testimony 16 in that? 17 A Well, I was asked -- this is, again, in the 18 context of risk assessment work because I have done a 19 lot of risk assessment work, what were the risks of 20 cancer or from various -- were there diseases that were 21 going to be caused from emissions from the power plant. 22 Q In those cases, were you testifying on behalf 23 of the power plants that wanted to get licensed? 24 A Correct. 25 Q Any other agencies that you could give -- have 00017 1 given testimony before? 2 A I don't believe so. 3 Q Congress or OSHA or EPA? 4 A No. 5 Q Now, there is also another kind of testimony 6 that one can provide, which is written testimony 7 submissions, for example, rule-making proceedings. Have 8 you ever provided any declarations or affidavits to any 9 agencies in connection with rule-making proceedings or 10 any proceeding? 11 MR. RIFF: Agencies? 12 MR. METZGER: Yes. 13 THE WITNESS: I think I provided, but I don't 14 know if it actually -- my comments actually went in 15 directly or through a law firm on a ruling on PCB 16 transformers that had caught fire and the issue of 17 dioxins. 18 This had been in the early -- wait a minute. 19 This would have been in the mid-1980's, but I don't 20 think that I would have been identified as somebody 21 specifically who had done that. 22 BY MR. METZGER: 23 Q What agency was this? 24 A This would have been the EPA. 25 Q What is the organization that would have 00018 1 submitted your testimony or comments? 2 A I don't remember. This was, I guess, going 3 back almost 20 years. 4 Q All right. Any other written testimony that 5 you have provided that you can recall? 6 A Not that I can recall. 7 Q Okay. All right. Have you in any way listed 8 any opinions that you have for this case that we are 9 here about today? 10 A No. 11 MR. RIFF: In a writing, you mean? 12 MR. METZGER: Yes, in some type of writing. 13 THE WITNESS: No. 14 BY MR. METZGER: 15 Q Do you have them in your mind that you can give 16 them to me sequentially? 17 A Well, I mean, I don't know if I can think of 18 all of them immediately. Now, I am sure I will in the 19 course of the deposition. 20 Q Let's start. 21 A Okay. Well, I was asked to give an opinion 22 about whether Non-Hodgkins lymphoma could be caused by 23 any of the chemicals that Mr. Remboldt was allegedly 24 exposed to, whether or not it is general causation. And 25 I was asked to give an opinion about whether 00019 1 Mr. Remboldt's Non-Hodgkins lymphoma could have been 2 caused by any of the chemicals that he was allegedly 3 exposed to. 4 Q Let me just ask you: Is there a difference, I 5 mean, is your testimony or your opinions in this case 6 limited to the issue of general causation or are you 7 actually doing specific causation, too? 8 A Well, I think, specific causation. I am also 9 talking about specific causation. 10 Q Okay. All right. Go ahead. 11 A I was also asked to provide testimony about the 12 plaintiff's expert's opinions and whether or not they 13 used, you know, whatever you want to call it, a reliable 14 and sound methodology in terms of reaching their 15 opinions. Those are the two main things that I was 16 asked to do. 17 Q Well, let's talk about those, then. That 18 helps. I can at least formulate some questions now. 19 In considering whether Non-Hodgkins lymphoma 20 can be caused by chemicals which Mr. Remboldt was 21 exposed, what chemicals was it that you considered? 22 A Well, we are talking about allegedly exposed 23 to, I am assuming. The chemicals that I considered 24 was -- were chemicals that -- some of the chemicals were 25 identified in the complaint. For example, benzene, 00020 1 certain petroleum solvents, petroleum-derived solvents 2 such as xylene and toluene. 3 And I also looked at the, you know, the 4 literature related to what are known generally as 5 solvents, which is kind of a catchall term for, as you 6 probably know, anything that can dissolve anything, 7 which is what a solvent means. 8 But I have tried to look at literature where 9 there was something -- some definition of what the 10 actual solvents really were that were being 11 investigated, whether or not there was any way in which 12 those solvents could have, in any way, have been 13 involved in a refinery process and in chemicals and in 14 the refining process. 15 Q Let me just ask: When you refer to solvents 16 that you considered generally, did you limit it to 17 petroleum-based solvents? 18 A Well, I certainly looked at some of the 19 literature Drs. Infante and Harrison used so, therefore, 20 I cast a bit of a wider net because a lot of their 21 literature involves other kinds of solvents as well, so 22 I reviewed that kind of literature. 23 Q Okay. Any other chemicals that you considered? 24 A Well, I was asked to -- originally to look at 25 the issue of butadiene, but since I couldn't find 00021 1 anywhere where Dr. Infante or Dr. Harrison even 2 mentioned butadiene in their testimony, I decided to put 3 that on hold, but I would be able to discuss that, but I 4 haven't really prepared today to do so. 5 Q Okay. 6 A I looked at something called butoxyethanol 7 because Dr. Infante talked a bit about it in his 8 deposition and, actually, I found that what he was 9 saying about it wasn't correct, and so I wanted to be 10 prepared to deal with that. 11 Q All right. Have we now covered the chemicals 12 that you considered? 13 A Yes. 14 Q Okay. I suppose I don't need to ask it, but 15 what is your opinion as to whether any of these 16 chemicals can cause Non-Hodgkins lymphoma? 17 A My opinion is that based upon the reliable 18 scientific literature, that they have not been shown to 19 cause Non-Hodgkins lymphoma. 20 Q When you say that "they have not been shown to 21 cause Non-Hodgkins lymphoma," are you saying they cannot 22 cause it or that, in your view, it has not sufficiently 23 been demonstrated that they can cause it? 24 A I think the two of those are the same. 25 Q Really? 00022 1 A At least in terms of our knowledge. I mean, if 2 you are asking me -- you are asking me as an expert, I 3 am assuming. Now, if you are asking me a question can 4 anything happen, you don't need an expert opinion for 5 that. 6 Q No, no, I am not asking that. What I am 7 getting at is I have something different -- a little 8 different in mind. IARC classifies chemicals in four 9 categories, four basic categories; right? 10 A One, two, three, four. 11 Q One, two, three, four. And four is actually a 12 category where the chemical has been shown not to cause 13 cancer, and there are very few chemicals in that 14 category. I think there is one? 15 A It is not there for good reason, I can tell you 16 that much. I have been in the IARC process, I have been 17 in the working groups, and it is -- that category, we 18 were told not to even try to go there during the 19 deliberations. 20 Q Who told you that? 21 A Jerry Rice, who is the head of the monograph 22 program. It is just impossible to put a category, it is 23 proving the negative. 24 MR. RIFF: What's the chemical in category 25 four? 00023 1 THE WITNESS: I don't remember. 2 MR. METZGER: I don't either. I just remember 3 Stellman's summary and it was one there and -- anyway. 4 Q Okay. All right. Now, I am sure there is a 5 lot of information that you could provide me as to why 6 you hold your negative opinion on general causation for 7 these chemicals. 8 Before we get into all the details, could you 9 kind of give me an overview of the broad, general 10 concept or categories that you considered that had you 11 reach this opinion, kind of a framework? 12 A Okay. First of all, there are several cohort 13 studies that include benzene and, in general, those 14 studies do not show an association with Non-Hodgkins 15 lymphoma. 16 Q Okay. What else? 17 A Other chemicals that have actually been studied 18 as such not only don't show it in association with 19 Non-Hodgkins lymphoma, such as xylenes and toluene, but 20 the animal studies don't even show any similarity with, 21 for example, benzene. 22 So even to the extent that benzene has been 23 found to cause one form of cancer in humans, acute 24 myelogenous leukemia, and it's been shown to cause a 25 number of cancer in end points in animals, other 00024 1 so-called solvents like xylene and toluene are negative. 2 Q For what, am I missing you? 3 A For -- in cancer bioassays. 4 Q Animal bioassays, is that what you are talking 5 about? 6 A Right, for those same kinds of end points for 7 the same, so that raises the whole question of what do 8 studies in humans regarding, quote, "solvents" really 9 mean? When we know from a toxicological standpoint in 10 terms of ability to cause cancer, these chemicals are 11 very different. 12 We know that about those chemicals, we know 13 that about some of the chlorinated solvents, hydrocarbon 14 solvents, they cause, yet, different kinds of cancers in 15 animals, such as liver cancer or kidney cancer, but they 16 don't cause the kinds of cancer that benzene causes. 17 So from a toxicological standpoint, from what 18 we know about how chemicals can cause cancer, it doesn't 19 make any sense, first of all, to lump all solvents 20 together. 21 So that makes their kind of a limited number of 22 studies where one can actually look at the alleged 23 exposures that are at issue in this case so, therefore, 24 we come up with studies that have to do with, for 25 instance, petroleum workers. This is a case about a 00025 1 petroleum worker in those studies. 2 Q I am sorry, what kinds of studies are you 3 referring to? 4 A I am sorry, human studies, epidemiology 5 studies. So those studies now are at least about the 6 same kind of industry and those studies don't show any 7 association -- overall, these studies don't show any 8 association with Non-Hodgkins lymphoma and those are 9 probably the most relevant studies related to this case, 10 because at least they are about the same industry and 11 occupations. 12 Even so -- even so, even the studies overall 13 about solvents and however you want to cut solvent 14 classification up, in general, there are certainly more 15 negative studies than there are positive studies. You 16 will always find a few studies that are positive. 17 Q Which, I am sorry, regarding solvent studies, 18 what kind of studies are you talking about, are these 19 cohort or case control studies you are talking about? 20 A Either one. But in those cases, you know, we 21 have to be very careful about what we can actually say 22 are at all relevant to the case at hand and you have to 23 go -- those have to be dealt with on an individual basis 24 going through them. 25 Q "Those" referring to what? 00026 1 A Those studies. 2 Q The cohort studies and the case control 3 studies? 4 A Yes. And as I mentioned, the benzene studies 5 are also, in general, negative. 6 Q By "benzene studies," what, specifically, are 7 you referring to? 8 A Okay. Well, we have cohort studies. 9 Q We'll get to that. I am just asking generally, 10 you are talking about cohort studies? 11 A Yes, and case control studies. 12 MR. RIFF: Are you done with your category -13 response to his category question, the framework that he 14 asked you about? 15 THE WITNESS: I think so. 16 MR. RIFF: Fine. I want to know if you are 17 coming up for air or whether you were done. 18 MR. METZGER: I am sure we'll flush it all out 19 in the course of this deposition. It gives me the 20 landscape we are going to talk about. 21 Q In reaching your opinion on general causation 22 for benzene and organic solvents and Non-Hodgkins 23 lymphoma, how do you -- have you considered any case 24 reports? 25 A In terms of coming to a conclusion regarding -00027 1 I have reviewed case reports. There are lots of them in 2 the past literature, but I don't think that they can be 3 used to establish causation. 4 Q Okay. Do you have the case reports here that 5 you have reviewed? 6 A No. 7 Q Can you identify them for me? 8 A Regarding Non-Hodgkins lymphoma or -- I mean, 9 certainly with benzene, I remember the case studies that 10 people like Vigliani did. There are some case reports 11 by Hunter from Mass General from the 1930's. 12 Q Did Hunter and Vigliani report lymphomas? 13 A I don't recall specifically. 14 Q Are there -- can you identify for me any 15 particular case reports that concern benzene or solvents 16 and Non-Hodgkins lymphoma? 17 A Not right here. 18 Q All right. In reaching your opinion on general 19 causation, did you consider any mechanistic studies? 20 A Such as -- what do you mean by "mechanistic 21 studies"? 22 Q Well, that's probably a bad question. 23 MR. RIFF: Objection. Bad question. 24 MR. METZGER: I don't know what I do mean, so 25 let me -00028 1 MR. RIFF: Objection. Plaintiff's counsel 2 doesn't know what he is talking about. 3 MR. METZGER: Let me withdraw that. 4 Q Did you review, for this case, actually review 5 any studies regarding the genotoxicity of benzene? 6 A Well, I know a lot about the general toxicity 7 of benzene because -8 Q Did you say "general"? 9 A Yes. 10 MR. RIFF: That's what you said. 11 MR. METZGER: Yes, it is. 12 MR. RIFF: Do you want to have it read back? I 13 don't understand the question. 14 MR. METZGER: No, let me restate it so we are 15 on the same page. 16 Q In the course of your reaching your opinions 17 for this case, did you review any literature regarding 18 the genotoxicity? 19 A Oh, genotoxicity. 20 Q If you can pronounce that that way. 21 A Well, I published a paper where I reviewed 22 1,400 genotoxicity tests. 23 Q I know. Are you relying on any of that for 24 your opinions in this case? 25 A Only to the extent that I think it allows us 00029 1 some understanding of how benzene causes the one cancer 2 we know that it causes, and that's acute myelogenous 3 leukemia. And so we don't -- that would at least 4 provide an explanation for how AML develops. 5 Q The mechanism? 6 A The mechanism by which AML develops. 7 Q See, my question wasn't that bad after all. 8 Okay. Got it. 9 In reaching your opinion on general causation 10 in this case for benzene solvents and Non-Hodgkins 11 lymphoma, did you review any studies regarding 12 immunotoxicity? 13 A Not specifically for this case, but I have 14 reviewed the literature on -- generally on benzene a 15 number of times that have to do with all sorts of end 16 points. 17 Q But, specifically, have you reviewed and 18 considered the studies concerning the immunotoxic 19 effects of benzene and organic solvents? 20 A By "immunotoxic," you mean generally or 21 specific kind of immunotoxicities? 22 Q Starting with the general. We can get into the 23 specifics, if that's something that you are relying on, 24 and if it is not, then I don't know that we really need 25 to go there. 00030 1 A I would say that the -- that I haven't, except 2 to the standpoint that I know that benzene causes -- can 3 cause bone marrow suppression and bone marrow 4 suppression, if you knock out all of the white blood 5 cells from the bone marrow, is going to effect the 6 immune system, but that really doesn't speak to the 7 issue of Non-Hodgkins lymphoma. 8 Q Why not? 9 A Because Non-Hodgkins lymphoma doesn't arise in 10 the bone marrow. 11 Q It arises in extramedullary sets? 12 A In the lymph system. 13 Q Okay. Well, have you reviewed any studies 14 regarding the capability of benzene or other organic 15 solvents to suppress B cell function? 16 A In what sense, B cell function? 17 Q In any sense. 18 A Do you mean its ability to produce 19 gammaglobulins or -20 Q In any sense. I mean -- 21 A Specifically for this particular case, no. 22 Q So do I understand, then, that your opinions in 23 this case are not based upon any of the literature 24 regarding the immunotoxic effects of benzene? 25 A Well, again, we are getting back to 00031 1 immunotoxic, meaning both lymph and bone marrow 2 development. I know that benzene pretty clearly has an 3 effect on the bone marrow, okay, and, therefore, it can 4 produce an immuno effect related to the bone marrow. 5 Immune function effect. Lack of white blood cells, 6 okay. 7 But the effects on the lymphatic system, it is 8 not -- I mean, everything can do everything at a 9 particular dose. If you give a high enough dose of 10 something, it is going to have an effect on most 11 systems, but it is -- benzene is not really one of those 12 kinds of chemicals that is specifically aimed at 13 producing immune suppression. 14 And if you look at the general pattern of 15 various chemicals and what they do toxicologically, 16 benzene doesn't stand out as an immunotoxic like some 17 things do. 18 Q Isn't it true that benzene was actually once in 19 medical history used as a cytotoxic and 20 immunosuppressant agent in humans? 21 A Not to my knowledge. 22 Q Okay. Well, when you say that benzene can 23 cause bone marrow suppression, what do you mean by that? 24 A It decreases -- it is toxic to the bone marrow 25 so that there are -- the blood-forming elements are 00032 1 suppressed so that there are -- it causes pancytopenia, 2 you know, that being -- pancytopenia means low white 3 count, low red count, and it can also cause aplastic 4 anemia. 5 Q When you say it is toxic to the blood-formimg 6 elements, is it toxic to myelocytes? 7 A Yes. 8 Q And is it toxic to lymphocytes? 9 A Well, the lymphocytes that are derived from the 10 bone marrow certainly can effect those at a sufficient 11 dose. I mean, we are talking about people who have been 12 exposed to benzene in a couple hundred parts per million 13 in the air. 14 Q Are you unfamiliar -- strike that. 15 Are you familiar with any studies showing toxic 16 effects from benzene to lymphocytes at doses lower than 17 100 parts per million? 18 A Depends what you mean by "toxic effects." 19 Q Any toxic effects of benzene to lymphocytes at 20 doses lower than 100 parts per million? 21 A Well, I think there are some -- couple of 22 things come to mind here. First of all, there are case 23 reports, but, then, again, I don't know how good case 24 reports are because you always have the attribution 25 problem of people that have been exposed to, for 00033 1 example, the Hunter painter. 2 There was a person who got exposed to 25 parts 3 per million and another person was exposed, supposedly, 4 only to 10 parts per million on a regular basis, who had 5 a toxic effect to the bone marrow, but this is among 80 6 people that they reported. 7 So -- and, again, these are case reports, so I 8 don't know how -- whether or not that's real or not 9 because there is no control group to know, wasn't a 10 regular scientific study to be able to figure that out. 11 Q Are you aware of any epidemiologic studies 12 which have investigated the effects of benzene on 13 lymphocytes of humans, either worker studies or 14 evaluating human cells in vitro? 15 A Well, certainly lymphocytes are used in 16 genotoxicity studies. So people that have been exposed 17 to benzene have -- can be found to have certain 18 abnormalities in their peripheral lymphocytes because 19 those are the cells that are easy to look at the DNA in 20 the body. 21 Now, there are probably those kinds of genetic 22 alterations going on in all of the cells of the body, so 23 it is capable to mean of causing these kinds of effects, 24 these kinds of genotoxicity, which is a chromosomal 25 aberration in a small number of cells. 00034 1 Q Regarding -- we'll talk about the 2 genotoxicity. For a moment, let's talk about 3 hematotoxicity to lymphocytes, peripheral lymphocytes, 4 blood lymphocytes. Are you aware of any epidemiological 5 studies that have investigated that either in workers or 6 in human cells exposed in vitro? 7 MR. RIFF: Hematotoxicity? 8 MR. METZGER: Yes, to lymphocytes. 9 MR. RIFF: Got it. 10 THE WITNESS: Well, as part of white cells in 11 general, you know, as you probably know, the worker OSHA 12 standard, one of the ways of monitoring for bone marrow 13 suppression secondary to benzene is you are supposed to 14 monitor the blood of a worker population. I know that's 15 been done a number of times in the context of 16 epidemiology studies, as well. 17 BY MR. METZGER: 18 Q But can you identify for me, are you familiar 19 with any epidemiologic studies which were done in the 20 last 10 years which have specifically evaluated benzene 21 toxicity to human peripheral blood lymphocytes at 22 different doses? 23 A You mean in different exposure levels? 24 Q Yes. 25 A Yes. Well, I know that there was a study a few 00035 1 years ago out of China by -- I think this is one that 2 Martin Smith was involved in, I think the first author 3 is Gu, G-u, where they found some small -- statistically 4 significant, but very small decreases, I think it was 5 lymphocytes, although it might have been total white 6 cells at different benzene exposure levels. 7 Q That exposure levels even below one part per 8 million; true? 9 A I believe so. 10 Q Are you familiar with any other studies than 11 the one you just mentioned on this topic? 12 A Well, I think there have been studies, but 13 that's the only real one I have really seen recently. 14 In the past, I may have reviewed some studies where 15 there were changes again in -- again, we are not talking 16 about chronically significant, when I was a physician, 17 called clinically significant changes, and white blood 18 counts. 19 But if you look at enough people and you do 20 statistical analysis, I think the decrease was a couple 21 percentage points of the total count. It wasn't that 22 great. And other people have reported that in the 23 literature, as well, but sitting here specifically right 24 now, I can't remember that particular literature. 25 Q All right. I want to go back to something you 00036 1 said earlier. By the way, any time you want to take a 2 break, let me know because I kind of find all this 3 morbidly fascinating and I will just go on without a 4 break unless you tell me you want one. 5 A Okay. 6 Q You said something about that you were like -7 I think what you said was that you were relying on the 8 genotoxicity studies of benzene only to the extent of 9 how benzene causes AML and I want to ask you what are 10 you talking about, what do you mean by that? 11 A Well, like I said, that's the only -- I mean, 12 when I think of a genotoxicity test, I think of trying 13 to understand what you call the mechanism of the way in 14 which a disease process happens, and since AML was the 15 only cancer that we know of that is caused by benzene, 16 you know, I have spent some time trying to understand 17 how that actually happens. 18 And so it is in the context of trying to 19 understand, like I said, how it causes acute myelogenous 20 leukemia. 