Document 77bXombxYJNMOaj1OEbb1NZo

FILE NAME: AO Smith (AOS) DATE: 2014 DOC#: AOS004 DOCUMENT DESCRIPTION: Legal - Testimony of Toretta Tornetta 2014 Trial Testimony.txt 3718 1 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - CIVIL BRANCH - PART: 12 2 ..................................................X In Re: NEW YORK ASBESTOS LITIGATION 3 ..................... -........................... X Action 1 DEBRA TERRY, as Administratrix for the Estate of 4 CARL M. TERRY and DEBRA TERRY, Individually, 5 Plaintiffs, INDEX NO. 6 -against- 190403/12 7 A.O. SMITH, Water Products Company, et al, 8 Defendants, X Action 2 9 PHYLLIS BROWN, as Administratrix for the Estate of HARRY E. BROWN, and PHYLLIS BROWN, Individually, 10 Plaintiffs, 11 INDEX NO. -against- 190415/12 12 BELL & GOSSETT COMPANY, et al, 13 Defendants. 14 ..................................................X Action 3 MARY ANN McCLOSKEY, as Administratrix for the 15 Estate of PATRICK McCLOSKEY and MARY ANN McCLOSKEY, Individually, 16 ' Plaintiffs, 17 INDEX NO. -against- 190441/12 18 A.O. SMITH, Waters Products Company, et al, 19 Defendants. 20 ..................................................X 21 60 Centre Street New York, New York 10007 22 January 6, 2014 23 BEFORE: 24 HONORABLE BARBARA JAFFE, Justice, and a Jury 25 3719 1 APPEARANCES: 2 WEITZ a LUXENBERG Page 1 Tornetta 2014 Trial Testimony.txt Attorneys for Plaintiffs 3 700 Broadway New York, New York 10003 4 BY: DANNY R. KRAFT, JR., ESQ. MICHAEL FANELLI, ESQ. 5 PHAN T. ALVARADO, ESQ. 6 BARRY, MCTIERNAN & MOORE, LLC Attorneys for Cleaver-Brooks, Inc. 7 2 Rector Street New York, New York 10006 8 BY: SUZANNE HALBARDIER, ESQ. DAN O'CONNELL, ESQ. 9 BARRY, MCTIERNAN a MOORE, LLC 10 Attorneys for Domco Flooring/Azrock Flooring 2 Rector Street 11 New York,' New York 10006 BY: DAVID WYSNEWSKI, ESQ. 12 ' WILSON, ELSER, MOSKOWITZ, EDELMAN a DICKER, LLP 13 Attorneys for Dana Corporation 5615 Kirby Drive - Suite 500 14 Houston, Texas 77005 BY: JAMES H. POWERS, ESQ. 15 ANDREW J. CZEREPAK, ESQ. 16 Assistant General Counsel Law Department 17 Attorneys for Consolidated Edison Company 4 Irving Place - Room 1901 18 New York, New York 10003 19 Mcelroy, deutsch, mulvaney a carpenter, llp Attorneys for Eaton Corp./Cutler-Hammer 20 1300 Mount Kemble Avenue Morristown, New Jersey 07962 21 BY: ROBERT K. GUNN, ESQ. 22 MCAAAHON, MARTINE a GALLAGHER, LLP Attorneys for Tishman Realty Construction Corp. 23 55 Washington Street Brooklyn, New York 11201 * 24 BY: TIMOTHY D. GALLAGHER, ESQ. 25 3720 1 Proceedings 2 APPEARANCES CONTINUED: 3 SEGAL, MCCAMBRIDGE, SINGER a MAHONEY Attorneys for Port Authority of NY a NJ 4 850 Third Avenue - Suite 1100 New York, New York 10006 Page 2 Attorneys for Plaintiffs Tornetta 2014 Trial Testimony.txt 3 700 Broadway New York, New York 10003 4 BY: DANNY R. KRAFT, JR., ESQ. ' MICHAEL FANELLI, ESQ. 5 PHAN T. ALVARADO, ESQ. 6 BARRY, MCTIERNAN & MOORE, LLC Attorneys for Cleaver-Brooks, Inc. 7 2 Rector Street New York, New York 10006 8 BY: SUZANNE HALBARDIER, ESQ. DAN O'CONNELL, ESQ. 9 BARRY, MCTIERNAN a MOORE, LLC 10 Attorneys for Domco Flooring/Azrock Flooring 2 Rector Street 11 New York, New York 10006 BY: DAVID WYSNEWSKI, ESQ. 12 WILSON, ELSER, MOSKOWITZ, EDELMAN a DICKER, LLP 13 Attorneys for Dana Corporation 5615 Kirby Drive - Suite 500 14 Houston, Texas 77005 BY: JAMES H. POWERS, ESQ. 15 - ANDREW J. CZEREPAK, ESQ. 16 Assistant General Counsel Law Department 17 Attorneys for Consolidated Edison Company 4 Irving Place - Room 1901 18 New York, New York 10003 19 Mcelroy, deutsch, mulvaney a carpenter, llp Attorneys for Eaton Corp./Cutler-Hammer 20 1300 Mount Kemble Avenue Morristown, New Jersey 07962 21 BY: ROBERT K. GUNN, ESQ. 22 MCAAAHON, MARTINE a GALLAGHER, LLP Attorneys for Tishman Realty Construction Corp. 23 55 Washington Street Brooklyn, New York 11201 24 BY: TIMOTHY D. GALLAGHER, ESQ. 25 3720 1 .Proceedings 2 APPEARANCES CONTINUED: 3 SEGAL, MCCAMBRIDGE, SINGER a MAHONEY Attorneys for Port Authority of NY a NJ 4 850 Third Avenue - Suite 1100 New York, New York 10006 Page 2 Tornetta 2014 Trial Testimony.txt 5 BY: CHRISTIAN H. GANNON, ESQ. W. SIMONE NICHOLSON, ESQ. 6 CULLEN a DYKMAN, LLP 7 Attorneys for Mario a DiBono Plastering Co. 44 Wall Street 8 New York, New York 10005 BY: JEFFREY C. FEGAN, ESQ. 9 MARVIN BLAKELY, ESQ. 10 DARGER, ERRANTE, YAVITZ a BLAU, LLP . Attorneys for Dana Companies, LLC 11 116 East 27th Street New York, New York 10016 12 BY: DANIEL E. DECICCO, ESQ. 13 DEBRA SALZMAN, RMR ^ ANGELA TOLAS, CSR ' 14 OFFICIAL COURT REPORTER 15 16 17 18 19 20 21 22 23 24 25 26 3721 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 . Proceedings THE COURT: I have a juror note. "My name is Jeff Kulick. I am Juror Number 11 serving on this case. I am requesting an opportunity to speak with the Judge regarding several matters which are going to prevent me from continuing to serve on this case. Thank you." COURT CLERK: Mr. Kulick? ' THE COURT: So in the first instance, I'm , wondering whether I should be speaking with him alone first. He has to speak with me. I don't know. Anybody have a view? MR. KRAFT: I think you absolutely should talk to . him. THE COURT: Alone without counsel? MR. KRAFT: I think it has to be in the presence of everybody. Ido. THE COURT: That's what I am asking. MR. KRAFT: Yes, Judge. I would suggest calling him in by himself, just asking him what his concerns are. Page 3 Tornetta 2014 Trial Testimony.txt MR. CZEREPAK: I don't think it would be a problem if you just talk to him just to find out what the situation is. THE CQURT: I'll ask him first if he has to be in camera or not, okay. (Juror enters courtroom.) . THE COURT: Good morning, Mr. Kulick. Proceedings JUROR: Good morning. THE COURT: How are you this morning? ' JUROR: I've been better. ' THE COURT: So I have your note, which I read for the record already. What seems to be the issue? JUROR: Well, there are any number of things. Let me show you this first. This is from a building inspector from HPD that came to my apartment on Sunday. I have several issues in my apartment that need to be fixed. I have kitchen cabinetry that fell off of the wall on December 26 and it's remained on my kitchen floor broken and unattended for a month now. I have a mold problem in my bathroom that's been . going on for several years now. I have pictures, I didn't take for the purposes of showing you guys, but I have pictures on my computer which I have filed with HPD and several other agencies here in New York that I can show you if you'd.like to see so you can, you know, see how serious the situation is. Also, this hernia I that I told you about before this case started, it's becoming a real problem for me, and . when I talked about the commute down here, I wasn't trying to kind of describe any inconvenience. I was trying to explain that I do more walking in the day now than I would typically do in a month, and it's becoming something of a Proceedings health issue. I need to kind of get this fixed. It's resulting in back problems for me. It's affecting the way I walk. It's affecting the way I sleep. So those two things alone, you know, I feel are also kind of jeopardizing my livelihood. It's hard for me to go in to my place of employment once a week and deal with not only my responsibilities at work but all of these other things that are kind of happening surrounding my service here as a juror. You know, I feel like I tried. I tried to come in and help, but I don't know what more I can do. I'm finding myself increasingly distracted. It's hard for me to focus on the problems that other folks have incurred when I am having extreme problems of my own. Page 4 ' 15 16 17 18 19 20 21 22 23 24 25 26 3724 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3725 1 2 3 4 5 6 7 8 9 Tornetta 2014 Trial Testimony.txt THE COURT: I see. And with these emergency conditions that Mr. Kulick has shown me, it says -- is this against your landlord? JUROR: Correct. This is the fourth complaint I filed against my landlord. THE COURT: Against your landlord? JUROR: Correct. THE COURT: And your landlord is seeking to remedy these conditions? JUROR: They have ignored the violations that have been issued by HPD. So I have two options. Again, this is just my living situation, this doesn't have Proceedings anything to do with the way I'm feeling physically and my employment. I feel I have two options there. I either make myself available so the landlord can come in and fix these situations or I move immediately, like I cannot continue to go back to an apartment that I think is uninhabitable. ` And, again, I'll be happy to pull up my laptop. They're right on my desktop. THE COURT: That won't be necessary. JUROR: I've reached out to an attorney. The ' inspector himself described it as dangerous. He said, "This is a dangerous mold problem." It's been going on since I moved in. It's been left unattended for three years. THE COURT: And the landlord's seeking to enter now to remedy these? JUROR: Yes. They are going to contact the landlord. The building inspector said they should be contacting them this week. I don't know when that's going to be, you know. So, yeah, I don't really -- I don't want . a situation where they are going to claim that they tried to contact me but my phone was off all day or they wanted to come in and see it but I was unavailable. You know, I kind of anticipate - with my history with them, I kind of anticipate that's what they would claim* "We tried to deal Proceedings ` with Mr. Kulick, but Mr. Kulick is unavailable." So... . THE COURT: Thank you. I'm going to ask you to step out. ' JUROR: Mm hmm. ' THE COURT: And so I can talk with the lawyers. JUROR: Okay. (Juror exits courtroom.) THE COURT: Okay. So Mr. O'Connell, your view? Page 5 Tometta 2014 Trial Testimony.txt 10 MR. O'CONNELL: It's a sad situation, your Honor. 11 I feel for the juror and I think there is only one 12 appropriate thing to do. 13 MR. KRAFT: Which is? 14 MR. O'CONNELL: Excuse him. 15 MR. KRAFT: Do the defendants agree? 16 MR. O'CONNELL: That's my opinion only. 17 THE COURT: Mr. Kraft's indicated he certainly 18 agrees to that. ' 19 MR. O'CONNELL: Do you agree? 20 MR. KRAFT: Absolutely. ` 21 THE COURT: I think we can't make him sit here. ' 22 MR. BLAKELY: He's not going to concentrate on . 23 what he is doing. 24 THE COURT: Have him come back in and let me 25 thank him. 26 MR. CZEREPAK: Before we do it, do we have any 37 ; 1 Proceedings 2 objections on the record? 3 THE COURT: If there had been, I know I would 4 have heard that. 5 MR. CZEREPAK: Sometimes silence - 6 THE COURT: Silence is not golden in this regard. 7 (Juror enters courtroom.) 8 THE COURT: So, Mr. Kulick, you're excused with 9 mine and the parties' thanks for your attention and 10 cheerful service. 11 JUROR: I almost feel bad that I wasn't able to 12 finish it. I know the stakes are very high. 13 THE COURT: I'm sad that you feel that way. We 14 thank you. I'm going to ask that you not discuss this with ` 15 anybody. And the lawyers, I believe, are free to talk with 16 you and you're free to talk with them, but you don't have 17 to talk with them. 18 JUROR: Okay. ' 19 THE COURT: You're free to leave, but don't talk 20 about the case with anybody else, certainly not with the 21 other jurors. 22 JUROR: Thank you. 23 THE COURT: Thank you. Good luck. I hope you 24 can resolve your apartment issues and all the other health 25 issues. 26 JUROR: Thank you. 372 1 F. Tometta - By Plaintiff McCloskey - Direct/Kraft 2 THE COURT: All the best to you, sir. 3 JUROR: Thank you very much. 4 (Juror leaves courtroom.) Page 6 Tornetta 2014 Trial Testimony.txt 5 THE COURT: We'll mark this as a Court Exhibit 6. ' 6 (Whereupon, Court Exhibit 6 was marked in . 7 Evidence at this time.) 8 (Jurors enter courtroom.) ' 9 THE COURT: Good morning, everybody. I hope y o u ' 10 had a great weekend. Please be seated. 11 MR. KRAFT: Your Honor, as promised last week we 12 will be starting with a live witness today. At this time 13 the plaintiffs in the McCloskey case call Cleaver-Brooks 14 corporate representative, John Tornetta, to the stand. 15 J-O-H-N T-O-R-N-E-T-T-A, called as a witness, having been 16 first duly sworn, was examined and testifies as follows: 17 COURT CLERK: Please be seated. In a loud, clear 18 voice, please state your name. 19 THE WITNESS: John Tornetta. 20 COURT CLERK: Please spell it. 21 THE WITNESS: T-O-R-N-E-T-T-A. 22 COURT CLERK: And your business address for the 23 record, sir. 24 THE WITNESS: 11950 West Lake Park Drive, 25 separate words, Milwaukee, Wisconsin 53224. . 26 COURT CLERK: Please give your attention to the 3728 . 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 Court. 3 MR. KRAFT: May I inquire, your Honor? 4 THE COURT: Yes, please. 5 MR. KRAFT: Thank you. 6 DIRECT EXAMINATION 7 BY MR. KRAFT: 8 Q Good morning, Mr. Tornetta. 9 A Good morning. 10 Q Mr. Tornetta, my name is Dan Kraft. I represent the 11 McCloskey family in a case pending against Cleaver-Brooks. 12 We're having a trial here. You understand that, right? 13 A Yes, I do. 14 Q Okay. Mr. Tornetta, the address that you just gave 15 the jury, the Milwaukee address, is the corporate headquarter 16 address of the company that you work for, is that correct? 17 A No, it is not. 18 Q Is that your personal address? 19 A No. It's our company's address in Milwaukee. Our 20 actual corporate headquarters is in Thomasville, Georgia. . 21 Q Okay. When you say "our company," what company are 22 you talking about? 23 A Cleaver-Brooks, Inc. . 24 Q Okay. Do you work for Cleaver-Brooks, Inc., or Aqua . 25 Chem or both? 26 A Cleaver-Brooks, Inc. Page 7 Tornetta 2014 Trial Testimony.txt 3729 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 Q Okay. I just want to go over some ground rules. 3 You've never been questioned by me at trial, is that 4 correct? 5 A Correct. 6 Q You have testified at a trial where I was a lawyer, 7 however, is that correct? 8 A Correct. 9 Q And that was about January 8 of last year down the 10 hallway on this floor in Judge Madden's Court, right? 11 A I think it was in July, actually. It was during 12 summer. I know it was hot. 13 Q. I apologize. It was July. July 8, not January 8. 14 Okay. I want to go over some ground rules. I'm going 15 to ask you some questions. If you don't understand the 16 question that I am asking, will you just simply tell me you 17 don't understand and I'll try to ask it a different way? 18 MR. O'CONNELL: Objection, your Honor? 19 THE COURT: Overruled. 20 A I will, yeah. 21 Q If you answer a question, I'm going to assume that you 22 understood that question, is that fair? 23 A Yes. 24 Q If I ask you a yes-or-no question, will you try to 25 answer it "yes" or "no" or simply tell me you can't answer with 26 "yes" or "no" and need to explain? 3730 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 A I will do that, yes. 3 Q Okay. Thank you. 4 Mr. Tornetta, you were born on October 21, 1964, is 5 that correct? 6 A Correct. 7 Q That makes youhow old today? 8 A Forty-nine. 9 Q And while you work for Cleaver-Brooks, Inc., in 10 Milwaukee, I believe you actually live right outside of ' 11 Milwaukee in a small, little town, is that correct? 12 A Correct. 13 Q What's the name of that town, please? 14 A Menomonee Falls, M-E-N-O-M-O-N-E-E. 15 Q I feel like you brought the snow with you from 16 Menomonee Falls. 17 A It appears that way. 18 Q. Okay. When you testified in the summer of 2013, you 19 were here on the stand for about three days, is that correct? 20 A I believe so, yes. 21 Q We're going to try to get you out of here this Page 8 Tornetta 2014 Trial Testimony.txt 22 afternoon, is that fair? __ 23 A That would be nice, yes. 24 Q. All right. I want to go over some of your background 25 information very quickly. You graduated from high school in . 26 Media, Pennsylvania, in 1982, is that correct? 3731 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 A I graduated from high school in Norristown, 3 Pennsylvania, in 1982. 4 Q Fair enough. What was the name of the high school? 5 A Norristown Area High School. 6 Q. And immediately after graduating high school, you went 7 to trade school, is that correct? 8 A Correct. 9 Q I believe the name of the trade school was Williamson 10 Trade School. 11 A Correct. 12 Q And you received an associate's degree from Williamson 13 Trade School in 1985, is that right? 14 A Yes, it is. 15 Q Okay. Now, prior to entering the trade school in 16 1982, you had never done any work on boilers, is that fair? 17 A No, I don't believe I did. That is fair, yes. 18 Q Okay. So prior to graduatinghigh school, you didn't . 19 work part-time repairing boilers? 20 A No, I didn't. 21 Q You didn't work part-time servicing boilers? 22 A No. . 23 Q You didn't have family members who were boiler service 24 people, did you? 25 A No. 26 Q You graduated with an associate's degree in electric 3732 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 power technology, is that correct? 3 A Correct. 4 Q. And Williamson Trade School was in Media, 5 Pennsylvania, right? 6 A Yes. 7 Q Okay. Now, when you were at trade school - correct 8 me if I am wrong -- that is when you first encountered a 9 Cleaver-Brooks bbiler, is that right? 10 A Yes. 11 Q Okay. And you actually did some work on that 12 Cleaver-Brooks boiler, right? , 13 A Yes, I did. 14 Q Do you know whether that Cleaver-Brooks boiler that ' 15 you worked on at Williamson Trade School, whether it contained 16 asbestos? Page 9 Tornetta 2014 Trial Testimony.txt 17 A No, I don't. 18 Q You've never saw fit to look to see whether that 19 boi ler contained asbestos? 20 A No, I didn't. 21 Q Okay. But you have pulled the boiler file for that 22 boiler just to confirm that, in fact, it was a Cleaver-Brooks 23 boiler at that location, right? 24 A No. Actually, I knew it was a Cleaver-Brooks boiler 25 because I saw it there. 26 Q Okay. You've testified approximately how many times 3733 ' 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 at depositions? ' 3 A At least four dozen or so. 4 Q Okay. And how many times have you testified attrial? 5 A Three live at trial. ' 6 Q All three times that you have testified at trial . 7 you've been called by my law firm, Weitz & Luxenberg, is that 8 right? 9 A Yes. 10 Q Okay. If you previously said that you pulled the 11 boiler file to confirm that you had an index card for 12 Williamson Trade School at a prior deposition, would that have 13 been accurate? 14 A I think what I may have said is I pulled the index 15 card to look at what the unit number was. 16 Q Fair enough. But you didn't pull the boiler files for 17 that boiler to see whether the boiler you were working on 18 contained asbestos at that location, is that correct? 19 A That's correct. 20 Q. You graduated from Williamson Trade School in April or 21 May of 1985, is that correct? 22 A I think it was May, yes. 23 Q All right. And immediately you apptied for and got a 24 job working for Cleaver-Brooks, Inc., is that right? 25 A Correct. 26 Q Okay. You started working at Cleaver-Brooks in June ' 3734 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 of 1985, correct? 3 A Yes. 4 Q The first job you had was as a service technician, 5 correct? 6 A Correct. 7 Q And as a service technician, you would go out in the 8 field and you would troubleshoot, fix, repair, service 9 Cleaver-Brooks boilers, is that correct? 10 A At times, yes. 11 Q Okay. Did you repair any other manufacturers' boilers Page 10 Tornetta 2014 Trial Testimony.txt 12 besides Cleaver-Brooks boilers? 13 A I don't believe I did. I may have seen them, but I 14 don't believe I was repairing them. . 15 Q Okay. You are a Cleaver-Brooks employee going out in 16 the field, working on and around Cleaver-Brooks boilers, is 17 that correct? . 18 A At times I was, yes. 19 Q And you did that work from approximately 1985 until 20 1989, is that right? 21 A As a service technician, yes. 22 Q Okay. At some point in 1989 or early 1990, you were 23 promoted to assistant service manager, is that right? 24 A Correct. 25 Q And as assistant service manager, you managed the 26 field technicians who were going out in the field on behalf of 3735 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 Cleaver-Brooks who were doing work on Cleaver-Brooks boilers, 3 is that correct? 4 A Yes. That's one of the things I did. 5 Q And you held that title from 1989 to approximately 6 1992, is that correct? 7 A Yeah. It was '92 or '93. I mix that up all the time. 8 Q. Okay. You were then promotedagain, is that correct? 9 A Yes. ' . 10 Q You became the service manager at Cleaver-Brooks, 11 right? . 12 A I did the service manager duties for a particular 13 product, yes. 14 Q Okay. And you had the title - - you held the title of 15 service manager from 1992 to 1995, is that correct? 16 A Roughly that time frame yes. 17 Q Okay. As an assistant service manager and as a 18 service manager, were you still going out in the field fixing, 19 troubleshooting, servicing Cleaver-Brooks boilers? 20 A Yes. 21 Q Now, you were headquartered in Wisconsin at that 22 point? 23 A Yes. 24 Q Okay. Were you only servicing boilers in Wisconsin or 25 were you traveling nationwide wherever Cleaver-Brooks boilers 26 may have been installed? 