Document 91LyxZ11YNxLeL7pj734D6BzV

FILE NAME: Texaco (TEX) DATE: 2004 Jan 6 DOC#: TEX039 DOCUMENT DESCRIPTION: Legal - Deposition of Barry Castleman 1 i c s 1 SUPERIOR COURT OF WASHINGTON FOR SKAGIT COUNTY 2 VIRGINIA JAMESON, x 3 Individually and as Personal representative of the Estate 4 of RAY JAMESON, 5 Plaintiff, 02-2-01069-8 9 Tuesday, January 6, 2004 10 Rockville, Maryland 11 12 DEPOSITION OF: 13 BARRY CASTLEMAN. SC.D .. ) - 14 a witness, was called for examination by counsel for 15 the defendant, Texaco, Inc., pursuant to Notice and 16 agreement of the parties as to time and date, 17 beginning at approximately 3:00 o'clock, p.m., at the 18 Ramada Inn, 1775 Rockville Pike, Conference Room, .19 Rockville, Maryland 20850, before Ronnie C. Palmer, 20 a court reporter and Notary Public in and for the 21 State of Maryland when were present on behalf of the 22 respective parties: NCRA CAROL J. THOMAS STENOTYPE REPORTING SERVICES, INC. 3162 MUSKET COURT FAIRFAX, VIRGINIA 22030 (703) 273-9221 2 1 APPEARANCE OF COUNSEL: 2 For the Plaintiff: 3 BERGMAN, SENN, PAGELER & FROCKT, ESQUIRES BY: DAVID S. FROCKT, ESQUIRE 4 17530 Vashon Highway SW Vashon, Washington 98070 5 (206) 463-4470 6 For the Defendant. Texaco. Inc.: 7 LANE, POWELL, SPEARS & LUBERSKY, ESQUIRES BY: BARRY N. MESHER, ESQUIRE 8 1420 Fifth Avenue, Suite 4100 Seattle, Washington 98101-2338 9 (206) 223-7961 10 - 0 - 11 I-N-D-E-X 12 Witness: Page 13 Barry Castleman, Sc.D. 14 Examination by Mr. Mesher 4 15 Examination by Mr. Frockt 122 16 Further examination by Mr. Mesher 128 17 0 18 19 20 21 22 3 1 Exhibits: (Original transcript only) 2 Defendant's Exhibit No. 1 to the Castleman deposition 3 4 Defendant's Exhibit No. 2 and 3 to the Castleman deposition 5 6 Defendant's Exhibit No. 4 to the Castleman deposition 7 8 Defendant's Exhibit No. 5 to the Castleman deposition 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 17 121 124 130 4 1 WHEREUPON, 2 BARRY CASTLEMAN, SC.D.. 3 a witness, was called for examination by counsel 4 for the defendant, Texaco, Inc., and after having 5 been duly sworn, was examined and testified as 6 follows: 7 EXAMINATION BY COUNSEL FOR DEFENDANT 8 TEXACO, INC. 9 BY MR. MESHER: 10 Q This is the deposition taken pursuant to 11 notice and taken pursue to the Civil Rules. You have 12 had your deposition taken before. Is that correct? 13 A Yes. 14 Q You know the question and answer format? 15 A Yes. 16 Q And that you are supposed to answer 17 audibly as opposed to a nod of the head or uh-huh? 18 A Yes. 19 Q And if at any time during the deposition 20 you don't understand the question that is being 21 asked, would you let me know so that I can attempt to 22 rephrase it? 5 1 A Yes. 2 Q If you answer a question, I will 3 understand that you understood the meaning. Do you 4 understand that? 5 A Soundsreasonable. 6 Q Okay? 7 A Yes. 8 Q When were you first retained in this 9 case? 10 A Sometime last year. I don't remember 11 when. 12 Q Do you recall the month or spring, 13 summer, fall? 14 A No. 15 Q What were you asked to do? 16 A Well, initially I was told that this was 17 a case in which Texaco was the defendant, and the 18 relationship to the plaintiff as employer, and that 19 it was unusual case in that it was not product 20 liability or premise owner liability type of case. 21 So, the burden of proof that the 22 plaintiff bears in this case was explained to me much 6 1 more articulately than I can relate it to you. 2 But I was told to expect that there would 3 eventually be the need to write a report and probably 4 be deposed before the case came to trial. So, all of 5 this has come now to pass. 6 Q What is your understanding is the burden 7 of proof? 