21 Q And have you come to some views on that? 22 A Well, yes. I think that the -- let's put it 23 this way, nobody is really certain of how this happens, 24 but when we look at all the genotoxicity tests, we 25 thought that they fit the best with inhibition of an 00037 1 enzyme called Topoisomerase II, that the kinds of 2 chromosomal changes that are seen in the genotoxicity 3 test were clastogenic changes and, in some sense, is 4 very similar to the kinds of changes one sees in certain 5 chemotherapeutic agents that inhibit Topoisomerase. 6 And, also, you know, David Eastman over at 7 Riverside has shown that some of the benzene metabolites 8 are capable of inhibiting Topoisomerase, which is a 9 really interesting enzyme. Since you are interested in 10 this, it is an enzyme that when DNA is all strung out 11 when it is in a quiescent cell, in order for it to 12 replicate DNA, has to package itself up. 13 Well, the problem is that DNA has formed all 14 these knots, so like you throwing a bunch of rope around 15 and, all of a sudden, you got knots and how then do you 16 wrap up your line so that you can package it properly. 17 Well, Topoisomerase actually cuts the DNA and allows it, 18 then, to relegate without the knot in it and so it is 19 responsible to being able to package up chromosomes. 20 Q I see. What happens if this enzyme, I think 21 you said, inhibited? 22 A Yes. 23 Q What happens, then? 24 A What happens is that they don't relegate 25 properly and so you get the possibility to have 00038 1 chromosomes that exchange parts of each other. 2 Q What's that called? 3 A Translocation. 4 MR. RIFF: He is playing dumb with you. He 5 knows all this stuff cold. 6 MR. METZGER: I don't. 7 MR. RIFF: He is doing a "butter wouldn't melt 8 in my mouth" examination right now. Gee, what's that 9 called, how does that work? 10 THE WITNESS: It is very specific. I mean, the 11 type of translocations that are -- it causes. For 12 example, in CML, you have the Philadelphia chromosome. 13 BY MR. METZGER: 14 Q I have heard of that. 15 A And that isn't caused by benzene in particular; 16 in other words, that particular translocation, which is 17 the 922 translocation, so it is very specific to 18 whatever it is that -- whatever kinds of translocations 19 in genetic effects seem to arise -- AML seems to arise 20 from. That benzene is able to produce this change. 21 Now, other people will say that there are other 22 mechanisms by which benzene also produces leukemia. I 23 mean, I am not trying to say that we know for sure how 24 this happens, but that's at least my working hypothesis 25 and I think it has been fairly substantiated in the 00039 1 literature. 2 Q You mentioned that there are certain 3 translocations that are associated with Topoisomerase 4 inhibition. What are those? 5 A Well, the main one, I think, is the 1123 6 translocation that has been described in benzene workers 7 but, again, it may not be just the translocation 8 itself. It may have to do with something in addition to 9 the translocation. I mean, this is the way that I think 10 mechanistic studies really work. 11 You can't necessarily go from the mechanism and 12 say, well, gee, if it can do that, then maybe it can do 13 this and maybe it can do this, as well. But if we know 14 that a disease is being caused by a particular agent, 15 then we can go and take a look and see if we can 16 understand how that actually happens, and I think those 17 kinds of translocations are important to understand. 18 Q Are there any other translocations other than 19 the 1123 that fall into this category? 20 A There are a number of them, I think, that have 21 been described but, again, we run into the problem of 22 knowing whether or not they are, indeed, secondary to 23 benzene exposure. 24 Q I thought you were talking about Topoisomerase 25 inhibition. Do you equate that with benzene exposure? 00040 1 A Well, I said that's my working hypothesis, that 2 the way in which benzene works to cause these 3 chromosomal translocations is through inhibition of 4 Topoisomerase. 5 Q I understand. And are there any particular 6 chromosomal translocations other than 1123 that are 7 associated with Topoisomerase inhibition? You said, for 8 example, 922 is not. Are there any other than 1123? 9 A There are lots of them. I mean, you look at 10 the various agents, there are all these top side 11 chemotherapeutic agents, there are things like 12 Bleomycin, there are a number of agents that produced 13 lots of varieties of chromosomal translocations. 14 Q What do those have to do with Topoisomerase 15 inhibition? 16 A Well, that's how these chemotherapeutic agents 17 work. They inhibit Topoisomerase and that kills the 18 cells, the rapidly dividing cancer cells by not allowing 19 them to properly package their chromosomes because it 20 inhibits that enzyme, Topoisomerase, which is absolutely 21 necessary to allow a cell to survive. 22 Q How does that -- if the cells die, how does 23 that matter? I am not following. 24 A Well, it is the cells that don't not die that 25 matter, but the general effect is to try to kill 00041 1 replicating cells. 2 Q Say it again. Cells that don't not die, I 3 don't get it. I think you misspoke. 4 A In terms of the way the cancer chemotherapeutic 5 agent works, killing the cells is the important thing, 6 killing the rapidly dividing cells. In terms of 7 producing AML from benzene, it also kills the cells, but 8 it is the cells that it doesn't kill that are the 9 important ones because they potentially then could go on 10 to cause AML. 11 Q Are those the cells that develop these 12 translocations you are talking about? 13 A Yes. 14 Q I see. 15 MR. RIFF: He actually did mean don't not die. 16 You and I thought, when he said important, the survival 17 of the patient, but what he was talking about was the 18 induction of the disease. 19 MR. METZGER: I see. Whatever, I think we got 20 it clarified. I was just thrown by the double 21 negative. 22 THE WITNESS: You did. I don't think I used a 23 double negative. 24 MR. METZGER: You did so correctly. 25 THE WITNESS: I thought I said the cells that 00042 1 don't die. 2 MR. METZGER: You said, "don't not die," but I 3 think you clarified it. 4 Q Well, I come back to my question. Other than 5 the 1123 translocation, are there any other 6 translocations that are caused by Topoisomerase 7 inhibition? 8 A Let me just check to make sure I have got that 9 right one. It is either 1123 or 1121. 821, sorry. 10 821. 11 In a case study examining chromosomes in 821 12 workers exposed to benzene, translocations between the 13 two chromosomes were increased up to 15 fold in their 14 peripheral blood. 15 Q Okay. So when you said "1123," you meant 821? 16 A 821, sorry. 17 Q You are referring now -- is this your own 18 article? 19 A Yes. 20 Q So I know where to find that, but when you were 21 referring to 1123, I think you were actually referring 22 to something else. I think you were actually referring 23 to 11Q23, which is the MLLG; am I right? 24 A I think that's right. You are right about this 25 guy, he knows a lot more than -00043 1 Q The 11Q23 abnormality is also caused by a 2 Topoisomerase inhibition? 3 A I believe so, but I would have to go and look 4 at that further. 5 Q All right. You mentioned that Eastman has 6 shown that benzene metabolites inhibit Topoisomerase, 7 and what benzene metabolites are you referring to? 8 A Well, I think he looked at hydroquinone and he 9 looked at trihydroxybenzene. 10 Q What? 11 A Trihydroxybenzene. Hydroquinone and dioxy and 12 trioxy as well. They are the hydroculated benzenes. 13 Q What does "hydroculated" mean? 14 A OH group on it. Of course, the interesting 15 thing is with hydroquinone, you have hydroquinone to an 16 animal, it doesn't cause any of the kinds of things that 17 benzene does, so this is a curious problem that we have 18 with benzene and hydroquinone toxicity. 19 Q Do you attribute that to, perhaps, the fact 20 that animals, in general, for at least the rodent 21 models, do not develop leukemia from benzene? 22 A No, I am just talking about the -- all of the 23 carcinogenic effects that benzene causes in animals. 24 Q Would you agree with me that using rats and 25 mice doesn't work as a model for benzene-induced 00044 1 leukemia because there have been many attempts to induce 2 leukemias in rats and mice with benzene and they have 3 largely been unsuccessful? 4 A That is very correct, and that is something 5 that I have been -- it is not just -- rodent models just 6 aren't very good in general for assessing human cancer. 7 Q But especially -- they are especially not good 8 for assessing benzene-induced leukemia because we all 9 know that benzene causes AML in humans, but it does 10 adopt it in animals; right? 11 A That is correct. There were a couple of models 12 that people thought were working with these viral -13 virus-induced leukemias that in benzene increased, but I 14 don't think anybody believes those are really relevant 15 to anything. 16 MR. METZGER: All right. Riff is looking at 17 his watch. 18 MR. RIFF: No, I am fine. Keep going. 19 MR. METZGER: You are all right to go. Do you 20 want to take a break? 21 THE WITNESS: Unless if we are going to go on 22 this same road, we might as well continue. If we are 23 going to change topics, maybe good time to take a break. 24 MR. METZGER: Let's take a break. 25 (Recess taken.) 00045 1 BY MR. METZGER: 2 Q Dr. Whysner, you mentioned, I guess, the study 3 by Eastman that shows that certain metabolites of 4 benzene inhibit Topoisomerase II; correct? 5 A Yes. 6 Q There are some other studies which have been 7 published which report that -- confirm that there are 8 metabolites of benzene in addition to hydroquinone that 9 inhibit Topoisomerase II? 10 A I believe that's correct. You know, since I 11 left the American Health Foundation, I haven't really 12 followed the story quite as closely as I used to. 13 Q Well, are you aware of what other benzene 14 metabolites have been shown to inhibit Topoisomerase II 15 or to poison -- strike that. 16 Are you aware of other studies that have shown 17 that benzene metabolites inhibit Topoisomerase? 18 A Different ones than those, we talked about 19 hydroquinone. 20 MR. RIFF: You said studies. 21 THE WITNESS: Studies. I think I have read 22 them over and I have seen them, but I can't specifically 23 recollect who did them or which metabolites they were 24 looking at. 25 BY MR. METZGER: 00046 1 Q All right. Have you researched -- well, strike 2 that. Let me ask you something. 3 You mentioned that certain chemotherapy drugs 4 or agents inhibit Topoisomerase II and I think you 5 identified a few of those, Bleomycin and -6 A Well, Bleomycin is actually used for treating 7 psoriasis. 8 Q Is it a Topoisomerase inhibitor? 9 A Yes. 10 Q Are there other drugs that are also 11 Topoisomerase inhibitors? 12 A Yes. 13 Q What are those? 14 A Well, for example, the drug -- one of the drugs 15 that's used for treating breast cancer, Adriamycin, I 16 believe that's primarily through Topoisomerase 17 inhibitions. 18 Q Any others? 19 A Not that I recollect specifically right -20 Q Doxorubicin? 21 A Doxorubicin, yes, that's the other word for 22 Adriamycin. 23 Q And what about mitazantrone? 24 A I am not familiar with that one. 25 Q Are you familiar with the body of literature 00047 1 that -- strike that. 2 Are you familiar with the hypothesis or theory 3 that benzene toxicity can be modeled on 4 chemotherapy-induced leukemia, AML? Have you read any 5 articles where people used -- strike that. It is a bad 6 question. 7 Have you read any articles where researchers 8 have considered benzene-induced AML based upon a model 9 of chemotherapy-induced AML? 10 A Well, that -- yes, and that has to do with, 11 again, with some of the Topoisomerase inhibitors, 12 although certain genotoxic, other kinds of genotoxic 13 effects, people have also considered could, perhaps, 14 model. 15 But the reason I mention Bleomycin is because 16 the types of translocations that are caused by top sides 17 are not the kind that one would, I think, necessarily 18 expect to be prevalent in AML, and so -- but Bleomycin 19 does do that and it is a Topoisomerase inhibitor, which 20 is the reason for bringing the Bleomycin into the 21 picture. 22 Q What chromosome abnormalities or 23 translocations -- strike that. 24 Let me just see what he said. 25 A Correct. I meant Bimolane, not Bleomycin. 00048 1 B-i-m-o-l-a-n-e. 2 Q All right. What other agents were you 3 referring to just a moment ago, I think you were trying 4 to refer to alcylating agents? 5 A Yes. 6 Q So you are familiar with that body of 7 literature that addresses the chromosome abnormalities 8 caused by alcylating agents and which attempt to relate 9 that to certain chromosome abnormalities caused by 10 benzene? 11 A Well, at least as of a few years ago, I was 12 familiar with that literature when I was writing this 13 paper. I haven't really kept up with that literature 14 since then. 15 Q And do you think that that's an appropriate 16 model to consider? 17 A Well, only -- I don't, only because none of the 18 genotoxicity tests results really indicate that benzene 19 or its metabolites are mutagenic agents, and one would 20 think that if there was DNL alcylation going on, that 21 one would see classical mutagenicities, Ames test 22 positive. There have been hundreds of Ames tests done 23 and virtually negative. 24 Q But, nevertheless, there is a correlation in 25 human studies between abnormalities of chromosome 5 and 00049 1 7 in alcylating agent-induced AML and benzene-induced 2 AML; right? 3 A I think that's correct. Now, I think that's 4 what I remember from several years ago, but I am not 100 5 percent sure, sitting here right now. 6 Q And that correlation would tend to suggest that 7 there is an alcylation effect of benzene? 8 A Well, but -9 Q In humans, at least? 10 A Yes. I think it is, again, the attribution 11 issue is heard, I don't know whether you can make a 12 cause and effect relationship there. I mean, it does 13 happen, and benzene, apparently, can do this under 14 certain circumstances, but I am not really sure that 15 that's involved mechanistically. 16 And for the reasons as I mentioned, we just 17 can't -- can't -- don't -- I mean, in certain 18 experiments, you can find DNA at benzene, but we don't 19 really see in the kind of mutagenicity, which would lead 20 us to believe that it is, indeed, acting through an 21 alcylation. 22 Q I understand. Is it for that reason that your 23 view is that the more biologically plausible mechanism 24 of benzene-induced leukemia is through Topoisomerase 25 inhibition? 00050 1 A As I said, I am not going to say -- I really 2 think that I couldn't say 100 percent that that is the 3 case. I am just saying that the -- at least the 4 genotoxicity literature points in that direction more 5 than in other directions. 6 Q That's all I am asking you. It is more 7 probable than an alcylation mechanism? 8 A From the genotoxicity data. Now, as you 9 mentioned, there are some other things that people bring 10 up that if you looked at it from a different viewpoint, 11 strictly from a -- from what happens under certain 12 circumstances, you could reach a different conclusion on 13 that issue. 14 Q Now, I want to ask you kind of a basic 15 question. Considering Non-Hodgkins lymphoma -- let me 16 back up. 17 From what we have been discussing, it is known 18 that AML can be a secondary cancer in the sense that it 19 can be caused by cytotoxic chemical exposure; right? 20 A Correct. 21 Q Do you have an opinion whether Non-Hodgkins 22 lymphoma can be caused by chemotherapeutic cytotoxins? 23 A I think it has been reported in the 24 literature. How good the data, I never really looked 25 into how good the data is or what types of Non-Hodgkins 00051 1 lymphoma have been particularly reported that way. 2 Q Is it true, then, that as a general matter, you 3 do believe that at least some Non-Hodgkins lymphomas can 4 be caused by cytotoxic chemical exposure? 5 A I don't know the answer to that. Like I said, 6 I have not really -- I have seen that it has been 7 reported, but, you know, lots of things have been 8 reported in the literature. Whether or not the 9 preponderance of evidence would make me think that it is 10 true, I am not sure. 11 Non-Hodgkins lymphomas are a pretty common form 12 of cancer and so I haven't really specifically looked 13 into that literature, nor have I looked into what kinds 14 of Non-Hodgkins lymphomas might have been involved. 15 Q If multiple studies following patients who have 16 been treated with chemotherapy alone and not radiation 17 show that 20 to 30-fold excess risks of developing 18 Non-Hodgkins lymphoma, which is in those data are highly 19 significant, P value less than 0.001, would that be 20 persuasive data to you on this point? 21 MR. RIFF: Incomplete hypothetical. 22 You may answer. 23 THE WITNESS: Well, again, are we talking about 24 a chemotherapeutic agent that works through a particular 25 mechanism or just chemotherapeutic agents in general? I 00052 1 mean -2 BY MR. METZGER: 3 Q Well, data for both alcylating agents and for 4 Topoisomerase inhibitors. 5 A Again, I would have to look at the data. I 6 have to look at the studies to make an opinion. 7 Q Have you considered the studies showing that 8 benzene -- strike that. Let me back up. 9 Let's talk a little bit about Non-Hodgkins 10 lymphoma. You indicated there are different types; 11 correct? 12 A Yes. 13 Q What are they? 14 A Well, there are probably about 20 different 15 types. 16 Q What are they? 17 A Well, there is the kind that Mr. Remboldt had, 18 which is the diffuse large cell type. There is the 19 diffuse small cell type. There is the diffuse mixed 20 cell type. There is the small cleave cell type. There 21 is the Burkitt's lymphoma. There are various T-cell 22 lymphomas, various kinds. And I have got some 23 references I can look up. 24 Q That's fine. You are familiar with these 25 types, I can see, so we can talk about them? 00053 1 A Somewhat. 2 Q Mr. Remboldt's lymphoma is of a B-cell type, 3 not a T-cell; correct? 4 A Yes. 5 Q And he does not have Burkitt's lymphoma; 6 correct? 7 A Correct. 8 Q By the way, while we are talking about 9 Burkitt's lymphoma, are you aware of literature 10 reporting Burkitt's lymphoma as an effect of 11 immunosuppression in AIDS patients? 12 A Not particularly. I usually have thought of it 13 as a disease that's predominantly in Africa, associated 14 with Epstein-Barr virus, but now that you mention it, 15 there may have been a report recently that I saw in one 16 of my medical journals that that's been found, but I am 17 not positive about that. 18 Q In reaching your opinion on general causation 19 in this case with respect to benzene and organic 20 solvents developed in Non-Hodgkins lymphoma, have you 21 considered the study -- strike that. Back up. 22 Are you familiar with any chromosome 23 translocations that are associated with any of these 24 forms of lymphoma that you mentioned? 25 A Well, I know there are chromosomal -- a bunch 00054 1 of different kinds of chromosomal translocations, but I 2 haven't looked specifically into that in this case. 3 Q Or have you looked at any other chromosome 4 abnormalities, not just translocations, that are part of 5 the diagnosis -- or strike that. 6 Have you looked at any other chromosome 7 abnormalities other than translocations that are 8 characteristic of lymphomas? 9 A Well, I didn't really look at -- I mean, for a 10 couple reasons, I didn't see any of those in 11 Mr. Remboldt's records, so I didn't really look at 12 any -- consider -- really consider them. 13 Q But as part of your research, apart from this 14 case, have you looked at that at all? 15 A I haven't, really, in detail, no. I know there 16 are various translocations and some of them have been 17 associated with different types of lymphomas, but I 18 haven't really concluded anything from them. 19 Q And in reaching your opinion on your negative 20 opinion on general causation with respect to benzene and 21 organic solvents and Non-Hodgkins lymphoma, have you 22 considered those studies which report chromosome 23 abnormality characteristic of Non-Hodgkins lymphoma 24 being caused by benzene metabolites? 25 A Could you repeat that question. 00055 1 (Record read.) 2 THE WITNESS: Well, my negative opinion is 3 based upon mostly on the epidemiology literature on 4 benzene and exposures and Non-Hodgkins lymphoma, and I 5 didn't really see where any of those studies included 6 any kind of a chromosomal analysis that I recollect, but 7 as we go through the studies, maybe it is in there, but 8 I don't think so. 9 BY MR. METZGER: 10 Q As you sit here today, are you aware of any 11 studies that have reported the induction of chromosome 12 aberrations characteristic of Non-Hodgkins lymphomas 13 being induced by benzene metabolites? 14 A Well, let me just say, as a general rule, all 15 sorts of -- I mean, stages, various stages of cancer, 16 people get all sorts of different chromosome aberrations 17 that aren't necessarily causally related, but have to do 18 with the progression of their disease. But I haven't 19 really -- I guess I am having trouble answering your 20 question because -- let me put it this way. 21 If benzene had been shown to cause Non-Hodgkins 22 lymphoma and there were studies, then, that correlated 23 the findings of Non-Hodgkins lymphoma with the benzene 24 exposure and there were certain chromosomal 25 translocations involved, I am not aware of any studies 00056 1 like that. 2 Q You were about to say what? 3 A That's all I was about to say. I am not aware 4 of any studies like that, so I don't know how I would 5 use them in formulating my opinion about benzene not 6 causing Non-Hodgkins lymphoma, which was the question 7 you asked. 8 Q Okay. If there were such studies, you would 9 probably be of the opinion that benzene does cause 10 Non-Hodgkins lymphoma; correct? 11 A Well, if there were studies, if there were lots 12 of studies that associated benzene exposures with 13 Non-Hodgkins lymphoma, that was the preponderance of 14 evidence, yes, but that isn't the case. 15 Q But if there were studies that showed that 16 benzene metabolites induce the chromosomal abnormalities 17 characteristic of Non-Hodgkins lymphoma, you would 18 consider that important as a mechanism for 19 benzene-induced Non-Hodgkins lymphoma; true? 20 A Only if the disease were induced, indeed, been 21 shown to be caused by benzene. I mean, you can find 22 trans -- all sorts of chromosomal changes in -- maybe in 23 a test tube you are talking about or in an animal 24 induction study which, again, we agree is not a very 25 good model. 