3736 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 A Wherever I needed to go around the country, yes. 3 Q Did you ever come to New York? 4 A New York State, yes. I don't believe I've ever been 5 working on boilers in New York City. 6 Q Fair enough. Can you approximate for me, Page 11 Tornetta 2014 Trial Testimony.txt 7 Mr. Tornetta, during the time period that you were a field 8 technician through the time that you were a service manager, 9 how many different locations you went out and encountered a 10 Cleaver- Brooks boi ler? 11 A Wow, that's - I travel a good bit. It would be at 12 least in the hundreds. 13 Q Hundreds. And if I were to ask you today to list all 14 of those locations, the various places you've been, how many 15 names of specific locations would you be able to give me? 16 A Certainly not all of them. I couldn't guess at how 17 many. 18 Q. Half of them? 19 A I doubt it would be half. 20 Q A hundred? 21 A I might be able to come up with a hCindred. That would 22 be a stretch, though. _ 23 Q Okay. Do you remember being asked that exact question 24 back in July when you testified in this courthouse, how many ' 25 you'd be able to recall, and giving an answer of about 25 or 26 so? 3737 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 MR. O'CONNELL: Objection, your Honor. There is 3 a procedure - 4 THE COURT: Overruled. 5 A No. I don't remember testifying to that. 6 Q Okay. I actually have your trial testimony from that 7 case. 8 MR. KRAFT: And I'd like to hand up a copy, if I 9 may, your Honor. 10 THE COURT: Yes. 11 Q I'm going to be asking you questions today and we're 12 going to be referring to this transcript at times. 13 A Okay. 14 Q So let me hand up the transcript. 15 Have you had a chance to review your testimony from 16 that trial case? 17 A No, I did not. ' 18 Q Okay. I direct you to page 4718 of the trial 19 transcript. Just let me know when you're there. It's at the 20 very end. 21 A Okay. I'm there. ' 22 Q Okay. Do you recall being asked the following 23 questions and giving the following answers: 24 "Question: When you were a service technician, 25 Mr. Tornetta, do you remember every site you ever went to? 26 "Answer: No. 3738 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft Page 12 Tornetta 2014 Trial Testimony.txt 2 "Question: How many sites do you think you went 3 to over the years between 1985 and 2000 as a service 4 technician? 5 "Answer: It would be a pure guess. Fifty-two 6 weeks in a year, it's possible it's well into the hundreds. 7 "Question: Hundreds. How many do you think you 8 can name off the top of your head right now? Just give me ` 9 a number. 10 "Answer: Probably 25 or so." 11 Do you recall being asked those questions and giving 12 those answers? 13 A I didn't recall a couple of minutes ago. Certainly I 14 did give those answers, yes. 15 Q Is it fair to say of the hundreds or so locations if 16 we asked you to list, you'd be able to give about 25 or so 17 locations? 18 A Off the top of my head, that would probably be a 19 closer number. If I sat down and figured it out and thought 20 about the different places, I might be able to come up with 21 more. 22 Q All right. I'm not going to ask you to list all the 23 places that you worked. 24 A Thank you. 25 Q Okay. All. right. In 1996 you were promoted again, is 26 that correct? 3739 . 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 A Yeah. It was in that time frame, I believe. ' 3 Q You can set that to the side. 4 And you were promoted to what was called assistant 5 training manager, is that correct? ' 6 A Correct. ' 7 Q And what you did was you did technical training for 8 internal Cleaver-Brooks employees but you also trained outside 9 non-Cleaver-Brooks employees how to operate, service, repair, 10 install Cleaver-Brooks boilers, is that accurate? 11 A Correct. I'm not sure I got into the installing of 12 the Cleaver-Brooks boilers but certainly to operate and 13 maintain them. 14 Q Okay. Any of the training that you ever did either 15 for Cleaver-Brooks employees or people outside of 16 Cleaver-Brooks ever deal with asbestos issues? . 17 A No. 18 Q All right. You never held any training where you have 19 trained people outside of Cleaver-Brooks about the fact that 20 your boilers contained asbestos, did you? 21 A No, I did not. ,, 22 Q And you're not aware of that training ever occurring 23 for either Cleaver-Brooks personnel or people outside of the Page 13 Tornetta 2014 Trial Testimony.txt 24 company, are you? . 25 A No, I'm not. . 26 Q Okay. And you held that title of assistant training 3740 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 manager from 1996 until approximately 2000? 3 A Correct. 4 Q You took a year off where you went someplace else, is 5 that right? 6 A Yes. 7 Q And then in April of 2001 you went back to 8 Cleaver-Brooks as manager of technical services, is that right? 9 A Correct. 10 Q And you've held that position until today presently. 11 A Correct. 12 Q All right. -When you went back in April of 2001 as 13 manager of technical services, you were working with a man by 14 the name of George Provance, is that correct? 15 A Yes, it is. 16 Q Mr. Provance had worked at Cleaver-Brooks since the 17 mid-1960s, is that accurate? ' 18 A Yes. 19 Q And at that time in 2001 he was the person most 20 knowledgeable at Cleaver-Brooks and he actually testified on 21 behalf of Cleaver-Brooks in asbestos litigation, is that fair? 22 A Yes, he did. 23 Q All right. Mr. Provance is retired, correct? 24 A Correct. 25 Q Still alive however? 26 A Yes, he is. 3741 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 Q Enjoying his retirement, right? 3 A I would hope so. 4 Q He no longer testifies in these types of cases, right? 5 A Correct. 6 Q Okay. Fie retired in approximately when? 7 A It was just after I started in 2001. 8 Q Okay. You've had conversations with Mr. Provance 9 about issues that I'm going to be asking you about today, is 10 that right? 11 A Correct. 12 (Continued on following page.) 13 ` 14 ' 15 16 17 18 Page 14 Tornetta 2014 Trial Testimony.txt 19 20 21 22 23 24 25 26 ' 3742 _ 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Q You've never taken a single note memorializing any of . 3 your conversations with Mr. Provance, right? 4 A Ho. I guess I didn't, no. 5 Q. Okay. As a matter of fact, you've never documented 6 any conversation you've ever had with anybody pertaining to the 7 issues that I'm going to question you about today; is that 8 right? 9 A In the form of notes, no. I certainly, you know, in 10 the conversations with Mr. Provance, I worked with him in 11 responding to interrogatories, so I guess that's documentation 12 of it. 13 Q Fair enough. No personal notes that you took down 14 other than legal documents, right? 15 A Correct. 16 Q Okay. We're going to talk about interrogatories in a 17 little bit. 18 As manager of technical services, you handled 19 litigation issues for Cleaver-Brooks, right? 20 A I'm not sure what you mean by handled the litigation 21 issues. I certainly am involved in the litigation from a 22 technical perspective with our attorneys. ' 23 Q Fair enough. You consult with Cleaver-Brooks lawyers 24 on product liability matters, correct? 25 A Yeah. I guess I narrow that down to the technical ' 26 perspective of it, yes. . 3743 . 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Q You consult withthem about asbestoscases; is that 3 correct? 4 A Yes. 5 Q. You answer discovery requests that you receive from 6 plaintiffs' law firms throughout the country; is that right? 7 A Correct. 8 Q You testify at depositions as the personmost 9 knowledgeable, the corporate representative of Cleaver-Brooks; 10 is that right? 11 A Correct. 12 Q. And you're the only person who does that, right? 13 A Yes. Page 15 Tornetta 2014 Trial Testimony.txt 14 Q And you have a staff of one, Ms. Anderson. Does she 15 still work for you? 16 A Yes, she does. ` 17 Q Could you tell the jury how many pending litigation 18 matters there are against Cleaver-Brooks right now? 19 MR. O'CONNELL: Objection, your Honor. ' 20 THE COURT: Sustained. 21 Q Do you have anybody else to help you beside 22 Ms. Anderson? 23 A I guess I'd broaden it out to our attorneys around the 24 country. 25 Q Not your attorneys. 26 A Oh. 3744 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Q Anybody that works in Milwaukee, in your office, on a 3 day-to-day-basis that assists you in the performance of your 4 job? 5 MR. O'CONNELL: Objection, your Honor. 6 A No -- I'm sorry. 7 THE COURT: Overruled. 8 A No, I don't. , 9 Q Now, you understand, Mr. Tornetta, that I, on behalf 10 of Mr. and Mrs. McCloskey, have called you to testify in the 11 plaintiffs' case, right? . 12 A Yes, I do. 13 Q. And you actually know, I believe, that Isubpoenaed 14 you to be here today; is that right? 15 A Yes. 16 MR. KRAFT: Your Honor, at this time I'd like to 17 have marked as Tornetta 1 a copy of the subpoena that we 18 sent to Cleaver-Brooks' lawyers. 19 Can I approach the witness? 20 THE COURT: Yes. 21 Q (Handing) I'd ask you to take a look at that, 22 Mr. Tornetta. Have you seen that before? 23 A I don't believe I actually saw the subpoena. I know 24 the contents of it, but I don't believe I actually saw the 25 subpoena. 26 Q Fair enough. We asked Cleaver-Brooks to designate the 3745 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 individual who was their person most knowledgeable/corporate 3 representative pertaining to the issues on trial in this 4 matter, is that fair? 5 A Yes. . 6 Q. And are you in fact that person, the person most 7 knowledgeable and Cleaver-Brooks' corporate representative? 8 A Yes. Page 16 Tornetta 2014 Trial Testimony.txt 9 Q. Okay. When you give testimony today, it's as if 10 Cleaver-Brooks, the company, is testifying. You understand 11 that, right? 12 MR. O'CONNELL: Objection. 13 MR. BLAKELY: Objection to the form. 14 THE COURT: Sustained. 15 Q You understand you're giving testimony as the company, 16 correct? 17 MR. O'CONNELL: Objection. 18 MR. BLAKELY: Objection. 19 THE COURT: Sustained. 20 Q Well, is anybody else from the company coming to 21 testify other than you? 22 MR. O'CONNELL: Objection, your-Honor. 23 THE COURT: Sustained. 24 Q Are you here testifying as a fact witness in this ` 25 case, to the best of your knowledge? . 26 MR. O'CONNELL: Objection, your Honor. 3746 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft ' 2 THE COURT: Sustained. 3 Let's move on, Mr. Kraft. 4 Q Have you brought any documents with you, Mr. Tornetta, 5 that you're going to rely upon in giving your testimony to this 6 jury? 7 A Yes. 8 Q. Have you previously provided those to your lawyers? 9 A Yes. 10 MR. KRAFT: I call for production of those. 11 I'd like to take a look at what he brought, your 12 Honor? 13 MR. O'CONNELL: Your Honor, he's got them. 14 THE COURT: Pardon? 15 MR. O'CONNELL: The witness has them. 16 THE COURT: Okay. . 17 MR. KRAFT: Can we mark these as Tornetta 2, y o u r. 18 Honor? 19 THE COURT: For I.D.? . 20 MR. KRAFT: For identification. 21 (Plaintiffs' Exhibit 2 marked for 22 identification.) 23 Q Is it fair to say, Mr. Tornetta, what you brought, the 24 only thing you brought with you is the Chart A from the 25 interrogatories of Mr. McCloskey; is that correct? 26 A Along with my notes on the side of it related to 3747 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 boiler shipments or not. 3 Q Fair enough. What I'm trying to say, it's one Page 17 Tornetta 2014 Trial Testimony.txt 4 document, it's the Chart A pertaining to Patrick McCloskey, and 5 then on the right-hand side you make notes; is that right? 6 A Correct. 7 Q Did you bring any other documents or things that 8 you're going to be relying upon to testify in this matter? 9 A No, I didn't. ' 10 Q Fair enough. Is it fair to say, Mr. Tornetta, that , 11 many of the issues we're going to discuss today pertain to 12 matters that occurred prior to 1985 when you first started at ` 13 Cleaver-Brooks? . 14 MR. O'CONNELL: Objection, your Honor. 15 THE COURT: Overruled. 16 Q You understand that, right? 17 A Well, I guess I assumethat. I guess it depends on 18 what you ask. 19 Q And since you weren't at Cleaver-Brooks before 1985, 20 the sole basis of your knowledge for anything that occurred 21 prior to 1985 is either talking to somebody or reviewing 22 documents from that time period, is that fair? 23 A Yes, I believe so. 24 Q I'd like you to take a look at what I'm going to mark 25 as Tornetta 3 for identification. 26 3748 1 2 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft (Plaintiffs' Exhibit 3 marked for 3 identification.) * 4 MR. KRAFT: May I approach the witness, your 5 Honor? 6 MR. O'CONNELL: Hold on, hold on. Is this on 7 your exhibit list? 8 MR. KRAFT: Yes, it's in your answer to 9 interrogatories. 10 THE COURT: So it's 3, 4 and 5. 11 MR. KRAFT: This is Tornetta 3. 12 MR. O'CONNELL: May we approach, your Honor? 13 THE COURT: Sure. 14 (The following sidebar was held outside presence 15 of jury:) 16 THE COURT: I haven't seen this. 17 MR. O'CONNELL: Here you go. 18 MR. KRAFT: It's an organizational chart of the 19 company. 20 MR. O'CONNELL: The problem is it's not the 21 company anymore. That's not part of the company anymore. 22 The distillers are not part of this case. 23 MR. KRAFT: I'm not talking about distillers. 24 This was provided to us as the only organizational chart 25 that Cleaver-Brooks had in 2003. He started in 2001. I'm Page 18 Tornetta 2014 Trial Testimony.txt 26 going to ask which of these people he spoke to to glean 3749 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 information relevant to his testimony and he's going to say 3 no. I'm not going to even mention that. 4 MR. O'CONNELL: Okay. All right. 5 (In open court:) 6 THE COURT: Is the objection withdrawn? 7 MR. O'CONNELL: Objection is withdrawn. 8 THE COURT: Thank you. 9 BY MR. KRAFT: 10 Q Mr. Tornetta, you recognize generally what I've just 11 handed to you that's marked as Tornetta 3? 12 A Generally, yes. 13 Q And you'd agree it's an organizational chart for the 14 company that you worked for around the time period of 2003 or 15 so? ` 16 A I'm not sure I can specifically date it to 2003, but 17 that would probably be close based on the CEO at the time, yes. 18 Q Fair enough. You would agree that this is a . 19 several-page document, right? 20 A Yes. ` 21 Q And it lists people who were employed at the time by 22 your company; is that right? . 23 A Yes. 24 Q And, in fact, on the last page, your name is listed as 25 John Tornetta, assistant manager in the technical services 26 division, under George Provence; is that right? 3750 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Yes. 3 Q I would like you to take a look at this and tell me 4 the people on here that you sought out when you became the 5 corporate representative of Cleaver-Brooks to talk to about 6 things that happened before you got there in 1985? 7 A At that time I sought out Mr. Provance and talked with 8 him. 9 Q All the people listed on here besides Mr. Provance, 10 you never sought them out to discuss what happened at the 11 company before you got there in 1985, is that accurate? 12 MR. BLAKELY: Objection. , 13 THE COURT: Sustained. 14 Q Well, is there anybody on here you talked to other ` 15 than Mr. Provance? . 16 A About what happened with the company over the years? 17 In that general of a term, probably, yes. 18 Q Could you tell me some names? 19 A Well, I talked to people all over the place. I guess 20 I can't narrow it down to -- I can broaden it to what happened Page 19 Tornetta 2014 Trial Testimony.txt 21 in the company. I was answering before in relation to 22 asbestos. 23 Q How many people have you spoken to who were employees 24 of Cleaver-Brooks from the '40s, '50s, '60s and 70s and before 25 you in the '80s about asbestos litigation? 26 MR. O'CONNELL: Objection. 3751 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 THE COURT: Overruled. 3 A The only one I could specifically come up with is 4 Mr. Provance. 5 Q Have you had a chance prior to testifying here today ` 6 to review the deposition testimony of Mr. McCloskey? . 7 A Yes. 8 Q. Can you tell the jury when you reviewed that 9 testimony? ` 10 A I believe I initially reviewed it back in early 11 December and then I've reviewed it within the last week. 12 Q When you say you reviewed his deposition testimony, 13 can you tell the jury how many volumes of deposition testimony 14 you reviewed? 15 A All of them. I think it was five, possibly six. 16 There was a short volume at the back. I can never remember if 17 that's - 18 Q Six volumes. 19 A Yeah. . 20 Q Did you review every word or were there parts that 21 were selected for you to review. 22 A I reviewed every word. I read every word. 23 Q Have you had a chance to review the portions of that 24 deposition testimony that were read into evidence for this jury 25 prior to you testifying here today? 26 A I assume I did since I read every word, but I don't 3752 . 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 know what those portions were that were read in. 3 Q You understand that we didn't read all six volumes 4 word for word to this jury, right? 5 A I didn't know that one way or the other. So no, I 6 don't. 7 Q Prior to testifying here today, have you received the 8 selected portions of testimony that were read to this jury? Do 9 you know one way or the other? 10 A No. 11 Q You never worked with Mr. McCloskey; is that right? 12 A That would be correct. I did not. 13 Q. You never talked to him? 14 A No. 15 Q You never methim? Page 20 Tornetta 2014 Trial Testimony.txt 16 A Correct. 17 Q. You never worked at any of the job sites that 18 Mr. McCloskey ever worked at, is that fair? 19 A I don't believe I did, no. 20 Q Well, you had a chance to review his deposition 21 testimony and he listed the sites where he worked, would you 22 agree with that? 23 A Yes. 24 Q Have you ever worked at any of the sites listed by 25 Mr. McCloskey? 26 A No, I don't believe I did. 3753 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Q Mr. McCloskey, you wouldagree, worked as a 3 steamfitter from about 1962 forward until he retired in the 4 2000s; is that right? 5 A Yes. 6 Q You never performed work as a steamfitter anywhere in 7 your life; is that right? 8 A Correct. 9 Q Because you didn't workwith Mr.McCloskey at the 10 places he described working at, factually you can't dispute 11 anything that he said about the work that be did, where he 12 worked and how he performed that work, will you agree? . 13 MR. O'CONNELL: Objection, your Honor. 14 MR. CZEREPAK: Objection. 15 THE COURT: Sustained. 16 Q Well, can you tell this jury factually anything from 17 your own observations about what Mr. McCloskey did? 18 MR. CZEREPAK: Objection. 19 MR. O'CONNELL: Objection, your Honor. 20 THE COURT: Overruled. 21 A I never saw Mr. McCloskey work, so I wouldn't be able 22 to tell them what I observed him do. 23 Q Right. And because you didn't observe him working, 24 you can't tell this jury that what he told this jury he did was 25 right or wrong, right? You just don't know, you weren't there? 26 MR. CZEREPAK: Objection, your Honor. 3754 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 MR. O'CONNELL: Objection. 3 THE COURT: Overruled. 4 A I can only go by what his testimony says. 5 Q Are you, Mr. Tornetta, the person most knowledgeable 6 about the corporate history of Cleaver-Brooks? 7 MR. BLAKELY: Objection. Relevance. 8 THE COURT: Sustained. 9 Q Well, is there anybody else at the company who 10 typically testifies about the corporate history of Page 21 Tornetta 2014 Trial Testimony.txt 11 Cleaver-Brooks? 12 MR. O'CONNELL: Objection. 13 THE COURT: Overruled. 14 A No, there isn't. 15 Q Do you feel comfortable discussing the corporate 16 history of Cleaver-Brooks with this jury? 17 MR. CZEREPAK: Objection. 18 MR. O'CONNELL: Objection. 19 THE COURT: Sustained. 20 MR. KRAFT: Well, let's do it this way. 21 I'd like to hand to the witness what is marked - 22 I'm going to mark as Tornetta 4. 23 May I approach the witness, your Honor? 24 THE COURT: Yes. 25 Q (Handing.) - 26 A Thank you. 3755 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Q You're welcome. 3 You've seen that document before, right, Mr. Tornetta? 4 A Yes, I have. 5 Q And this is actually a Cleaver-Brooks company 6 document, right? 7 A Yes. 8 Q And this document discusses the corporate history of 9 Cleaver-Brooks, right? 10 A Yes. I guess I cancall highlights of it, yes. 11 Q. Highlights. 12 And, in fact, you when you testify sometimes refer to 13 this for dates when things occurred in the history of 14 Cleaver-Brooks, is that fair? 15 A I'm not sure I ever actually used it for that purpose, 16 but it's been referred to or used in some depositions and 17 trials for that reason from plaintiffs. 18 Q Do you have every significant date in the history of 19 Cleaver-Brooks memorized? . 20 MR. O'CONNELL: Objection, your Honor. 21 THE COURT: Overruled. 22 A I guess I wouldn't know what you mean by "significant 23 date," but I have a lot of them in my head, yes. 24 Q Would this aid you in offering testimony about 25 significant dates in the history of Cleaver-Brooks? 