Document 6wp85exeKO2oXVk9bnMLpek89

FILE NAME Corning OC DATE 1995 Nov 1 DOC OC307 DOCUMENT DESCRIPTION Legal - Testimony of Jon L Konzen with BC Notes in 1935 never heard of a study study of 151522 164 164 2 More Geen More More clearly clearly clearly admitted admitted admitted admitted admitted admitted admitted admitted admitted He is suver seen a spontaneou spontaneou spontaneou 1959 wit 1959 1959 contoxic contoxic and OCFOCF OCF contoxic contoxic and ---- --b -- mesothelioma mesothelioma 172 B lieved 11/6/95 but no warnings warnings to workers workers IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT MC LEAN COUNTY ILLINOIS MARK HICKS Special Admin of the Estate of THELMA HICKS ee deceased and COLEMAN HICKS JR ee ) Plaintiffs ee ) V. } No. 94 L 308 ee CORNING FIBERGLAS CORPORA- et TION and ILLINOIS CENTRAL ae RAILROAD COMPANY Nee eet 10 Defendants Reet 11 DONALD VAN WINKLE and LINDA VAN WINKLE ee 12 ee Plaintiffs ee 13 ee ee 14 V. ) No. 95 L 76 te 15 CORNING FIBERGLAS CORPORA- ee TION and ILLINOIS CENTRAL 16 RAILROAD COMPANY e er 17 Defendants me 18 ******* 19 20 21 REPORT OF PROCEEDINGS TESTIMONY OF DR JON L. KONZEN NOVEMBER 1 1995 22 * 23 Susan E. Geshwilm CSR 408 Law & Justice Center 24 104 West Front Street Bloomington IL 61701 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ~ 24 A I'm not sure Q Did you personally work on the drafting of the pamphlet A I probably saw a draft but I didn't draft it Q Do you remember who drafted it A Not with certainty Q Can you give us any help at all as to the names of the people that you remember toiling on that task A Um John Vyverberg and Cliff Sheckler Q Now John Vyverberg was a colleague of yours there at Corning Correct A Yes Q That pamphlet came out about when A 1969 1970 THE COURT And Sheckler worked for Manville A Yes Q Now were either one of those gentlemen physicians A No. Q Did most -- were most of the members of the Health and Safety Committee physicians 13 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q Actually you agree someone should have done it right after Lynch published his article in '35 right It wouldn't have been that hard to do You just find the first three hundred death certificates you can out of a given plant see how many lung cancers there are go to the other data and see how many you would have expected in group of that characteristics age sex so forth and see well are there more lung cancers or not And that should have been done two days after Lynch's article appeared in '35 Shouldn't it A That's not the way science works Q Sir we'll get to how science does or doesn't work or at least what you describe as science But let's just talk about the philosophical matter that's what should have been done in '35 Isn't it sir A It would certainly be one thing that could be done Q And if that had been done in '35 do you have any reason to believe that there would have been anything other than an excess of lung cancers among the group study A I don't know what the outcome of that 69 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 study would have been Q Have you yourself ever read a study of people with a significant occupational exposure to asbestos and the reporter found that there was no excessive lung cancer among those people A No. Q Well of course not No reason to believe that wouldn't have been found in '35 Is there Those people were heavily exposed to asbestos Weren't they A Um yes they were Q Now to get back to your colleague Dr. Bender in this sentence Although the association of asbestos exposure and lung cancer then he has in parentheses lung tumors and mesothelioma was once a matter of debate the recognition of the association occurred during the fifties and sixties What you're saying is that people just started thinking about it in the fifties and sixties and it was some later time that people accepted the association between asbestos and those two particular cancers A No what I'm saying is it became a 70 wrote the pamphlet MR MODESITT I object to the line of questioning Your Honor The witness has said three or four times already he doesn't remember what was in the pamphlet THE COURT Sustained BY MR WALKER Q What was the training of Vyverberg A He was a businessman 10 Q Do you recall anything else besides the 11 Western States Program and the NIMA pamphlet that 12 Corning did to communicate to these people 13 who were at risk of these diseases what 14 Corning knew about these diseases 15 A During what time period 16 Q Any time 17 A Um there was an educational program at 18 Berlin 19 Q We talked about that It started in '76 20 and '77 Right 21 A Yes Um yes 22 Q Anything else 23 A Not that I can think of 24 Q Now Dr. Konzedno you recognize this as 145 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 various means Correct A Yes Q And when he got to a corner and he needed to make an elbow or when the next section was too long or something why it was well known that he would have to saw it or rasp it or do various things