00057 1 But I think -- I don't think you can use 2 particular chromosomal translocations and say ah hah, 3 some of those occur in Non-Hodgkins lymphoma and benzene 4 can cause that, therefore, benzene can cause NHL. I 5 don't think that works. 6 Q But if specific studies are done where human 7 lymphocytes are exposed to benzene metabolites and those 8 cells develop the translocations which are 9 characteristic of lymphoma, you would consider that 10 important evidence indicating that there might be a 11 causal relationship between benzene exposure and 12 Non-Hodgkins lymphoma; true? 13 A Well, depends on what you mean by "might be." 14 I mean, if I did that study in a lab and I found it and 15 I could replicate that study, I don't know what I would 16 do with it, actually, since the studies between benzene 17 and NHL are negative, I think to myself, gee, that must 18 be kind of a red herring. 19 Q You mean the epidemiologic study? 20 A Yes, since there is no causal relationship from 21 the epidemiology between benzene and NHL, but I found 22 that in the laboratory, I would probably say to myself, 23 well, that's another red herring that we find all the 24 time, which is true. 25 I mean, you can find P53 mutations caused by 00058 1 all sorts of chemicals, you can find all sorts of 2 genotoxicity from chemicals that have never been shown 3 to cause cancer. You can find P53 mutations, we know 4 those are probably caused by chemicals that don't 5 have -- never been shown to lead to cancer. Vitamin C 6 is a good example. I mean -7 Q I would like you to assume hypothetically that 8 both the case control epidemiologic studies and the 9 cohort epidemiologic studies do show that benzene causes 10 Non-Hodgkins lymphoma. 11 In that case, would it be important to you, 12 from a mechanistic standpoint, that benzene metabolites 13 significantly induce the chromosome translocations that 14 have -- that are characteristic of Non-Hodgkins 15 lymphomas? 16 A Under those circumstances, it might not be a 17 red herring and it could be important to understand the 18 mechanism of the disease. 19 Q As you sit here today, are you able to identify 20 any studies that have been done to investigate whether 21 benzene metabolites induce chromosome abnormalities 22 characteristic of Non-Hodgkins lymphomas? 23 A Identify them? No. 24 Q Have you read any such studies? 25 A Offhand, I can't recollect any studies. 00059 1 Q Were you provided a CD-ROM of studies regarding 2 benzene and Non-Hodgkins lymphoma for this case to 3 review? 4 A Yes. 5 Q And do you have that here? 6 A No. 7 Q Do you recall that -- well, did you read all 8 the studies on this CD-ROM? 9 A No. I read the ones that Dr. Infante or 10 Dr. Harrison specifically mentioned during their 11 depositions because my recollection was Dr. Infante's 12 characterization of that CD-ROM was your studies and not 13 necessarily his studies, at least that's my 14 recollection. So I went according to the studies that 15 he and Dr. Harrison described in that CD-ROM. 16 Q Did you read a study by David Dar, D-a-r? 17 A I believe so. What was it about? 18 Q An inadvertent -- I shouldn't say that. It was 19 about a specific hydroquinone inducing a lymphoma in 20 humans. 21 A Well, is that one that Dr. Infante mentioned in 22 his deposition? 23 Q I don't recall. 24 A I don't see it, D-a-r, or Dr. Harrison? 25 Q I think Dr. Harrison did mention it. 00060 1 MR. RIFF: That's what I think. 2 THE WITNESS: But it wasn't on that list of 3 his. Yes, I see it in Dr. Harrison's. 4 BY MR. METZGER: 5 Q I only want to know if you read that study or 6 not. 7 A I don't recollect that study. I think, again, 8 I read all of them that Infante -9 Q Let me try to help you here. It was a human 10 case report. I think you said you haven't reviewed 11 that, so you haven't read that study? 12 A No. Correct. 13 Q Now, there was -- let's change topics. 14 You told me that you are going to talk about 15 specific causation; correct? 16 A Yes. 17 Q And apart from your negative general causation 18 opinion, are there other reasons why you hold the 19 opinion that benzene and organic solvents did not cause 20 Mr. Remboldt's Non-Hodgkins lymphoma? 21 A Well, a couple of reasons. First of all, I did 22 review the industrial hygiene records that were 23 available and that Mr. Wabeke also put together, and I 24 didn't see any indication from those of documentation of 25 the kind of exposure levels that one would even think 00061 1 could be associated with any kind of disease produced by 2 benzene. 3 Q And what exposure levels are you referring to? 4 A Well, for example, there were some levels that 5 were described for -- by Chevron, some industrial 6 hygiene records. 7 Q I am not being clear. You said there was no 8 documentation of exposure levels that one would think 9 could even be caused by benzene. My question is: What 10 exposure levels do you think can be caused by benzene? 11 Bad question. 12 What exposure levels are there that you think 13 could cause -- strike that. 14 What exposure levels of benzene are there that 15 you think cause AML? 16 A AML, okay. I think that certainly above 200 17 parts per million years has been documented in the 18 literature, but I think that there is a kind of a gray 19 area between 40 and 200 parts per million years where 20 some people -21 I mean, the Rinsky study shows an increase, but 22 other people re-analyzed that data and said that didn't 23 actually occur until 200, so I think it is a gray area 24 between 40 and 200, but certainly it takes 40. 25 Q 40 parts per million years? 00062 1 A Yes. 2 Q Are you aware of any epidemiologic studies that 3 have reported significantly increased AML at benzene 4 doses less than 40 parts per million years? 5 A Well, I think that -- I think the Chinese study 6 has reported a somewhat lower level, but I think that 7 EPA still sticks with the Rinsky study as a most 8 reliable based upon the way in which the exposuring 9 strips are put together. 10 Q What study are you referring to? 11 A The Hayes study. 12 Q Are there any other epidemiologic studies that 13 you are aware that have reported significantly increased 14 excesses of AML among workers exposed to benzene at 15 levels less than 40 parts per million years? 16 A I think the only study that I am aware of above 17 that would corroborate the Rinsky study is the 18 Costantini study. 19 Q What study is that? 20 A Costantini. 21 Q Yes. Was that a case control or cohort study? 22 A I believe it is a cohort study. This was 23 reported in the Scandinavian Journal of Environmental 24 Health 2003. 25 MR. RIFF: Cohort or case control, is the 00063 1 question. 2 THE WITNESS: I know. Well, it is a cohort 3 study. It is a cohort study and this is their graph of 4 that data. 5 BY MR. METZGER: 6 Q You are referring to a study entitled Exposure 7 to Benzene and Risk of Leukemia Among Shoe Factory 8 Workers, lead author, Costantini? 9 A Costantini. 10 Q 2003. Okay. Are you aware of any other 11 studies that have reported significantly increased 12 excesses of AML among workers exposed to benzene at 13 concentrations less than 40 parts per million years? 14 A Well, as I mentioned, there is one or two 15 Chinese studies and I think it is -- I think that's the 16 same group that Hayes was involved. 17 Q Other than the Chinese cohort? 18 A No. 19 Q Okay. 20 A Then you asked for any other reasons for it. 21 Q I was going to get to that for specific 22 causation. 23 A For specific causation, the other -- there are 24 some other factors, such as Mr. Remboldt's obesity and 25 possibly his overall stature. That provides some 00064 1 alternative explanation for risk factor, at least for a 2 Non-Hodgkins lymphoma. 3 I think there have been now six or seven 4 studies that have associated people with a body mass 5 index of his with an increased risk of -- for NHL. 6 There has been one study, actually, that even talked 7 about height being associated with increased NHL. 8 There are other studies that also talk about 9 nonsteroidal analgesics use and also antibiotic use 10 associated with Non-Hodgkins lymphoma, and certainly in 11 his medical record, there is ample evidence that he was 12 troubled by certain problems that would lead to his use 13 of antibiotics and nonsteroidal drugs. 14 And there is also documentation in the medical 15 records regarding the prescribing of those drugs, and 16 those have been -- I would say that in all fairness, the 17 literature is not as firm on those as possible risk 18 factors, but that is certainly a possibility in terms of 19 alternative causation. 20 I don't think that he has any other major risk 21 factors like -- I mean, there is, you know, Hepatitis-C 22 has been another one that seems to be increasing in 23 stature as a possible etiologic agent. Non-Hodgkins 24 lymphoma, as have other infections, have been 25 well-described as being involved in certain types of 00065 1 NHL, but -- and there is some indications in his records 2 that he had some unexplained conditions that it is 3 possible he could have had hepatitis. 4 But I can't say with any kind of certainty 5 that, for example, I saw in one medical record he had 6 nausea and he was feeling bad for several days and he 7 had fever and it said SGOT with a check next to it, but 8 I couldn't find any part in the medical record where 9 there is actual documentation of whether his liver 10 enzymes had been taken. 11 So there is a question in my mind about whether 12 or not it is possible that he could have had some form 13 of hepatitis. So those are the kinds of things that I 14 would think of in terms of alternative causation 15 issues. 16 Again, like I say, obesity is definitely the 17 strongest one, and he has fought obesity, apparently, 18 his whole life. The first record that I found in his 19 medical record, he was 11 years old and he was 20 considered to be obese, and his BMI has maybe briefly 21 dropped below 30 once, but mostly has been in the high 22 30's. 23 Q Okay. All right. Let's back up a moment. 24 What you are talking about now are risk factors for 25 Non-Hodgkins lymphoma; correct? 00066 1 A Correct. 2 Q And you have used the word "possible" in 3 referring to some of these possible risk factors. I 4 want to first get from you, if I could, a breakdown or a 5 list of those factors or agents which you believe are 6 known to cause Non-Hodgkins lymphoma and then those 7 which you considered to be possibles. Could we do that? 8 A Okay. Although I think that the obesity one, 9 at one time I thought it was a possible, but I think it 10 is more of a probable, but I wouldn't put it in the same 11 category with immunosuppression therapy or H.I.V., which 12 are known. 13 MR. RIFF: Point of order -14 MR. METZGER: Let him finish his answer, then 15 the point of order. 16 MR. RIFF: So, I mean, I would say that there 17 may be yet another category called probable. That was 18 my point of order. 19 MR. METZGER: Fine. 20 Q All right. Good plan. So we are categorizing 21 them as known and accepted, probable and possible. 22 Okay? 23 A And lots of other things that are not likely, 24 but have been studies like that where I'll put benzene. 25 Q Okay. All right. So let's start with the 00067 1 first category at which you think we have agreed is 2 going to be those agents or factors which are known 3 causes and accepted causes of Non-Hodgkins lymphoma. 4 A Correct. 5 Q Okay. What are those? 6 A Well, certainly certain immunosuppressive drugs 7 have been used for people with organ transplant, 8 post-organ transplant. People have had a high incidence 9 of Non-Hodgkins lymphoma. 10 There is -- there are familial 11 immunosuppression syndromes. We mentioned Epstein-Barr 12 virus with a particular form, Burkitt's lymphoma. 13 H.I.V. is certainly considered to be a risk factor. 14 Q That would be the known cause category? 15 A Yes. Known risk factors, meaning implying 16 there is some causal relationship there. 17 Q But, right now, I am asking are you, for those 18 agents or for the factors which you, John Whysner, 19 consider to be causes of Non-Hodgkins lymphoma, and so 20 far you listed immunosuppressive drugs, certain familial 21 immunosuppressant syndromes, Epstein-Barr virus for 22 Burkitt's lymphoma, and H.I.V. Are there any others? 23 A There is a T-cell virus associated with 24 lymphoma. I can't remember the exact name of it now. 25 Q Human T-cell lymphotropic virus? 00068 1 MR. RIFF: Hyphen one, right. 2 THE WITNESS: I mean, let me get out -3 MR. RIFF: HTL is hyphen one, I think it is. 4 BY MR. METZGER: 5 Q You can do that. He is hitting the books. I 6 just want to know what it is you are hitting? 7 A You have my whole file. 8 Q I don't know what you are looking at. 9 MR. RIFF: You are looking at Riff on Hodgkin's 10 lymphoma. 11 THE WITNESS: I am looking at Al Freedman and 12 Nadler on Non-Hodgkins lymphoma. Although their table, 13 I don't necessarily agree with. I am just looking at 14 this table here because I know this Phenytoin, this -15 Q Phenytoin? 16 A Phenytoin, I was coauthor on that paper. I am 17 not real sure that's been established. Let's call it 18 P-h-e-n-y-t-o-i-n, right. Or dimethylhydantoin is 19 another name for it. So those are the ones that I can 20 recollect that are clearly causally related with 21 Non-Hodgkins lymphoma. 22 I would probably also, at this point in terms 23 of what we have seen, those are the ones I think 24 everybody in the world would agree with in all the 25 textbooks. The reason I put obesity is as a probable 00069 1 category. 2 Q Let's get to -- well, go ahead, finish your 3 thought. 4 A The next category is probable. 5 Q Well, were you going to -- about to say you -6 the reason you put obesity in the probable category is 7 why? 8 A Because it is relatively new. I mean, the 9 studies are just emerging right now. I think there 10 are -- have been a preponderance of studies that have 11 found an association with, but there have been one or 12 two negatives studies, as well. 13 I think that, for example, IARC has evaluated 14 all the information on some of these things like H.I.V. 15 and immunosuppressive drugs and found them to be 16 associated with Non-Hodgkins lymphoma. 17 They have not done that with obesity and on 18 Hodgkin's lymphoma, so there is one where me, John 19 Whysner, would say, I think it is also a causal, there 20 is a certain -- I think it is an established risk 21 factor. How it causes it is kind of hard to figure out 22 and I don't think anybody has done any of the kind of 23 adequate mechanistic studies to try to really figure 24 this out. 25 So I think from that epidemiological 00070 1 standpoint, the preponderance of evidence is a risk 2 factor. How that translates in to be a causal agent, 3 that's where I have a difficult time with obesity in 4 terms of trying to figure out the mechanism by which it 5 happens. 6 Q Got it. 7 A Now, Hepatitis-C is -- I would put in the -8 also in the probable category, not because I wouldn't 9 see how it could cause Non-Hodgkins lymphoma, because we 10 know how Hepatitis-B is related to liver cancer and so 11 forth, but I don't think the evidence is quite as good. 12 There are some people who have found it to be associated 13 and some people, not so much. So I would put that in 14 the -- also in the probable category. 15 And then there are some other things that are, 16 I would say, possible. The studies I think are -- there 17 are some studies that are positive and some studies that 18 are negative, and here, I am thinking about things like 19 H pylori, p-y-l-o-r-i, autoimmune diseases. 20 And I am sort of blanking on -- if I went 21 through my file, I might be able to come up with a 22 couple of other things where there is evidence on both 23 sides and it is -- I think the jury is still out on it. 24 Q I am not so concerned about the possibles. 25 Have you told me now all of the factors or agents which 00071 1 you considered to be known causes and those which you 2 put in the probable category? 3 A I think so. 4 Q Let's talk about some of them. The first thing 5 you mentioned was immunosuppressive drugs. What drugs 6 are you talking about? 7 A Well, azathioprine is one. Let me just look, 8 find the right reference. The reason I know that one 9 offhand, I think IARC has actually classified it as a 10 human carcinogen. 11 Another one in the possible category would be 12 the herbicides. We don't really know exactly 24D245T, 13 whether there is dioxin contaminants in those. That's a 14 possible -- I know that the National Academy has 15 reviewed all that data, but I am not real sure that it 16 is -- that one is a proven one. 17 Q Are you putting that in possible or probable? 18 A I would say possible. 19 Q Okay. 20 A This reference talks about drugs, but doesn't 21 actually give specific ones. 22 Q Well, all right. I don't want to belabor the 23 point. Basically, the class of immunosuppressive drugs, 24 those drugs which are used to suppress the immune system 25 of patients who have undergone organ transplant patients 00072 1 so that they don't reject the new organ? 2 A Correct. 3 Q Fair enough? 4 A Correct. 5 Q Whatever those drugs are. All right. You 6 refer to certain familial immunosuppression syndromes. 7 Is that something like Alleve for (inaudible) syndrome, 8 is that the kind of things we are talking about? 9 MR. RIFF: Is that an immunosuppressant? 10 MR. METZGER: Familial immunosuppression 11 syndromes. 12 THE WITNESS: Kleinfelter, which is Wiskott 13 Aldrich syndrome. There are a couple others here, I 14 don't want to spell them. I don't see the one you 15 mentioned here. I know Lufermony (ph.) is associated 16 with some other things, but I don't really remember it 17 being on a Hodgkin's lymphoma. 18 BY MR. METZGER: 19 Q Let me see what you are referring to. You are 20 referring to a chapter by Freedman and Nadler, 21 Non-Hodgkins Lymphomas, which is -22 A Cancer medicine. 23 Q You mentioned Epstein-Barr for Burkitt's 24 lymphoma and H.I.V. and HTLV-1. Okay. Have you ruled 25 out immunosuppressive drugs as a cause of Mr. Remboldt's 00073 1 Non-Hodgkins lymphoma to a reasonable degree of medical 2 probability? 3 A Yes. 4 Q And to a reasonable degree of medical 5 probability, have you ruled out familial 6 immunosuppression syndromes as a cause of his 7 Non-Hodgkins lymphoma? 8 A Well, I haven't seen any indication of that in 9 the record. 10 Q So is the answer yes? 11 A Yes. 12 Q And to a reasonable degree of medical 13 probability, have you ruled out Epstein-Barr virus as a 14 cause of his Non-Hodgkins lymphoma? 15 A Yes. 16 Q And to a reasonable degree of medical 17 probability, have you ruled out H.I.V. as a cause of his 18 Non-Hodgkins lymphoma? 19 A I haven't seen any indication of an H.I.V. 20 testing in him. 21 Q To a reasonable degree of medical probability, 22 have you ruled that out? 23 A No. I just don't know. 24 Q Okay. To a reasonable degree of medical 25 probability, do you -- is it your opinion that H.I.V. 00074 1 caused his Non-Hodgkins lymphoma? 2 A No. 3 Q Okay. To a reasonable degree of medical 4 probability, have you ruled out HTLV-1 virus as a cause 5 of his Non-Hodgkins lymphoma? 6 A Yes. 7 Q Okay. Now, let's talk about -- well, no, 8 before we talk about the probables, I want to ask you 9 about these known causes that we just mentioned. Is 10 there anything in common about them? 11 A In common? 12 Q Yes. Do you see any commonality between these 13 five categories of known causes of Non-Hodgkins lymphoma 14 that you have identified? 15 A Well, I mean, I think that there is a 16 possibility that they are all related to an effect on 17 the immune system, although I have to admit I am not -18 well, I think they would be all, yes, I am sorry. They 19 are all involved in effects on the immune system. 20 Q So now let's move on to the probable category. 21 And first one that you mentioned was obesity. To a 22 reasonable degree of medical probability, have you ruled 23 out obesity as a cause of Mr. Remboldt's Non-Hodgkins 24 lymphoma? 25 A No. 00075 1 Q To a reasonable degree of medical probability, 2 do you hold the opinion that Mr. Remboldt's obesity 3 caused his Non-Hodgkins lymphoma? 4 A Certainly I think that it was -- it depends on 5 how you use the word "cause." If you say it is a 6 significant risk because of his obesity, yes, it is a 7 significant risk. It elevated his chances of getting 8 Non-Hodgkins lymphoma substantially. If that's what you 9 mean by "cause," I would say yes. 10 Do I know how it could cause it 11 mechanistically? No, I don't understand how that works, 12 but I think there is enough epidemiological data to say 13 that it is, whatever you want to call it, a substantial 14 contributing factor or whatever. 15 Q Is it -- as a matter of science, do you 16 believe -- strike that. 17 As a matter of science, is it your opinion that 18 a causal relationship can be established in the absence 19 of any mechanistic basis? 20 MR. RIFF: Are you stuck on that question? 21 MR. METZGER: Yes. 22 MR. RIFF: Object to the form, vague. 23 THE WITNESS: I am not exactly sure what you 24 mean by any "mechanistic basis." 25 MR. RIFF: That's my problem. 00076 1 BY MR. METZGER: 2 Q As a matter of science, are you of the opinion 3 that causal relationships can be established and 4 accepted in the absence of any proposed mechanism? 5 A Yes. 6 Q Is there any literature that you can cite to me 7 that supports that opinion? 8 A Well, I think that, for example, when Ernst 9 Wonder first found that cigarette smoking was associated 10 with lung cancer in 1950 and other people then followed 11 up with several studies the next couple of years, I 12 think that there was enough information to know that it 13 was causally related without knowing how it did it. 14 So I think that the epidemiological proof 15 sometimes precedes understanding how it actually occurs. 16 Q And an example of that would be the recognition 17 of benzene as a leukemogen; true? 18 A As a cause of acute myelogenous leukemia? 19 Q Yes. 20 A Yes. 21 Q Okay. Now, you mentioned a preponderance of 22 studies. I do -- since you have raised the obesity 23 issue, I do need to ask you what those studies are that 24 you referred to. Can you identify them for me? 25 A Yes. First, is a study by Calle, C-a-l-l-e. 00077 1 Q If you could, perhaps, give us the first named 2 author and the title or an abbreviated title and the 3 journal and year, that would help. 4 A Okay. New England Journal of Medicine, it is 5 called Overweight Obesity and Mortality From Cancer in a 6 Perspectively Studied Cohort of U.S. Adults, and Calle, 7 he is from the American Cancer Society. 8 Q What year? 9 A I am sorry, 2003. 10 This study by Cerhan, C-e-r-h-a-n, and cancer 11 causes and control, anthropometrics, physical activity, 12 related medical conditions and a risk of Non-Hodgkins 13 lymphoma, and that's 2005. 