26 A It may. 3756 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Q This is a business record, something that was created 3 by Cleaver-Brooks, kept in the regular course of business by 4 Cleaver-Brooks, correct? 5 MR. O'CONNELL: Objection. Page 22 Tornetta 2014 Trial Testimony.txt 6 THE COURT: Overruled. 7 A Yes, I believe so. 8 MR. KRAFT: I seek to introduce it as Tornetta 4 9 in evidence, your Honor. 10 MR. O'CONNELL: No objection. 11 THE COURT: Very well. It is Tornetta 4. Let's 12 mark it, please. ' 13 MR. KRAFT: Okay. I'm going to put it up on the . 14 board. 15 (Plaintiffs' Exhibit 4 marked and received into 16 evidence.) . 17 Q When did John Cleaver start Cleaver-Brooks, what would 18 eventually become known as Cleaver-Brooks? 19 MR. CZEREPAK: Objection, your Honor. 20 THE COURT: Overruled. 21 A The end of 1931. 22 Q Okay. If you could just read to the jury, please, 23 what the first paragraph - let's show the jury the first page. 24 Cleaver-Brooks: "Innovation that Fires the Future." 25 And the symbol "Cleaver" with something in the middle, that's 26 an older symbol of Cleaver-Brooks, right? 3757 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Yes. 3 Q That symbol has since changed; is that right? 4 A Somewhat; yes. 5 Q It's now hands holding a fire or a flame; is that 6 right? " 7 A That is in there as well. However, it's surrounded by 8 a globe and things orbiting the globe. So it's a little messy 9 in what you see there, but there is a hand and fire inside ' 10 that. . 11 Q The current logo for Cleaver-Brooks doesn't have the 12 globe with stuff circling it, right? 13 A Correct. 14 Q You just told this jury that John Cleaver started the 15 company that would eventually become Cleaver-Brooks in 1931, is 16 that what you told them? 17 A No. I said he started Cleaver-Brooks in 1931. 18 Q In fact, Mr. Cleaver, who became part of 19 Cleaver-Brooks, had started a boiler company in 1929; is that 20 right? 21 A On his own, yes. 22 Q And then he met a man by the name of - is it James or 23 John Brooks from New York? 24 A I thought Raymond Brooks. 25 Q Raymond Brooks from New York? 26 A Yes, I believe so. 3758 * Page 23 Tornetta 2014 Trial Testimony.txt 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft L 0. Ana tney got togetner ana uien lurmeu a tumpany vaueu 3 Cleaver-Brooks in about 1931; is that right? 4 A The end of 1931, yes. 5 Q And in 1931, production of the boilers, their packaged 6 boilers, was 40. They had made 40 boilers by the end of 1931; 7 is that right? 8 A That's what it says there. I'm - not Cleaver-Brooks 9 boilers. They may have been John C. Cleaver Company boilers, 10 but Cleaver-Brooks boilers - deaver-Brooks wasn't 11 incorporated until December of 31, so I dont believe there 12 were 40 boilers made in 1931 by Cleaver-Brooks. 13 Q Okay. How many boilers were made by Cleaver-Brooks in 14 1931? . 15 A I don't believe any. The articles of incorporation, I 16 believe, are like December 29th or something of 1931. 17 Q When did .manufacturing of Cleaver-Brooks boilers 18 begin? 19 A I've never narrowed it down to a specific date, but I 20 would say it was 1931. 21 Q And the manufacturing facility in 1932 was in ' 22 Milwaukee, Wisconsin; is that right? 23 A Yes. ............ " ------------ ;------- - 24 Q That was the only manufacturing facility at the time? 25 A Correct. ' 26 Q By 1949, Mr. Tornetta, do you know from memory how 3759 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 many boilers Cleaver-Brooks had manufactured? 3 A No, not from memory. 4 Q This document helps with that, right? 5 A It may. 6 Yes, it does. 7 Q it says, "By 1949, Cleaver-Brooks had sold more than 8 8,000 packaged boilers," is that accurate? . 9 A Sounds like it could be, yes. I can't say I've ever 10 gone in and counted them, but that wouldnt be unusual. 11 Q. Do you know and can you tell this jury when 12 Cleaver-Brooks first introduced an asbestos-containing 13 component into a Cleaver-Brooks boiler? _ 14 A No, I don't have a way to say that. 15 Q Do you know whether it was in 1932, '35, '40, '45, 16 '50? Do you have any idea? . 17 A I don't have a way to tell for certain, no. 18 Q Can you tell this jury whether any of those 8,000 19 boilers that were manufactured from 1932 to 1949 contained- 20 asbestos of any kind, do you know? 21 MR. O'CONNELL: Objection, your Honor. 22 THE COURT: Overruled. Page 24 Tornetta 2014 Trial Testimony.txt 23 A I don't know that I've looked that close at any 24 boilers prior to '49, so I can't say for certain. ' 25 Q From 1932 until 1955, there was one manufacturing 26 facility making Cleaver-Brooks boilers and that was in 3760 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Milwaukee, Wisconsin; correct? 3 A Yes. 4 Q In 1956, as this document indicates, Cleaver-Brooks 5 built a new, fully automatic boiler facility in Lebanon, 6 Pennsylvania; is that correct? 7 A Yes. And I'd just like to clarify a bit about the 8 Milwaukee. I believe there was actually more than one facility 9 in Milwaukee possibly making them, but they were all built in 10 Milwaukee. 11 Q In 1956, Cleaver-Brooks built a facility in Lebanon, 12 Pennsylvania? 13 A Yes. 14 Q. Began making Cleaver-Brooks boilers in Lebanon, 15 Pennsylvania; is that correct? 16 A Yes. I'm not certain they made them starting in '56, 17 but that was when the facility was built. ' 18 Q In 1964, something called the Cleaver-Brooks Boiler 19 House in Lebanon, Pennsylvania opened, right? 20 A Yes, that sounds right. 21 Q And that exists till today, is that right, in Lebanon? ' 22 A No, it doesn't. 23 Q It doesn't. 24 The purpose of that Cleaver-Brooks Boiler House was to 25 train all of Cleaver-Brooks' customers, representatives and 26 employees, just as it says in the document, right? 3761 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Yes, that was one of the purposes. 3 Q Well, that's the purpose that's indicated in this 4 Cleaver-Brooks document, right? 5 A Yes. 6 MR. O'CONNELL: Objection, your Honor. 7 THE COURT: Overruled. 8 Q On the last page of the document, Mr. Tornetta, it 9 lists products and we're going to talk about.boilers here 10 today. You understand that boilers are the only thing at issue 11 in the McCloskey matter, right? ' 12 A Yes. 13 Q Cleaver-Brooks made other things throughout its 14 history, but the only thing relevant to your testimony here ' 15 today is boilers, you'd agree with that? ' 16 A I believe so, yes. 17 Q And this document lists the type of boilers that Page 25 Tornetta 2014 Trial Testimony.txt 18 Cleaver-Brooks made, including fire-tube boilers, commercial . 19 water-tube boilers, electric boilers, solid fuel-fired boilers, 20 industrial water-tube boilers and waste heat boilers; is that 21 right? 22 A Yes. At the time this was produced we did that. 23 Q Do you know when this document was produced? 24 A No, I don't specifically. I never -- I don't think 25 there's a date on it, but I believe it was the early '90s based 26 on some of those products. 3762 1 2 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft Q I want to discuss the manufacturing facilities that 3 Cleaver-Brooks has had historically. 4 Well, is Cleaver-Brooks still manufacturing boilers . 5 today? 6 A Yes. 7 Q In Milwaukee, Wisconsin? 8 A No. 9 Q There was a time when there were multiple 10 manufacturing facilities in Milwaukee, right? . 11 A Yes. ` 12 Q The Lebanon, Pennsylvania plant started in 1956, . 13 correct? 14 A Roughly'56, yes. 15 Q Is that plant still in operation today? 16 A No, it is not. 17 Q Do you know when that plant closed? 18 A 1994, I believe is the date. 19 Q You had a boiler manufacturing facility in Stratford, 20 Ontario, Canada; is that right? 21 A Correct. 22 Q And that operated for the first time late 1950s, early 23 1960s; is that correct? 24 A Yes. 25 Q Is that plant still in existence today making 26 Cleaver-Brooks boilers? 3763 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Yes, it is. ` 3 Q There was a plant in Greenville, Mississippi that 4 opened its doors mid to late 1960s, correct? 5 A Yes, I believe so. 6 Q Is that plant still operating today? . 7 A No, it's not. 8 Q There was a plant in Thomasville, Georgia that 9 Cleaver-Brooks acquired in 1992; is that right? 10 A Correct. 11 Q There's one in Lincoln, Nebraska that opened its doors 12 in 1997, right? Page 26 Tornetta 2014 Trial Testimony.txt 13 A Roughly 97, yes. 14 Q And there's a facility in Mexico City, Mexico, right? 15 A Correct. 16 Q. Have I covered all of the historical manufacturing 17 facilities where Cleaver-Brooks boilers have ever been . 18 manufactured? 19 A Yes, I believe so. i think I caught them all in 20 there, yes. . 21 Q In 1952 you would agree that Cleaver-Brooks had 22 representatives in 30 states and three forejgn countries, 23 correct? 24 A I don't know the specific numbers,butthat wouldn't ' 25 surprise me, no. I would say that's probably correct. . 26 Q That sounds about right in 1952? 3764 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Sure, '52, that wouldn't surprise me. 3 Q You understand that that's about ten years prior to 4 Mr. McCloskey first working as a steamfitter, right? 5 A I believe so, yes. 6 Q Now, what I want todo for the nexttopic area is 7 discuss the categories of boilers that Cleaver-Brooks has 8 manufactured historically, okay? 9 A Sure. 10 Q And I believe, based upon reading your testimony, 11 there were three general, broad classifications of boilers. 12 fire-tube, commercial water-tube and industrial water-tube. 13 Those are the three general, broad categories? 14 A Very broad, yes. 15 Q. I'm trying to paint big and I'm going to hone down. 16 A Sure. . 17 Q All of those boilers fall under the category of . 18 packaged boilers; is that correct? 19 A Correct. . 20 Q. Could you explain to the jury briefly what a packaged 21 boiler is? ' 22 A A packaged boiler is a boiler that is manufactured 23 completely in our plant, or anyone else's plant if they're 24 making packaged boilers, so it's not built on-site, its 25 completely built in the factory and ready for, when it's 26 delivered, a connection to the building service's steam or 3765 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 fuel, flue gas, things of that sort. 3 Basically a boiler would have to be -- size wise it 4 would have to be something we could ship on either a truck or 5 rail car or, in some cases, in a container going overseas. 6 Q And under the general category of packaged boilers and 7 the three broad categories is something called a fire-tube Page 27 Tornetta 2014 Trial Testimony.txt 8 boiler; is that right? . 9 A Correct. 10 Q Can you explain to the jury generally what that means, 11 what a fire-tube boiler is? 12 A A fire-tube boiler, we're transferring heat from fire, 13 basically burning a fuel to steam or hot water to water to make 14 steam or hot water. In a fire-tube boiler, the heat or the 15 flame is inside tubes and the water surrounds the tubes. 16 That's probably the biggest distinction between that and any 17 other type of boiler. 18 Q. And you would agree that throughout history there have 19 been various makes and models of fire-tube boilers manufactured 20 by Cleaver-Brooks? 21 MR. O'CONNELL: Objection. 22 THE COURT: Overruled. 23 A I would say models. I'm not quite sure what you mean 24 by "makes," but certainly models. 25 Q When I say "make," like I've seen the Monitor boiler. 26 Is the Monitor a fire-tube boiler? 3766 ' 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Yes, it is. " . 3 Q And you would agree that that is a - you would say . 4 that's a model of boiler? 5 A I would probably call that a model versus a make. ` 6 Q Let's do models. 7 A Okay. 8 Q You would agree that there have been various models of 9 Cleaver-Brooks fire-tube boilers throughout history; is that 10 right? 11 A Yes. 12 Q And then within any given model, there are various 13 sizes within that model, correct? 14 A Correct. 15 Q Can you tell this jury the various models of fire-tube 16 boilers that have been manufactured by Cleaver-Brooks from its 17 inception i n '32 up through 1985? 18 A I'll try. 19 Q Okay. 20 A The first model back going to the '30s would have been 21 the model OB. It was just the letters OB. 22 Q And that stood for oil burning? 23 A Oil built is what it stood for. ' 24 Q Now, within the oil-built model there were various 25 sizes? 26 A Correct, and fuel series and some other things that ' 3767 . 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 would affect what we would broadly call the model number. Page 28 Tornetta 2014 Trial Testimony.txt 3 Q Other than oil built, what other models? 4 A There's the LR model. 5 Q What does LR stand for? 6 A Low furnace rotary cup. 7 Q And within the LR model there were various sizes and 8 horsepowers, correct? 9 A Correct. 10 Q The next model? 11 A Actually I flipped them. I think LF was actually 12 prior to the LR, but they overlapped a good bit. The other one 13 is LF. 14 Q LF. And what does LF stand for? _ 15 A Low furnace. . 16 Q And within the low-furnace models there were various . 17 sizes and horsepowers? . 18 A Correct. 19 Q Any other models within the fire-tube boilers? 20 A The CB model. 21 Q The CB model standing for Cleaver-Brooks model, right? 22 A Correct. 23 Q. Came out in 1955 or so? 24 A It was phased in over time, but I think the earlier 25 ones - some of the first ones for the mid-'50s. 26 Q. Any other model -- well, within the Cleaver-Brooks 3768 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 model, various sizes and horsepowers? 3 A Yes. . 4 Q Any other models? 5 A The one you mentioned was the Monitor, Ibelieve. 6 Q Okay. 7 A That's sort'of the subset of the CB model but not 8 completely. 9 Q Okay. ' 10 A Then there's also the Progress. , 11 Q Okay. Progress is a later model boiler, post-1970s? 12 A No. 13 Q No. When did they come out? . 14 A That would have been the mid-'50s as well, maybe late 15 '50s for some of the first ones. 16 Q Okay. 17 A There's a CBH. 18 O What does CBH stand for? 19 A It was Cleaver-Brooks Highlander. I have no idea what 20 Highlander means or was for. 21 Q Okay. 22 A Over the years since I've been there, there's been a 23 CBW. 24 Q That's post 1985. Page 29 Tornetta 2014 Trial Testimony.txt 25 26 3769 1 2 A Yes, it is. Q Just pre-1'985. F. Tornetta - by Plaintiff McCloskey - Direct/Kraft A Pre-1985, I can't think of any other fire-tube models 3 right at this moment. 4 Q You would agree that from 1932 till 1985, every one of 5 those model fire-tube boilers, during the time period 1932 to . 6 1985, contained some type of asbestos component, correct? 7 A Every one of the models? I'm not sure I can say that 8 for certain. I don't know that I could say they certainly did 9 not, but I'm not sure I could, you know, testify that they 10 definitely did. 11 Q You don't know one way or theother, do you? 12 A To that - for every model, no, I don't. 13 Q Would you agree that the fire-tube boilers 14 historically have come in sizes ranging from 15 horsepower to 15 1500 horse power? 16 A Not through '85, 1500 horsepower, but 1500 horsepower 17 is more recent. 18 Q Through 1985, the highest horsepower? 19 A 800. 20 Q Fifteen horsepower, fire-tubed Cleaver-Brooks boiler 21 is about 3 feet tall, 3 feet wide and 10 feet long, would you 22 agree with that? " 23 A That sounds like a good estimation of it, yes. 24 Q The 1500 horsepower is 10 to 12 feet tall, 10 to 25 12 feet wide and 25 feet long approximately? 26 A That soundsabout right. 3770 . 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Q It was your approximation, so I don't want to say that 3 it's me doing it. Do you agree with that? 4 A Yes. 5 Q Okay. Withinthe fire-tube models there were hot 6 water boilers and there were steam type boilers; is that 7 correct? 8 A Correct. 9 Q You agree that both the hot water and steam type 10 boilers from 1932 till the mid-1980s contained asbestos 11 component parts, you agree with that? 12 A Well, I think we get back to what we discussed a 13 little earlier. I couldn't say it for certain with all models. 14 Q You don't .know one way or the other? 15 A Not that I could say for certain, no, I don't. 16 Q We're done talking about fire-tube, eight? 17 A I guess so, if you want to be. I'm not sure. 18 Q Are there any models that we haven't talked about? 19 A Oh, as far as other models, yes. I don't have any Page 30 Tornetta 2014 Trial Testimony.txt 20 others that I can think of. 21 Q. The water-tube boilers are broken into commercial and 22 industrial water-tube; is that right? 23 A Yes. 24 Q Are there various models of commercial and industrial 25 water-tube boilers? 26 A Yes, within those there are, yes. 3771 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Q The Beaver model, the Model 3 and the Model 4, those 3 are all models of water-tube boilers; is that right? 4 A Yeah. We would classify those as commercial. It 5 doesn't necessarily mean they're only commercially used, but 6 that's the way we would classify them, yes. 7 Q Would you agree that every model water-tube boiler 8 from 1932 until 1985 contained some asbestos component? 9 A Again, I don't think I can say that for'certain. 10 Q Do you know one way the other? . 11 A Not, you know, to say absolutely it does or absolutely 12 it does not, no. 13 Q From inception in the 1930s, when Cleaver-Brooks 14 started making boilers, until the mid-1980s, let's say 1985, . 15 how many boilers did Cleaver-Brooks manufacture? 16 A It was probably in the area of a hundred thousand at 17 that point, maybe 120. 18 Q. Okay. And today Cleaver-Brooks has sold about 150,000 19 boilers; is that right? 20 MR. O'CONNELL: Objection, your Honor. 21 THE COURT: Overruled. 22 A At least that, I would say. 23 Q Would you agree that on every single boiler that 24 Cleaver-Brooks has ever sold, there has been a nameplate of 25 some sort saying "Cleaver-Brooks" on the boiler? 26 A Yes. I think we've always put our name on the boiler 3772 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 and said the name of the company. 3 MR. KRAFT: Your Honor, I'd like to have these 4 two objects marked as -- deemed marked as Tornetta 5-A and 5 5-B for identification purposes at this time. 6 THE COURT: Yes. ' 7 MR. KRAFT: May I approach the witness? . 8 THE COURT: Have you shown it to Mr. O'Connell? 9 MR. KRAFT: Yes. 10 (Plaintiffs' Exhibit 5-A and 5-B marked for 11 identification.) 12 Q Do you recognize these, Mr. Tornetta? 13 A Yes. 14 Q Can you tell the jury what those two objects are? Page 31 Tornetta 2014 Trial Testimony.txt 15 A Different versions of the nameplate for Cleaver-Brooks 16 boiler. 17 Q If you could just show them, please. . 18 A Both of them or just the one? 19 Q. Yeah, both. That's fine. 20 MR. O'CONNELL: Objection, your Honor. 21 THE COURT: Yes. They're not in evidence yet. 22 MR. KRAFT: Fair enough. . 23 I seek to introduce them into evidence at this 24 time. ` 25 THE COURT: Any objection? . 26 MR. O'CONNELL: No objection, your Honor. 3773 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 (Plaintiffs' Exhibit 5-A and 5-B marked and 3 received into evidence.) 4 Q Can you show them to the jury, just to be formal? 5 (Witness Displays Exhibit 5-A and 5-B to the jury.) 6 Q Thank you. 7 You would agree that those are representative examples 8 of nameplates that have been on Cleaver-Brooks boilers 9 throughout history, correct? 10 MR. O'CONNELL: Objection. 11 THE COURT: Can you rephrase it? 12 Q Well, what are those? 13 A They are nameplates we've used. I'm not sure they're 14 representative of all history, but they've changed over the 15 years. 16 Q Okay. Every boiler has the name "Cleaver-Brooks" on 17 it, right? 18 A Somewhere, yes. 19 MR. KRAFT: I'm sorry. Could I have the answer 20 read back? 21 (The testimony as requested was read by the 22 reporter.) 23 MR. KRAFT: Somewhere, not some were. 24 Q And Cleaver-Brooks, when you manufactured the boilers 25 in your facility, decided to put the Cleaver-Brooks name on the 26 boiler, right? 3774 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Yes, I suppose we did. 3 Q And you were proud of it, right? It was a 4 Cleaver-Brooks piece of equipment, right? 5 A Yes. 6 Q. And you proudly displayed your name on that boiler, 7 right? 8 A I guess I'm not sure what you mean by "proudly," but, 9 yes, we weren't ashamed that it was a Cleaver-Brooks boiler. ,, Page 32 Tornetta 2014 Trial Testimony.txt 10 Q I'm not saying you should have been. 11 Cleaver-Brooks could have put anything they wanted in 12 terms of identification markers, plates, logos, labels, 13 anything they wanted on their boilers, right? 14 MR. O'CONNELL: Objection. . 15 THE COURT: Overruled. 16 A I'm not sure I could answer to anything we wanted, but 17 you know, from reasonably, yes. 18 (Continued on following page.) 19 20 21 22 23 24 25 26 3775 1 F. Tornetta --By Plaintiff McCloskey - Direct/Kraft 2 Q The answer is yes? 3 A i n a reasonable manner, yes. I wouldn't want to sit 4 here and try to figure out what would be unreasonable. 5 Q You could have put symbols, pictures, plates, logos, ` 6 those types of things on your boiler? 