to make it fit the pipe that he was insulating Correct A Yes Q And all those things were known to give off dust I mean by definition sawing or rasping creates dust A Yes Q Okay Back to the easy fabrication Ordinary tools of the trade sufficient for all cutting sawing or scoring irritating to the skin and nontoxic Now the portion of this advertisement that says that Kaylo was nontoxic was false in October of 1956 and false today Isn't that true A It was incorrect Q Well it was false because the party making the statement Corning Fiberglas knew as you have told us earlier knew twenty years 148 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 before 1968 that airborne asbestos causes disease Isn't that true A Yes Q And you were putting not you but Corning was putting asbestos in Kaylo in October of '56 -- or Owens Illinois was putting it in there and Corning was selling it Correct A Yes MR WALKER Would this be a time for a recess Judge THE COURT That would be fine Take a brief recess ladies and gentlemen If you will close your note pads and step back to the jury deliberation room Relax for a few minutes Don't have any discussion about what's gone on in the courtroom in the last three days A RECESS WAS TAKEN THE COURT You may be seated . Record reflect the jurors have returned to the courtroom You may continue BY MR WALKER Q Dr. Konzen do you see exhibit 35 A Yes_ 149 Q Now that's a brochure about Kaylo that is on the back page is a little hard to read but the very lowest right corner is dated September of '59 Correct A Yes Q Now earlier we had talked about exhibit 33 was in 1956. The reason exhibit 33 shows in the lower hand corner that the trademark is owned by Owens Illinois is because at that point Owens 10 Illinois owned the plant at Berlin New Jersey 11 Correct 12 A Yes 13 Q And owned the trademark owned the right 14 to use the word Kaylo as a trademark in 1956 15 A Yes 16 Q But in '58 Corning Fiberglas bought 17 the plant the trademark the whole Kaylo program 18 Correct 19 A Yes 20 Q So by '59 Corning owned the plant 21 and the product and the trademark and the whole 22 thing Right 23 A That's my understanding 24 MR WALKER I move exhibit 35 into evidence 150 Your Honor MR MODESITT No objection THE COURT Be admitted MR WALKER May I publish THE COURT You may BY MR WALKER Q Doctor if you would turn to the fourth page it's numbered page four in the lower hand corner Do you see in the third 10 paragraph where Corning says Kaylo pipe 11 insulation applies easily and quickly with 12 standard application methods 13 A Yes 14 Q In the next sentence Corning says 15 Ordinary tools of the trade are sufficient for 16 all cutting sawing or scoring See that 17 A Yes 18 Q Do you see the next sentence It is 19 irritating to the skin and nontoxic Do you 20 see that 21 A Yes 22 Q The reference there is to the product 23 Kaylo Correct 24 A Yes 151 Q In September 1959 Corning Fiberglas Corporation knew that statement was false because it knew that the dust given off from Kaylo when it was cut sawed or scored was toxic Isn't that true sir A Yes Q Now on a number of occasions today I have asked you to look at plaintiffs exhibit 18 the memo that you wrote in September of 1972 the 10 three page memo And I think you have indicated 11 that if you -- you wouldn't agree that the 12 sentence about occupational exposure to asbestos 13 is known to be carcinogenic you wouldn't have 14 agreed to that in 1953. Would you have agreed or 15 do you agree that occupational exposure to 16 asbestos was implicated as being carcinogenic by 17 1953 18 A Well there were people um where it was 19 felt to be this to be carcinogenic As I said 20 even the federal government as late as the mid 21 sixties in the book that I referred to said that 22 the -- that there is a good possibility that it 23 is But the final verdict wasn't in yet 24 Q Would it have been accurate to say in 1953 152 have been primarily the workers and yes they Were the ones Q In each instance of a mesothelioma that you have reviewed the victim him or herself had an occupational exposure to asbestos A Yes Q So a thing that you and I have in common is we have never seen one of these spontaneous mesotheliomas Correct 10 A I have not identified one 11 Q Now Don Van Winkle worked at the 12 Bloomington asbestos plant for four or five months 13 in 1959 and was diagnosed with mesothelioma 14 earlier this year and no one has found a -- well 15 let me ask it differently If you find a 16 mesothelioma victim are you able to while they 17 are alive or after they have died examine any 18 portion of their body to determine which asbestos 19 fiber it was that caused them to develop 20 mesothelioma 21 A Um well I guess the answer is no because 22 you don't know -- yeah 23 Q Okay So it is the total and cumulative 24 effect of all the asbestos to which they have been 164 exposed is the cause of their asbestos disease Correct A Yes 8 Now Don Van Winkle worked at the Bloomington plant in the later part of 1959 