14 This is Pan, P-a-n, and this is in the American 15 Journal of Epidemiology, physical activity, obesity, 16 energy intake, and risk of Non-Hodgkins lymphoma, a 17 population based case control study, and that's from 18 2005. 19 And there is one study that is negative in men, 20 but positive in women, and that is Rapp, R-a-p-p, 21 British Journal of Cancer, 2005, obesity and incidence 22 of cancer, a large cohort study of over 145,000 adults 23 in Austria. 24 Q Is that 2005, did you say? 25 A Yes. Yes, that's the ones. 00078 1 Q We have been going through a series of studies 2 which were in a Pendaflex folder; is that true? 3 A Yes. 4 Q Could I see the entire folder and the studies, 5 please. You have a label on this folder and could you 6 tell me what -- is that in your handwriting? 7 A Yes. 8 Q What does it say? 9 A S & J, 09, NHO alternative etiology. 10 Q What does that mean, what is SJ NHO? 11 A Steptoe is Steptoe & Johnson, ninth case that 12 my company has done for them. Non-Hodgkins lymphoma 13 alternative etiologies, meaning what we are talking 14 about. 15 Q So I am gathering, first of all, this is your 16 ninth case that you are consulting on for the Steptoe & 17 Johnson firm? 18 A For my company. It is not necessarily my ninth 19 case. 20 Q What is your company? 21 A Washington Occupational Health Associates. 22 Q And are you the president of that company? 23 A No. 24 Q What's your position with it? 25 A Vice president. 00079 1 Q Are you a shareholder in it? 2 A No. 3 Q What is your affiliation with that company 4 other than being vice president? 5 A I am an employee. 6 Q How many employees are there? 7 A We have about 20. 8 Q Who runs this organization? 9 A Ken Chase. 10 Q Who is he? 11 A He is a physician. 12 Q We'll get into this later. I don't want to do 13 it now. All right. 14 Now, regarding your company, this is its ninth 15 case with Steptoe & Johnson; correct? 16 A Correct. 17 Q Regarding you, was this your ninth case with 18 Steptoe & Johnson? 19 A No. 20 Q What's the number for you? 21 A It is probably about seven, but I am not 100 22 percent sure about that. I know the first one wasn't 23 with me. 24 Q So it would either be seven or eight? 25 A Right. 00080 1 Q And I am gathering that the seven or eight 2 cases include cases which you consulted on and cases 3 which you actually testified in; true? 4 A Yes. 5 Q Okay. Is it true that for not all of these 6 seven or eight cases did you actually give a deposition 7 or trial testimony? 8 A That's true. 9 Q And with respect to the seven or eight cases 10 that you have done with the Steptoe & Johnson firm, have 11 those been with Mr. Riff? 12 A No, not all of them. 13 Q How many of them? 14 A Gee, I would -- I don't precisely know. I 15 can't really tell you. 16 Q Can you estimate, half, more than half? 17 A Maybe half. 18 Q So is this a collection of articles that you 19 gathered yourself regarding alternative etiologies for 20 Non-Hodgkins lymphoma? 21 A Yes. 22 Q Now, you were going through identifying certain 23 studies in here. Did you identify every study in this 24 folder that related to obesity? 25 A As far as I could, yes. 00081 1 Q Okay. 2 A I mean, I might have missed one, but I went 3 through twice to try to find it. 4 Q All right. Leave it there, we'll probably 5 refer to it as we go on. 6 Now, I think you said earlier that at one time 7 you held the opinion that obesity was not a probable 8 cause of Non-Hodgkins lymphoma, but that recent studies 9 changed your mind. Is that a fair characterization? 10 A Well, the Calle study was the first that was in 11 2003, so then all of these other studies came out that 12 confirmed the American Cancer Society study, so 13 that's -- we only have one study when you -- I wouldn't 14 draw too much from it. 15 Q You identified four studies, one of which was 16 negative and In Med; correct? 17 A Correct. 18 Q The Calle, the Cerhan, and the Pan studies, you 19 considered to be positive studies? 20 A Yes. 21 Q Have you researched the literature to see 22 whether there are any other studies which address 23 obesity or anthropometric factors in Non-Hodgkins 24 lymphoma? 25 A Well, I have searched the literature and these 00082 1 are the ones that I was able to find. 2 Q Did you do a database search? 3 A You mean like PubMed? 4 Q PubMed or -5 A Probably in order to find some of them. 6 Q Did you save the result, did you print out the 7 results of that search? 8 A No. 9 Q When did you do that search? 10 A I don't remember. 11 Q Was it within the last year? 12 A Well, since I don't specifically remember doing 13 it, I can't really comment on it. 14 Q You are not sure that you actually did a 15 database search? 16 A I probably did. 17 Q But you don't have a recollection? 18 A I don't have a recollection. 19 Q Fair enough. Are you aware of any other 20 studies which address the obesity or anthropometric 21 issue for Non-Hodgkins lymphoma other than these four? 22 A Not that I am aware of. 23 Q Are you aware of any authoritative body that 24 has recognized obesity as a cause of Non-Hodgkins 25 lymphoma? 00083 1 A Well, again, I don't know what you mean by -2 authoritative body that has concluded that. The first 3 study, Calle, American Cancer Society, said in their 4 abstract that it was associated -- Non-Hodgkins lymphoma 5 was associated with body mass index. So is the American 6 Cancer Society an authoritative body? 7 Q Let's explore this. First of all, what you 8 just read is -- let me just see it, where you were 9 reading from. You were reading from the abstract of the 10 Calle study. Where were you reading from, I am sorry? 11 A Both men and women body mass index is also 12 significantly associated with higher rates of death due 13 to -14 Q I see, okay. The word they use is 15 "associated"; correct? 16 A Correct. 17 Q This article does not say that body mass index, 18 high body mass index causes Non-Hodgkins lymphoma; true? 19 A You are absolutely correct, and I also would 20 not say that studies in general that find associations 21 necessarily mean there is a causal relationship. 22 Q Right. 23 A Exactly. 24 Q Okay. And this study was done by a number of 25 individuals; correct? 00084 1 A Correct. 2 Q All right. And is it true that the American 3 Cancer Society has not published any statement stating 4 that the American Cancer Society concludes that excess 5 body mass index causes Non-Hodgkins lymphoma? 6 A Well, they may have, but I am not aware of it, 7 but I might look it up -8 Q Okay. 9 A -- to see if that is, indeed, the case. Just 10 to short-circuit all of this, I think I already said 11 that we had our list of things that were -- everybody 12 agreed upon that have been known for quite a while. 13 This is in the category of ones -- something that I 14 believe is caused because of all these recent studies 15 that have come out. 16 Q I understand. 17 A I don't think that there has been the time for 18 a body to even get together enough people to probably 19 come up with the kind of conclusionary statement that 20 you are talking about. I just believe that the 21 literature shows a causal association. 22 Q I understand. As you sit here today, you are 23 not aware of any authoritative body, scientific body 24 that has concluded that excess body mass index is a 25 cause of Non-Hodgkins lymphoma; true? 00085 1 A I don't know of anybody that has actually 2 evaluated it, to be quite honest. 3 Q Are you aware of any textbook that states that 4 excess body mass index is a cause of Non-Hodgkins 5 lymphoma? 6 A Well, nor would I expect them to because it 7 takes so long to put together a publication, so I 8 wouldn't even expect to see something like that for a 9 couple of years. 10 Q Okay. As you sit here today, do you have any 11 opinion, belief, or hypothesis as to a mechanism for 12 excess body mass or high body mass index to cause 13 Non-Hodgkins lymphoma? 14 A No. 15 Q Are you aware of any literature indicating that 16 high body mass index causes immunosuppression? 17 A No. 18 Can we take a little break? 19 (Lunch recess.) 20 THE WITNESS: I just want to clarify one of my 21 answers from before. 22 BY MR. METZGER: 23 Q Go ahead. 24 A I am trying to remember if, when we were 25 talking about -- you were asking about whether or not 00086 1 there were any studies below 40 PPM years, were we just 2 talking about cohort studies or were we including -- I 3 think it was my -- I thought we were talking about in 4 the context of cohort studies, because we talked about 5 Rinsky and we talked about Hayes and so forth. 6 But to be a complete answer, there is also the 7 case control study, the Australian study, the Debra 8 Glass study where one of those data points was somewhat 9 lower than 40 parts per million, it was sort of 10 marginally statistically significantly elevated, so I 11 just want to -12 Q Do you have that study here? 13 A Yes. 14 Q That's okay. I am familiar with it. Well, as 15 long as you brought that up, do you find that study to 16 be well done? 17 A The Health watch -- Australian Health Watch? 18 There are -- you know, I have reviewed these huge 19 documents that Health Watch has put out and the case 20 control study, I have some problems with because there 21 are -- when they do the case control work, you are 22 pegging it to the supposedly unexposed group in order to 23 come up with differences, and in some of those 24 instances, that unexposed group has a very, very low 25 incidence of that particular disease. 00087 1 And so there have been some instances where I 2 have found that when they do the case control analysis 3 of that same group, even though they didn't find any 4 increase in the cohort part of the study, they found 5 sort of a dose response relationship but, yet, they have 6 not taken into account the fact that the data point they 7 are referring to seems to be awfully low. 8 And you wonder whether or not it is 9 inordinately low and that's actually the case for CLL in 10 that study, and so I have some reservations about the 11 way they have gone about doing that study. 12 Q Are you suggesting that they used an improper 13 control group? 14 A No, not an improper control group, but the 15 control group was, at least in some -- one instance that 16 I am aware of, seemed to be an out layer in the sense of 17 the fact that the control group itself had a very low 18 incidence of that particular disease compared to the 19 general population. 20 Q And could that be due to the healthy worker 21 effect? 22 A It was really low, but let me just say that the 23 only reason, when you ask that question, they didn't -24 they should have pointed something out like that in 25 their analysis, you know, saying you shouldn't have to 00088 1 hunt through the 200 findings to try to figure out that 2 that may have been what happened. Do you understand? 3 So when you say was it well done, I mean, when 4 you do how many hundreds of statistical analyses that 5 were done in that study and then you come up with 6 certain findings, I think it is sort of necessary to go 7 back and see whether or not you are really on firm 8 ground with all of these findings. That's all I am 9 saying. 10 MS. KAHN: Mr. Whysner, if you need to refer to 11 the study to answer any of these questions, you have a 12 right to do that. Feel free. If you don't need to, 13 that's fine. I just wanted to make you aware. 14 THE WITNESS: Yes. I don't have that 2003 -15 the big case control study because they actually didn't 16 specifically look at Non-Hodgkins lymphoma. 17 BY MR. METZGER: 18 Q It is true, is it not, that most of the cohort 19 studies of refinery workers find that the exposed group 20 has a lower incidence of cancer or cancer mortality than 21 the general population; true? 22 A That's true. 23 Q And there is a good reason for that, isn't 24 there? 25 A Well, you are talking about the so-called 00089 1 healthy worker effect. 2 Q Yes. 3 A It is less true for cancer than it probably is 4 true for a lot of other diseases, like cardiovascular 5 disease and so forth. But there usually is some small 6 decrease in the number of cancers over what would be 7 expected in some studies, but that's not true for some 8 other studies either, so -9 Q The overwhelming majority of refinery cohort 10 studies, it is true; is it not? 11 A You know, I have never really looked at that 12 particular question in those refinery studies. I would 13 have to look at the studies to give you a good answer. 14 Q Have you ever seen a refinery cohort study 15 where the overall cancer incidence or cancer mortality 16 of the cohort was greater than that of the general 17 population? 18 A I don't remember. 19 Q I would like to see one, if you could find 20 one. Anyway, assuming that to be the case, that would 21 be a healthy worker effect; true? 22 A A healthy worker effect, there people talk 23 about healthy worker effects in a lot of different 24 contexts, but I really don't know why it would be. 25 Q Let me offer some possibilities and tell me 00090 1 what you think of them. No. 1, in order to get into a 2 refinery -- working refinery, you have to pass a 3 physical that you are healthy, and people in the general 4 population don't have to do that, so there is a 5 pre-selection for healthy people going into the cohort. 6 Would that likely account for some of it? 7 A I guess it is possible, but, you know, it is 8 awfully hard to pick up. I mean, as a physician, if you 9 had asked me how do you predict who is going to be sick 10 from cancer of the people that are coming in, it would 11 be pretty difficult if you had a -- especially a young 12 population. 13 Q But isn't that the point, that in the cohort 14 studies, people who have cancer don't get into the 15 cohort where they are in the control group? 16 A Yes, but the instance of cancer in the age of 17 people who are usually entering the work forces is 18 reasonably low, but I guess you would have some people 19 who would have cancer when they applied for a job and 20 then it would be they wouldn't get the job because they 21 had cancer. 22 Q And people who are immunosuppressed don't get 23 into the front door of a refinery to work there, whereas 24 they are in the control group in the general population; 25 true? 00091 1 MS. KAHN: Objection, calls for speculation, 2 vague and ambiguous. 3 THE WITNESS: I have no idea. 4 BY MR. METZGER: 5 Q Okay. Earlier you mentioned nonsteroidal 6 analgesics use and antibiotic use. You mentioned 7 Mr. Remboldt had some medical conditions. What medical 8 conditions are you referring to? 9 A In his early history, he played lots of sports 10 and he was a big guy and I found in the record a number 11 of times when he would come in complaining of pains, 12 secondary to his athletic endeavors. And so that's one 13 place. I know the records, especially in 1997, showed 14 numerous prescriptions for pain, inflammation, and 15 infection. 16 I have a list of medications taken in 2000 that 17 include 3200 milligrams of Ibuprofen per day, along with 18 Vicodin, Neurontin, and Percocet. Of course, Percocet 19 is an opiate. Those would be the main indications. I 20 mean, I would have to go through the entire medical 21 record to point out every last one of them, but there 22 is, I think, an indication in the medical record that he 23 had these pain prescriptions. 24 Q To a reasonable degree -- well, back up. 25 Regarding these pain medications, within the 00092 1 categories that you have identified for risk factors for 2 lymphoma, do you put those in the category of known 3 causes, probable causes, or possible causes? 4 A Possible. 5 Q Is it, therefore, true to a reasonable degree 6 of medical probability that you have ruled out these 7 pain medications as a cause of his Non-Hodgkins 8 lymphoma? 9 A No. 10 Q To a reasonable degree of medical probability, 11 did these pain medications cause his Non-Hodgkins 12 lymphoma? 13 A No. 14 Q You also mentioned certain medical conditions 15 that he had. I was not sure what you were referring 16 to. Would you tell me? 17 A I think I mentioned infections with the use of 18 antibiotics. 19 Q Okay. So what infections, any particular 20 infections? 21 A Bronchitis. 22 Q Any others? 23 A His infection after his vasectomy. 24 Q Do you know what that was? 25 A What it was? 00093 1 Q Yes. 2 A I don't recall right now what the antibiotics 3 were. Bronchitis, sinus infections, those are the ones 4 that I recall, but I found, I think, at least somewhere 5 between 10 and 20 times in his medical records where he 6 had received prescription for some antibiotics. 7 Q Let's talk about these. First of all, to a 8 reasonable degree of medical probability, have you ruled 9 out his bronchitis as a cause of his Non-Hodgkins 10 lymphoma? 11 A Yes. 12 Q To a reasonable degree of medical probability, 13 have you ruled out whatever infection he had after his 14 vasectomy as a cause of his Non-Hodgkins lymphoma? 15 A Yes. 16 Q To a reasonable degree of medical probability, 17 have you ruled out his sinus infections as a cause of 18 his Non-Hodgkins lymphoma? 19 A Yes. 20 Q Are you able to identify any of the antibiotics 21 which he had, which he was prescribed for his 22 bronchitis -- you know what, let me short-circuit that. 23 Let me try it this way. 24 To a reasonable degree of medical probability, 25 have you ruled out any antibiotics that he was 00094 1 prescribed for his bronchitis as being a cause of his 2 Non-Hodgkins lymphoma? 3 A Could I just say it was his overall antibiotic 4 use, not for each particular use, it is the number of 5 times that he used antibiotics that is the issue. 6 Q Dose. Are you talking about dose or chemical 7 mixtures or chemical interactions or what are you 8 talking about here? 9 A Well, all I am trying to do is refer back to a 10 paper here that where they did find the frequency of 11 antibiotics use associated with Non-Hodgkins lymphoma. 12 Q Okay. We are talking about one paper? 13 A I don't remember. I could look. 14 Q Okay. It is in this folder? 15 A Yes. 16 Q Have a look and see. 17 A Yes, that's all I found is one paper. 18 Q Why don't you identify it so we can talk about 19 it. 20 A Chang, Medication Use and Risk of Non-Hodgkins 21 Lymphoma. 22 Q Let me ask you a general question. Well, first 23 of all, does this paper that we just mentioned address 24 prescription medication use, nonprescription medication 25 use, or both? 00095 1 A Well, I don't know specifically, but I would 2 imagine that it is -3 MS. WILLIAMS: You don't need to speculate. 4 MR. METZGER: He is looking at the paper 5 itself, so he is not speculating. He is looking at the 6 paper to see what it is about. 7 THE WITNESS: That one, it was done by Enervue, 8 so to the extent that somebody could self-prescribe 9 antibiotics. E-n-e-r-v-u-e. Most antibiotics are by 10 prescription. 11 BY MR. METZGER: 12 Q All right. I don't know that it is all that 13 important, but regarding antibiotics -- we are talking 14 about antibiotics here; correct? 15 A Yes. 16 Q Regarding antibiotics, do you put those in the 17 known cause category, the probable cause category, or 18 the possible cause category of agents in Non-Hodgkins 19 lymphoma? 20 A I would probably put them on a fourth category. 21 Q Which is what? 22 A Which is I would probably put them in a 23 category that would be either unlikely or 24 unsubstantiated because it's just based upon one study. 25 Q Is it, therefore, true, to a reasonable degree 00096 1 of medical probability, that you have ruled out any 2 antibiotics that Mr. Remboldt was prescribed or used as 3 a cause of his Non-Hodgkins lymphoma? 4 A Yes. 5 Q Are there any other medical conditions that 6 Mr. Remboldt had which you hold the view or opinion are 7 in any way associated with lymphoma? 8 A No. 9 Q Have you, to a reasonable degree of medical 10 probability, ruled out Helicobacter pylori, autoimmune 11 diseases, and herbicides as causes of his Non-Hodgkins 12 lymphoma? 13 A Well, I can't really rule out Helicobacter 14 pylori because that is commonly found in so many people, 15 but the others, I would rule out. 16 Q Was Helicobacter pylori found in Mr. Remboldt? 17 A Not to my knowledge. 18 Q And, therefore, to a reasonable degree of 19 medical probability, do you rule out Helicobacter pylori 20 as a cause of his Non-Hodgkins lymphoma? 21 A No. 22 Q To a reasonable degree of medical probability, 23 did Helicobacter pylori cause his Non-Hodgkins lymphoma? 24 A No. 25 Q All right. Now, I think I saw -- I was 00097 1 provided some documents just today before the deposition 2 and one of them was a list of publications I am marking 3 as Exhibit 3, and I would like you to tell me just what 4 this is. 5 (Plaintiff's Exhibit 3 was marked for 6 identification by the court reporter.) 7 THE WITNESS: Okay. This is a list of all of 8 this -- sorry, of my files, which doesn't include the 9 other things you received today, the other parts of that 10 package that you said you received today. 11 BY MR. METZGER: 12 Q Let me try to clarify. Exhibit 3 is a list of 13 literature? 14 A Correct. 15 Q Which you have collected regarding this case? 16 A Correct. 17 Q Not included on Exhibit 3 are some other 18 articles which are also provided to me today? 19 A Correct. 20 Q By which you have also -- well, strike that. 21 Have you read all of the articles on Exhibit 3? 22 A Yes. 23 Q And the other articles that were provided to me 24 today are these articles here that I think were 25 accompanied with a letter, and let me just show you this 00098 1 letter and ask you if the articles that you were talking 2 about were sent to you under this transmittal letter? 3 A Yes. 4 MR. METZGER: We'll mark the transmittal letter 5 as Exhibit 4. 6 (Plaintiff's Exhibit 4 was marked for 7 identification by the court reporter.) 8 BY MR. METZGER: 9 Q And these articles were sent to you by Federal 10 Express on May 16; true? 11 A Yes. 12 Q When did you receive this letter and the 13 articles? 14 A I would assume next day, because I brought them 15 with me. 16 Q And when did you come out here to California? 17 A I came out here on the 17th. 18 Q When did you leave -- where did you come from? 19 A New York. 20 Q When did you leave New York? 21 A The 17th. 22 Q What time? 23 A Early in the morning. I am sorry, yesterday. 24 Q Today is the 19th. 25 A I left on the 18th, morning of the 18th. 00099 1 Q So you received these on the 17th? 2 A I received them on the 17th. 3 Q That all makes good sense. Now I get it. 4 A Let me just tell you these articles were ones 5 when I got -- I received a list and looked at -- over 6 the ones that Dr. Infante and Dr. Harrison had used in 7 their depositions that weren't in my file, and that's 8 what these represent. 