7 MR. O'CONNELL: Objection, your Honor. Asked and 8 answered. ' 9 THE COURT: Overruled. ' 10 Q We just saw the Cleaver-Brooks made and sold 8,000 11 boilers between 1932 and 1949. Can you tell me how many 12 boilers Cleaver-Brooks made and sold in the 1950s? 13 A Off the top of my head, no, I can't. 14 Q How many boilers did they make and sell in the 1960s? 15 A Again, off the top of my head, I don't have those 16 numbers. 17 Q How many did they make and sell in the 1970s? 18 A It would have to be the same. Off the top of my head, 19 I don't have that number. . 20 Q Okay. How many did they sell from 1980 to 1985? 21 A I don't know off the top of my head. 22 Q All right. .You just told this jury that there were 23 100,000 or so boilers sold from 1932 to 1985, right? 24 A That is an estimate, yes. . 25 Q Okay. So if you subtract 18,000 from 100,000, that's 26 82,000 boilers, is that right? 3776 . 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 A Yes. I'm not sure why I am subtracting 18,000. ' 3 Q Because you made 18,000 from 1932 to 1949, right? I'm 4 sorry. 8,000. Page 33 Tornetta 2014 Trial Testimony.txt 5 A 8,000. 6 Q So 92,000? 7 A Yes. 8 Q Let's try the math again. I'm not a math wiz. 9 From 1949 until 1985, you made approximately 92,000 10 boilers and sold approximately 92,000 boilers? 11 A Yes. And, again, that's a very broad approximation 12 100,000 number. 13 Q Okay. Can you tell this jury whether any or all of 14 those boilers contained asbestos? 15 MR. O'CONNELL: Objection, your Honor. We've 16 gone through this. 17 THE COURT: Sustained. ' 18 Q Well, you don't know that any of them contained 19 asbestos? 20 MR. O'CONNELL: Objection, your Honor. ' 21 THE COURT: Sustained. . 22 Q Did Cleaver-Brooks boilers ever contain asbestos, 23 Mr. Tornetta? 24 MR. O'CONNELL: Objection, your Honor. 25 THE COURT: Overruled. 26 A Yes. 3777 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 Q Now, from 1932 until 1985 how did Cleaver-Brooks track 3 the boilers that they made and sold? 4 A I'm not quite certain I quite understand what you mean 5 by "track." 6 Q Well, did you track where the boilers eventually were 7 installed, where they were sold? 8 A Oh, yes. I wasn't sure what you meant by "track" at 9 first there. 10 We actually have a system of index cards where we 11 would put on the index card the name of the facility where a 12 boiler was installed and the model and unit number. 13 Q Okay. And is it fair to say that there are presently 14 about 120,000 index cards in Cleaver-Brooks' file cabinets? 15 A No. I don't believe there would be 120,000. 16 Q How many index cards exist today? 17 A I think the number is closer to 90-something thousand. 18 Q Okay. 90,000 index cards. And the reason there are 19 less index cards than boilers sold is because if a person at a 20 particular site bought more than one boiler, those would both 21 go on the same index card, right? 22 A Correct, or multiple, whatever the number would be, 23 yes. 24 Q In the mid-1980s Cleaver-Brooks changed over to a 25 computer system that would track any boilers sold from 1985 to 26 present, is that right? Page 34 Tornetta 2014 Trial Testimbny.txt 3778 1 F. Tornetta By Plaintiff McCloskey - Direct/Kraft 2 A The two overlapped, and I'm not sure the computer 3 system was the tracking, but the computer system was available. 4 A main frame system was available to look'at what those 5 shipments were. . 6 Q Okay. Cleaver-Brooks until today has never gone back 7 and computerized the index cards that exist, correct? ' 8 A Correct. 9 Q So you can't go back to your office and type in a 10 particular location that Mr. McCloskey describes and look on a 11 computer to find out whether there was a boiler there, right? 12 MR. O'CONNELL: Objection, your Honor. 13 THE COURT: Overruled. 14 A No, I can't. I'd look through the index cards. 15 Q Is it fair to say that Cleaver-Brooks computerized 16 their system after asbestos was taken out of their boilers? 17 MR. O'CONNELL: Objection, your Honor. 18 THE COURT: Overruled. 19 A I don't think I've ever looked at it in relation to 20 each other. Computerization was - and I wouldn't call it 21 computerization. It's when the main frame system in our 22 company started to be used for entry was probably in the late 23 '80s. I was there when we didn't have it, I guess I'd say. So 24 that was '85. 25 Q Okay. You would agree that boilers*that are made, 26 manufactured, and sold by Cleaver-Brooks have a lifespan of 20, 3779 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft ' 2 30, 40, up to 50 years, right? . 3 A It depends so much on how many somebody treats it, but 4 people will throw the 20, 25, maybe even 30 year number at it. 5 Q Have you previously given an answer up to 40? 6 A I've certainly seen boilers that were 40 years old. 7 Q Okay. So a boiler sold, manufactured, installed in 8 1940, theoretically, if treated well, could be in operation at 9 someone's plant in 1980, right? 10 MR. O'CONNELL: Objection, your Honor. 11 THE COURT: If you know. 12 A It could be. I can't say I've seen that particular 13 instance, but certainly I have seen boilers that were older 14 than 30 years. 15 Q Okay. Mr. Tornetta, have you looked at every single 16 index card for Cleaver-Brooks boilers manufactured in the '40s, 17 50s, 60s, a n d '70s? 18 A Looked at every single index card individually? 19 Q. Yes. 20 A No, I don't believe I have. ' 21 Q Okay. And just so the jury understands what we're Page 35 ` Tornetta 2014 Trial Testimony.txt 22 talking about, the index card gives you the name of a site or a 23 location where the boiler was installed to, right? 24 A Yes. The - I don't want to use the term "end user" 25 but where the boiler actually ended up. 26 Q. Fair enough. 3780 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 A It may have shipped somewhere else, but the index card 3 is based on where the boiler ended up, not who we sold it to or 4 where it was shipped to. 5 Q If we purchased a boiler from Cleaver-Brooks and 6 wanted it shipped here, there would be an index card for what 7 location? 8 A If it was going to be installed here, it would be for 9 this courthouse, whatever we call the courthouse here. 10 Q Okay. Would it have an address to the courthouse? 11 A Somewhere it would be -- there would be an address for 12 it. That wouldn't necessarily be the name of it, though. 13 Q Okay. The index cards are arranged alphabetically by . 14 name of the location, is that correct? 15 A Correct. 16 Q So it would say "courthouse," not necessarily 60 . 17 Centre Street, right? 18 A Correct. It would probably say "New York City 19 Courthouse" or "New York Supreme Courthouse, whatever it is. 20 Q. So if somebody at a deposition identified working on a 21 boiler at 60 Centre Street and you went to your index card 22 system, you might not find a record of that because it would be 23 indexed under "New York City Courthouse" or "Courthouse," 24 right? 25 A Our normal practice would have been to list it on 26 whatever the building or facility's name is. 3781 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 Q Okay. 3 A So if the facility's name was 60Centre Street, yes, 4 it would. If it was New York County Courthouse, no, it 5 wouldn't. 6 Q Okay. And you understand the buildings in New York 7 City have changed names over the course of history, right? 8 A I would assume that, yes. 9 Q So if somebody worked ina building that was' 10 originally called Building A but they knew it as Building B and 11 they described it as Building B and you went back to your index 12 card system looking for "Building B," you might not find it 13 because it's under "Building A," right? 14 A I might not. I may if someone told us the facility 15 name changed, but I may not. 16 Q You would agree that you cannot say to this jury that Page 36 Tornetta 2014 Trial Testimony.txt 17 Cleaver-Brooks has every single index card for every single 18 boiler ever made, right? You can't say that for certain one 19 way or another. 20 A For certain? I believe we have them, but I can't say . 21 I've looked at every one. So I can't say for certain. 22 Q Okay. And when an individual like Mr. McCloskey says 23 they have a general recollection of working around 24 Cleaver-Brooks boilers, if he can't identify a particular site, 25 you can't search your index card system, right? 26 A Correct. If I don't have a place to search, I can't 3782 ` 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft . 2 search. 3 Q. So, for instance, when you told this jury earlier that 4 you worked at hundreds of sites where Cleaver-Brooks boilers- 5 were located, you would only be able to search the index system 6 for the sites that you specifically remember by name, right? 7 A Correct. 8 Q Now, the index card system leads you to another 9 category of documents called the commercial file or boiler 10 records, right? 11 A Correct. 12 Q Okay. And within the commercial file or boiler 13 records, that leads you to microfilm and microfiche for 14 drawings, specifications, engineering data, and the like, is 15 that correct? 16 A Well, the commercial records are as well on microfilm 17 and microfiche. 18 Q Okay. 19 A Actually,microfiche. But, yes, they^ meet the 20 manufacturing drawings. 21 Q It's a tedious process to conduct the investigation - . 22 for instance, when someone mentions a site, from the time that 23 you begin your search for that location until the time that 24 you've copied all of the records, how long on average does that 25 take? 26 A The search itself, depending on the complexity of the 3783 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 name, I guess I'll say, can be a 45-minute process. The 3 commercial records, depending on their length, could be a 4 couple of hours printing from microfilm. And then the 5 gathering of records and drawings that may be relevant, in the 6 area of 40 hours per boiler. 7 Q. Forty hours per boiler, right? 8 A Right. 9 Q The index cards tell you nothing about the internal 10 components of a boiler. Would you agree with that? 11 A Correct. It gives you a model number. So I know what Page 37 Tornetta 2014 Trial Testimony.txt 12 it looks like because I've worked with the boilers, but other 13 than that, no. 14 Q Okay. Is it fair to say you have not done that 15 process as you've just described for every boiler manufactured 16 by Cleaver-Brooks? 17 A Correct. I have not. 18 Q You said you started in 1985 at Cleaver-Brooks, right? ' 19 A Yes. 20 Q Was Cleaver-Brooks incorporating asbestos-containing 21 components into their boilers when you started in 1985? 22 MR. O'CONNELL: Objection, your Honor. ' 23 THE COURT: Overruled. 24 A I don't know that for certain. I just wouldn't 25 know - I wouldn't have a way to know with our records. 26 Q Would you agree that it's approximately 1989 whenyou 3784 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 can assuredly say to this jury you know for certain there 3 weren't asbestos components in Cleaver-Brooks boilers? 4 MR. O'CONNELL: Objection. 5 THE COURT: Overruled. 6 A Yes. 7 Q Okay. 8 MR. KRAFT: I'd like to have two documents marked 9 as Tornetta 5 and 5A. 6 and 6A? 10 THE COURT: Tornetta 6 and 6A. ,, 11 Q You would agree, Mr. Tornetta- 12 THE COURT: Mr. Kraft, we're going to take a ` 13 break right now. 14 MR. KRAFT: Okay. 15 THE COURT: We'll take a brief recess. Do not 16 discuss the case. ' 17 (Jurors exit courtroom.) 18 MR. KRAFT: I was asking questions of 19 Mr. Tornetta early on in my examination of him, asking 20 whether he was the person most knowledgeable and speaking 21 on behalf of Cleaver-Brooks, and there were objections 22 sustained. I'm asking the Court to reconsider. I think 23 this jury has to understand that he is Cleaver-Brooks for 24 purposes of his testimony today. That's the posture of the 25 case. And unless the Court is going to instruct the jury 26 of that, I believe that I should be able to inquire. . 3785 1 2 3 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft Further, I think that I should be able to lay out that he is the person most knowledgeable at Cleaver-Brooks 4 about all of the subject matter that I am going to be 5 inquiring about him today. Otherwise, the jury may be 6 wondering why isn't that person here today? Page 38 Tometta 2014 Trial Testimony.txt 7 MR. O'CONNELL: I think he's asking him legal 8 questions. That's why I objected. 9 THE COURT: That's why I sustained it. 10 MR. KRAFT: Because he was the most 11 knowledgeable. 12 THE COURT: Thank you. 13 (Brief recess.) 14 THE COURT: Please be seated. 15 MR. O'CONNELL: Your Honor, may Mr. Kraft and I 16 approach? 17 THE COURT: Sure. 18 (Sidebar discussion held off the record.) 19 MR. KRAFT: May I inquire, your Honor? 20 THE COURT: Yes. 21 BY MR. KRAFT: 22 Q I just wanted to step back for one second. My 23 colleagues indicated I needed to clarify something. 24 When you said that the boilers in 1989, that's when 25 you can tell the jury that those boilers no longer contained ' 26 asbestos, those were new boilers that were being manufactured 3786 1 F. Tometta - By Plaintiff McCloskey - Direct/Kraft 2 for sale by Cleaver-Brooks in 1989, is that correct? 3 A Correct. 4 Q Okay. Sitting here today, you would agree that there 5 are boilers in service throughout this country, Cleaver-Brooks 6 boilers, that still contain asbestos-containing component 7 parts, correct? 8 A I don't know that I can say that for certain. I'm not 9 sure if the components have been changed over the years. 10 Q You don't know one way or the other, fair? 11 A That's probably a fair way to put it. 12 Q Okay. I want to show you what I have marked as 13 Tornetta 6 and 6A. 14 MR. KRAFT: May I approach the witness, your 15 Honor? . 16 THE COURT: Six and 6A or 6A and 6 B? 17 MR. KRAFT: Whatever you would.like, 6A and 6 B? 18 THE COURT: That's kind of what we've been doing. 19 MR. KRAFT: Okay 6A and 6 B. ' 20 MR. O'CONNELL: Thank you. . 21 MR. KRAFT: You're welcome. 22 Q Do you recognize those, Mr. Tornetta, generally what ' 23 they are? ' 24 A I recognize them as interrogatory responses, it looks 25 like or requests. 26 Q. And interrogatories are questions that are posed by 3787 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft Page 39 Tornetta 2014 Trial Testimony.txt 2 plaintiffs to Cleaver-Brooks that Cleaver-Brooks as a company 3 answers, right? 4 A Yes. 5 Q Okay. 6A is in the SupremeCourt ofthe State ofNew 6 York, County of Nassau. Do you agree with that? 7 A Yes, that's-what it says. 8 Q And if you look at the last page of that document, you 9 would agree that this set of interrogatories-was verified by 10 George Provance, your former boss, right? 11 A Yes. ` 12 Q And they were notarized on September 21, 1988, isthat 13 right? 14 A Yes. 15 Q Cleaver-Brooks had first been sued in asbestos 16 litigation in the mid to late '80s, is that right? 17 A Yes. 18 Q And these were questions that were posed to 19 Cleaver-Brooks that Mr. Provance, as the person most 20 knowledgeable, was verifying the answers, is that correct? 21 MR. O'CONNELL: Objection. 22 MR. CZEREPAK: Objection to the form. 23 THE COURT: Sustained. 24 Q Mr. Provance at the time in 1988 was Cleaver-Brooks' 25 corporate representative for corporation litigation, is that 26 right? 3788 1 F. Tornetta -.By Plaintiff McCloskey - Direct/Kraft 2 MR. O'CONNELL: Objection, your Honor. 3 THE COURT: Overruled. - 4 A I believe so, yes. 5 Q And, in fact, at the time in 1988 he was the person ' 6 most knowledgeable about Cleaver-Brooks, about all things 7 related to asbestos litigation, do you agree with that? 8 MR. O'CONNELL: Objection. ` 9 MR. CZEREPAK: Objection. ' 10 THE COURT: Please read it back. 11 (Record read.) 12 THE COURT: Overruled. 13 A I guess I'm not certain I know the answer to that. 14 Certainly he verified these responses and was involved. 15 Whether he would be most knowledgeable, I wasn't working with 16 him closely at that time. 17 Q If you can turn to the third page, please. Do you see 18 in the answer to interrogatory number one, it indicates that 19 Mr. Provance not only verified the interrogatories but provided 20 the information used to answer them, right? 21 A You said interrogatory number one? 22 Q One. . 23 A Okay. Page 40 Tornetta 2014 Trial Testimony.txt 24 Q On the third page of the document. 25 MR. KRAFT: May I approach? 26 A I can see it. I was just reading the response. 3789 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 Q Right. Mr. Provance actually provided the information 3 used to answer it, right? 4 A It says "were prepared in part based on information 5 obtained under the supervision of George Provance." 6 Q Okay. And in these interrogatories there was a 7 question about the first time that Cleaver-Brooks incorporated 8 asbestos into their boilers, is that correct? If you look at 9 the Interrogatory Number 5, would you agree with that? 10 A Give me one moment to read it. (Perusing.) Yes, 11 that's what he is saying. 12 Q I asked you when Cleaver-Brooks first incorporated 13 asbestos-containing components into boilers, and you said you 14 didn't know, is that correct? 15 A Correct. 16 Q Here Mr. Provance indicates that Cleaver-Brooks began 17 incorporating asbestos-containing components as component parts 18 of their boilers in approximately 1935, is that correct? ` 19 A That's what he says there. - 20 Q All right. Do you have any information to dispute 21 that Cleaver-Brooks first began incorporating 22 asbestos-containing component parts into their boilers in ' 23 approximately 1935? 24 MR. CZEREPAK: Objectionto the form. 25 THE COURT: Overruled. 26 A When I was dealing with Mr. Provance, we didn't 3790 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 discuss -- or we discussed it, but discussed the fact there was 3 not a date certain that he could say anymore. 4 MR. KRAFT: Your Honor, at this time I seek to 5 introduce the admission of Cleaver-Brooks by reading the 6 interrogatory and the response. 7 Interrogatory Number 5. 8 MR. O'CONNELL: Objection,your Honor. 9 THE COURT: Overruled. 10 Q "For each asbestos product mined, rpanufactured, 11 processed, refined, sold, or distributed by you since 1930 12 state; A, the date you commenced such activities; B, the 13 generic name of the asbestos product; C, the brand name of the 14 asbestos product; D, the trademark name of the asbestos 15 product; E, the asbestos content of such asbestos product; F, 16 the mineralogical and other constituents of such asbestos 17 product and the percentage by weight of each such constituent. 18 Response. "A, Approximately 1935 asbestos-containing Page 41 Tornetta 2014 Trial Testimony.txt 19 products were included as component parts of boilers 20 manufactured by Cleaver-Brooks; B, gaskets and refractaries." 21 You would agree, Mr. Tornetta, that 22 asbestos-containing gaskets and refractaries continued to be 23 incorporated into Cleaver-Brooks boilers from 1935 into the 24 mid-1980s. 25 A In some of them, yes. 26 Q And since-you haven't looked at all of the boiler 3791 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 files, you can't tell this jury in most of them, in half of 3 them, in five percent of them, you have no idea, right? ' 4 MR. O'CONNELL: Object to the form. 5 THE COURT: Yes. Can you rephrase it. 6 Q Okay. Can you tell this jury of your personal 7 knowledge that asbestos-containing gaskets and refractaries -' 8 well, let's just say asbestos-containing gaskets weren't 9 incorporated into every single Cleaver-Brooks boiler from 1935 10 until the mid-1980s, can you tell the jury that? 11 A Without looking at every single boiler, no, I 12 couldn't. 13 Q Can you tell this jury that asbestos-containing 14 gaskets weren't incorporated into most Cleaver-Brooks boilers 15 during that time period? 16 A No. Again, I haven't looked at every single boiler, 17 so I wouldn't be able to quantify it either way. 18 Q Can you tell more than half? 19 MR. O'CONNELL: Objection, your Honor. 20 THE COURT: Overruled. 21 A I can't say I've looked at more than half either. 22 Q In fact, that brings up a good point.. How many of 23 these boiler files have you looked at? 24 MR. O'CONNELL: Objection, your Honor, especially ` 25 to the opening statement. . 26 THE COURT: I'm sorry? 3792 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 MR. O'CONNELL: Especially to the statement. 3 MR. KRAFT: I will strike the opening part of the 4 question. 5 Q How many of the boiler files have you looked at? 6 A I can't say I've ever sat and figured it out. 7 Hundreds at least, if not thousands. Thousands might be too 8 many. 9 Q One a day? 10 A No. It depends what we re talking about, to what 11 extent. I'm not sure I can quantify it. 12 Q Okay. Would one a d a y - 13 A A lot, I guess. Page 42 ' Tornetta2014TrialTestimony.txt 14 Q Would one a day be an overestimation? I want to 15 overestimate. One a day? 16 MR. O'CONNELL: Objection, your Honor. Asked and , 17 answered. 18 THE COURT: Sustained. ' 19 Q Five a day? 20 MR. O'CONNELL: Same objection. . 21 THE COURT: Sustained. 22 Q Have you looked at one percent of the boiler records, 23 five percent, 20 percent, 50 percent, 70 percent, 100 percent 24 of the boiler records? Can you tell the jury? 25 MR. O'CONNELL: Same objection, your Honor. 