8 A Again, my understanding is far from 9 perfect, but I gather that the plaintiff had to show 10 that the defendants -- that the defendant had 11 knowledge that the conditions the plaintiff was 12 exposed to or that the class of workers that 13 plaintiff was a member of were exposed to were highly 14 likely to cause death and/or disease to members of 15 such group of workers. 16 Q Okay. And you prepared adeclaration in 17 this case? Is that right? 18 A I did. 19 Q Were you asked to doanything otherthan 20 to prepare the declaration? 21 A Well, I think at some point I read a 22 deposition of a company official. That's all I can 7 1 recall. 2 Q You also reviewed Dr. Houston's 3 declaration? Is that right? 4 A I was shown that this afternoon on the 5 way over here from lunch. Yes. 6 Q Looks like you had a comment or two about 7 Dr. Houston's declaration. There are some 8 interlineations on that declaration. Did you do that 9 or did someone else? 10 A I don't know what you're talking about. 11 I first saw this first thing about an hour ago. 12 MR. FROCKT: I would be happy to clarify. 13 You want to stay on the record? 14 BY MR. MESHER: . 15 Q You didn'tdo.the highlighting on this? 16 Is that right? ' 17 A No. 18 Q How aboutthehandwritten 19 interlineations? 20 A No. 21 MR. FROCKT: We showed that to Dr. 22 Castleman. And, of course, if counsel for Texaco is 8 1 happy to have it reviewed, we can do so without 2 waiving client-attorney work product or privilege. 3 BY MR. MESHER: 4 Q When you read or reviewed Dr. Houston's 5 declaration, did you have any comments about it? 6 A Well, I was just interested that he 7 really didn't seem to dispute what I was saying. In 8 this one part. It was part eight where he says 9 referring to my declaration and says while the 10 literature cited in the Castleman declaration 11 generally reported the growing knowledge of risks 12 associated with asbestos exposure none of them 13 concluded or provided data from which one might . 14 reasonably conclude that an oil refinery worker 15 exposed to asbestos in the course of his occupation 16 was certain to contact -- contract mesothelioma or 17 any or asbestos-related disease including lung 18 cancer, asbestosis, or asbestos-related pleura 19 diseases. 20 I thought that was a pretty weak response 21 because all he was basically saying was just because 22 you show that these people are likely to develop one 9 1 asbestos disease or another still you have not shown 2 that any of these individuals were definitely going 3 to develop any of these diseases. I thought that was 4 a lame response. 5 Q Did you agree with what he said, though? 6 A Yes. I don't -- You can't say in advance 7 when workers are exposed to asbestos which ones are 8 going to get mesothelioma or lung cancer. 9 Q Not everyone who is exposed to asbestos 10 is going to get asbestos-related diseases, correct? 11 A Right. 12 Q The body has certain defense mechanisms 13 to preclude the first inhalation of asbestos fibers 14 into the lungs, correct? 15 A Right. If the fibers are large enough to 16 be removed because they are basically 17 non-respiratory. They can be taken out in the nose 18 or upper respiratory tract. If they are inspired 19 into the lungs, there are lung-clearing mechanisms 20 where they may be removed from the body without 21 causing injury. And then there are the ones that 22 stick around or move around in the body and may cause 10 1 injury. 2 Q And even the asbestos fibers that what 3 .you have termed stick around in the lungs don't 4 necessarily result in an asbestos-related disease, 5 correct? 6 A That's correct. 7 Q Or an asbestos-related injury? Is that 8 correct? 9 A Well, I don't know. If they stick around 10 in the lungs and cause scarring, even if it's not the 11 kind of scarring that can be identified in any kind 12 of gross way, I think it might be argued reasonably 13 they contributed to or are a part of an injury to the 14 lung. 15 Q Not all the asbestos fibers in the lungs 16 cause scarring, do they? 17 A The ones that stick around a long time I 18 they can probably cause some damage. 