9 Q I understand. And -- okay. Let's first 10 identify the articles that you did receive with the 11 transmittal letter, which is Exhibit 4. 12 A Okay. 13 Q Did that include the unpublished Delzell case 14 control study? 15 A Yes. 16 Q Which is marked Plaintiff's Exhibit 8421; 17 correct? 18 A Yes. 19 Q Did that include the Dryver study, which is 20 marked Plaintiff's Exhibit 20163? 21 A Yes. 22 Q Did that include the Franceschi study, which is 23 marked Plaintiff's 2761? 24 A Yes. 25 Q Did that include the abstract of the Fritschi 00100 1 study, which is marked Plaintiff's Exhibit 25886? 2 A Yes. 3 Q Did that include the Hardell study, which is 4 marked Plaintiff's Exhibit 2231? 5 A Yes. 6 Q Did that include the Tatham study, which is 7 marked Plaintiff's Exhibit 6733? 8 A Yes. 9 Q Did that include the Zhang, Z-h-a-n-g, study, 10 which is marked Plaintiff's Exhibit 14499? 11 A Yes. 12 Q Did that include the Fritschi study entitled 13 Risk of Non-Hodgkins Lymphoma Associated with 14 Occupational Exposure to Solvents, Metals, Organic Dust 15 and PCB's, paren, Australia, closed paren? 16 A Yes. 17 Q And did that include the study by Fu, F-u, 18 entitled Cancer Mortality Among Shoe Manufacturing 19 Workers and Analysis of Two Cohorts? 20 A That study, I had actually provided previously, 21 and you have a copy of that study, except it had only 22 been copied every other page, so this was -- actually, 23 we generated this yesterday. That wasn't part of that 24 transmittal letter. 25 Q I see. 00101 1 A So in this study, this second to the last one, 2 it is in your package, but I am not -- it is a little 3 bit of a fog right now, I don't know where this exactly 4 came from. This may have been something in my file 5 which just didn't get transmitted to you. 6 Q Have we now identified all of the studies that 7 you received with the transmittal letter, Exhibit 4? 8 A Yes. 9 Q Now, you mentioned that you had, in reviewing 10 the list of studies that Dr. Harrison and Dr. Infante 11 had relied on, that you had requested copies of certain 12 of them; is that true? 13 A Yes, that's the ones that are in this. 14 MR. METZGER: Let me show you a document which 15 we'll mark as Exhibit 5, and I will ask you if this is a 16 fax transmittal where you requested that seven articles 17 from those produced by plaintiff's experts be sent to 18 you. 19 (Plaintiff's Exhibit 5 was marked for 20 identification by the court reporter.) 21 THE WITNESS: Yes. 22 BY MR. METZGER: 23 Q Now, are those the studies that we just 24 identified? 25 A Yes. 00102 1 Q All makes sense. Let me ask you something. I 2 would like you to take a look at Exhibit 5 and tell me 3 if there are any studies on that list that you have not 4 read? 5 A On this list? 6 Q Yes. 7 A There are probably some studies on here that I 8 have not read. 9 Q Would you start at the top of the list and 10 identify for me those that you have not read. You know 11 how we can do it very easily, I think they all have an 12 exhibit number, so if you could just give us that, maybe 13 the author and the exhibit number, you don't have to 14 give us the title. 15 A I don't know how I would do that. These are 16 the list of references that are on your CD. 17 Q I understand. That's what I am asking you to 18 do, is to tell me which of those articles you have not 19 read. 20 A Ever? 21 Q Ever. 22 A Or that I don't have in my file for this case? 23 Q I am asking which ones you have not read. You 24 know what, I will do it both ways. Which ones you have 25 not read and which ones are not in your file. We could 00103 1 do it that way, too. 2 MS. KAHN: The question is vague and 3 ambiguous. When you say "in your file," it is not clear 4 to me if you mean in your file for this case or in his 5 file or library back in his office. 6 I also want to point out, Dr. Whysner, we have 7 all of those articles, and if it would be easier to do 8 this by looking at the actual articles rather than 9 relying on someone's description of the article, which 10 may not have a full citation, I can go down the hall and 11 get you copies of the actual articles. 12 MR. METZGER: You can do that when I am done, 13 Ms. Kahn. I am doing my deposition now. 14 MS. KAHN: Regardless, Dr. Whysner does have a 15 right to see the articles, if that facilitates his 16 ability to answer a question. 17 MR. METZGER: If he doesn't recognize it, if he 18 tells me he needs to see the article to answer the 19 question, then we'll get the article. 20 THE WITNESS: The first one is in my file. 21 BY MR. METZGER: 22 Q Have you read it? 23 A Yes. 24 Q The next one? 25 A I think I have read the next one, but it is not 00104 1 in my file for this case. 2 Q And you are referring to? 3 A Delzell. 4 Q Exhibit number? 5 A 2975, and -- but, see, the problem is it is 6 mortality among workers, rubber workers, and there is a 7 "V," which means five processing workers, so I have 8 read something about Delzell that were telling on rubber 9 workers, but I'm not sure if it is the fifth of this 10 series. 11 Q Fair enough. 12 A The next one is one that I checked and should 13 be on that stack there, Delzell. 14 Q That's the one you just received? 15 A Yes. 16 Q Have you read that or not? 17 A Yes. 18 Q You had not been familiar with that before it 19 was sent to you a few days ago; correct? 20 A I think that that one may -- I'm not sure. 21 Some of these -- the problem, some of these are 22 unpublished reports that then there was a publication 23 of. 24 Q I will represent to you that this one is -25 this one that we are looking at, Exhibit 8421, has not 00105 1 been published except for the leukemia data, 2 Non-Hodgkins lymphoma, and the multiple myeloma data has 3 never been published, so at least with respect to the 4 Non-Hodgkins lymphoma data and myeloma information, you 5 were not familiar with that until up two days ago? 6 A That report, yes. 7 Q Go ahead. 8 A Next one is a repeat of the one before it. I 9 don't know why it is, I think. 10 Q Sure enough. 11 A Department of Labor, OSHA, proposed rule of 12 notice of hearing, yes, I have got a whole note box of 13 those. 14 Q You skimmed another Delzell article. Well, let 15 me withdraw the question. I think there is maybe a 16 quicker way of going about this. I think you have told 17 us that Exhibit 3 is the literature that you collected 18 for this case that's in your files; correct? 19 A Yes. 20 Q So we can just compare Exhibit 5 to Exhibit 3 21 to know whether it is in your file? 22 A Okay. 23 Q Correct, does that work? 24 A That would work. 25 Q So let me give you Exhibit 3 and that might 00106 1 expedite this. 2 A Well, it is not in my file, but it looks 3 familiar and it is possible that I have reviewed it. 4 Q You don't recall as you sit here? 5 A I don't recall. 6 Q Fair enough. 7 A You said about the OSHA one, I know that. 8 Divine Texas Mortality Study, I probably have reviewed 9 that and that is probably one of the reasons it is not 10 in my file is because that was covered in Wong and 11 Raabe's overall analysis and a lot of the older studies, 12 I didn't put in my file if it was already mentioned in 13 that analysis. 14 Q Okay. 15 A I think that this has -- it is a little bit 16 hard from this list to tell because I can't tell what's 17 been published and what's not published. 18 Q Maybe I can help you further if I see that 19 list. Have you read the Eastman item there, which is 20 Exhibit No. 22119? 21 A No, it doesn't look familiar. 22 MS. KAHN: Dr. Whysner, I want to remind you 23 while there is no question pending, if you want to see 24 hard copies of any of the items on this list, they are 25 just down the hall. I will be happy to get them. 00107 1 I know you told me when we talked about this 2 list that without the names of the publications, it was 3 difficult for you to know if you had the articles or 4 not, so I don't want you to feel handicapped by not 5 having them in the room with us. 6 THE WITNESS: Okay. 7 BY MR. METZGER: 8 Q There is a study listed here, X-u, is the 9 author. Have you read that study? 10 A Yes. 11 Q Do you read Chinese? 12 A I think there was an English abstract. 13 Q Otherwise -- there was. Have you actually read 14 a translation of that study? 15 A I saw a translation of it. That one, I would 16 have to probably look at the notebook. 17 Q There is a study here by Zhang, Exhibit 18 No. 16819. Have you read that study? 19 A Again, I would have to be honest with you to 20 look at the book to tell you. 21 MR. METZGER: Could you pull that one, Ruth. I 22 would like to see if he recognizes it. 23 MS. KAHN: Xu and Zhang. 24 THE WITNESS: Z-h-a-n-g. 25 MS. KAHN: The first one was Xu, X-u. 00108 1 THE WITNESS: Yes. 2 BY MR. METZGER: 3 Q While she is getting that, let me ask you: 4 Have we now discussed all of the risk factors which you 5 considered as part of your specific causation analysis? 6 A Well, we haven't talked about the chemicals 7 that are the alleged exposures in this case. 8 Q Well, let's talk about that, then. Where, 9 within your categorization of risk factors for 10 Non-Hodgkins lymphoma, would you place benzene? 11 A In the one that's -- the bottom one not likely 12 or, you know, basically there are -- it is 13 unsubstantiated, substantiated. 14 Q Where, within your categorization, would you 15 place mixed organic solvents? 16 MS. KAHN: Objection, it is vague and ambiguous 17 as to which solvent you are including in mixed. 18 THE WITNESS: Well, I don't think that any of 19 the literature related to -- we are talking about 20 petroleum solvents here, my understanding. 21 BY MR. METZGER: 22 Q Yes. 23 A That there is, again, any of the 24 petroleum-based solvents or even mixtures that have been 25 studied, such as gasoline or others, have ever been 00109 1 shown to cause Non-Hodgkins lymphoma. 2 Q What category do you place mixture organic 3 solvent, which petroleum solvents? 4 A In the unlikely unsubstantiated based upon that 5 and benzene based upon all these references that I have 6 here in my file. 7 Q In which category do you place crude oil? 8 A The same. 9 Q Which category do you place xylene? 10 A The same. 11 Q Toluene? 12 A The same. 13 Q Ethyl benzene? 14 A The same. 15 Q Naphthol? 16 A The same. 17 Q Refined petroleum distillates? 18 A The same. 19 Q Now, have you ever sat down with all of the 20 refinery cohort studies and evaluated how many of them 21 reported an increased risk of Non-Hodgkins lymphoma and 22 how many did not? 23 A You mean statistically significantly 24 increased? 25 Q I didn't mean that, but we can do that, too. I 00110 1 was going first any increase and how many did not show 2 an increase? 3 A I have the studies, we could go through them. 4 Q I know. I am asking if you have ever done 5 that? 6 A Well, all I can say is my general overall 7 impression is that there are probably about as many 8 above as below one in terms of a relative risk. 9 Q Have you ever actually gone to the exercise of 10 listing the studies as to whether they showed an 11 increased risk or whether they didn't? 12 MS. KAHN: Regardless if the risk increase was 13 significant or not? 14 MR. METZGER: Exactly. 15 Q Have you ever done that, have you ever tallied 16 them up? 17 A Added them up? 18 Q I don't mean added them, like I add one plus 19 two equals three. I mean, have you ever tallied them 20 before where you determined there were so many that 21 showed increased risk and so many that did not? 22 A No. 23 Q And have you ever tallied how much of those 24 refinery cohort studies showed significantly increased 25 risk of Non-Hodgkins lymphoma and how many did not? 00111 1 A Well, mentally, I have done that. 2 Q Okay. How many of the refinery cohort studies 3 report a significantly increased risk of Non-Hodgkins 4 lymphoma? 5 A I don't think any of them do. 6 Q Okay. 7 A There may be one, but I don't think either one 8 or none, let's put it that way. 9 Q Fair enough. And have you ever sat down and 10 tallied up how many of the case control studies reported 11 an increased risk of Non-Hodgkins lymphoma for solvent 12 exposure and how many did not? 13 MS. KAHN: Object to the question, it is vague 14 and ambiguous. Nobody has defined the universe of 15 studies that you are talking about, and your question 16 assumes he has in mind the same universe of studies you 17 have in mind. 18 MR. METZGER: You have a good point. 19 Q Let me ask you this: Have you ever attempted 20 to gather all of the case control epidemiologic studies 21 which evaluate solvent exposure and Non-Hodgkins 22 lymphoma? 23 A Well -24 Q It is a simple question. Have you ever 25 attempted to gather that? 00112 1 A It is not that simple because, for example, I 2 have done it for trichloroethylene, which is a solvent, 3 I have done it for perchloroethylene, I have done it for 4 toluene, I have done it for xylene, I have done it for 5 benzene, I have -- when we get to what you call a 6 solvent, I don't know how you are defining a solvent. 7 Q Let's try to put in more definition on it. 8 Have you ever attempted to gather all of the case 9 control epidemiologic studies which investigated 10 associations between nonchlorinated hydrocarbon solvents 11 and Non-Hodgkins lymphoma? 12 A Well, would you add -- would you include oils 13 in that? 14 Q Sure. 15 A Vegetable oils. 16 Q Is that a petroleum solvent? 17 A Did you say petroleum? 18 Q Yes. 19 A Petroleum. 20 Q Nonchlorinated petroleum hydrocarbon solvents. 21 A Where they have existed, I have tried to find 22 as many of them as I can. 23 Q Okay. Have you ever tallied up how many of 24 those studies report increased risk of Non-Hodgkins 25 lymphoma and how many do not for nonchlorinated 00113 1 petroleum hydrocarbon solvents? 2 MS. KAHN: Regardless of the increased risk 3 statistically or not? 4 THE WITNESS: Well, some of the studies report 5 pentane, butane, aromatic, aliphatic, I mean, the 6 problem with the studies is on the report, various types 7 of solvents, various statistical analyses of all of them 8 or the -- they report them by duration or report them by 9 exposure level. I don't think that kind of a tally is 10 actually possible, unless you define a little bit more 11 specifically the characteristics. 12 And I haven't done it because it depends on 13 exactly how you want to define what the parameters are 14 within that literature that one is going to do that on. 15 Is it on the overall, all the cases? Is it in all the 16 occupational exposed cases? I mean, it is. 17 BY MR. METZGER: 18 Q Have you ever attempted to tally up all of the 19 case control studies which evaluate nonchlorinated 20 hydrocarbon solvent exposure and Non-Hodgkins lymphoma 21 which report significantly increased risks versus those 22 that do not? 23 A In a sense, I have, and my impression is that 24 almost all of them do not or most do not and that's 25 my -- in terms of tallying up, I have done each 00114 1 individual paper, which I would be glad to go through 2 and show you which ones are negative and which ones show 3 some association, whether it is statistically 4 significant or one is not. 5 But in terms of my own -- my needs in terms of 6 coming up with an overall analysis, it is the 7 preponderance of evidence that there is not an 8 association of Non-Hodgkins lymphoma in these solvent 9 studies that look at solvent exposures. 10 Q Have you read any review articles which address 11 the literature, specifically the case control studies 12 regarding nonchlorinated solvent -- strike that. 13 Have you reviewed -- have you read any review 14 articles which review the case control studies for 15 solvent exposure and Non-Hodgkins lymphoma? 16 MS. KAHN: The question is lacking in 17 foundation and it is vague and ambiguous. I think it is 18 impossible to answer without having an identification of 19 the case control studies that were encompassed in the 20 review that you are asking about. 21 MR. METZGER: You can answer. 22 MS. KAHN: You can go ahead and answer. If you 23 can't, tell Mr. Metzger that. 24 THE WITNESS: So in terms of benzene, there is 25 a study by -- review article, Bill -- Steve Lamb, that 00115 1 includes both cohort and case control studies. I am 2 familiar with that review. 3 BY MR. METZGER: 4 Q Are there any other reviews that you are 5 familiar with? 6 A Well, for example, the ATSDR has done a fairly 7 comprehensive review of looking at benzene and looking 8 at the case control studies and cohort studies and they 9 specifically commented on whether or not the evidence 10 related to Non-Hodgkins lymphoma met any kind of a 11 standard regarding causation. 12 Q Are you referring to the 2005 draft update 13 toxicological profile by the ATSDR? 14 A Yes. 15 Q Are there any other reviews that you have read 16 on the topic? 17 A Well, there are reviews that review the whole 18 subject of various solvents, like the IARC review of 19 xylene, which I have read, the IARC review of toluene, 20 which I have read. There is, of course, the IARC review 21 of benzene, which I have read. There are -22 Q My question was -- let me just refresh you with 23 the question. Have you read any reviews regarding the 24 case control studies which investigate petroleum 25 hydrocarbon exposure and Non-Hodgkins lymphoma? 00116 1 A Well, that's what I am answering, just the fact 2 that they have done other things, as well, like the 3 Steve Lamb article reviewed both cohort and case 4 control. 5 Q Any other reviews that you have read? 6 A There was a review that I think Harrison relied 7 pretty heavily on this review by Rigo. 8 Q Have you read that? 9 A Yes, I have. 10 Q All right. 11 MS. KAHN: He is not done. He's got more. 12 BY MR. METZGER: 13 Q All right. Are there more that you have read? 14 MR. RIFF: Can I coach? 15 MR. METZGER: No. 16 MR. RIFF: I got to. 17 MR. METZGER: If you want to testify, you can 18 designate yourself as an expert and I will take your 19 deposition. 20 MR. RIFF: I will leave and go get some 21 gasoline for my car. 22 THE WITNESS: I was going to say gasoline 23 because the ATSDR review on gasoline, I am sorry, I have 24 to go through my files. 25 MR. METZGER: I will move -- I will withdraw 00117 1 the question and move on to another question. 2 (Recess taken.) 3 THE WITNESS: Let me just clarify something 4 because you asked before about the issue of, quote, 5 "solvents" and Non-Hodgkins lymphoma. This is the 6 problem with the word solvent because solvent is really 7 defined as a use, it is not really -- doesn't have any 8 sense in a toxicology standpoint, although I know people 9 use that word. 10 So gasoline, I have reviewed, I have also 11 reviewed jet fuel, which I don't know whether anybody 12 would consider that a solvent, it is a fuel, in terms of 13 that particular issue. 14 BY MR. METZGER: 15 Q All right. Let's go on to another topic. You 16 are a diplomate of the American Board of Toxicology; 17 true? 18 A Correct. 19 Q Does the word "immunotoxic" have a meaning to 20 you? 21 A Yes. 22 Q What does that mean to you? 23 A Well, immunotoxicity can either be an 24 overactive immune system and (inaudible) 25 hypersensitivity or it can be an immune depression. 00118 1 There are two parts to that scale, and so the immune 2 system can either be overactive or underactive, and if a 3 particular agent can cause either one of those things, 4 then we consider that immunotoxicity. 5 Q Okay. Would you also consider an agent that 6 can disrupt immune function to be immunotoxic? 7 A That would be -- yes, that would be 8 immunotoxicity. 9 MS. KAHN: Somebody who is typing needs to find 10 their mute button, please. 11 MS. CHIN: I am sorry. 12 MS. KAHN: Thank you. 13 BY MR. METZGER: 14 Q Okay. Is benzene immunotoxic? 15 A Well, I think we covered this before, but 16 when -- I remember that I had looked into this in the 17 past and I have not looked at it specifically recently, 18 that that's not one of its major toxicological 19 properties, except as we discussed about its bone marrow 20 ability to suppress the bone marrow and prevent the 21 formation of myelocytes from the bone marrow. That is 22 one of the most -- one of the things it causes at one of 23 its lowest, lower doses. 24 Q Are you going to -- do you recognize the 25 distinction between hematotoxic and immunotoxic? 00119 1 A Well, to me, when you are talking about 2 disruption of immune system, I am not thinking about the 3 fact that it is wiping -- I mean, yes, bone marrow 4 toxicities will disrupt the immune system, but usually 5 when we think of immunotoxicity, we are talking about 6 effects that don't necessarily just wipe out the whole 7 population of white cells. 8 For example, because then there isn't any 9 immune function of a certain type if you have destroyed 10 the cells that are trying to provide that function. 11 So in that sense, there is an immune effect, 12 but that's very specific. We know about that. We 13 talked about that for benzene and it may also be related 14 to its ability to produce acute myelogenous leukemia and 15 there is a whole literature on, as you are probably 16 well-aware of, whether or not that immune -- that form 17 of toxicity is necessary in order to begin the 18 development of acute myelogenous leukemia. 19 Q Does benzene -- strike that. 20 Does exposure to benzene impair immune 21 function? 22 A Didn't we just go over this? 23 Q You have described, as I understood it, three 24 types of immunotoxicity, an overactive immune system, an 25 underactive immune system, and disruption of immune 00120 1 function; correct? 2 A Well, the latter two are pretty much the same. 3 Disruption of immune function and immunosuppression 4 would be pretty much the same thing. 5 Q Does benzene disrupt immune function? 6 A Well, as I said, again, the part of the immune 7 function that benzene disrupts is that it wipes out -8 it can wipe out the bone marrow and leukocytes, 9 granulocytes which are part of the immune system, in a 10 sense, because they are responsible for fighting 11 infection and disease. 12 And that can then disrupt what we usually think 13 of as the immune system and macrophages, you know, are 14 the presenting cells for certain types of immunity, and 15 so in that sense, it would disrupt immune function. 16 Q Does benzene disrupt immune function without 17 decreasing blood counts? 18 A Do you have a specific thing in mind? I mean, 19 immune function is a big topic. 20 Q Let's talk about immune function. Is it true 21 that there are different assays for assessing 22 immunotoxicity? 23 A Yes. 24 Q And can you identify them? 25 A Well, there is no lymphocyte proliferation 00121 1 test. There is the classic ones and the plaque forming 2 colony test. 3 Q Plaque forming colony test? 4 A Yes. 5 Q Any others? 