26 THE COURT: Sustained. 3793 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 Q Have you looked at more than one percent of the boiler 3 records? 4 MR. O'CONNELL: Same objection. 5 THE COURT: Sustained. 6 Q There are 100,000 boiler records or so? 7 A Probably more than that, yes. 8 Q And you've looked at hundreds or maybe thousands - 9 THE COURT: You've already been'down this path, 1110 Mr. Kraft. . Put the cell phone away. 12 Q A hundred or a thousand? ` 13 A I guess I've never sat and quantified it. I really . 14 couldn't give you a number. . 15 Q Would you agree a thousand of more than 100,000 16 boiler - 17 THE COURT: Let's go to a new topic. 18 Q Okay. Can you tell the jury all of the 19 asbestos-containing component parts that have been incorporated 20 in the Cleaver-Brooks boilers throughout the years? 21 MR. O'CONNELL: Objection, your Honor. 22 Relevance, foundation. 23 THE COURT: Overruled. 24 A All of them? 25 Q Yes. 26 A No, I don't think I could. 3794 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 Q. Asbestos-containing gaskets have been incorporated, 3 correct? ' 4 A I've come across gaskets. 5 Q. Asbestos rope? 6 A Yes, I've come across rope. 7 Q Asbestos cement? 8 A And cement as well, yes. Page 43 Tornetta 2014 Trial Testimony.txt 9 Q Asbestos insulation? 10 A Yes, sir. 11 Q Asbestos Vee-Block mix? 12 A Yes. 13 Q Asbestos tape? 14 A Yeah. I think that's a term that's used once in a 15 while for a gasket, yes. 16 Q Asbestos putty? 17 A I think I've come across that as well. 18 Q Asbestos furnace cement? 19 A I guess I could qualify that or classify that as 20 cement as well, yes. 21 Q Asbestos millboard? 22 A Yes. 23 Q Asbestos pulp? 24 A Yes. Again, I think that probably falls under cement, 25 but yes. 26 Q Asbestos block? 3795 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 A I'm not sure I can say for certain asbestos block, but 3 probably yes. 4 Q Asbestos brick? 5 A Again, I'm not sure about brick. 6 Q Asbestos tile? 7 A Or tile. 8 Q Can you tell the jury when all of those products were 9 last used in Cleaver-Brooks boilers? 10 MR. O'CONNELL: Objection, your Honor. Asked and 11 answered. 12 MR. CZEREPAK: Objection to the form. 13 THE COURT: Overruled. He can answer. 14 A No, I don't think I could. 15 Q Is it fair to say that all of those products were used 16 during the time Mr. McCloskey was working as a steamfitter and 17 incorporated in the Cleaver-Brooks boilers? 18 MR. O'CONNELL: Objection. 19 THE COURT: Sustained. 20 Q Well, do you know sitting here today, Mr. Tornetta, 21 whether all of those asbestos-containing components were ' 22 incorporated in the Cleaver-Brooks boilers during the time ' 23 period Mr. McCloskey was working as a steamfitter? 24 MR. O'CONNELL: Objection. 25 THE COURT: Overruled. 26 A At one time or another I'm not sure I can put it 3796 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 directly within his time as a steamfitter, but at one time or 3 another I've come across those. Page 44 Tornetta 2014 Trial Testimbny.txt 4 Q So the answer was yes, at one time or another during 5 the course of the time period Mr. McCloskey worked as a 6 steamfitter, correct? 7 MR. O'CONNELL: Objection. 8 THE COURT: Overruled. ' 9 A I think I'd still have to qualify I'm not certain it 10 overlaps his period specifically, but I am not certain either 11 way. ' 12 Q When an asbestos-containing material like those that . 13 we just listed were incorporated into a Cleaver-Brooks boiler, 14 they were specified by a Cleaver-Brooks engineer, correct? 15 MR. O'CONNELL: Object to the form. 16 MR. CZEREPAK: Objection to the form. 17 THE COURT: Overruled. 18 A They would have been shown on the drawings. So at one 19 point, yes. 20 Q Okay. And can you tell this jury who was creating the 21 drawings? 22 A Cleaver-Brooks would have created the drawings for the 23 assembly that we'd be talking about. 24 Q Cleaver-Brooks engineers would have created the 25 drawings which called for the incorporation of asbestos 26 components into Cleaver-Brooks boilers, correct? 3797 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 A At times the components they call oat might have been, 3 yes. 4 Q Did anybody other than Cleaver-Brooks engineers ever 5 specify any component of a Cleaver-Brooks boiler? 6 A I'm trying to think. You know, I hate to throw this 7 out there, but there are times when a customer is specifying 8 certain things in a Cleaver-Brooks boiler. So in that broad 9 sense, yes. 10 Q Okay. When a Cleaver-Brooks engineer would draw up a 11 diagram, an engineering diagram, a drawing, and incorporate 12 asbestos-containing materials into a boiler, Cleaver-Brooks 13 would then have to go somewhere and buy those asbestos products 14 so that the people on the manufacturing floor could actually 15 build the boiler, is that correct? 16 A Actually, the drawing would call out a gasket and we'd 17 go somewhere and get a gasket that fit that particular 18 application. 19 Q And oftentimes the drawings would call out an asbestos 20 gasket, correct? 21 A In some cases, yes. 22 Q And you would have to go to a manufacturer who was 23 selling asbestos gaskets and buy them, right? 24 A If they fit the application, yes. 25 Q And then you'd bring them back to yourmanufacturing ` Page 45 ` Tornetta 2014 Trial Testimony.txt 26 facility and you would incorporate them into a boiler being . 3798 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 built by Cleaver-Brooks personnel, correct? 3 A Ultimately, yes. 4 Q And then that boiler would be sold tosomeone who 5 purchased it from Cleaver-Brooks, right? 6 A Yes. 7 Q And those asbestos-containing materials that were 8 specified by the engineer purchased from other companies by 9 Cleaver-Brooks, built into the boiler by Cleaver-Brooks's 10 manufacturing facility, would be out in the world, correct? 11 MR. O'CONNELL: Objection. 12 THE COURT: Overruled. 13 A Ultimately, yes. 14 Q Okay. In the 1940s, '50s, '60s 70s, whose 15 responsibility was it at Cleaver-Brooks to purchase materials 16 from outside vendors? , 17 A It would have been somebody within our purchasing 18 group, whatever they may have called it at that time frame. ' 19 Q Have you ever talked to anybody in your purchasing . 20 group who was responsible for purchasing asbestos-containing 21 components that were eventually put into a Cleaver-Brooks 22 boiler? 23 A No. 24 Q All right. Who were the engineers in the '40s, '50s, 25 '60s, and '70s that drew the specifications that at some times 26 as you said called for asbestos gaskets to be used? 3799 1 F, Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 A It would be various people. You'd have to look at the 3 particular drawing. 4 Q Have you ever spoken to any of those engineers, the 5 people who were specifying the asbestos-containing gaskets? 6 A I've certainly spoken to our engineers. I'm not sure 7 about specifying I don't believe I have, about specifying 8 any gaskets. 9 Q You've never asked them, "Hey, Mr. Engineer, why did 10 you specify an asbestos gasket?" 11 You've never done that, right? 12 A No. 13 Q. No, I'm not right, or, no, you've never done that? 14 A No, I haven't had the opportunity to do that. 15 Q When you say you haven't had the opportunity to do 16 that, is there anybody preventing you from doing that, 17 Mr. Tornetta? 18 MR. O'CONNELL: Objection. Form. 19 THE COURT: Overruled. 20 A If we're talking about people from the '40s, I didn't Page 46 Tornetta 2014 Trial Testimony.txt 21 start until the '80s, so I wouldn't have the opportunity to 22 talk to somebody from the '40s. . 23 Q Well, are there people from the '40s still alive? 24 A Possibly, yes. 25 Q Have you sought out any of these people to determine 26 whether they are alive and have any information? 3800 . 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 A No. 3 Q Are there people from the '50s alive? I bet there are . 4 people in this courtroom from the '50s that are alive. 5 A Certainly. 6 Q Have you sought out any of those people? 7 A No. 8 Q Are there people from the '60s alive who were 9 specifying these asbestos gaskets? 10 A I don't know. 11 Q Have you sought out them to ask them why they were 12 specifying asbestos gaskets? 13 MR. CZEREPAK: Objection to the form, your Honor. 14 THE COURT: Overruled. 15 A No, I haven't. 16 Q How about people from the 70s that were specifying 17 these gaskets? Are those people alive? 18 A I wouldn't know. 19 Q Have you done any search to determine that? 20 A No, I haven't. 21 Q Who at Cleaver-Brooks was responsible for ultimately 22 saying we're not going to use asbestos-containing components in 23 our boilers anymore? 24 MR. O'CONNELL: Objection. . 25 THE COURT: Overruled. 26 A I don't believe anyone was specifically at 3801 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 Cleaver-Brooks. 3 Q Have you sought out anybody in management, a CEO, a 4 president, an engineer, anybody, to ask that person why 5 Cleaver-Brooks stopped using asbestos-containing components? 6 MR. CZEREPAK: Objection. 7 MR. O'CONNELL: Objection. 8 THE COURT: Overruled. 9 A My conversations about that were with Mr. Provance. 10 Q You had conversations with Mr. Provance about why they 11 stopped using asbestos parts? 12 A Why they stopped or whether - 13Q No. Why Cleaver-Brooks stopped. 14 A Specifically why they stopped, I'm not sure I can say 15 for certain. I've certainly talked to him about Page 47 Tornetta 2014 Trial Testimony.txt 16 asbestos-containing parts and components. 17 Q. And did you ask him, "Hey, why isn't Cleaver-Brooks . 18 using asbestos components anymore?" . 19 A I'm sure that came up in our conversation, sure. 20 Q. Do you recall what he told you? 21 A The manufacturers of the products we purchased took 22 asbestos out of the products. 23 Q If those manufacturers had still been making asbestos 24 products, would Cleaver-Brooks still be using them? 25 MR. O'CONNELL: Objection, your Honor. 26 THE COURT: Sustained. 3802 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 Q Is that the only reason you took asbestos out of your 3 boilers is because the manufacturers no longer made them? Is 4 that your testimony? 5 MR. O'CONNELL: Objection, your Honor. 6 THE COURT: Overruled. 7 A I have never found another reason. " 8 Q Have you ever sought out to ask anybody another 9 reason? 10 A Again, I talked to Mr. Provance about it. He's the ' 11 only one. . 12 Q Mr. Provance is the only person you've ever talked to 13 about anything pertaining to your testimony, is that right? 14 MR. O'CONNELL: Objection. 15 THE COURT: Overruled. 16 A No. I'm not sure I can say that for certain, no. 17 Q Who else would you talk to? 18 A Well, you said pertaining to my testimony. I've 19 testified about all sorts of technical things. I've talked to 20 people all over the company. 21 Q Okay. The things we're talking about right now, when 22 Cleaver-Brooks incorporated asbestos products into their 23 boilers, when they stopped putting them into their boilers, who 24 else have you talked to besides Mr. Provance? 25 A It would be Mr. Provance. 26 Q Do you have the notes of those conversations that I 3803 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 could take a look at? 3 A I didn't take notes. ' 4 Q So the jury just has to believe you? 5 MR. O'CONNELL: Objection, your Honor. 6 THE COURT: Sustained. 7 Q Have you ever seen asbestos before, Mr. Tornetta? 8 A I guess it means -- what you mean by "seen," certainly 9 I've seen it on TV commercials. Have I had it in front of me? 10 I don't recall ever seeing that. Page 48 Tornetta 2014 Trial Testimony.txt 11 Q You can't tell this jury that you have ever 12 encountered an asbestos-containing component, right? You have 13 no idea? 14 A For certain, no, I don't think I could. I may have. . 15 I just didn't know what the material was at the time. 16 Q As a matter of fact, you may have encountered asbestos 17 through your work on Cleaver-Brooks boilers. You just have no 18way to know, right? 19 A I don't have a way to know that, no.. 20 Q Mr. Tornetta, you've never taken any classes on how to 21 identify asbestos, have you? ` 22 A Ho. . 23 Q. No training courses on how to identify asbestos? 24 A No, I haven't. 25 Q Cleaver-Brooks hasn't given you training on how to - 26 identify asbestos? 3804 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 A No. 3 Q If I showed you an asbestos product, you would have no 4 way one way or the other to know that it was or was not 5 asbestos-containing, correct? 6 A Not without the testing of that to tell you. 7 Q. How about if an engineering drawing said asbestos 8 gaskets in the engineering drawing for Cleaver-Brooks, would 9 you then feel comfortable saying that gasket was asbestos? 10 A l t would depend on what the supplier of that gasket 11 was using at the time. 12 Q Is it your testimony that even in the catalogs and 13 drawings that we re going to show this jury where it says 14 "asbestos gasket," they can't rely upon the fact that it was, . 15 in fact, asbestos-containing? 16 A I don't believe you could. I guess it would depend, 17 but I'd have to look at the supplier of the product to see if 18 it was. 19 Q. Cleaver-Brooks's engineers in real time were writing 20 asbestos gaskets into the drawings, right? 21 A Yes. 22 Q. And Cleaver-Brooks's engineers or marketing people 23 were creating catalogs that said asbestos gaskets, right? 24 A Yes. 25 Q And there were people in purchasing that went out and 26 bought asbestos gaskets, right? 3805 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 A That, I don't know that I have the record to say that. 3 Q Do you have a record to say that it didn't happen? 4 A No. 5 Q Okay. Cleaver-Brooks has sent a manual with every Page 49 Tomett 2014 Trial Testimony.txt 6 boiler they have ever sold, right? 7 A Yes, unless there was some type of mistake. But, yes, 8 we intended to. ' 9 Q And Cleaver-Brooks does not keep a master copy of all . 10 those boilers, right? I'm sorry. Of all those catalogs, . 11 excuse me. 12 A Correct. We don't have an archive, let's say, of 13 every manual we've ever sold. 14 Q You got a lot of them, though, right? 15 A I'm sorry. 16 Q. You have many of them, not all of them, right? 17 A We have some that were dug up more recently, yes. 18 Q Okay. And in these boiler manuals you would agree 19 that there would be operation instructions, correct? 20 A Yes. 21 Q Service and maintenance instructions, correct? 22 A In some of them, yes. 23 Q And would you agree that the asbestos components that 24 were incorporated into Cleaver-Brooks boilers would have to be 25 serviced and maintained during the life of a Cleaver-Brooks 26 boiler if, in fact, they were asbestos. You would agree with 3806 1 F. Tornetta - By Plaintiff McCloskey - Direct/Kraft 2 that? ' 3 A Some of them would, yes. 4 (Continued on following page.) 5 ' 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3807 Page 50 Tornetta 2014 Trial Testimony.txt 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Q And it was known to Cleaver-Brooks that when a service 3 person was working on a Cleaver-Brooks boiler that contained 4 asbestos components, that person may have to take out and 5 replace the asbestos components that were in a Cleaver-Brooks 6 boiler, right? 7 A i n some cases, yes. 8 Q And then also in these manuals there were parts lists, 9 right? 10 A In some of them, yes. 11 Q. And ordering information for how customers could order 12 replacement parts from Cleaver-Brooks, right? . 13 A Yes. 14 Q And Cleaver-Brooks had a financial incentive on having 15 their customers purchase replacement parts from Cleaver-Brooks, 16 right? 17 MR. O'CONNELL: Objection. 18 THE COURT: Overruled. 19 A I guess if somebody buys something from you, there's a 20 financial incentive, yes. 21 Q You make money if they purchase it from Cleaver-Brooks 22 as opposed to some other place selling components, right? 23 A In some cases yes. 24 Q And Cleaver-Brooks in fact sold asbestos replacement 25 parts to be used on their boilers, right? 26 A In some instances, yes. 3808 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Q And they sold asbestos gaskets as replacement parts, 3 right? 4 A In some cases, yes. 5 Q Asbestos rope as replacement parts? 6 A I've come across that, yes. " . 7 Q Asbestos cement as a replacement part? . 8 A Yes. 9 Q All of the asbestos products that we mentioned, 10 Cleaver-Brooks sold as a replacement part to be used on their . 11 boilers, correct? 12 A I believe when we talked - we were on this topic 13 before, I questioned the asbestos tile and whatever, but short 14 of that, yes, I think I've come across this. 15 Q The one's that you don't question are 16 asbestos-containing. Cleaver-Brooks sold all of those asbestos 17 components as replacement parts, right? 18 A Potentially, yes. 19 Q And Cleaver-Brooks knew that somebody purchasing these 20 replacement parts was going to be incorporating them back into 21 a Cleaver-Brooks boiler, right? 22 A Yes. Page 51 ' Tornetta 2014 Trial Testimony.txt 23 Q Because when they order the parts, they wrote on the 24 sheet the make and model of the boiler that it was going into 25 and the part number that it was coming out of, right? That's , 26 how it worked? 3809 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft . 2 A I'm not sure they wrote on a sheet, but one way or 3 another identified what they were using it, yes. 4 Q. You understand, Mr. Tornetta, that Mr. McCloskey is 5 alleging in this case exposure to asbestos-containing gaskets 6 on the doors of Cleaver-Brooks boilers, do you understand that? 7 A Yes, that's what I read in his testimony. 8 Q And in fact Cleaver-Brooks boilers contained asbestos 9 gaskets in the place where Mr. McCloskey described, correct? 10 A Place on the boiler or place location? I'm not sure. 11 Q On the boiler, the door. 12 A On the boiler. Some of them did, yes. 13 Q And you can't tell this jury what percentage of 14 Cleaver-Brooks boilers during the time period that 15 Mr. McCloskey was describing did or did not contain asbestos 16 gaskets, right? 17 A No, I can't. 18 Q Isn't it a fact that it was all of thenrduring that 19 time period contained asbestos gaskets? 20 A I'm not sure I could say that's a fact. I couldn't ` 21 say one way or the other for certain. 22 Q. Do you agree that Cleaver-Brooks had specified the use 23 of asbestos-containing gaskets in their boilers in the '40s, 24 '50s, '60s and 70s? ' 25 MR. O'CONNELL: Object to the form, your Honor, 26 and also relevance. Which gaskets are we talking about? 3810 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 MR. KRAFT: Any type of gaskets. 3 MR. O'CONNELL: Well, then relevance. 4 THE COURT: Sustained. 5 Q Well, let's get more specific. 6 Do you agree that Cleaver-Brooks specified door 7 gaskets that were asbestos-containing in their boilers in the 8 '40s, '50s, '60s and 70s? 9 A In some of them, yes. 10 Q How many have you seen, Cleaver-Brooks boilers, that 11 don't specify asbestos-containing gaskets in the '40s, '50s, 12 '60s and 70s? . 13 MR. O'CONNELL: Same objection to form and 14 relevance, your Honor. ' 15 THE COURT: Can you keep it to door gaskets? 16 MR. KRAFT: Sure. 17 Q Door gaskets. ' Page 52 Tornetta 2014 Trial Testimony.txt 18 A I don't think I can come up with a number. There's 19 many different types of boilers that don't have doors so... 20 Q Well, if Mr. McCloskey is describing seeing a door 21 opening, can we assume there was a door on the boiler? 22 A I suppose the door of the boiler he's describing, yes. 23 MR. KRAFT: What number are we on? 24 THE COURT: You're up to seven. 25 MR. KRAFT: I'd like to have this deemed marked 26 as Cleaver-Brooks 7. 3811 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 THE COURT: Cleaver-Brooks or Tornetta? 3 MR. KRAFT: Tornetta 7. 4 (Plaintiffs' Exhibit 7 marked for ' 5 identification.) , 6 Q I'd like to show it to you, Mr. Tornetta. 7 THE COURT: For I.D. ' 8 MR. KRAFT: And I seek to introduce it into . 9 evidence at this time. . 10 THE COURT: Any objection? 11 MR. O'CONNELL: No. 12 THE COURT: Very well. It's Tornetta 7. 13 (Plaintiffs' Exhibit 7 marked and received into 14 evidence.) 15 Q You would agree that that is a model of a 16 Cleaver-Brooks boiler, right? 17 A Model as in miniature model, yes. 18 Q Right. That's not fueling or heating any building 19 anywhere except maybe my daughter's dollhouse, right? 20 A I would say yes. 21 Q So when I say "model," it's a scale one-fiftieth of a 22 Cleaver-Brooks boiler, something like that, right? 23 A Correct. ' 24 Q And you know that because on the front of the boiler 25 it says Cleaver-Brooks, right? ' 26 A Yes, it does. 3812 ` 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft ' 2 Q And that has a name tag where, in real life, if you . 3 went into a boiler room you would see the Cleaver-Brooks sign, 4 right? 5 A In certain sizes, yes, it would look like that. 6 Q In fact, the sign on the miniature looks similar but 7 much smaller than the sign sitting right to your left, right? 8 A Similar, yes. 9 Q Could you show the jury how the door of that 10 Cleaver-Brooks boiler opens? 