diagnosed with mesothelioma in 1995 In your opinion was his occupational exposure to asbestos at that plant the plant that you had described to you and you agreed was -- had conditions that were 10 unbelievably bad was his occupational exposure to 11 asbestos a cause of his mesothelioma 12 A How long did you say he worked there 13 Q Four months in 1959 14 A It's possible 15 Q Is there such a thing as a period of 16 exposure that is so short that the exposed person 17 would be immune from the risk of getting 18 mesothelioma 19 A Not that I know of 20 Q And if that -- and if that's the length of 21 time that he worked at the Bloomington plant are 22 you able to tell us about anything else that would ee 23 have caused his mesothelioma other than that work meg we 24 at the plant Se 165 This publicity caused concern among those Berlin employees who had been exposed to asbestos in the past and also raised the question of continued exposure because of plant contamination The plant received two phone calls from former workers Both were informed that corporate headquarters were reviewing the matter and their phone call would be returned Did I read that correctly 10 A You did 11 Q And sir you are the author of this memo 12 correct 13 A Yes 14 Q Now there is nothing about this statement 15 that Joseph Califano released that you found to be 16 medically inaccurate Is there 17 A I don't remember the entire statement but 18 at the time I believe that it was medically 22 accurate 22 Q Okay And as you think about it sir 21 wasn't it after the Califano statement was 22 released that the educational program was 23 conducted at Berlin 24 A Yes 172 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT MC LEAN COUNTY ILLINOIS MARK HICKS Special Admin of the Estate of THELMA HICKS deceased and COLEMAN HICKS JR Plaintiffs V. CORNING FIBERGLAS CORPORA- TION and ILLINOIS CENTRAL RAILROAD COMPANY No. 94 L 308 Defendants DONALD VAN WINKLE WINKLE and LINDA VAN Plaintiffs v CORNING FIBERGLAS CORPORA- TION and ILLINOIS CENTRAL RAILROAD COMPANY No. 95 L 76 REPORT OF PROCEEDINGS TESTIMONY OF DR JON L. KONZEN NOVEMBER 6 1995 RECESS AEEK RA EARRAEARERNE AA ER RENEE HS Susan E. Geshwilm CSR 408 Law & Justice Center 104 West Front Street Bloomington IL 61701 11/17/95 Q Let's stop there That is a statement by the committee saying that the only disease that it was focusing upon is asbestosis Correct A It says that -- just what it says Relates to the prevention of asbestosis Q Was there anything in this or any publication of the TLV committee at any prior date to indicate that it ever thought that the TLV had anything to do with the prevention of cancer 10 A Well if one accepts the premise that you 11 have to have asbestosis to have cancer it 12 certainly would imply that 13 Q Do you remember my question 14 A Yes 15 Q Okay 16 A And the answer is no 17 Q When you understood it why did you 18 volunteer to give the other information 19 A Because I felt it was important 20 Q The price hasn't gone up over the weekend 21 has it What is the current rate for the time 22 that you are on the stand 23 MR MODESITT Objection Your Honor asked 24 and answered 65 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 to see if whether or not asbestos caused cancer A No. Q Now Driesen's study measured the presence or absence of asbestosis What study after -- excuse me What study ever let's say as of 1962 what study had ever checked for the presence of cancer in relationship to airborne levels MR MODESITT Object for the same reason Your Honor THE COURT Overruled A Um no study Q So that's why the committee said right there in 1962 the TLV is intended for the prevention of asbestosis There would have been no statistical basis whatsoever for the committee to say our TLV also protects against cancer Correct A Um there wouldn't have been But again I think that there -- ---- Q Now you said that -- talking about dust counts you said that from time to time there would be temporary excursions and in the 1960s this was not of any great practical significance Do you remember saying that - 70 2 the Bloomington plant operated by Corning Fiberglas in the summer of 1970 A Aside from the fact that it never -- that amosite had never been reported as causing at that time -- Q You've told us that Bloomington was amosite and Wagner was crocidolite Anything else A No. 10 Q Did Corning warn the workers of the 11 potential hazards created by the fact that 12 thirty of the thirty counts were in 13 excess of the quote TLV 14 A We instituted a respirator program But 15 did we say anything else No. 16 Q Doctor let's -- let's see if we can get 17 this last question clear Did Corning 18 Fiberglas Corporation warn the workers who were in 19 the air that was sampled and reported to you as 20 being in excess of the quote TLV unquote in 21 thirty out of thirty stations did 22 Corning warn those people of the hazards 23 that existed as a result of those levels of 24 asbestos in the air that they were forced to 77