6 A Those are the two that I am most familiar with. 7 Q You do know that other tests exist? 8 A There is a whole battery of immune testing that 9 can be done. You can look for immunoglobulin levels, 10 you can do immune electrophoresis, you can do -- there 11 is first tier, second tier, third, you know, white 12 counts are another one, you know. That's it. 13 Q Has benzene been studied in these assays? 14 A I don't have any specific recollection of any 15 studies. 16 Q So you don't know that benzene has been found 17 immunotoxic in these different assays that we just 18 discussed? 19 A I don't have any specific recollection of the 20 studies. 21 Q Do you have any knowledge whether these assays 22 have been -- strike that. 23 Do you have any knowledge whether toluene is 24 immunotoxic in these assays? 25 A I don't specifically remember the studies. 00122 1 Q Do you have -- do you know whether xylene is 2 immunotoxic in these studies? 3 A I don't -- again, I don't specifically remember 4 the studies. 5 Q Do you know whether naphthols are immunotoxic 6 in these assays? 7 A Naphthas. 8 Q Yes, petroleum naphthas? 9 A Okay. Well, I'm more familiar with naphtha, 10 but I don't specifically remember the study. 11 Q Is crude oil immunotoxic in these studies? 12 A I don't know. 13 Q Let's talk about some of your work on your C.V. 14 First of all, the article that you published regarding 15 the genotoxicities of benzene, was that funded? 16 A Yes. 17 Q By whom? 18 A The American Petroleum Institute. 19 Q And how much were you paid for that? 20 MR. RIFF: Hold on. How much was he paid, how 21 much was the funding, or both or neither? Objection, 22 vague. 23 MR. METZGER: Go ahead. 24 THE WITNESS: Well, it was a contract between 25 the American Health Foundation and the American 00123 1 Petroleum Institute and it went on for a few years. We 2 analyzed 1,400 genotoxicity tests. 3 BY MR. METZGER: 4 Q What's the funding? 5 A I don't specifically remember. I would say it 6 was probably about $150,000. 7 Q Okay. Was that probably done in phases? 8 A Yes. 9 Q What were the phases? 10 A First phase was to look at the issue of whether 11 or not benzene -- under what conditions and when benzene 12 had been found to cause DNA addicts or DNA binding 13 studies. 14 Q And what was the next phase? 15 A The next phase was to analyze all of the 1,400 16 genotoxicity tests. 17 Q What was the -- was there a further phase? 18 A The next phase was to look at the literature 19 related to -- I can't remember whether or not the 20 literature related to trying to categorize the 21 genotoxicity test results into -- a mechanistic category 22 was in phase two or phase three. 23 But I think phase three was more of a -- had to 24 do with a discussion of the relationship with the 25 genotoxicity tests to, for example, the -- what we are 00124 1 talking about before, the fact that the clastogenicity 2 of benzene and the relationship of that to the way in 3 which acute myelogenous leukemia could develop. 4 Q Was there a further phase? 5 A Not that I remember. 6 Q And was the $150,000 funding that you just 7 described for all of these phases? 8 A I believe so. 9 Q At the time, what was your affiliation with the 10 American Health Foundation? 11 A I was a research scientist and I was -- I 12 eventually became division -- director of the division 13 of pathology and toxicology. 14 Q Now, did you prepare reports in the course of 15 this study? 16 A Yes. 17 Q How many reports did you prepare? 18 A I think there were three reports for the three 19 phases. 20 Q And did you send those to the American 21 Petroleum Institute? 22 A Yes. 23 Q And did you receive back comments from the API? 24 A I don't recall. Not that I remember other than 25 the fact that they received it and, fine, thank you. 00125 1 Q Who was your contact at API? 2 A Well, there were a couple of different ones and 3 that was part of the problem. One of the reasons I did 4 not receive any comment, because there wasn't really 5 anybody to see -- any way to comment on it. 6 I don't -- I know David Mongello was there, he 7 was the project officer. Linda Twerdock, 8 T-w-e-r-d-o-c-k. There were a couple of other people, 9 but I don't really recall who they were. 10 Q Did you ever go to a meeting of the American 11 Petroleum Institute or a community and report your 12 findings to them? 13 A It is possible. The reason I am a little 14 confused, I did another study for them and I know we had 15 meetings on that one and that was -- I was doing some 16 laboratory work to actually look at the question of 17 whether or not there was, indeed, DNA binding and I know 18 that we had -- there was a group named API who oversaw, 19 but I think they just oversaw the laboratory studies. I 20 don't really remember them commenting on the 21 genotoxicity study. 22 Q Was the DNA binding study also done by you when 23 you were with the American Health Foundation? 24 A Yes. 25 Q What was the funding for that study? 00126 1 A That was the American Petroleum, also. 2 Q What was the funding for it? 3 A How much? 4 Q Yes. 5 A I think that was about $75,000. 6 Q Now, regarding the genotoxicity study, did you 7 submit your article to the API before publication? 8 A That, I don't remember. You know, I actually 9 published it after I left the American Health Foundation 10 and had sort of -- we had, yet, another change of person 11 at the API and I never even heard from them. I think I 12 finally sent them a courtesy copy of the publication 13 after it was published, but I don't remember. I just 14 don't recall. There wasn't a lot of feedback, wasn't 15 any feedback, as a matter of fact, specifically 16 regarding that publication from them. 17 Q Did anyone from the API or any of its members, 18 petroleum company members, edit any drafts of your 19 article? 20 A No. We, at the foundation, we were very clear 21 about stuff like that that we might -- like I say, 22 again, we might furnish them a copy before publication, 23 but that was usually part of our contractual 24 relationship with industry groups. Now, not with 25 grant -- you know, federal grants. Most of them -- the 00127 1 money came from the National Cancer Institute. 2 Q Now, the lab work that you did regarding DNA 3 binding, was that ever published? 4 A No. 5 Q Why not? 6 A Because I left the foundation while I was still 7 in the middle of it and I left the foundation, I think 8 it was, in 2002. The work was still ongoing. It was 9 the only project I hadn't sort of wrapped up before I 10 left, and the results were kind of -- we did, indeed, 11 find that the DNA binding probably was artifactual. 12 That there was one or two other groups that had 13 found some binding radiolabeled DNA binding to -- I 14 mean, binding radiolabeled benzene to DNA, and through 15 various purification techniques, we showed that it was 16 probably artifactual, it was probably protein that was 17 associated with the DNA, but before I left, I could 18 never completely nail that down, so I didn't publish it. 19 Q Did you ever submit it for publication? 20 A No. 21 Q During the course of either of these projects 22 that you did for the American Petroleum Institute, did 23 you speak with any members of any -- well, did you speak 24 with any employees of any of the oil companies? 25 A Oh, probably, because I published -- I didn't 00128 1 publish -- well, we did publish the proceedings of that, 2 there was a meeting that was held at the University of 3 Ottawa of a number of people on the whole issue of 4 benzene and leukemogenesis. 5 And there were people from the petroleum 6 industry there because they were also presenting papers, 7 but -- so I probably talked to them. Well, they 8 probably came up to me after I presented my findings -9 Q Okay. 10 A -- which were in that abstract. 11 There are two publications on my list and that 12 abstract -- I mean, not abstract, that short publication 13 is from that meeting that was held in Ottawa. 14 Q The meeting in Ottawa was the Benzene State of 15 the Science Workshop which took place on December 16 and 16 17 in 1998; correct? 17 A Correct. 18 Q You presented at that conference; correct? 19 A Excuse me, let me see it. I am not exactly 20 sure about -21 Q This is Exhibit 6041. This is a copy of what 22 you presented at that conference or symposium; correct? 23 A Yes, but it was also published. Okay. 24 Q I will get to that. That was what I am showing 25 as Exhibit 8738 is what was published from that; 00129 1 correct? 2 A Correct. 3 Q Now, prior to the conference, did you speak 4 with any employees of any oil companies about your paper 5 or your research? 6 A Well, again, as I mentioned before, I can't 7 remember if that group, which were a couple of -- which 8 was a group, some of which contained employees of oil 9 companies that I met with, I also met with regarding 10 this genotoxicity study and can't remember that. I said 11 I remember -- I remembered meeting with them regarding 12 the DNA binding studies. 13 Q Did the DNA binding study precede or come after 14 the genotoxicity study? 15 A After. 16 Q Okay. So I am talking before the symposium on 17 December 16 and 17, 1998 at the University of Ottawa at 18 which you first presented on your genotoxicity study. 19 Did you speak with any employees of oil companies about 20 that? 21 A That's what I am trying to say, I don't 22 remember if that group had reviewed where we talked 23 about the studies that I had done on genotoxicity. 24 Q Have you done any other work for the American 25 Petroleum Institute? 00130 1 A No. 2 Q Have you done any work for the American 3 Chemistry Council? 4 A No. 5 Q The Chemical Manufacturers Association? 6 A One of those groups, I did some consulting work 7 on quite a while ago, I think, regarding the Korean 8 Chemistry Council. I think it was one of those groups 9 and I think I did some consulting for them. 10 Q What was that consulting about? 11 A I remember one aspect of it, anyway, that that 12 was -- that there was a group who believed in banning 13 all chlorine-containing chemicals because they were -- I 14 don't know, for whatever reason, and they asked me to, I 15 think, put together something that analyzed -- one thing 16 I remember was analyzing pharmaceuticals as to whether 17 or not pharmaceuticals that contained chlorine in their 18 chemistry were any -- I guess it was broader than that. 19 I guess all I was doing at that point with the 20 pharmaceuticals was saying, look, there's a lot of 21 pharmaceuticals that contain chlorine, and if we ban all 22 chlorine-containing chemicals, we won't have all of 23 these pharmaceuticals. And that's the one thing I 24 remember. I think there may have been some other 25 aspects of it that had to do with chlorine-containing 00131 1 chemicals in general. 2 Q Did you prepare any reports regarding this work 3 that you did? 4 A I don't recall. 5 Q Did you provide any presentations setting forth 6 your work? 7 A I don't think so. 8 Q And what was your funding for this? 9 A It was so long ago. It was a consulting 10 arrangement with Washington Occupational Health, I 11 think. 12 Q Would you estimate the funding? 13 A No. 14 Q I was asking you whether you did any consulting 15 or any other work for the Chemical Manufacturers 16 Association. Do you recall doing any work for them? 17 A I don't think I did any work for them. I think 18 they held a conference on chemical mixtures and I 19 presented a paper or a -- I just gave a talk, that's 20 what I did, at that meeting on chemical mixtures. 21 Q When was that? 22 A Probably about five years ago. 23 Q Were the proceedings of that conference 24 published? 25 A I don't think so. 00132 1 Q Do you still have your paper? 2 A No. 3 Q Do you destroy your -- do you prepare an 4 abstract or anything? 5 A No, I don't. This -- it was a paper, I think 6 it was a talk, I believe. 7 Q Had you written anything out for that talk? 8 A I don't recall. 9 Q Was that recorded? 10 A I don't know. 11 Q In that talk, did you discuss petroleum 12 hydrocarbon mixtures? 13 A This is calling for speculation on my part 14 because mostly what I was involved with mixtures was the 15 issue of dioxins, PCB's, and how that mix is analyzed, 16 so I think -- but I couldn't be certain that I was 17 probably talking about those chemicals. 18 Q That was presented, you believe, to the 19 Chemical Manufacturers Association? 20 A It was at a meeting. 21 Q Do you recall where? 22 A It was in, I think, Arlington, Virginia. 23 Q Do you recall who sponsored it? 24 A No. 25 Q Do you receive funding for that? 00133 1 A No. 2 Q Any compensation? 3 A I don't remember. 4 Q Any other work that you did for the Chemical 5 Manufacturers Association? 6 A No, not that I recall. 7 Q What about the Manufacturing Chemist 8 Association? 9 A Never heard of them. 10 Q That's the precursor. Okay. 11 What about have you done any work for the 12 Halogenated Solvents Industry or Council, whatever they 13 call themselves? 14 A No. 15 Q Have you done any work for any other chemistry 16 trade organizations? 17 A The Acryllo Nitro Group. 18 Q What did you do for them? 19 A I did research on the mechanism by which 20 Acryllo Nitro causes brain tumors in rats. 21 Q Did you present on that? 22 A I have a couple papers written on it. 23 Q So those were published? 24 A That was published. 25 Q I am sorry, which organization was this? 00134 1 A This is called the AN Group, stands for Acryllo 2 Nitro Group. 3 Q Did they review your publications before 4 publication -- did they review your papers before 5 publication? 6 A Well, like I said, this was part of the 7 American Health Foundation. We were pretty strict on 8 publishing what we find. 9 Q I understand, but -10 A Whether or not they were -- we discussed it, we 11 probably discussed it during meetings, what the findings 12 were, you know, I had a really good assistant, a good 13 sponsor at those meetings from that group, and he always 14 said, you just call it the way you see it. That was his 15 motto. 16 Q What was your funding for that? 17 A Total? 18 Q Yes. 19 A It would be -20 MS. KAHN: Don't speculate. 21 THE WITNESS: I can't remember. 22 BY MR. METZGER: 23 Q Can you give me an estimate? 24 A Long time ago. 25 MS. KAHN: Don't speculate. 00135 1 THE WITNESS: I can't, really. 2 BY MR. METZGER: 3 Q Was it more than $100,000 or less? 4 A It is more than $100,000. 5 Q More than 500,000? 6 A That, I don't know. 7 Q All right. Have you done any consulting work 8 for any other chemistry trade associations or groups? 9 A Not that I remember. 10 Q Let's talk a little about what you do do. Do 11 you currently practice medicine? 12 A Well, I am licensed. I will only practice in 13 the sense that I provide advice regarding medical 14 surveillance. The Washington Occupational Health main 15 business is doing medical surveillance programs. 16 Q What does that mean exactly? 17 A Well, a lot of it is fitness, you know, for 18 duty. It is like we had to clear all the people who 19 went to Katrina from the Army Corps of Engineers and the 20 U.S. Coast Guard and we do the same kind of thing for 21 the FBI. 22 We have five regional offices that we serve. 23 We have done it for the Secret Service, we have done it 24 for a number of government -- mostly government, but 25 some industry groups, like Chem Waste Management, their 00136 1 hazardous waste workers, I was very involved in 2 reviewing their -- some of their medical records and so 3 forth. 4 So that's the kind of medicine that I have 5 done. I don't really treat patients. We do have a 6 clinic in our office in Washington, but I am not in any 7 way actively involved in treating patients. 8 Q When is the last time when you actually treated 9 a patient? 10 A Last time I actually treated a patient was 11 probably in 19 -- whenever my Pennsylvania license 12 expired, because I worked in a pediatrics clinic in 13 Pennsylvania for a while, I think it was either '76 or 14 '78. '76. 15 Q When is the last time you examined a patient? 16 A I was involved in doing some actual hands-on 17 medical surveillance screening of people with PCB 18 exposure that ran through the part of the '90s. We 19 would do periodic examinations on people who were -- had 20 been exposed. 21 Q And what did those examinations consist of? 22 A Well, regular history and physical, feeling for 23 their liver, we were looking for specific end points. 24 The main thing that was the uncertain thing in those 25 days was whether PCB's cause liver toxicity. 00137 1 Now we know that we have done enough studies to 2 know it really doesn't in humans and so we were 3 concerned about it, especially in the '80s when this 4 first started. 5 Q At the present time -- well, you are currently 6 an employee of Washington -- what is it called? 7 A Occupational Health Associates. 8 Q Is that correct? 9 A Yes. 10 Q Is that essentially a full-time job for you? 11 A Well, I am a full-time employee, yes, I am a 12 full-time employee. 13 Q And -14 A I also teach at Columbia, which is not part of 15 that, but -16 Q Regarding this company, it provides this 17 surveillance, medical surveillance service that you have 18 described; correct? 19 A Yes. 20 Q Does it do anything else? 21 A Well, we do -- we serve as, for example, giving 22 companies corporate medical advice regarding overall 23 employee health and safety programs. We have provided 24 employee information regarding hazards in the 25 workplace. And we have done a fair amount of work for 00138 1 some pipeline companies. I have done a lot of risk 2 assessment work, which I think I discussed, regarding 3 the preventing of -- permitting of power plants, but I 4 also do work on superfund sites. 5 I am involved in one right now at the 6 Wilmington rail yard, Amtrak facility. And that has to 7 do with coming up with cleanup of the various 8 contaminants around the site, and we do, like here, we 9 do litigation consulting and litigation support work and 10 expert testimony. 11 Q Anything else? 12 A Well, there is a pretty wide range of 13 occupational health stuff that the company does, but -14 Q All right. The occupational health screening, 15 apart from the governmental work which you described, do 16 you do that also for companies? 17 A Yes. 18 Q And approximately how many companies do you do 19 that for? 20 A You know, I am involved in that to a certain 21 extent from the toxicology standpoint and from providing 22 certain guidance regarding design of stuff, but I am 23 really not in touch with the clients and hands-on that 24 much with that part of the organization. 25 Q Are the clients major corporations? 00139 1 A Most of ours are -- actually, most of it is 2 government. 3 Q Are there corporate clients for whom that 4 service is provided? 5 A There are, but I wouldn't be able to tell you 6 which ones are active right now. 7 Q Does -8 A I am sorry, like Buckeye Pipeline, I know is 9 one, and like I said, we don't do any work for Chemical 10 Waste Management. In fact, it doesn't even exist under 11 that name anymore, I don't think. I know we are doing 12 some work, I think, for P & G. 13 Q What is P & G? 14 A Procter & Gamble. 15 Q Regarding what? 16 A I think it has to do with a bladder cancer 17 screening program that they have going on. 18 Q Is there a suspect agent for that? 19 A Not that I am aware. 20 Q Have you done any occupational health screening 21 for any oil companies or has WOLA? I call it that. 22 A WOLA, that's good. I don't think so, not that 23 I recall. 24 Q For any chemical companies? 25 A Well, I was involved with putting together a 00140 1 medical surveillance program for, I think, Occidental 2 Chemical related to vinyl chloride exposures and having 3 to deal with when people should go in and out of the 4 work force based upon certain findings of liver enzymes 5 and so on and so forth. 6 Q Any other chemical companies that you have done 7 surveillance programs for or WOLA has? 8 A Well, in the past, of course, we have done it, 9 like not chemical companies, but for the railroad -10 some railroad workers, Amtrak, SPTA workers, that's all 11 that I remember. 12 Q Has WOLA ever done any medical surveillance for 13 beryllium workers or have you? 14 A Not that I recall. I was asked a question by 15 one of the employees at WOLA recently that made me think 16 maybe there was some kind of an RFP out there, but as 17 far as I know, we are not doing anything right now. 18 Q What's an "RFP"? 19 A Request for proposal. 20 Q Okay. What types of companies does WOLA or you 21 provide medical advice for that -22 A I am, like I say, I am there -- we have to 23 defer to the president. 24 Q Who is that? 25 A Ken Chase, Washington office labor division. 00141 1 Q What company -- you said also that you provide 2 employees hazard information. Do you do that for 3 chemical companies? 4 A Well, I can just tell you what I have been 5 involved in. For example, I did a video regarding 6 hazards of diesel exhaust that had to do with Penn 7 Station and that was one. I reviewed -- and MSDS's for 8 the Drug Enforcement Administration when they were 9 putting together their program to dismantle clandestine 10 labs. 11 Now, they go into these places and there are 12 all these things sitting around, and I have reviewed 13 MSDS's, I remember, for the Los Angeles Department of 14 Water and Power back in -- when the first hazard 15 communication standard came out to see whether or not 16 they were adequate. And we actually designed some 17 MSDS's for them. 18 This is -- this was -- I think it was even 19 before the communication standard actually came out, in 20 the early to mid-'80s. Those are the ones that I 21 remember. I talked to some people at a slag grinding 22 facility about hazards related to particulates in the 23 air in Camden, New Jersey, in this facility whether or 24 not there were any health effects from that. 25 Q Okay. First of all, is all this work that you 00142 1 just described, work that you have done on behalf of 2 companies, corporations? 3 MS. KAHN: As opposed to the government or the 4 Department of Water and Power, the other entities that 5 he identified? 6 BY MR. METZGER: 7 Q I think you had mentioned the Department of 8 Water and Power. Other than that, was it done for 9 corporations? 10 A Or the government. 11 Q Okay. 12 A Right. 13 Q You mentioned that you reviewed MSDS's for Drug 14 Enforcement Agency, when they would send people into any 15 kind of lab, not meth labs? 16 A They are more meth labs. 17 Q They are mostly meth labs? 18 A Well, I don't know, this is a fair time ago, 19 but probably they were meth labs. 20 Q And were any of those Material Safety Data 21 Sheets that you reviewed and worked on Material Safety 22 Data Sheets for solvents used in meth labs? 23 A Now, this is going back 15 years probably so I 24 really don't remember even what any of the MSDS's were. 25 Q Has WOLA or you ever done any work for the EPA? 00143 1 A I have consulted for the EPA, particularly 2 about Tom's River, Tom's River problem, possibly a 3 cancer cluster there. 