11 A Actually there's two doors on this. There's a front 12 door, this particular side is the front where the nameplate is, Page 53 Tornetta 2014 Trial Testimony.txt 13 and that door would swing up. In this particular - 14 Q Model? . 15 A -- model would be a hinged door and that would swing 16 up. . 17 Q. Does it open? 18 A I don't know that it does and I don't want to break 19 it. . 20 Q Okay. Could I approach? 21 A If you'd like to try to break it, go ahead. 22 Q I'm not going to break it. 23 A I think the back one does. 24 Q The back one opens, right? Maybe I will break it. 25 All right. 26 The front one on this model would swing open, right? 3813 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Yes. 3 Q And could you show the jury where the gasket would be 4 on the front door? 5 A It would be sandwiched between the flange of the door 6 and the flange -- the door gasket sandwiched between the flange 7 of the door and the flange of the boiler vessel. 8 Q It would run around the entire circumstance of the 9 door; is that right? 10 A Yes. ^ 11 Q And that was an asbestos gasket, correct? 12 A In some instance, yes. 13 Q In most instances in the '40s, '50s, '60s and '70s, 14 that was an asbestos gasket, correct? 15 MR. O'CONNELL: Object toform. Misstates prior 16 testimony. 17 THE COURT: Overruled. 18 A I'm not sure I could say most because I haven't looked 19 at most. 20 Q Why can't you say most? How can you say not most? 21 MR. O'CONNELL: Objection, your Honor, 22 argumentative. 23 A Because I don't know. 24 THE COURT: Overruled. 25 Q Okay. Now, show the jury on the back door where there 26 would be an asbestos gasket? 3814 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Sorry. I closed it. I don't want to -- there would 3 also be a gasket around the outside circumference of this door 4 which sandwiched up against what we refer to as the tube sheet 5 on the vessel. ' 6 Q And that would most likely be an asbestos gasket in . 7 the '40s, '50s, '60s and '70s when Mr. McCloskey was Page 54 Tornetta 2014 Trial Testimony.txt 8 encountering them, right? 9 MR. O'CONNELL: Objection. 10 THE COURT: Overruled. 11 A It could have been. 12 Q I'm going to show you catalogs here in a little bit. 13 Have you ever seen in a catalogue from the '40s, '50s, 14 '60s and 70s a door gasket being referred to as anything other 15 than asbestos-containing? 16 A No, I think I've seen them say asbestos-containing. 17 Q My question was have you ever seen any piece of 18 literature put out by Cleaver-Brooks that references a 19 non-asbestos gasket to be used on that door? Have you ever 20 seen that? 21 A I don't believe I have. 22 Q We're going to keep that up there for a second. 23 Now, the asbestos refractory material that 24 Cleaver-Brooks' engineers specified to be used in the boilers 25 would also be in the doors of the boiler; is that right? 26 A I guess I'm not sure what you mean by asbestos 3815 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 refractory material. 3 Q Refractory material that contains asbestos. 4 A I'm not aware of what I would consider refractory 5 having asbestos, but I'm certainly not an expert on the 6 asbestos. 7 Q Okay. And you're not an expert about what anything 8 contains, whether it be asbestos or something else, right, 9 because you're not here testifying as an expert witness, you 10 agree? 11 MR. O'CONNELL: Objection, your Honor. 12 THE COURT: Sustained. 13 Q Well, are you here as an expert witness, sir? 14 MR. O'CONNELL: Objection, your Honor. 15 THE COURT: Sustained. 16 Q What qualifications do you have to say any material 17 contains or didn't contain asbestos? - 18 MR. O'CONNELL: Objection, your Honor. 19 THE COURT: Overruled. 20 A My qualifications for that would be my work in this 21 area for the last ten years. 22 Q You've never seen it, right? 23 A I've never seen it in person in my hand, no. 24 Q You've never seen it on any Cleaver-Brooks boiler that 25 you've ever worked on, right? 26 A That I could say for certain, no, I haven't. 3816 1 2 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft Q Because you've never worked on a boiler in the '50s, Page 55 Tornetta 2014 Trial Testimony.txt 3 60s or 70s like those boilers Mr. McCloskey is describing, 4 correct? ' 5 A I certainly would have worked on boilers from the '70s 6 when I first started. It wouldn't surprise me, I guess. 7 Q I m going to hand this up to you, Mr. Tornetta. 8 Do you recall testifying in the case of Koontz in 9 October 28th of 2002? 10 A No. I'm sorry. I can't recall that one. ` 11 12 THE COURT: We're marking this Tornetta 8 for I.D.? 13 MR. KRAFT: No, Judge. This is just going to be 14 used to refresh his recollection about prior testimony. 15 Q I would ask you to go to page 54. 16 A Okay. 17 Q Do you have a specific recollection of ever working on 18 a boiler, Cleaver-Brooks boiler, from the '50s, '60s or '70s? 19 A As I sit here, I can't imagine I did not. 20 Q Okay. 21 A I know I've come across LR boilers. I can't say I 22 worked on them, but I certainly was around them and worked with 23 them. 24 Q Do you recall being asked the following questions and 25 giving the following answers in 2002 - and I assume, sir, you 26 were under oath at that time, right? 3817 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Yes. From twelve years ago, yes, I'm sure I was. 3 Q Was your memory of what you did as a service 4 technician better in 2002 than it is now today in 2004, twelve 5 years later? 6 A Probably not. I don't think it would be. 7 Q You don't think your memory was better in 2002? 8 A Oh, I went the other direction. I'm sorry. It's - ' 9 Q Was your memory better in 2002, yes or no? 1110 A Better about Q What you did as a field technician. 12 A Yes, it would have been. 13 Q Do you recall being asked the following questions and 14 giving the following answers: 15 "Question: Did you as a field service, as a 16 service tech, working in the field, did you ever work 17 on a boiler that had been installed in the '50s, 18 manufactured and installed in the '50s? 19 Answer: I don't recall it, but I may have. I 20 just don't remember specifically looking at a boiler 21 from the '50s., 22 "Question: Do you ever recall looking at a 23 boiler that would have been installed or.manufactured 24 in the 1960s? Page 56 Tornetta 2014 Trial Testimony.txt 25 "Answer: Again, not specifically, but I may 26 have. ' 3818 1 2 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft "Question: Do you recall working on any that 3 would have been installed or manufactured in the 70s? 4 "Answer: I would have to say the same answer. I 5 may have, but don't recall specifically looking or 6 working on those types." 7 Were you asked those questions and did you give that 8 testimony? 9 A It looks that way, yes. 10 Q Did I read it correctly? 11 A Yes, I believe so. 12 Q And this is your testimony, right? 13 A Yes. ' 14 Q Can you point to any document ever created by any 15 person at Cleaver-Brooks ever that says door gaskets on boilers 16 in the 40s, '50s 60s and 70s werenot asbestos-containing? 17 A I don't think I could, no. 18 Q Now, these door gaskets, what kind of asbestos were 19 they made out of? 20 A The kind as in - 21 Q The type of asbestos. 22 A I don't know. 23 Q Have you ever heard the word chrysotile, amosite, 24 crocidolite, do you know as the corporate representative of 25 Cleaver-Brooks whether the gaskets your engineers specified 26 contained chrysotile, amosite or crocidolite? 3819 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 MR. BLAKELY: Objection to the form. 3 THE COURT: Overruled. 4 A No, I don't. 5 Q What percentage of asbestos were the gaskets that 6 you -- when I say "you," I mean Cleaver-Brooks -- specified to 7 be used on the doors of your boilers? 8 A I wouldn't know that. 9 Q Ninety percent? A hundred percent?' Ten percent? 10 Eight percent? Do you have any idea? 11 A I don't know. 12 MR. O'CONNELL: Objection, your Honor. 13 THE COURT: Overruled. 14 Q Have you ever done anything to try to figure that out, 15 Mr. Tornetta? 16 A No, I've never found anything in our records that 17 tells me that one way or the other. 18 Q Have you everasked any engineer? 19 A No. Page 57 Tornetta 2014 Trial Testimony.txt 20 Q Have you ever asked anybody? 21 A No, I haven't. 22 Q Do you know, sir, what would happen to the air in the 23 immediate vicinity of a Cleaver-Brooks door being opened? 24 MR. O'CONNELL: Objection. 25 THE COURT: Sustained. 26 Q Do you know if dust would be released from the gaskets 3820 - 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 that were on the doors of Cleaver-Brooks boilers? 3 MR. O'CONNELL: Objection. 4 THE COURT: Overruled. 5 MR. O'CONNELL: He's a fact witness, not an 6 expert witness, your Honor. 7 MR. KRAFT: It goes directly to what 8 Cleaver-Brooks did or didn't do, Judge. 9 MR. O'CONNELL: Still object. 10 THE COURT: Did you observe? 11 THE WITNESS: Have I ever personally observed? 12 THE COURT: Yes. 13 THE WITNESS: A door being opened, yes, I have. 14 Q Have you spoken with any engineers about what would 15 happen with boilers manufactured when the rear door would open, 16 what would happen to the asbestos seal on the rear door? 17 A No, I can't say I've never spoken to an engineer about 18 that. 19 Q Have you ever spoken to anybody about what would 20 happen when the seal was broken on any door of a Cleaver-Brooks 21 boiler that contained asbestos in terms of asbestos being 22 released? 23 MR. O'CONNELL: Objection, your Honor. ' 24 A No, I haven't. 25 THE COURT: Overruled. 26 THE WITNESS: I'm sorry. ' 3821 ' 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 THE COURT: Please wait for my ruling. 3 Q Cleaver-Brooks advertised so that they could sell 4 their boilers; is that right? 5 A Yes. 6 Q Did Cleaver-Brooks test the component parts and 7 research the component parts and buy the component parts from 8 reputable manufacturers that they eventually put into their 9 boilers? 10 MR. O'CONNELL: Object to form. 11 THE COURT: Sustained. 12 Q Did Cleaver-Brooks test the component parts that were 13 eventually incorporated into their boilers? 14 MR. O'CONNELL: Object as to form again. " Page 58 Tornetta 2014 Trial Testimony.txt 15 THE COURT: Overruled. 16 A The component parts as th e ir- - themselves, no. The 17 boiler itself was tested, test-fired before it's shipped to our 18 factory. 19 MR. KRAFT: Your Honor, at this time I seek to 20 have the following document marked as Tornetta 8 . 21 (Plaintiffs' Exhibit 8 marked for 22 identification.) 23 Q So it's your testimony that Cleaver-Brooks - 24 MR. O'CONNELL: May I see it? 25 Q -- did not test the component parts; is that right? 26 A Not the individual components that I can think of, 3822 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 other than possibly some electrical controls for certain things 3 but the boiler itself was tested as a whole. 4 MR. KRAFT: Can I approach the witness? 5 THE COURT: Yes. This is Tornetta 8? 6 MR. KRAFT: Tornetta 8 . 7 Q Do you recognize that, sir? ' 8 A I recognize it as -- looks like an advertisement. , 9 Q From what company? 10 A The magazine company you mean? 11 Q Whose advertisement is it? . 12 A Oh, I'm sorry. . 13 There is a Cleaver-Brooks advertisement. 14 Q And from what periodical? 15 A Looks like Southern Power &Industry. 16 Q And you know, based upon your job, that Cleaver-Brooks 17 in fact advertised in Southern Power, right? 18 A Actually Southern Power I can't say -- I probably come 19 across this before, but I didn't note the Southern Power part 20 of it. 21 Q Do you know that Southern Power & Industry was a 22 magazine within your industry where boiler manufacturers would 23 advertise their products, right? 24 A I don't believe I've ever come across that. It 25 doesn't surprise me, but yes. 26 Q Is this a Cleaver-Brooks advertisement? 3823 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Yes. 3 Q Did Cleaver-Brooks have an advertising department? 4 A I'm not sure they called them the advertising ' 5 department, but they had marketing people and different things 6 over time, yes. 7 Q Were the marketing people responsible for advertising? 8 A Yes. 9 MR. KRAFT: I seek to introduce this into Page 59 Tornetta 2014 Trial Testimony.txt 10 evidence, your Honor, as Tornetta 8 . 11 MR. O'CONNELL: Objection, your Honor. What's - 12 THE COURT: Step up. 13 (Sidebar outside the presence of the jury:) 14 THE COURT: State your objection. 15 MR. O'CONNELL: I'm objecting because I want to 16 know what's the relevance of this, because on the question 17 I don't see the relevance. 18 MR. KRAFT: They have a duty to test the 19 materials they put into their boiler especially when they 20 say that they're selling a safe product. This is a 21 Cleaver-Brooks advertisement. ' 22 THE COURT: I think it's quite relevant. The 23 objection is overruled. 24 (In open court:) 25 THE COURT: The objection is overruled. ' 26 Q Cleaver-Brooks personnel would create these 3824 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 advertisements, right? 3 A Yes, I would assume so. This is from 1950, so I can't 4 say that for certain. They may have had an outside advertising 5 company as well. 6 Q Have you ever investigated who did the advertising? 7 Did you talk to anybody? 8 A Not specifically for this, no. 9 Q "Another reason why you get a greater return from your 10 investment in a Cleaver-Brooks steam boiler." And I want to 11 read it. "Cleaver-Brooks steam boiler quality is the sum of 12 many qualities. From the rolling-in of the first tube and 13 through every step to completion, the highest standard of 14 engineering, material and workmanship prevail." 15 You have an engineering department; is that correct? ' 16 A Yes. 17 Q "Every component" -- it says component, right? 18 A Yes, it does. 19 Q " is the tested product of a manufacturer of known ' 20 standing, carefully selected by Cleaver-Brooks engineers 21 through test and research." 22 Does it say that? 23 A Yes, it does. 24 Q. Okay. Is it fair to say that Cleaver-Brooks tested 25 and researched what they were going to incorporate in their 26 products? 3825 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 MR. O'CONNELL: Objection, your Honor. It . 3 misstates what that says. 4 Q Did I read that wrong? Page 60 Tornetta 2014 Trial Testimony.txt 5 THE COURT: Overruled. 6 A I don't believe that's what that says but... ' 7 Q Okay. Did Cleaver-Brooks' engineers just willy-nilly 8 stick anything they wanted to in their boilers without figuring 9 out if it worked? 10 MR. O'CONNELL: Objection, your Honor. ' 11 THE COURT: Sustained. 12 MR. KRAFT: Is it the willy-nilly part, Judge? 13 Q Did Cleaver-Brooks just randomly select things to 14 stick into their boilers? 15 A No. They would have looked at the application and, if 16 it was something outside of what we manufactured, would have 17 talked to the supplier of those products to see what fit the 18 application. 19 Q Do you have any note, letter, document to suggest that 20 the very thing you just said happened happened? 21 MR. O'CONNELL: Objection, your Honor. 22 Can we approach on this? 23 THE COURT: Come up. 24 (Sidebar outside the presence of the jury:) 25 MR. O'CONNELL: The problem I have with this line 26 of questioning - I just lost my train of thought. Give me 3826 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 a moment. 3 MR. KRAFT: I asked does he have any note, 4 document... 5 MR. O'CONNELL: They issued a company subpoena. 6 He's done this several times. If you don't have a 7 document, you know, you should have asked for it. For 8 somebody to say that - I mean, we've produced documents. 9 MR. KRAFT: They never produced those. If they 10 did, they would be under an obligation to produce them 11 under discovery. 12 THE COURT: It's not pertinent to our discussion 13 at the bench. This is a not a discovery proceeding. 14 MR. KRAFT: It's referring to something outside . 15 of his own personalknowledge. 16 THE COURT: Who? 17 MR. KRAFT: Mr. Tornetta, he's referred to 18 something. 19 THE COURT: So that doesn't mean he had to schlep 20 it in here. 21 MR. KRAFT: I want to know if he's ever seen such 22 a document. . 23 THE COURT: That's a different question. 24 MR. KRAFT: I'll ask that question. 25 MR. O'CONNELL: But to keep asking, you know, did 26 you bring a document, did you bring -- Page 61 Tornetta 2014 Trial Testimony.txt 3827 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 MR. KRAFT: I didn't ask that. 3 MR. O'CONNELL: You've done it several times. 4 MR. KRAFT: I'll withdraw the question, Judge. 5 THE COURT: Thank you. 6 (In open court:) 7 THE COURT: The record reflects that the question 8 is withdrawn. 9 MR. KRAFT: Withdrawn. 10 BY MR. KRAFT: 11 Q Have you ever seen such a document, a letter, a memo, 12 a note, correspondence with any supplier indicating what you 13 just told this jury? ` 14 A Yes. I believe I've come across documents talking 15 about some testing that a refractory company was doing. 16 Q. When? 17 A Boy, I thought it was - I thought it was one of your ' 18 firm's exhibits. 19 Q. Sir, did you just make that up? 20 A No. 21 MR. O'CONNELL: Objection, your Honor. 22 THE COURT: Sustained. 23 Jurors, please disregard that. 24 Q Has Cleaver-Brooks ever testedany asbestos-containing 25 component part that it incorporated into its boiler to 26 determine when that part was installed whether it released 3828 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 asbestos dust? 3 A Oh, no. That's not what I was answering before about 4 releasing asbestos dust. 5 Q No, I'm onto a different subject. . 6 A Okay. I'm sorry. I just want to make sure I wasn't 7 confused with that. ' 8 No, they have not. . 9 Q When I asked the objectionable question, I've moved 10 on. ' 11 A Okay. ` 12 Q. Has Cleaver-Brooks ever tested any asbestos-containing 13 component part that they incorporated into their boiler to 14 determine if asbestos was released during its normal use? 15 A No. 16 Q Has Cleaver-Brooks ever tested any asbestos-containing 17 component part when that part is removed to determine whether 18 asbestos is released? 19 A No. 20 Q Has Cleaver-Brooks done any testing on asbestos 21 gaskets that would be on the doors of their boilers to Page 62 Tornetta 2014 Trial Testimony.txt 22 determine what amount of fibers are released when those doors 23 are opened? 24 A No, we haven't. ' 25 Q Cleaver-Brooks had a research and development _ 26 department; is that correct? 3829 ' 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Yes. In some form or another, yes. 3 Q. You had the capability to test things inyour own 4 facilities, right? 5 A Certain things, yes. 6 Q I want to ask you some questions generally about 7 catalogs now. 8 You would agree Cleaver-Brooks sold 9 asbestos-containing component parts for profit? 10 A In some cases, yes. 11 Q Well, in the cases of asbestos gaskets? 12 A That's what I was answering to, I guess. Yes, we 13 offered gaskets and some of them contained asbestos. 14 Q When you sold those asbestos gaskets, did you ever put 15 a warning on the packaging saying, "Hey, these contain 16 asbestos; be careful"? 17 A No. 18 Q Did you ever put any type of caution, anything on the 19 asbestos gaskets that you sold? 20 A No. ` 21 Q Did you ever put any warning on any Cleaver-Brooks 22 boiler that has ever been sold saying, "This boiler contains 23 asbestos"? 24 A No, we didn't. 25 Q. Any warning, note, anything on aCleaver-Brooks boiler 26 suggesting that anyone working on it should take any type of 3830 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 precaution when working around a Cleaver-Brooks boiler? 3 A In relation - 4 Q Pertaining to asbestos. 5 A Pertaining to asbestos, no. 6 Q As a matter of fact, we're going to see in a little 7 bit in your catalogs you put cautions and warnings in the 8 catalogs, correct? 9 A On certain things, yes. 10 Q And if Cleaver-Brooks had wanted to put a caution or a 11 warning on its boiler, on the door of the boiler, it had the 12 technological capability to do that, right? . 13 A Yes, I suppose we did. 14 Q And if Cleaver-Brooks hadwanted to put a warning or a ` 15 caution in its manuals about asbestos, it could have done that,. 16 right? Page 63 Tornetta 2014 Trial Testimony.txt 17 A We could have put a warning in there if we were going 18 to, yes. 19 Q Cleaver-Brooks never warned or put any caution about 20 anything related to asbestos on any of their boilers or 21 products that they sold, would you agree with that? 22 A Yes. 23 Q And at all times they could have done that had they so 24 chosen, correct? 25 A We would have been able to. . 26 3831 MR. KRAFT: This should be quick, Judge. I'm 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 going to mark a number of exhibits. Tornetta 9, Tornetta 3 10, Tornetta 11, Tornetta 12, Tornetta 13. 4 Let's start with these. 5 (Plaintiffs' Exhibits 9, 10, 11, 12 and 13 marked 6 for identification.) . 7 (Continued on following page.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 * 24 25 ' 26 , 3832 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Q I'd ask you to take a look at all of these, 3 Mr. Tornetta. . 4 A Just a quick glance. 5 Q Just a quick glance. 