4 Q Was the EPA a defendant in that case? 5 A No, I served on an expert panel for them. 6 Q What was their involvement with that case? 7 A There was a -- the EPA and the NTP together 8 were designing an annual testing program to look into 9 one of the chemicals that was found in the drinking 10 water, and I was asked to serve on this panel because I 11 know something about annual testing, and we provided 12 input in terms of the design of those animal tests. 13 Q What was the chemical you were talking about? 14 A It is a combination of acryllo SAN, acryllo 15 styrene, acryllo something or other, and this is, again, 16 a while ago, but it was a by-product of some kind of 17 chemical manufacturing facility that was there and they 18 had been able to analyze, for most of the chemicals that 19 were in the drinking water, and most of them had already 20 had like NTP studies done about them or there was animal 21 toxicity. 22 But this one point seemed to be unique to this 23 situation, so there was a lot of political pressure to 24 put together a testing program rapidly. 25 Q Have you done any other work for the EPA? 00144 1 A Not that I recall. 2 Q Have you done any work for OSHA? 3 A No. 4 Q Or NIOSH? 5 A No. 6 Q All right. Do you have any employment income 7 other than your work for WOLA? 8 MS. KAHN: Or Columbia where he teaches? 9 THE WITNESS: Yes, it is just WOLA. I 10 volunteer my time at Columbia. 11 BY MR. METZGER: 12 Q And regarding that, how often do you teach at 13 Columbia? 14 A Once a week. 15 Q And what is the -- is that a course that you 16 teach or what? 17 A Yes. 18 Q What is the course? 19 A Fundamentals of toxicology. 20 Q How long have you been doing that? 21 A Three years. 22 Q Do you receive any compensation at all from 23 Columbia? 24 A No. 25 MS. KAHN: You need to verbally -00145 1 THE WITNESS: I am sorry, no. 2 BY MR. METZGER: 3 Q Do you have a syllabus for your course that you 4 teach or written materials that you prepare for the 5 course? 6 A I have a presentation, yes, that I give. 7 Q Handouts that the students are given? 8 A Yes. 9 Q How long have you been doing that, how long? 10 A Three years. 11 Q Is it the same handout each year or is it 12 different? 13 A It changes, and I have guest lecturers, some -14 or some of the lecturers, so some are not my handouts, 15 there are other people's handouts. 16 Q All right. Regarding your employment income 17 from WOLA -- or let me strike that. 18 Regarding WOLA, what percentage of WOLA's 19 income is from litigation support and consulting? 20 MS. KAHN: WOLA as opposed to Dr. Whysner's 21 income? 22 MR. METZGER: That's what I asked. 23 MS. KAHN: Calls for speculation. 24 MR. METZGER: Go ahead. 25 THE WITNESS: I don't know for sure, but I 00146 1 would say it is -2 MS. KAHN: Don't speculate, if you don't know. 3 BY MR. METZGER: 4 Q Can you estimate? 5 A I would guess it would be -- well -6 MS. KAHN: Don't guess. 7 THE WITNESS: I would say probably be somewhere 8 between 15 and 25 percent. 9 BY MR. METZGER: 10 Q And what percentage of your income is from 11 litigation support and consulting? 12 A Well, that's hard to exactly put together, 13 because like I say, I am paid as an employee and I have 14 a lot of activities for WOLA, so it would be hard to say 15 exactly, but I would say probably about 50 percent, may 16 be a little bit more. 17 Q Just I want to make sure I heard you correct. 18 Was that 5-0 as opposed to 15? 19 A Yes. 20 Q Regarding your income from litigation support 21 and consulting, does any of that income derive from 22 consulting for individuals as opposed to companies or 23 government? 24 A I don't know. 25 Q Can you think of any? 00147 1 A Well, I don't know what they do at the office 2 in terms of where the income actually comes from. I am 3 involved in certain activities, general activities for 4 the office and that, I don't have a good handle on. 5 Q Can you recall ever consulting or doing any 6 litigation work on behalf of a worker or person claiming 7 to have been injured? 8 A Well, I haven't, but I know the company has 9 done that. 10 Q Have you prepared any billing for your work in 11 this case? 12 A Well -13 MS. KAHN: Washington Occupational Health is 14 the one that bills us. They have sent bills and they 15 were included in the file that was produced. I don't 16 know if Dr. Whysner has actually seen those or not, 17 since they come from his employer, things like that, 18 rather than him personally. 19 THE WITNESS: I haven't seen them. 20 BY MR. METZGER: 21 Q Before bills are sent out, do you review the 22 bills for your work? 23 A Yes. 24 Q So did you review these bills? 25 A I probably did at the time they came out. 00148 1 MS. KAHN: Happy to pull them out of the box, 2 if that would help. 3 MR. METZGER: If you could, thank you. 4 MS. KAHN: One of my concerns about going 5 through this list was proven out when we tried to find 6 the articles. 7 MR. METZGER: While you are doing that, can we 8 go through the list? 9 MS. KAHN: The Zhang 2003 article marked as 10 Plaintiff's Exhibit No. 16819 on Whysner 5616 turns out 11 not to be an article at all, it is an abstract of a 12 paper presentation that was given, and we don't find any 13 record in our file of a corresponding publication. This 14 abstract -15 MR. METZGER: Ms. Kahn, is this an objection? 16 MS. KAHN: -- was on Dr. Infante's C.V. I am 17 explaining to you that the articles we -18 MR. METZGER: Please, I just want to ask him 19 some questions. 20 MS. KAHN: -- may or may not correspond to the 21 articles you have in mind, so this is Zhang 16819. 22 MR. METZGER: Fine. Let me just ask you -23 MS. KAHN: It is not a study at all. 24 MR. METZGER: Whatever it is, I think we could 25 agree that's an abstract. 00149 1 Q Is that what you would call this, Dr. Whysner? 2 A But -- okay. 3 Q Yes? 4 A Yes. 5 Q And can you tell me, before that was just 6 handed to you, have you ever read that? 7 A This particular abstract? 8 Q Yes. 9 A I don't remember. I went to some of the ACR 10 meetings and I had the book and may have even -- I 11 assume this is probably a poster presentation, but I 12 don't know whether that's the case or not. I may or may 13 not have seen it, I don't know. 14 Q As you sit here today, you don't have a 15 recollection of having read that before today; is that 16 fair? 17 A Well, the problem, Martin Smith has published a 18 lot of stuff and some of it is very similar to some of 19 the other things that he's published, and so I don't 20 know if I have. I can't recall if I have seen this or 21 another paper where he studied the same kinds of 22 things. I don't know. 23 MS. KAHN: Now, the other thing you wanted me 24 to look for was Xu 2000, which wasn't included on 25 Dr. Infante's CD. There is a handwritten note on 00150 1 Whysner 5616. The closest thing we could find from 2002 2 is by Qu, Q-u, not Zu, Z-u. 3 MR. METZGER: That's not a study -- there is a 4 study by an X-u, which was translated from Chinese and 5 was produced by doctor -- actually, by Dr. Harrison at 6 his deposition, I think. 7 MS. KAHN: Let me go back, then, at Harrison 8 because we did send the Harrison transcripts and 9 exhibits to Dr. Whysner, so that's where it is, if he 10 had definitely seen it. 11 MR. METZGER: Okay. We'll find out. 12 THE WITNESS: Was that -- was just the abstract 13 included or was the whole Chinese article included? 14 BY MR. METZGER: 15 Q There was a complete translation of the 16 article. 17 A But the original Chinese article, because 18 what -- I want to see the original Chinese article 19 because I will tell you why this is important, because 20 this article came up once before in another case and it 21 had to do with CLL, I believe, or CML, one of the two, 22 and it turned out that the -- I looked for the tables, 23 the corresponding tables, and they were not what I 24 remembered from that original paper. 25 Q We'll see if we have the original Chinese. I 00151 1 think we do. Okay. Now I lost my train of thought. 2 This was a side venture from what we were talking 3 about. 4 MS. KAHN: Dr. Whysner, do you need a break 5 while Mr. Metzger is looking for his paper? 6 THE WITNESS: Why not. 7 (Recess taken.) 8 BY MR. METZGER: 9 Q I would like you to take a look at your 10 curriculum vitae. Page 3. You give some summaries of 11 your work in toxicology and risk assessment; correct? 12 A Yes. 13 Q Regarding the laboratory research regarding 14 PCB's. For whom did you do that? 15 A One of the studies was done for 16 Hoffmann-La Roche, the pharmaceutical company. They 17 were -- we did a study that studied not only PCB's, but 18 phenobarbital and coridane (ph.) because these were all 19 chemicals that produced mouse liver tumors. 20 That was the P32 post labeling study. And I 21 also did some work for General Electric that had to do 22 with trying to find out the mechanism by which PCB's 23 caused liver tumors in rats. 24 Q How much were you paid for your work for 25 Hoffmann-La Roche? 00152 1 A Well, I think American Health Foundation, and 2 that's -- I can't even speculate on that. I know it was 3 less than $100,000, but that was one of the very first 4 projects I had when I was there. 5 Q How much was your funding from General 6 Electric? 7 A I don't recall at all for that one. As a 8 matter of fact, I think my boss, Gary Williams, was the 9 one that actually negotiated that work. 10 Q Do you have any estimate you could give me? 11 A No. 12 Q You also mentioned here oxidated DNA damage and 13 benzene-induced leukemia. I assume that was for the 14 API, which we already discussed; is that true? 15 A Where is that? 16 Q Third line. I shouldn't make that assumption. 17 A Well, oxidated DNA damage is one of the things 18 that we considered in terms of the -- one of the 19 mechanisms for the genotoxicity. 20 Q Is what you have written here, oxidated DNA 21 damage and benzene-induced leukemia, part of that 22 project that you did for the API? 23 A You know, there must be -- I mean, I -24 actually, it is interesting you point this out because 25 on reviewing it, some lines must have changed because 00153 1 actually the oxidated DNA damage that I worked on had to 2 do with the chlorine nitro-induced brain tumors in 3 rodents, and those are published studies, but I didn't 4 do any laboratory research. 5 This is a mistake. I didn't do any laboratory 6 research on oxidative DNA damage and benzene-induced 7 leukemia. Oh, okay. Well, if you interpret -- let's 8 put it this way. It is correct if you don't include 9 oxidative DNA damage with benzene-induced leukemia 10 because that was the DNA binding studies that I 11 mentioned. That's what confused me. 12 So I have done work on oxidative DNA damage and 13 I have done work on benzene-induced leukemia in the 14 sense of those DNA bindings studies that I mentioned to 15 you. 16 Q This is what you did for the EPA? 17 A Correct. 18 Q We already talked about it? 19 A Yes. 20 Q Now, when you were a consultant to IARC for 21 these monographs, is it true that IARC has some 22 independent consultants and some industry affiliated 23 consultants on these panels? 24 A The industry representatives are limited to 25 one. 00154 1 Q Were you ever the industry representative on 2 any of these panels? 3 A No. 4 Q For whom did you do the site specific risk 5 assessments involving oil and sediment remediation? 6 A Well, the main one was the Paoli rail yard. 7 Q We discussed that. The others, who were the 8 companies? 9 A All -- I am doing one right now for Amtrak. We 10 have done a lot of -- well, that's not remediation, but 11 we did -- we designed some of the original cleanup 12 standards for power companies for their PCB's. 13 Q Now, under Health Effects of Air Pollutants, 14 for whom did you do work regarding sulfur dioxide? 15 A Well, as I mentioned, during these hearings for 16 permitting power plants, that would have been that one. 17 Q What about particulates? 18 A Same. 19 Q Nitrogen oxides? 20 A Yes. 21 Q Sulfuric acid mist? 22 A Same. 23 Q Carbon monoxide? 24 A Well, that would have been the same, but I have 25 also done -- do you remember I talked to you about that 00155 1 video I did for Penn Station, carbon monoxide was a big 2 problem in Penn Station. 3 Q Incidentally, have you done any other 4 videotapes of hazards? 5 A I think that was the only one. 6 Q What about lead? 7 A Lead, this was -- most of my work in lead was 8 done when I was -- this is in the '70s when I had my own 9 company and I -- we did all government contract work, so 10 the lead work was done for Health and Human Services, 11 HUD, National Bureau of Standards. 12 Q What was that company you are referring to? 13 A Medical Research Applications. 14 Q What about beryllium? 15 A Beryllium, I analyzed all the Brush Wellman 16 cases, CBD cases. 17 Q You did that for Brush Wellman? 18 A Yes. 19 Q Fluorine? 20 A Fluorine was also part of the power plants. 21 Q Mercury? 22 A Same. 23 Q Antimony? 24 A Yes. 25 Q Arsenic? 00156 1 A Yes. This whole list is all things we 2 analyzed. This whole list going down is only regarding 3 power plants. 4 Q All the rest of it? 5 A Yes. 6 Q For petroleum products, you have risk 7 assessment, medical evaluation, worker protection 8 evaluation for petroleum-derived solvents and oils. For 9 whom did you do that work? 10 A Well, I did some work for General Electric 11 related to especially oils because they were -- when 12 PCB's got banned, they had to retrofit all their 13 capacitors with oils, mineral oils. And so I did an 14 analysis of the question of whether or not mineral oils 15 could cause cancer for them. 16 Q Was that published? 17 A No. 18 Q What was your conclusion? 19 A Well, some of the older mineral oils had been 20 shown to cause skin tumors in animals. There was 21 nothing in humans indicated that there were human 22 carcinogens. The mineral oils that were refined didn't 23 cause skin tumors. 24 So in terms of, again, if you rely upon the 25 animal studies and you want to please regulatory 00157 1 agencies when you are retrofitting transformers, you 2 want to make sure you are using an oil that is negative 3 in the animal studies. 4 MR. METZGER: Could we have those exhibits, 5 Ruth. 6 Next is what -- so we'll mark, as Exhibit 6, 7 the bills for this case. 8 (Plaintiff's Exhibit 6 was marked for 9 identification by the court reporter.) 10 BY MR. METZGER: 11 Q And are these the bills which WOLA generated 12 for your work in this case? 13 A Yes, they appear to be. 14 Q And how much work have you done that's not 15 reflected in those bills? 16 A Let's see, these go through March and we are in 17 the middle of May. 18 Q If you could estimate for me the number of 19 hours that you put, since that's not included in these 20 bills. 21 MS. KAHN: Including time today in the 22 deposition? 23 BY MR. METZGER: 24 Q Well, let's say up until the deposition, 25 beginning today. 00158 1 A Including coming here and -2 Q Sure. 3 A Because I don't think I worked much in -- was 4 March included in here? Yes. Oh, boy, you know -5 MS. KAHN: If you can estimate, fine. Don't 6 speculate. 7 THE WITNESS: I can't tell you. I can tell you 8 it is probably more than 20 hours, but beyond that, I 9 can't tell you. 10 MR. METZGER: I am going to attach the other 11 three -- well, I am going to attach the Zhang abstract, 12 which we discussed, previously identified as Plaintiff's 13 Exhibit 16819. I guess we should mark these as exhibits 14 to be consistent, so that will be Exhibit 7, and your 15 abstract or summary presented in Ottawa will be 16 Exhibit 8. 17 (Plaintiff's Exhibits 7-8 were marked for 18 identification by the court reporter.) 19 MR. METZGER: And then your publication of what 20 you did present in Ottawa, previously identified as 21 Plaintiff's Exhibit 8738, will be Exhibit 9. 22 (Plaintiff's Exhibit 9 was marked for 23 identification by the court reporter.) 24 THE WITNESS: Just out of curiosity, where -25 were these here? Where was -- where did that become an 00159 1 exhibit? 2 BY MR. METZGER: 3 Q Those are just my office's reference numbers. 4 A I see, okay. 5 Q It was not for trial or anything, I don't 6 think. 7 Dr. Whysner, have you now told me all of your 8 opinions for this case? 9 A Well, I have -- well, not really. I have got a 10 lot of subopinions to those major opinions that we 11 discussed, and those are included in this box of these 12 that I was prepared to talk about them in relationship 13 to these references that I have here. 14 Q I don't want to go through every article with 15 you, but let me ask you, what subopinions are you 16 referring to? 17 A Okay. Well, first of all, we talked about the 18 issue of all these different kind of solvents and I 19 don't know if you know, but the fact that gasoline has 20 not been classified as a human carcinogen, and I was -21 For example, the ATSDR says, therefore, there 22 is no conclusive evidence to support or refute the 23 carcinogenic effect of gasoline in humans or animals 24 based on the carcinogenicity of one of its components, 25 benzene. Now, this brings up an interesting -00160 1 Q Let me see what you are reading from. 2 Toxicological profile for gasoline of ATSDR from 1995; 3 correct? 4 A Correct. So one of my opinions has to do with 5 the fact that when benzene is part of a mixture of 6 exposures, especially in the form of a mixed solvent, 7 that it doesn't necessarily follow that the benzene 8 makes that mixture carcinogenic. And there are a number 9 of papers that I have in this file that really have -10 that have to do with explaining how other chemicals 11 actually inhibit the genotoxicity of benzene. 12 So -- and its metabolisms to the metabolites 13 that are believed to be those that are produced that are 14 capable of producing AML. So in this folder, for 15 example, I have a number of studies which, if you want 16 me to identify them, I will. 17 Q Well, let me just see what we are looking at 18 here. 19 A This includes more than this stuff, but there 20 are studies in here by Gad-El-Karim, Tunek, Tice, a 21 number of authors to make the point that this actually 22 has to do with sort of a chemical mixture point. I 23 think it would be better if I went through the file and 24 pointed out which ones they were. 25 Q Let me ask -- just ask you, have you studied 00161 1 all the literature on this topic? 2 A Yes, I think so. 3 Q Isn't it true that the competitive inhibition 4 of benzene toxicity from other organic solvents is a 5 phenomenon which does not occur at doses to which 6 workers are exposed, it only occurs at much higher 7 levels? 8 A I think there is a workers exposed study there 9 and I could find it for you. 10 Q Do you know the answer to my question? Do you 11 want to look at that study to answer it? 12 A This is the study by Forni, that is chromosomal 13 studies of workers exposed to benzene or toluene or 14 both. 15 Q Does that study address toluene inhibiting of 16 benzene toxicity? 17 A What it says is that -- it says 10 of the 18 workers were exposed to benzene before 1953 and then to 19 toluene and 24 have been exposed to toluene after 1953. 20 There were portions of unstable and stable chromosomal 21 aberrations that were statistically higher in the 22 benzene group compared with the controls in -- the 23 benzene group in comparison with the toluene group. 24 Q Okay. Isn't it true that you would expect that 25 because benzene causes hematotoxicity and leukemia, 00162 1 whereas toluene doesn't; true? 2 A But -- well, I think this is comparing people 3 that were exposed to both benzene and then to toluene. 4 Q I understand, but does this study, in your 5 opinion, in any way, provide scientific support for the 6 notion that toluene inhibits benzene toxicity? 7 A I believe it does. 8 Q There is nothing in that article that says that 9 at all, does it, they don't even speak with inhibition 10 to benzene toxicity by toluene. Does Dr. Forni? 11 A Well, I have to read it back through again to 12 be sure, but I thought that it did, and there are other 13 articles in here that certainly talk about other types 14 of studies where these benzene and xylene and toluene do 15 inhibit the genotoxicity and metabolism. 16 Q That's well-established; is it not? 17 A Yes. 18 Q But does -- do you have any studies which show 19 that that is a phenomenon which occurs at doses relevant 20 to occupational exposures as opposed to high doses given 21 to experimental animals? 22 A Well, I don't have any other studies here. 23 Q So what other subopinions do you have? 24 MS. KAHN: I think the witness was going to say 25 something and you cut him off. 00163 1 MR. METZGER: I thought you finished. 2 THE WITNESS: That's okay. 3 MS. KAHN: Are you sure? 4 THE WITNESS: Yes. 5 BY MR. METZGER: 6 Q What other subopinions do you have? 7 A Well, this goes, again, to the issue of 8 solvents and solvent exposures or so-called solvent 9 exposures, and that has to do with, for example -- and 10 this is an example of the types of things that happened 11 and solvent studies. 12 I could go through all of these and show you 13 these kinds of problems with the study but, for example, 14 Hardell, 1981, everybody quotes about solvent exposures 15 and relationship to Non-Hodgkins lymphoma, and what they 16 actually say is that organic solvents analysis of high 17 grade and low grade exposure towards organic solvents 18 produce a relative risk of 2.8 and 1.2 respectively, 19 table 5. 20 Of the subjects with high grade exposure, seven 21 cases and three controls were exposed to 22 trichloroethylene, one case and five controls to 23 styrene, one case to perchloroethylene, and one to 24 benzene. 25 Again, I think this is one of the papers that 00164 1 your plaintiff's experts quoted as supporting their 2 opinion regarding that. And I think that that type of 3 error is pervasive through their whole analysis. 4 Q What type of error are you referring to? 5 A The fact that they are not taking into account 6 that the solvents that they are talking about and the 7 studies that they are referring to are necessarily in 8 any way possibly related to even the alleged exposures 9 that Mr. Remboldt had. 10 Q Isn't it true that in many of the studies, 11 multiple regression analysis and other analyses are used 12 to separately evaluate different solvents? 13 A But they haven't done that, they have not gone 14 through systematically and shown that the types of 15 solvents that are alleged to be -- that his exposures 16 are alleged to be are the ones that they are actually 17 talking about in their evaluation. 