6 The question I'm going to have is: You would agree 7 that these are documents that were made by Cleaver-Brooks, kept 8 in the regular course of business by Cleaver-Brooks, and they 9 are, in fact, Cleaver-Brooks documents. 10 A (Perusing.) I'm sorry.What was the question again? 11 Q You would agree those are Cleaver-Brooks documents. Page 64 Tornetta 2014 Trial Testimony.txt 12 A They appear to be. They certainly have 13 "Cleaver-Brooks" on them. I didn't read every page to make 14 sure nothing was stuck in, but they are Cleaver-Brooks. 15 Q That's fair. They are Bates stamped on the bottom 16 right-hand corner, is that correct? - 17 A Those are - I'm not certain about this one. Yes, 18 these are as well. ` 19 MR. KRAFT: Okay. I seek to introduce them all 20 into evidence at this time, your Honor. 21 MR. O'CONNELL: Objection, your Honor. 22 (Whereupon, a sidebar discussion is held on the 23 record, out of the presence of the jury.) 24 MR. KRAFT: They were selling boilers in New 25 York. 26 THE COURT: That's the reason. Do you have an 3833 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 objection to that? 3 MR. O'CONNELL: That I don't have, but wait, 4 wait, the problem is that this is now put in in this case. 5 I have no problem with that at all. 6 THE COURT: Introduce them. 7 MR. KRAFT: I'll say it, no problem. On this one 8 it talks about cautions and warnings and right underneath 9 the cautions and warnings it discusses using asbestos 10 gaskets, but there is no caution or warning about asbestos 11 gaskets on the same page. 12 MR. O'CONNELL: That's fine. I have no ` 13 objection. 14 MR. KRAFT: It confirms all of the asbestos 15 components that we talked about being used. ' 16 MR. O'CONNELL: The problem is that this is the ' 17 contract. This is the boiler. It's not a boiler in this 18 case. 19 MR. KRAFT: I'm going to establish that these 20 were used. These products were used on all of 21 Cleaver-Brooks boilers. They didn't test any of their 22 products. That goes to why they are negligent, Judge, and 23 gaskets asbestos -- gaskets, how do we know it's not this 24 model? There is no testimony about what type of model. 25 It's a cylinder boiler, which this was, and it's a door 26 gasket. . 3834 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 MR. O'CQNNELL: Why don't you ask if it's that 3 type and let your client identify it. 4 THE COURT: Number 11, lay a foundation for it. 5 MR. KRAFT: Sure. I'll ask it. This is a 6 Cleaver-Brooks boiler manual. That lays out the exact type Page 65 ' 7 of gasket. That's asbestos. Tornetta 2014 Trial Testimany.txt 8 MR. O'CONNELL: But wait, wait. 9 THE COURT: What page are you on? 10 MR. KRAFT: Here's the thing, Judge. 11 Mr. O'Connell is attempting to say that we can't prove the 12 specific type of model. The point is, Judge, these gaskets 13 and products were used on every model. And the fact that 14 Mr. - 15 THE COURT: Lay that foundation, then, if you can 16 get from him that. But if you can't, you're going to have 17 a problem. 18 MR. KRAFT: I don't think I'm going to have a 19 problem. Asbestos gaskets. Head gaskets. How to remove 20 the gaskets. How to make the gaskets. Put the cement over 21 the gaskets. 22 THE COURT: While I have you h e re - - off the 23 record. 24 (Sidebar discussion held off the record.) ` 25 THE COURT: So. 26 3835 MR. KRAFT: Tornetta 9, I believe there is no 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft ' 2 objection to this one, is that correct? 3 MR. O'CONNELL: Correct. 4 Q Mr. Tornetta, I want to show you the last page of 5 Tornetta 9. It's something called Cleaver-Brooks - has 6 Cleaver-Brooks logo on it. It's marked 29K. It has pictures 7 of various boilers. 8 Can we agree that, I'm not saying that the boilers 9 depicted on the front are or are not the boilers that 10 Mr. McCloskey worked on, this is only being used for what's on 11 the last page? Can we agree to that? . 12 A Sure. 13 Q Now, in general, Mr. McCloskey described the 14 Cleaver-Brooks boilers as being cylindrical, right? 15 A Yes. 16 Q All right. Obviously, this boiler isn't cylindrical, 17 so it wouldn't be that boiler that he was talking about, right? 18 A Correct, in that description. 19 Q The other boilers on here are generally cylindrical, . 20 is that right? 21 A Yes. 22 Q The boiler down at the bottom isn't cylindrical, so we 23 can agree Mr. McCloskey wasn't talking about that boiler, 24 right? 25 A Correct. 26 Q Okay. On the last page of this document it lists all 3836 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft Page 66 Tornetta 2014 Trial Testimony.txt 2 the places that Cleaver-Brooks has sales representatives and . 3 locations, is that correct? At the top ones, it comes into 4 view, Cleaver-Brooks sales representatives and locations. Do 5 you see that at the very top? 6 A Yes. Oh, there you go. 7 Q Is that better? . 8 A Yes. 9 Q And in New York it lists Cleaver-Brooks Company, 220 10 East 42nd Street, right? . 11 A That's what it says, yes. 12 Q And you also had a sales representative office out in 13 Long Island, is that right? Hicksville? 14 A Hicksville, LongIsland, then, yes. 15 Q Hicksville in Long Island. I don't know. Is it 16 Nassau County? Somewhere in New York, right? It's listed 17 under New York. 18 A Yes. 19 THE COURT: We can take judicial notice, 20 Mr. Kraft. 21 MR. KRAFT: Thank you, Judge. My geography is 22 failing me. 23 Q The next document, this is a good practices manual, a 24 manual outlining recommended good practices in the inspection, 25 maintenance, and operation of power and heating boilers in the 26 steam and hot water classifications, right? 3837 1 ' F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 THE COURT: That's T10? ' 3 MR. KRAFT: T10, Tornetta 10. 4 A That's what it says, yes. . 5 Q Okay. This applies to one model, various models, lots 6 of models, do you know? 7 A It looks like it would apply to anything, that 8 category of power and heating boilers, steam and hot water. 9 Q Clearly, the boiler described by Mr. McCloskey was a 10 power boiler in the steam and hot water generation subcategory, 11 right? 12 A I'm not - I'm not sure I can say power boiler, in the 13 clarification we would call a power boiler. I know we talked 14 about powerhouse boilers, but I'm not certain. When they talk 15 about Cleaver-Brooks, they were power but they were heating. 16 Q This manual covers commercial boilers, correct? 17 A It could, yes. 18 Q And the boilers Mr. McCloskey described was a 19 commercial boiler, right, or commercial boilers, correct? 20 A In relation toCleaver-Brooks? 21 Q. Yes. ' 22 A I'm not certain that he said exactly that. He may 23 have called them commercial. ' Page 67 Tornetta 2014 Trial Testimony.txt 24 MR. KRAFT: Can I approach the witness and show 25 him Mr. McCloskey's testimony page 3088? . 26 MS. HALBARDIER: What date of the trial? 3838 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 MR. KRAFT: Here you go. 3 MS. HALBARDIER: Thank you. 4 MR. KRAFT: You're welcome. 5 Can I approach the witness? 6 THE COURT: Yes. 7 Q Can we agree that I am about to read from page 3088 of 8 the trial transcript? 9 "Question: What did a commercial boiler look 10 like? 11 "Answer: A commericial boiler? 12 "Question: Did a commercial boiler look any 13 different than a residential boiler in your mind? 14 "Answer: Could I name the name'of the boiler? 15 "Question: If you want. . 16 "Answer: I remember Cleaver-Brooks. They were 17 cylindrical in shape. Riley Stoker, I believe, was another 18 cylindrical-shaped boiler. . 19 "Question: And do you believe you were exposed . 20 to asbestos in any way from these commercial boilers? 21 "Answer: Yes." 22 Does that refresh your recollection that 23 Mr. McCloskey described Cleaver-Brooks boilers as 24 commercial boilers? 25 A Yes, it does. Thank you. 26 Q You're welcome. 3839 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 And you would agree that this manual covers commercial 3 boilers, correct? 4 A Yes, they would be part of that topic. 5 Q I'm going to go to page 29 of this document. Do you 6 see 29 at the bottom, right? 7 A Yes. 8 Q There is a caution and it talks about-dissolve 9 chemicals and then there is a note, "Extreme caution must be 10 used," and then in the very next paragraph 2-6, it says, 11 "Proceed to close manhole coverings. Use plain asbestos ' 12 gaskets for this service," right? . 13 A Yes. . 14 Q Cleaver-Brooks never put a caution or a note or a 15 warning in any of its catalogs like this pertaining to any 16 asbestos gaskets that were incorporated into its boilers, 17 correct? 18 MR. O'CONNELL: Objection, your Honor. Page 68 Tornetta 2014 Trial Testimony.txt 19 Relevance. Door gaskets? 20 THE COURT: Overruled. 21 Q Overruled. 22 A No, we didn't. 23 Q And you didn't put any warnings or cautions about door 24 gaskets that contained asbestos either, right? 25 A No. 26 Q No, I'm not right? 3840 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A I'm sorry. No, we did not. 3 Q Thank you. 4 MR. KRAFT: I seek to introduce Tornetta 10 into 5 evidence, your Honor. 6 MR. O'CONNELL: No objection. 7 THE COURT: It is received as Exhibit 8 Tornetta 10. 9 Q Sitting here, do you know what boiler model made by 10 Cleaver-Brooks that Mr. McCloskey identified? Was it a fire 11 tube or water tube boiler? 12 A No. The cylindrical description leads me to a fire 13 tube boiler. 14 Q Right. And those are the boilers that include the CB 15 line, the LR line, and the LF line models, is that right? 16 A And progress monitor and the other ones I named, yes. 17 Q This document right here, Tornetta 11, since it's not 18 in evidence yet, pertains to an LRM model boiler, right, at the 19 top? 20 A Yes. That's what the first page says. 21 Q And that would be a fire tube cylindrical boiler, 22 right? 23 A Yes. The LR models we talked about earlier. 24 MR. KRAFT: I seek to introduce this into 25 evidence, your Honor. ' 26 MR. O'CONNELL: Same objection as noted at ' 3841 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 sidebar, your Honor. 3 THE COURT: Sustained. 4 Q Would there be similar documentation for LF model 5 boilers? 6 A I don't know. That's a fairly specific one to a 7 specific boiler, so I'm not sure if that was asked for for a 8 specific reason or not. 9 Q Would there be similar paperwork like this for CB . 10 model boilers? 11 A Again, I'm not sure. That's an odd format to me. 12 Q This document includes asbestos cement. You would 13 agree that asbestos cement would be used in every type of fire Page 69 14 tube boiler, right? Tornetta 2014 Trial Testimon.txt . 15 MR. O'CONNELL: Objection, your Honor. 16 THE COURT: Sustained. 17 Q. Well, can't asbestos cement - well, strike that. ' 18 Was asbestos cement used in the various models of fire 19 tube boilers during the time period Mr. McCloskey was 20 describing being exposed to Cleaver-Brooks boilers? 21 A In some of them, yes. 22 Q Okay. And were head gaskets and asbestos gaskets and 23 asbestos tape used in the fire tube Cleaver-Brooks boilers 24 during that same time period? 25 A I'm not sure about the asbestos tape, but certainly 26 head gaskets. 3842 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 Q When the gasket was placed on the outside 3 circumference of the doors, isn't it a fact that that would 4 often be sealed into place by asbestos fiber? 5 A Not in the front. . 6 Q How about in the back? 7 A In the back, yes. 8 Q And asbestos pulp? . 9 A In some cases, yes. 10 Q Okay. And if you look on the second page of this 11 document, there are general installation instructions, correct? 12 A That's what it says, yes. 13 Q And these general installation instructions would 14 apply not just to this LRM model but to all model fire tube 15 boilers, is that correct? 16 A No, I don't believe so. 17 Q Okay. And which model fire tube boiler wouldn't these 18 apply to? 19 A Actually, anything after the OB, LR, and LF. 20 Q So they wouldn't be in the CB model? 21 A Correct. 22 Q Okay. Can you say to this jury that those 23 installation instructions wouldn't be relevant to the boilers 24 Mr. McCloskey was describing? 25 A If it's the boiler we're talking about that we 26 identified at Indian Point, yes, I could. 3843 ' 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft , 2 Q We re not talking about that. We're talking about a 3 commercial boiler that is cylindrical. 4 A If it's brought to that, not the specific site, no, I 5 couldn't. , 6 Q Okay. So this would apply to the LR, the OB, and 7 other cylindrical models which may be the boilers Mr. McCloskey 8 was describing, correct? Page 70 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3844 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3845 1 2 3 Tornetta 2014 Trial Testimony.txt MR. O'CONNELL: Objection to the form. Also relevance? THE COURT: Overruled. A If he was talking about LR, LF, or OE, possibly, yes. MR. KRAFT: Okay. I seek to introduce everything except the first page of this document, your Honor, as Tornetta 11. MR. O'CONNELL: Same objection, your Honor. THE COURT: Overruled. MR. KRAFT: I'll make it Tornetta -11A. THE COURT: Okay. Yes. We're going to break for lunch now. Members of ` the jury, don't discuss the case. See you at 2:15. (Jurors exit courtroom.) MR. CZEREPAK: I have brought up from the ex parte part - THE COURT: Would you give it to Mr. Casper? MR. CZEREPAK: Yes, I wil. - an order to show F. Tornetta - by Plaintiff McCloskey - Direct/Kraft cause for your review, consideration, and signature, your Honor, and I would like to inform - THE COURT: Give it to him. He'll do it and I'll look at it. MR. CZEREPAK: Thank you, your Honor. (Luncheon recess.) (Afternoon session.) THE COURT: Mr. Kraft or Mr. Fanelli, whoever wants to address this, I may have glossed over something with respect to this, but the five subpoenaed people from Con Ed, none of them -- none of them appear on your witness list, is that true? MR. KRAFT: Yes. MR. FANELLI: Yes. . MR. CZEREPAK: There are six executives on that witness list. THE COURT: Right now we're down to five. ' MR. CZEREPAK: No, no, the other ones. THE COURT: We'll just talk to five. Tell me why that's not a problem. MR. KRAFT: It's not a problem because we have a right to call the party whether or not we list them or not, and since he won't tell us who the party is, which he should have, which every other defendant does and we briefed that - F. Tornetta - by Plaintiff McCloskey - Direct/Kraft . THE COURT: It's not what this one did or that one did. Page 71 Tornett? 2014 Trial Testimony.txt 4 MR. KRAFT: We submitted a brief. We're entitled . 5 to call a party. ' 6 THE COURT: I am not so sure. Does the CMO say . 7 that? Does the CMO say whoever you want to call you have 8 to put on the witness list? Is that what it says? ` 9 MR. KRAFT: No. ' 10 MR. CZEREPAK: Yes, it does. 11 THE COURT: That's what I thought. 12 MR. KRAFT: Show me what section of the CMO 13 you're talking about. 14 THE COURT: Show it to him. 15 MR. CZEREPAK: I don't know about the CMO itself, 16 but the discovery order does for sure. 17 THE COURT: Okay. It seems to me if you have to 18 put them on the witness stand, what's the point of the 19 witness list? . 20 MR. CZEREPAK: If you don't have to put them on 21 the witness list - 22 MR. KRAFT: Because we're calling the party, 23 Judge. 24 THE COURT: You have authority for the 25 proposition that - 26 MR. KRAFT: We could call the party. * 3846 1 2 3 4 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft THE COURT: - that calling the party without putting them on the witness list is outside the - you have . authority for that proposition.That's all Icare about 5 right now. 6 MR. KRAFT: Sitting here today I don't know if we 7 do. 8 THE COURT: It's either yes or no, and what I 9 want to do is I want to expedite this because he might be 10 right on that score, and if it had to be on the witness 11 list, then that's kapinsky for these subpoenas, then I will 12 grant his motion. 13 So I'm being very up front with you because I 14 want to resolve it quickly. If you are totally convinced 15 in your own head that you didn't have to put them on the 16 witness list, I want it very quickly, which you must have 17 authority for that proposition, period. That's what I 18 want. Then we can resolve this without having to go back 19 to the App. Div. or anything like that. 20 But I want that very firmly. And I ask the . 21 questions, Mr. Kraft. You don't ask the questions of me. 22 MR. KRAFT: I'm not asking the question. 23 THE COURT: Well, you did. So that's what I . 24 think should resolve this whole thing. . 25 Isn't that true? Page 72 26 3847 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3848 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Tornetta 2014 Trial Testimony.txt MR. CZEREPAK: I believe so. F. Tornetta - by Plaintiff McCloskey - Direct/Kraft THE COURT: I believe so. MR. CZEREPAK: And the law. MR. KRAFT: Well, Judge - THE COURT: It's a very simple issue. I want to be sure with it. MR. KRAFT: I understand it's a simple issue, and we will look in.to the case law as you have requested and you'll have an answer. THE COURT: I want it by Thursday. It's very simple. An email to Catherine with the cite, not a letter. I just need a cite. I just need a cite and then we'll resolve it. . MR. CZEREPAK: When he cites this, can I get response to thecites? THE COURT: You know what? You don't need to. ' You already put your stuff in. I know what your position is. Mr. Czerepak, I know your position. MR. KRAFT: It's a very simple issue. We've been telling them forever we've wanted to call the party. We've placed them on notice. We ll get you case law. THE COURT: Good. And I'm not going to sign anything until it'sbeen resolved. MR. CZEREPAK: Until Thursday. MR. KRAFT: Mr. Ferguson is not available Thursday. He's available tomorrow at any time to meet with F. Tornetta - by Plaintiff McCloskey - Direct/Kraft anybody. THE COURT: Okay. Mr. Gallagher, Ms. Halbardier, Mr. Blakely, Mr. Ferguson is not available on Thursday. So I'll put you guys off for another time. . But I want to see then Dana -- and is it Cutler Hammer. Mr. Gunn, are youavailable tomorrow? MR. GUNN: I'm sorry, your Honor. Somebody from my office will be there with full authority. The carrier I don't think is coming in, but they have whatever authority.' THE COURT: That's tomorrow. This is off the record. (Discussion held off the record.) (Jurors enter courtroom.) THE COURT: Good afternoon, everybody. You all went outside? Guys, you have a lot of courage. MR. KRAFT: We've marked during the break a number of exhibits, Cleaver-Brooks 11 and 11A. And I believe 11A has been admitted intoevidence. Excuse me, Tornetta, Tornetta 12, 13, 14, 16, 17, Page 73 Tornetta 2014 Trial Testimony.txt 21 18, 19, 20, 21, 22, and 23 and 24. We seek to introduce 22 all of those into evidence at this time. 23 MR. O'CONNELL: No objection, your Honor. 24 THE COURT: Very well. Tornetta 12 through 24 is . 25 admitted. 26 3849 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft . 2 BY MR. KRAFT: 3 Q Okay. I want to show you two of them, Mr. Tornetta, 4 and I apologize for having my back to you. I'm trying to speed 5 this up. 6 This is a catalog or a pamphlet for a CB boiler that 7 includes 15 to 600-horsepower, right? 8 A Yes. 9 Q And you've seen this before, correct? 10 A Yes, I have. 11 Q Okay. It says "Cleaver-Brooks" down on the bottom 12 right? Down on the bottom, "Cleaver-Brooks." 13 A Yes. 14 Q I want to show you a page that I have marked. Would 15 you agree that under "CB design greatly simplifies 16 maintenance," it shows the doors, the front and the rear door, 17 right? 18 A Yes. 19 Q And I'm going to highlight a portion. And it says 20 doors are sealed with preformed" -- "doors are sealed with ' 21 preformed asbestos gaskets," right? 22 A Yes. 23 Q Do you know the date of this document, sir? 24 A Not from here. Maybe there is a date on it. I'm not 25 sure. 26 Q (Handing.) There you are. 3850 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft A (Perusing.) It looks like it may be December of 1960. Q Okay. Next document I want to show you, you've seen this before as well, right? THE COURT: Which one is this? MR. KRAFT: This is Tornetta 22. A Yes, I have. Q And this is another one for the CB model boilers? A Yes. 10 Q Are you aware that this document also talks about the 11 doors being sealed with asbestos gaskets? 12 A 13 yes. I believe that I do remember seeing that in that one, 14 Q Okay. Do you know what year this document is from? 15 A Let me see if I can -- it looks like maybe August of Page 74 Tometta 2014 Trial Testimony.txt 16 1960. 17 Q Okay. You've seen other derivations of catalogs like 18 this that both before and after 1960 discussed asbestos gaskets 19 being used on the doors of CB boilers, right? 20 A Yes. 21 Q I'm going to show you Tornetta 23. This is a boiler 22 operating manual for a monitor boiler, right? 23 A Yes. 24 Q That would also be in the line of fire tube boilers 25 that are cylindrical in shape, correct? 26 A Correct. 3851 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 THE COURT: And this is? ^ 3 MR. KRAFT: Tornetta 23, your Honor. 4 THE COURT: Thank you. 5 Q And like in many of the catalogs there are parts 6 ordering instructions in the catalogs, right? 7 A Yes. That's the same manual or whatever you showed me 8 before I assume, right, yes. 9 Q And these manuals were drafted, designed, put out, 10 sent out by Cleaver-Brooks, right? 11 A Yes. 12 Q And these manuals include- - and this is 13 representative -- they all have chapters on service and 14 maintenance, right. 15 A Normally, they do, yes. 16 MR. KRAFT: I want to hand up Tornetta 24, if I 17 may, your Honor. 18 THE COURT: I'm sorry. 19 MR. KRAFT: Tornetta 24. 20 Q Can you tell the jury what I just handed you, 21 Mr. Tornetta? 22 A It appears' to be a - what I would refer to as a 23 tadpole gasket. 24 Q And can you tell the jury where the'tadpole gasket 25 goes on that model that's in front of you? 26 A Oh, on the model. Given the size, the coil of this, I 3852 ` 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft . 2 can't tell how big it is, but it's likely either the front or . 3 rear door gasket where it seals between the door and the 4 pressure vessel. 5 Q Okay. There is a part number on that, right? 6 A Yes. 7 Q Do you recognize that to be a Cleaver-Brooks part 8 number, right? 9 A It appears to be, yes. 10 Q And that's a non-asbestos-containing gasket for the Page 75 Tornetta 2014 Trial Testimony.txt 11 doors of Cleaver-Brooks boilers, right? 12 A I don't know one way or the other what the material 13 is, but I'll assume so. 14 Q. Okay. The part number 32-993, that's a new origin 15 part number, right? A relatively newer, i.e., late 1990s, 16 early 2000 part number? 17 A I'm not certain without looking up the drawing for ' 18 that. 19 Q Okay. The jury has heard about small gaskets, larger 20 gaskets. This gasket, it's hard to the touch, right? 21 A I'm sorry. 22 Q It's hard to the touch? 23 A It's flexible and the edges of it are flexible, yes. 24 Q And what you would do is you would take that and 25 stretch it out and you'd place it around the circumference of 26 the boiler door, right? 3853 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Yes. 3 Q Usually after wetting it first, right? 4 A Wetting the gasket? 5 Q Yeah. 6 A No. 7 Q No. Okay- You would then cement it somehow to the 8 door? 9 A No. There are clips that hold it to the door. 10 Q Okay. That would then be in between the door portion 11 of the boiler and the actual steel of the boiler itself, right? ' 12 A Yes. 13 Q Okay. And then you'd close it, right? 14 A Yes. ' 15 Q And that would seal the boiler and prevent any leaks ' 16 from the boiler, right? 17 A Flue gas, yes. 18 Q And one of the ways you knew that flue gases were 19 leaking from the boiler is you would be able to see 20 discoloration of the front of the door of the boiler? 21 A The area around the flange. I'm not sure I'd call 22 that the front, but the area around the flange. 23 Q During the time period that Mr. McCloskey was working 24 on or around Cleaver-Brooks boilers, that tadpole gasket was an 25 asbestos-containing gasket, correct? 26 A In the boilers I looked at or the boiler I looked at 3854 1 F. Tornetta -,by Plaintiff McCloskey - Direct/Kraft 2 that fit that, it's possible it was, yes. 3 Q Now, you keep saying "in the boiler that I looked at." 4 You were given a list of sites that Mr. McCloskey specifically 5 identified during this testimony, right? ' Page 76 6 A Yes. Tornetta 2014 Trial Testimony.txt . 7 Q And you actually brought the Chart A with you and you. 8 made some notes. That's what we talked about, Tornetta 2, 9 earlier, right? 10 A Correct. 11 Q. Okay. So what you did was you took all of the sites 12 that he listed, you went to your index card system, and you 13 attempted to find documents, right? 14 A Correct. 15 Q And in this case you were able to find - I think my 16 numbering is off. What number are we on? 17 MS. ALVARADO: 25. 18 MR. KRAFT: Tornetta 25. 19 Q You were able to find records of Cleaver-Brooks 20 boilers at two of the sites where Mr. McCloskey worked, right? 21 A In relation to the time periods he testified or was on 22 the chart that he worked there, yes. 23 MR. KRAFT: I'm going to hand up "to you what I 24 have marked as Tornetta 25. I'm going to seek to introduce . 25 the entire set of documents into evidence at this time. 26 3855 MR. O'CONNELL: No objection. 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft . 2 THE COURT: Very well. It's Tornetta 25 in 3 evidence. 4 Q Okay. So you took the sites that were listed by 5 Mr. McCloskey, you went to your index, and you found two sites, 6 right? 7 A Yes. Again, within those time periods. 8 Q Okay. Were there other sites that you found 9 Cleaver-Brooks boilers at that were not within his time 10 periods? 11 A Yes. 12 Q Did you bring those documents with you? 13 A No. 14 Q Did you produce those to your lawyer? 15 A No. 16 Q Okay. Do you know what other sites there were 17 Cleaver-Brooks boilers at after Mr. McCloskey was there? 18 A That's the notes I put on the Chart A. 19 Q Okay. Fair enough. 20 Did you run different naming derivations of the sites ' 21 that he was at? 22 A Yes. 23 Q Where did you get that information from? 24 A From the Chart A where it said "also known as" and 25 things of that sort as well as his testimony. 26 Q Okay. Did anybody else provide you information to 3856 Page 77 Tornetta 2014 Trial Testimony.txt 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 assist you in doing that? 3 A I was sent the sites from our corporate counsel, along . 4 with Chart A eventually. 5 Q. Via email, right? 6 A Yes. 7 Q Do you have that email with you? 8 A No. ^ 9 Q Okay. Two of the places you found boilers were at 10 Shoreham, right? . 11 A Yes. 12 Q And at Indian Point, correct? 13 A Correct. 14 Q Sitting here today, you have no idea one way or the 15 other whether Mr. McCloskey even articulated exposure to 16 boilers at those sites, right? 17 A Oh, I read his testimony. So I think I do have an 18 idea. 19 Q He articulated exposure to the Cleaver-Brooks boilers 20 at both of those sites? 21 A No, he did not. 22 Q But yet you provided records of which of your boilers 23 were there, right? 24 A Correct. 25 Q You would agree that in both of the boilers that you 26 found -- and there were two, right? 3857 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft 2 A Three total. 3 Q Three total. All three of them had 4 asbestos-containing components? . 5 A Yes, I believe so. 6 Q All three of them had asbestos gaskets around the 7 doors? . 8 A No. . 9 Q Okay. If you look at the tabs on the side, I'll take 10 that from you. Are you sure all three of them didn't have 11 asbestos gaskets? 12 A The industrial water tubes don't have doors like we 13 were talking about. So, no. 14 Q Okay. So Mr. McCloskey couldn't have worked on 15 industrial water tubes. He never described working on a 16 Cleaver-Brooks boiler that didn't have a door, right? 17 A He described a cylindrical. So as we talked about 18 before, it's from the industrial water tube. 19 (Continued on following page.) 20 21 22 ' Page 78 Tornetta 2014 Trial Testimony.txt 23 24 25 26 3858 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. 2 Q The industrial water-tube boiler had asbestos 3 components in it? 4 A Yes. 5 Q The two boilers that had doors that were cylindrical 6 both had asbestos gaskets around the doors, right? 7 A Yes. Actually it was only the one boiler. There's 8 only one fire-tube boiler. There are two boilers at Shoreham 9 and both are industrial water-tubes. 10 Q "Finished gasket to be made up of asbestos cloth 11 wrapped around asbestos rope to form radial, cemented tail and 12 then graphited cloth joint," right? 13 A Yes. 14 Q Union Asbestos & Rubber Company. 15 This is from Buchanan. Do you know what sites in 16 Buchanan, New York? ' 17 A That is the Indian Point. . 18 Q Did that one have asbestos gaskets? 19 A Yes. ' 20 Q And the Indian Point boiler was which type of boiler? . 21 A The fire-tube we talked about. , 22 Q. And even though Mr. McCloskey never talked about 23 working around boilers at those sites, you produced the record, 24 right? 25 26 3859 MR. O'CONNELL: Objection, your Honor. Asked and answered and argumentative. 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. 2 THE COURT: Sustained. 3 Q You're aware that he also indicated that he worked at 4 hundreds of other sites besides the ones that he could recall, 5 right? 6 A I don't specifically recall the term hundreds, but I 7 do remember him talking about sites that he couldn't recall, 8 yes. ' 9 Q I'd like to hand you his testimony. 10 MR. O'CONNELL: What page, please? 11 MR. KRAFT: I have a copy for you, Mr. O'Connell. 12 Here you go. 13 MR. O'CONNELL: Thank you. 14 Q You see on page 2522 of the transcript - 15 A Yes. 16 Q - mr. McCloskey was asked to name all of the places 17 he worked, right? Page 79 18 A Yes. Tornetta 2014 Trial Testimony.txt 19 Q Actually if you go to page 2521, the question was: 20 "Question: During the time that you worked out 21 of the union, do you recall any of the specific job 22 site that you worked at? When I'm asking for a 23 specific job site, I'm asking for an address or a 24 building name. 25 "Answer: Well, I started at 60 Broad Street in 26 Manhattan. There is over a hundred job sites." 3860 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. 2 Do you recall him testifying to that? 3 A Yes. As I said, I just didn't recall that off my ' 4 memory. I didn't memorize the whole thing. . 5 Q Given the fact that he was only able to identify a 6 finite group of sites, you weren't able to search all of your ' 7 records to determine if Mr. McCloskey encountered other ' 8 Cleaver-Brooks boilers throughout his career, correct? 9 A Without a site, I wouldn't have anything to search 10 for. 11 Q Sir, one of the issues in this case is when 12 Cleaver-Brooks became aware of the hazards of asbestos. So I 13 want to ask you, can you tell this jury when Cleaver-Brooks as 14 a company became aware of the hazards of asbestos? 15 A Cleaver-Brooks itself - I couldn't say "the company," 16 When they became aware of it. Certainly employees of the 17 company would have become aware of it as they started to see it 18 in the general media. 19 Q I'm going to ask you personally, Mr. Tornetta, when 20 did you personally become aware that asbestos was hazardous? 21 A You know, I'm not sure I can narrow it down to a 22 certain year. I believe it was after I got oqt of school, out 23 of Williamson. 24 Q Do you recall being asked that question before and 25 giving the answer "late '80s, early '90s"? . 26 A That's the time frame I would think of, yes. 3861 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. 2 Q Cleaver-Brooks was in operation in 1972 when the OSHA 3 regulations came out, right? 4 A Yes. 5 Q Did Cleaver-Brooks know at that time when OSHA came 6 out that asbestos, if inhaled, was hazardous potentially to 7 people's health? 8 MR. O'CONNELL: Objection, your Honor. Asked and 9 answered. 10 THE COURT: Overruled. 11 A I don't have anything telling that specifically, no. 12 Q Do you have anything telling you specifically they Page 80 13 didn't 14 A No. know? Tornetta 2014 Trial Testimony.txt 15 Q When Cleaver-Brooks was founded in the 1930s, did 16 Cleaver-Brooks know in the 1930s that asbestos was hazardous?' 17 A Again, I don't have anything specifically telling me 18 that, no. 19 Q Do you have anything specifically telling you, no, 20 they didn't know in the 1930s? ' 21 A No. 22 Q If I asked you the same questions for the '40s, '50s, 23 '60s, '70s and '80s, we can agree with each other that you 24 don't have information one way or the other, right? 25 A Correct. 26 Q Cleaver-Brooks was a member of the American Society of 3862 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. 2 Mechanical Engineers -- let me rephrase that. 3 Cleaver-Brooks employees were members of the ASME, 4 American Society of Mechanic Engineers, correct? 5 A Some employees would have been, yes, or could have 6 been. . 7 Q You could agree that a company can only obtain 8 knowledge through its employees, right? - 9 MR. O'CONNELL: Objection. 10 MR. CZEREPAK: Objection. ' 11 THE COURT: Overruled. . 12 A Yes. I don't know of any other way, but I'm thinking 13 right at this moment. 14 Q It s not a trick question. You agree with that, ' 15 right? 16 A I suppose so, yes. 17 Q This has already been in evidence through Dr. Rosner. 18 I'm now seeking to introduce the entire 1940 membership list of 19 the ASME in as Tornetta 26. 20 You've seen this before, right? And I think my 21 colleague, Mr. Blouin, showed this to you in July, right? 22 A Yes. I saw several of those. I'm not sure if it was 23 exactly that one but... 24 Q. If you go to page 102. And Mr. Brooks, the district . 25 manager of Cleaver-Brooks, was a member of the American Society 26 of Mechanical Engineers in the 1940s, right? 3863 . 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. 2 A That's what it says, yes. . 3 Q And it actually shows he joined in 1936, right? . 4 A That's the way it looks, yes. 5 Q And another individual, a Mr. Resek, chief engineer at . 6 Cleaver-Brooks, was also a member and he had joined in 1937, 7 right? Page 81 8 A That's what it says, yes. Tornetta 2014 Trial Testimony.txt 9 Q Are you aware that the ASME put out a publication 10 entitled Mechanical Engineering? 11 A Entitled -- I'm sorry. What was it? 12 Q Mechanical Engineering. 13 A I'm not certain I'm completely aware of that, but I 14 assume so, yes. 15 Q Did you do anything to investigate what Cleaver-Brooks. 16 would have known as a result of their employees being a member 17 of the ASME in the 1930s? 18 A Other than discussing with Mr. Provance, no. 19 Q You're aware that the ASME published articles about 20 the hazards of asbestos in the mid-1930s, are you not? 21 A Other than from previous testimony, no, I'm not. 22 Q But in previous testimony you've been shown that the 23 American Society of Mechanical Engineers published articles in. 24 the 1930s talking about the hazards of asbestos, right? 25 A I've been shown pieces of those articles, I believe, 26 yes. . 3864 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. 2 Q By the way, you know, I've actually been to Milwaukee 3 so I know the answer to this question. But there are libraries 4 in Milwaukee just as there are libraries here in New York, 5 correct? 6 MR. CZEREPAK: Objection to form. 7 A Yes. 8 Q Did anybody from Cleaver-Brooks ever walk into the 9 library in Milwaukee, go to the shelves and investigate what 10 was known or knowable about the hazards of asbestos? 11 MR. O'CONNELL: Objection, your Honor. 12 THE COURT: If you know. 13 A I'm not aware of that, no. 14 MR. KRAFT: Tornetta 27 in evidence, I'd ask that 15 the book Heating, Ventilating and Air Conditioning from 16 1959 be deemed Tornetta 27-A and I have excerpts from that. 17 I'd ask to be entered into evidence as Tornetta 27. 18 MR. O'CONNELL: As long as the whole book goes 19 in. . 20 MR. KRAFT: The whole book is coming in. . 21 Q You've seen this before? 22 THE COURT: I'm sorry? 23 MR. O'CONNELL: As long as the whole book goes 24 in, no objection. 25 THE COURT: Yes. 26 3865 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. 2 (Plaintiffs' Exhibit 27A marked and received into Page 82 3 evidence.) Tornetta 2014 Trial Testimony.txt 4 MR. KRAFT: Tornetta 28 is going to be the entire 5 book from 1951. 6 MR. O'CONNELL: As long as the whole book is in, 7 fine. 8 MR. KRAFT: No problem. ` 9 (Plaintiffs' Exhibit 28 marked and received into 1110 evidence.) MR. KRAFT: And excerpts as Tornetta 28-A. ' 12 (Plaintiffs' Exhibit 28-A marked and received 13 into evidence.) 14 BY MR. KRAFT: 15 Q You're aware that in 1951 and '59, Cleaver-Brooks 16 advertised in this publication, Heating, Ventilating and Air 17 Conditioning, right? 18 A I believe I've been shown that before, yes. 19 Q And you're aware that members of Cleaver-Brooks were 20 members of this organization, correct? 21 A O f - 22 Q Heating, Ventilating and Air Conditioning, the . 23 American Society of Heating, Ventilating and Air Conditioning 24 Engineers, ASHRAE? 25 A Members of -- I guess I wasn't aware there was a 26 membership for that association. Certainly we've been involved 13866 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. 2 in it. 3 Q You're aware that in those two years, '51 and '59, and . 4 throughout the '50s, there were articles that talked about the 5 threshold limit value for asbestos being five million particles 6 per cubic foot? 7 A I can't say I'm aware of those specifics of it, but I 8 believe I've been shown parts of those articles in the past. 9 Q So you would agree that if Cleaver-Brooks is 10 advertising in a document that's discussing the threshold limit 11 values, that was at least accessible to Cleaver-Brooks in the 12 1950s, right? 13 A I guess it means -- it depends on what you mean by 14 accessible. Certainly the book - 15 Q Able to be gotten. 16 A The book was there. 17 Q What did Cleaver-Brooks do in the 1950s to determine 18 whether work on their boilers -- let's talk about doors - 19 whether work on their boilers, opening the doors, removing the 20 gaskets, caused dust to be greater than the threshold limit 21 value? Did Cleaver-Brooks do anything to investigate that? 22 MR. O'CONNELL: Objection, your Honor. This has . 23 been asked and answered before lunch. . 24 THE COURT: Overruled. Page 83 25 A I'm not aware of anything, no. Untitled 26 Q Cleaver-Brooks had a manufacturing facility in 13867 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. 2 Lebanon, Pennsylvania in 1956; is that correct? 3 A Yes, around that time. 4 Q Are you aware that the State of Pennsylvania in 1939 5 set forth an Occupational Disease Act which made the disease 6 asbestosis compensable? 7 MR. O'CONNELL: Objection, your Honor. 8 This gets back to he's not an expert witness, 9 he's not a lawyer. He's a fact witness. 10 THE COURT: Sustained. . 11 MR. KRAFT: Well, Judge, I ask the Court to take 12 judicial notice of the 1939 Occupational Disease Act from 13 the State of Pennsylvania and its derivation, the amendment 14 in 1956. 15 MR. O'CONNELL: Same objection that we had with ' 16 another witness about this. 17 MR. KRAFT: Can I approach briefly, Judge? 18 THE COURT: Yes. 19 (Sidebar held off the record.) 2120 Q You would agree that a company like Cleaver-Brooks would stay abreast of the statute and regulations that apply to 22 it in the locations they had a manufacturing facility, right? 23 MR. O'CONNELL: Objection, your Honor. 24 Again, it seeks a legal conclusion, legal 25 interpretation. 26 3868 THE COURT: Try to keep away from that. 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. 2 Q There were people at Cleaver-Brooks who were in charge 3 of maintaining the fact that Cleaver-Brooks was in compliance 4 with regulations, right? 5 MR. O'CONNELL: Same objection. 6 THE COURT: Overruled. . 7 A I m sure we had people that looked at whether we . 8 followed the laws of wherever we were. 9 Q And in order to follow the laws of wherever you were, 10 you would have to be aware of what those laws were, right? 11 MR. O'CONNELL: Objection. 12 THE COURT: Overruled. 13 A If they applied to us, yes. I suppose you would. 14 Q So if the State of Pennsylvania had a law on the books 15 that made the disease asbestosis compensable, then arguably 16 Cleaver-Brooks would have known of a disease called asbestosis, 17 right? 18 A I'm not sure I could say what somebody would have 19 known back in 1946. Page 1 20 Untitled Q I'm asking what Cleaver-Brooks would have known. 21 A I don't know. 22 Q Tell this jury what, if anything, Cleaver-Brooks did 23 to stay abreast of the medical and scientific literature as it 24 pertained to asbestos and asbestos-related disease. What did 25 Cleaver-Brooks do? 26 3869 MR. O'CONNELL: Objection, your Honor. 1 F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. 2 THE COURT: Overruled. 3 A I m not aware of anything we did in relation to that. 4 MR. KRAFT: May I have one moment, your Honor7 5 THE COURT: Yes. 6 (Short pause.) 7 MR. KRAFT: Mr. Tornetta, I want to thank you for ' 8 your time. 9 I don't have any further questions at this time, 10 your Honor. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3870 1 2 3 4 5 THE WITNESS: Thank you. MR. O'CONNELL: I don't want to keep anybody from going home in this blizzard. So no questions, your Honor. THE COURT: No questions? MR. BLAKELY: No questions. MR. CZEREPAK: No questions. THE COURT: No questions from anybody. Thank you. You're excused. (Witness excused.) THE CQURT: I will see counsel at sidebar. (Sidebar held off the record.) THE COURT: I have good news and I have good news. We're stopping for today. We're not working tomorrow anyway. I'll see you Thursday morning at 10 a.m. absent any weather issues, but if you don't hear from anybody, from Mr. Kasper, from Officer Alago or from me, F. Tornetta - by Plaintiff McCloskey - Direct/Kraft. we'll see you at 10 a.m. Don't discuss the case. COURT OFFICER: All rise, jury exiting. (The jury exited the courtroom and the following occurred:) 6 (Whereupon, the proceedings were adjourned to 7 January 23, 2014, at 10 o'clock a.m.) 8 -0 - 9 10 11 12 13 14 Page 2