18 Q You say they haven't done that. Do you mean 19 they weren't asked to do that at the deposition? 20 A No, I am saying that their analysis, when they 21 form an opinion, that these are the studies that support 22 my belief or my opinion that solvent exposures involved 23 in this case could have resulted in the Non-Hodgkins 24 lymphoma that we are talking about. 25 I think that if you look at those studies, a 00165 1 lot of them have absolutely no bearing, no possible 2 bearing, and I don't think that they have done the job 3 of trying to sort out which of those studies could they 4 use or which of them they couldn't use. 5 I mean, there is a whole literature that I have 6 here on chlorinated solvents and Non-Hodgkins lymphoma 7 and, you know, and trichloroethylene, especially the 8 people have been looking at and in a lot of these 9 studies, it makes no distinction in terms of which types 10 of solvents that they are actually looking at, so that's 11 one of my criticisms. 12 Q Before we get to criticisms of the plaintiff's 13 experts, I want to be sure that I have all of your 14 subopinions for your opinions. Okay. For example, you 15 just raised the issue of competitive inhibition of 16 benzene toxicity from other organic solvents. Are there 17 any other subopinions that you have that you have not 18 yet told me about, apart from criticisms of the 19 plaintiff's experts? 20 A Well, another -- I don't know if this is a -- I 21 am trying to explain why I would use certain studies and 22 why I would not use other studies in terms of my 23 analysis. Even though on the face of it some people 24 would say, well, these are studies about solvents or 25 even about petroleum solvents, one of these has to do 00166 1 with the rubber workers studies, and I have an article 2 here by Arp, A-R-P, and -3 Q Let me just cut to the chase. Is your concern 4 confounding here or something else? 5 A My concern is the fact that the studies, the 6 rubber workers, were based upon solvents including 7 benzene. They were cold tar derived rather than 8 petroleum-based, and what this article is talking about, 9 although it is not talking about -- specifically about 10 Non-Hodgkins lymphoma, it is pointing out the fact that 11 a lot of these studies, when you look at the risk 12 estimates in this case, they are primarily looking at 13 CLL. 14 But in any event, they found a big difference 15 between whether or not one was looking at 16 petroleum-based solvents or cold tar-based solvents, and 17 I am just trying to point out that that is the reason 18 that I didn't think that the rubber worker studies were 19 relevant to this particular situation. 20 Q All right. What other subopinions do you have? 21 A I want to make the point that there is a whole 22 group of studies in my file that the minority of which 23 show any kind of an association between certain -- a 24 particular kind of solvent exposure and Non-Hodgkins 25 lymphoma, but the vast majority of the studies in this 00167 1 file don't show that association. 2 Q Are all the studies you are referring to listed 3 on your literature list? 4 A Yes. 5 Q What other subopinions do you have? 6 A There are a number of cohort studies of benzene 7 that include Non-Hodgkins lymphoma, and one of my 8 opinions about the only positive study, which is the 9 Hayes study, has to do with their own comment that was 10 published in year 2000 which states that -- it says, 11 this strongly suggests that the observed increased risk 12 for these -- talking about ANLL and MDS -- this strongly 13 suggests that the observed increase in risk for these 14 conditions are due to the common exposure to benzene. 15 We noted, however, that an excess of NHL was 16 found in our study could especially be attributed to 17 exposures, as the excesses were (inaudible) in the 18 subset of benzene exposed chemical workers; in other 19 words, the study that has been talked about a lot as 20 being positive for Non-Hodgkins lymphoma. 21 Their own authors are saying that if you look 22 at the different industries that were analyzed, there is 23 a big difference between them, and benzene is common to 24 all of them and -- whereas, acute myelogenous leukemia 25 is consistent across those various occupations, 00168 1 Non-Hodgkins lymphoma is not, which makes them think 2 that it is a possibility that there is some other 3 chemical involved or other exposure. 4 Q Namely solvents, that's what they are 5 suggesting; right? 6 A They don't say solvents. 7 Q All right. 8 A And then, again, you have all the studies. The 9 Rinsky study, of course, doesn't show any relationship 10 to Non-Hodgkins lymphoma with benzene exposure. 11 Q Let me ask you about that. Were there any 12 Non-Hodgkins lymphoma in the Pliofilm cohort? 13 A There were five and there were 5.19 expected. 14 Q Isn't it true that the five that you mentioned 15 did not found out of the Non-Hodgkins lymphoma in the 16 Pliofilm cohort? 17 A What do you mean? 18 Q That there were other cases that were not 19 included in that number; isn't that true? 20 MS. KAHN: Objection, lacking foundation. 21 THE WITNESS: If you can show me some 22 document. 23 BY MR. METZGER: 24 Q Would you consider a publication in the Federal 25 Register to be indicating that there was at least one 00169 1 more case that was not included there to be such a 2 document? 3 MS. KAHN: Objection, lacks foundation. 4 THE WITNESS: If you could show me the 5 document, I could comment on it. 6 MR. METZGER: I will show it to you at trial. 7 Go ahead. 8 Q What else? 9 A Well, you want me to list the individual 10 studies of the cohort studies or -11 Q I gather you are giving me criticism. Let's go 12 ahead, since we are on this track. 13 A Okay. One is by Bloemen, B-l-o-e-m-e-n. These 14 are just the cohort studies, and they did not find an 15 increase in Non-Hodgkins lymphoma, SMR 1.06 for benzene 16 exposed chemical workers. 17 Collins, and that's from 2003, and they did not 18 find an increased risk compared to their no exposure 19 group. We talked about Costantini. 20 Decoufoe -21 MS. KAHN: Can you spell that for the court 22 reporter, please. 23 THE WITNESS: D-e-c-o-u-f-o-e. It is a small 24 study, but they didn't report any Non-Hodgkins 25 lymphomas. We talked about the Hayes study. And the 00170 1 Hayes study that commented on the first Hayes study. 2 The Rinsky study was, of course, started by Dr. Infante 3 and this is the first update. 4 Lynge, Risk of Cancer and Exposure to Gasoline 5 Vapors, is male service station workers. The 6 Non-Hodgkins lymphoma was not increased, there was 1.1. 7 There is the Rinsky 87 which shows the dose response 8 relationship. This is the 2002 Rinsky study. 9 Sorahan is from 2004, and for them, the 10 Non-Hodgkins lymphoma was an SMR of .93, they call it 11 94. S-o-r-a-h-a-n. Wong, this is from 1986, and they 12 found an SMR for lymphosarcoma and articular sarcoma of 13 .9. Lymphosarcoma. And then Wong from 1995 -- I am 14 sorry, this is a re-analysis of the dose response 15 issue. 16 Q Have you now gone through all the cohort 17 studies in your file here? 18 A For benzene. 19 Q Are those all of the cohort studies that you 20 have reviewed regarding benzene and Non-Hodgkins 21 lymphoma? 22 A Yes. 23 Q Isn't it true that if you look at the studies 24 of the United States refinery workers with the different 25 oil companies, that most of those studies do show 00171 1 increased risk for Non-Hodgkins lymphoma? 2 A Well, I can go through them. I don't think 3 they do. 4 Q If you have a file specifically for refinery 5 studies? 6 A Yes. 7 Q Does that include the unpublished refinery 8 studies which the industry suppressed because they had 9 positive results? 10 MS. KAHN: Objection, argumentative, lacking in 11 foundation, vague and ambiguous. 12 THE WITNESS: If you could show me those 13 studies, I would be able to comment. 14 BY MR. METZGER: 15 Q Let me just ask you, within this folder, do you 16 have any unpublished studies or are they all 17 publications that you reviewed here, that you have read 18 here? 19 A Well, there is a study by Delzell in 1992 which 20 is unpublished. There is the Australian Health Watch, 21 2005. Pastergol (ph.), a refinery mortality study. 22 Tsai 1991. 23 MS. KAHN: That's a study by Shell Oil refinery 24 workers. 25 THE WITNESS: Yes. Second copy of the same 00172 1 study. A study that was done -- I think this was the 2 Ottawa study that became a publication on the Richmond 3 and El Segundo refineries. A study by Chevron 4 Corporation, Dagg, D-a-g-g, Richmond and El Segundo 5 refineries. And another Dagg study -- I am sorry, 6 that's a published study. 7 So in answer to your question about whether or 8 not there are increases, I mean, certainly Otto Wong 9 came up with a .99 for their overall analysis of 10 Non-Hodgkins lymphoma and -11 BY MR. METZGER: 12 Q You are referring to his meta-analysis? 13 A That's right, .99. 14 Q By the way, have you read the criticisms of 15 that study? 16 A I don't recall. 17 Q I am not going to ask you to go through these 18 studies because they all have the tables which give the 19 data. 20 A Yes. 21 Q You don't need to read that to me. I can read 22 that. I have read it. So what other subopinions do you 23 have? 24 MS. KAHN: It is certainly your prerogative to 25 not have him go into these individual studies. I will 00173 1 tell you the studies for the basis for his opinions. 2 MR. METZGER: Absolutely, he can talk about 3 them at trial. I have no doubt about that. 4 THE WITNESS: Okay. We are -- we already 5 talked about my opinions about the Rigo review. There 6 are a lot of studies in here when you actually look at 7 the individual studies, and I don't think that 8 Dr. Harrison actually went and looked at the individual 9 studies this review was based upon. 10 BY MR. METZGER: 11 Q Do you think he lied when he said he did? 12 A Did he say he looked at the individual 13 studies? 14 Q He said he read them all. 15 A Read them all. Then he should have known a lot 16 of them don't even support their own conclusions, I 17 mean -18 Q Well, the studies speak for themselves. I am 19 asking you for your subopinions. 20 MS. KAHN: I think that's what he is trying to 21 give you. One of the subopinions, as I understand it, 22 is many of the studies on which plaintiff's experts rely 23 don't support their opinions. That's his opinion. 24 MR. METZGER: Okay. I could consider that 25 criticisms of plaintiff's experts. First, I want to 00174 1 find his opinions and then I will get to the 2 criticisms. That was my game plan here. 3 Q For example, your opinion that you told me 4 about competitive inhibition is something which came up 5 and we discussed that which was not a criticism of 6 plaintiff's experts because they didn't talk about 7 that. Are there any other subopinions that you have 8 other than criticisms of plaintiff's experts? 9 A Well, I think it is -- well, my general opinion 10 is that I think it is generally accepted that any 11 chemical exposure has not been related to Non-Hodgkins 12 lymphoma. And that's true if you look at web sites, for 13 example, from Johns Hopkins Medical School, which I 14 have. 15 Q Do you consider -16 A Mayo Clinic. 17 Q Do you consider these one-page things on the 18 Internet from these different schools to be 19 authoritative? 20 A Well, the only reason I did it was because 21 Wabeke included this one in his exhibits and so -- and, 22 actually, this one says that reasons are not known 23 except for radiation could possibly, in conjunction with 24 chemotherapy, so I figured if he was going to put that 25 in the record, that I might, as well. 00175 1 Q Any other subopinions that you have? 2 A Some. We talk about butoxyethanol, since 3 Dr. Infante was mistaken about the bone marrow toxicity 4 issue. 5 Q Well, I understood that that's a criticism you 6 have of him, but I don't need to talk about that. Let's 7 go on. 8 MS. KAHN: I think it may be a matter of 9 opinion whether or not it is a criticism or not. Is the 10 glass half full or the glass half empty. If it is 11 Dr. Whysner's opinions that butoxyethanol does not cause 12 a particular adverse health effect, some might say 13 that's an affirmative opinion. Others might say that's 14 a criticism of another witness's testimony, so -15 MR. METZGER: In any event, I don't need to 16 hear anything about butoxyethanol. 17 MS. KAHN: Fair enough. Butadiene, do you want 18 to hear anything about that? 19 MR. METZGER: I want to hear his subopinions, 20 that's what I am asking for. 21 Q Have you told me now all your subopinions? 22 A I think so. Well, we mentioned the fact that a 23 lot of these solvents, the xylene, toluene, have been 24 evaluated by governmental agencies and not classified as 25 carcinogens. Benzene has been based upon its finding of 00176 1 acute myelogenous in leukemia, but it has not been found 2 to be a carcinogen, and gasoline is not considered to be 3 a carcinogen by IARC. 4 It has not been listed. None of these other 5 solvents have been listed by the National -- NPT as 6 being carcinogens. And so I don't think that they can 7 be considered human carcinogens. 8 Q Any other subopinions? 9 MS. KAHN: Is one of your subopinions that 10 crude oil is not a human carcinogen? 11 THE WITNESS: Yes, that's part of the petroleum 12 products, IARC. 13 MS. KAHN: Is it your opinion that the exposure 14 to crude oil does not cause Non-Hodgkins lymphoma? 15 THE WITNESS: Yes. 16 MR. METZGER: Okay. 17 Q Any other subopinions? 18 A Besides the criticisms of -19 Q We'll get to those. Any other subopinions for 20 your opinions? 21 A No, I think that's it. 22 MS. KAHN: You may have covered this while I 23 was out of the room, but since I don't know that's the 24 case, is it your opinion that none of Mr. Remboldt's 25 alleged exposures caused or contributed to his 00177 1 Non-Hodgkins lymphoma? 2 THE WITNESS: Yes. 3 MR. METZGER: That's covered. That's your 4 specific causation opinion? 5 THE WITNESS: I don't know if I actually gave 6 the opinion. I said that I was asked to give that 7 opinion. 8 BY MR. METZGER: 9 Q All right. Any other opinions or subopinions 10 that you have? 11 MS. KAHN: Is it your opinion that any of 12 Mr. -13 MR. METZGER: I am asking him, not you. 14 MS. KAHN: -- Remboldt's potential exposures in 15 this case increased the risk of his developing 16 Non-Hodgkins lymphoma? 17 THE WITNESS: I don't believe that they did. 18 BY MR. METZGER: 19 Q Any other subopinions that you have? You are 20 looking to Ms. Kahn. Let's ask her for her 21 subopinions. I would ask her -22 MS. KAHN: Take a moment to contemplate what's 23 been said and make sure nothing is being left out. The 24 hour is late for the witness. It is even later being on 25 East Coast time. 00178 1 THE WITNESS: I think that's it. We covered 2 it. 3 BY MR. METZGER: 4 Q Okay. Have you at least generally told me the 5 factual basis for all your opinions and subopinions? 6 A Yes, that's included in these files. 7 MS. KAHN: Regardless of whether you 8 discussed -9 THE WITNESS: Regardless of whether or not I 10 have actually gone through each paper and pointed out 11 where I am basing my opinions on. 12 BY MR. METZGER: 13 Q Isn't it true that the lymphocytes is the most 14 sensitive cell to benzene toxicity? 15 A I don't know the answer to that. 16 MR. METZGER: Then we are done. 17 MS. KAHN: Do you want to ask him his 18 criticisms of plaintiff's expert's methodology or 19 opinions? 20 MR. METZGER: Oh, God, how long would that 21 take? 22 THE WITNESS: Well, I think we covered a lot of 23 it. 24 MR. METZGER: Well, how long would the rest of 25 it take? 00179 1 MS. KAHN: It is hard to predict. I don't 2 know. 3 MR. METZGER: I am not asking you, I am asking 4 him. 5 Give me some estimate. 6 THE WITNESS: Ten minutes, five minutes. 7 MS. KAHN: I don't want you to rush it. It 8 takes however long it takes. 9 MR. METZGER: Let's stop talking. Let him do 10 it. 11 THE WITNESS: I think we covered the main one, 12 which is the solvent literature business. The other one 13 of them is that I was kind of amazed that Dr. Harrison 14 didn't go into all of Mr. Remboldt's history, certainly 15 about his obesity issue, and consider that to be a 16 factor in his Non-Hodgkins lymphoma. 17 But also to his employment at this ski shop, 18 because as far as I know, the only thing in his medical 19 record that indicates exposure to a chemical causing him 20 any medical complaints is from some solvent or some 21 chemical that was being used at the ski shop. 22 Not that I think that, as I mentioned, that 23 solvents are related to Non-Hodgkins lymphoma, but I 24 find it very curious that Dr. Harrison either didn't see 25 that, didn't elicit that from his examination of him, 00180 1 because Mr. Remboldt complained at Kaiser Permanente 2 about the fact that chemicals were hurting his warts on 3 his hands and he worked at the ski shop for about 10 4 years. 5 So, I mean, it is just another -- to me, it is 6 another indication that either Dr. Harrison didn't do a 7 very complete job or he was being very selective about 8 what he was presenting and talking about. 9 BY MR. METZGER: 10 Q Let me inquire, then. Do you know what 11 chemical or chemicals Mr. Remboldt was exposed to at the 12 ski shop? 13 A Well, I know, for example, there have been -14 toluene is a possibility. And it's been reported in the 15 literature. 16 Q That what? 17 A That these wax removers contained toluene. 18 Q My question was: Do you know what chemicals 19 Mr. Remboldt was exposed to at the ski shop? 20 A Nobody asked him. 21 Q Do you know what chemicals he was exposed to at 22 the ski shop? 23 A No, not specifically. 24 Q Do you know that you had the right, if you so 25 wished, to have a medical examination of Mr. Remboldt 00181 1 and to ask him questions about his history yourself? 2 Did you know that you could do that? 3 MS. KAHN: As a toxicologist, I guess I 4 understand your question. 5 THE WITNESS: Well, I hadn't considered it. 6 That might be a good idea. 7 BY MR. METZGER: 8 Q You never asked Ms. Kahn or Mr. Riff if you 9 could examine Mr. Remboldt or if you could take a 10 history of him; true? 11 MS. KAHN: Would you have granted permission 12 for that to occur, Mr. Metzger? 13 MR. METZGER: Don't interrupt my questioning. 14 Q Did you ask Mr. Riff or Ms. Kahn if you could 15 conduct a physical examination of Mr. Remboldt? 16 A Well, I don't know. I mean, the physical 17 examination was done by Kaiser Permanente back in the 18 '80s. 19 Q Did you ask them if you could do a physical 20 examination of him? 21 A I don't see what a physical examination would 22 show. 23 Q So you didn't ask them if you could; correct? 24 A No. 25 Q That's correct? 00182 1 A That's correct. 2 Q Did you ask them if you could take an 3 occupational or other history of Mr. Remboldt? 4 A No. 5 Q As you sit here today, do you have an opinion 6 that the -- whatever chemicals Mr. Remboldt was exposed 7 to at the ski shop caused his Non-Hodgkins lymphoma? 8 A Well, as I mentioned, I don't think that there 9 are -- any chemical has been associated with 10 Non-Hodgkins lymphoma. The only reason I am bringing 11 this up is that I didn't think Dr. Harrison did do a 12 very complete job in terms of -- because he actually had 13 the ski shop occupation mentioned on his form, and I 14 presume that he reviewed the medical records. 15 Q To a reasonable degree of medical probability, 16 have you ruled out Mr. Remboldt's exposures at the ski 17 shop as a cause of his Non-Hodgkins lymphoma? 18 A Yes. 19 Q Do you have any other criticisms of plaintiff's 20 experts? 21 A Other than the ones we have discussed, no. 22 MR. METZGER: All right, then we are done. I 23 will propose that the court reporter may forward the 24 original transcript to Ms. Kahn, that Ms. Kahn will then 25 forward it to Dr. Whysner. 00183 1 Dr. Whysner, you may have 60 days from 2 Ms. Kahn's receipt of it to read it and to sign it and 3 make any corrections that you wish. I would ask that 4 you make the corrections on the pages where the 5 testimony occurs and on a correction sheet at the end so 6 everyone will know where they are. Is that all right 7 with you? 8 THE WITNESS: Yes. 9 MR. METZGER: You may also sign the transcript 10 under penalty of perjury under the laws of the 11 United States and of the laws of California. I will ask 12 you to put that on there, so that you don't have to 13 round up a notary to have your signature notarized. All 14 right? 15 THE WITNESS: All right. 16 MR. METZGER: When you have done that, I will 17 ask you then to forward the transcript to Ms. Kahn and 18 she can notify counsel of the changes and the -- within 19 a reasonable period. 20 And then if Ms. Kahn will forward the original 21 transcript to me, I will preserve it, make it available 22 for trial appearing on reasonable request. If for any 23 reason the transcript, the original transcript, is lost 24 or is not signed, a certified copy may be used with all 25 full force and effect. 00184 1 So stipulated. 2 MS. KAHN: I assume when you say he should sign 3 under the laws of the United States and California, that 4 you mean under -- you are referring to the laws about 5 perjury? 6 MR. METZGER: Yes, of course. 7 MS. KAHN: So stipulated. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00185 1 2 3 4 5 6 7 8 9 I, JOHN WHYSNER, M.D., do hereby declare under 10 penalty of perjury that I have read the foregoing 11 transcript; that I have made such corrections as noted 12 herein, in ink, initialed by me, or attached hereto; 13 that my testimony as contained herein, as corrected, is 14 true and correct. 15 EXECUTED this _____ day of ______________, 16 17 2006, at ________________________, ________________. 18 (City) (State) 19 20 _____________________________________ JOHN WHYSNER, M.D. 21 22 23 24 25 00186 1 2 3 I, the undersigned, a Certified Shorthand 4 Reporter, do hereby certify: 5 That the foregoing proceedings were taken 6 before me at the time and place herein set forth; that 7 any witnesses in the foregoing proceedings, prior to 8 testifying, were placed under oath; that a verbatim 9 record of the proceedings was made by me using machine 10 shorthand which was thereafter transcribed under my 11 direction; further, that the foregoing is an accurate 12 transcription thereof. 13 I further certify that I am neither 14 financially interested in the action nor a relative or 15 employee of any attorney of any of the parties. 16 IN WITNESS WHEREOF, I have this date 17 subscribed by name. 18 19 Dated: ________________________ 20 21 ____________________________ 22 REBECCA CORRAL CSR NO. 7021 23 24 25