19 Q How about chrysotile? 20 A I am not an authority on the pathology of 21 asbestos. I would certainly defer to people like Dr. 22 Hammer on questions like that. I am not testifying 10 1 injury. 2 Q And even the asbestos fibers that what 3 .you have termed stick around in the lungs don't 4 necessarily result in an asbestos-related disease, 5 correct? 6 A That's correct. 7 Q Or an asbestos-related injury? Is that 8 correct? 9 A Well, I don't know. If they stick around 10 in the lungs and cause scarring, even if it's not the 11 kind of scarring that can be identified in any kind 12 of gross way, I think it might be argued reasonably 13 they contributed to or are a part of an injury to the 14 lung. 15 Q Not all the asbestos fibers in the lungs 16 cause scarring, do they? 17 A The ones that stick around a long time I 18 they can probably cause some damage. 19 Q How about chrysotile? 20 A I am not an authority on the pathology of 21 asbestos. I would certainly defer to people like Dr. 22 Hammer on questions like that. I am not testifying 10 1 injury. 2 Q And even the asbestos fibers that what 3 .you have termed stick around in the lungs don't 4 necessarily result in an asbestos-related disease, 5 correct? 6 A That's correct. 7 Q Or an asbestos-related injury? Is that 8 correct? 9 A Well, I don't know. If they stick around 10 in the lungs and cause scarring, even if it's not the 11 kind of scarring that can be identified in any kind 12 of gross way, I think it might be argued reasonably 13 they contributed to or are a part of an injury to the 14 lung. 15 Q Not all the asbestos fibers in the lungs 16 cause scarring, do they? 17 A The ones that stick around a long time I 18 they can probably cause some damage. 19 Q How about chrysotile? 20 A I am not an authority on the pathology of 21 asbestos. I would certainly defer to people like Dr. 22 Hammer on questions like that. I am not testifying 10 1 injury. 2 Q And even the asbestos fibers that what 3 .you have termed stick around in the lungs don't 4 necessarily result in an asbestos-related disease, 5 correct? 6 A That's correct. 7 Q Or an asbestos-related injury? Is that 8 correct? 9 A Well, I don't know. If they stick around 10 in the lungs and cause scarring, even if it's not the 11 kind of scarring that can be identified in any kind 12 of gross way, I think it might be argued reasonably 13 they contributed to or are a part of an injury to the 14 lung. 15 Q Not all the asbestos fibers in the lungs 16 cause scarring, do they? 17 A The ones that stick around a long time I 18 they can probably cause some damage. 19 Q How about chrysotile? 20 A I am not an authority on the pathology of 21 asbestos. I would certainly defer to people like Dr. 22 Hammer on questions like that. I am not testifying 10 1 injury. 2 Q And even the asbestos fibers that what 3 .you have termed stick around in the lungs don't 4 necessarily result in an asbestos-related disease, 5 correct? 6 A That's correct. 7 Q Or an asbestos-related injury? Is that 8 correct? 9 A Well, I don't know. If they stick around 10 in the lungs and cause scarring, even if it's not the 11 kind of scarring that can be identified in any kind 12 of gross way, I think it might be argued reasonably 13 they contributed to or are a part of an injury to the 14 lung. 15 Q Not all the asbestos fibers in the lungs 16 cause scarring, do they? 17 A The ones that stick around a long time I 18 they can probably cause some damage. 19 Q How about chrysotile? 20 A I am not an authority on the pathology of 21 asbestos. I would certainly defer to people like Dr. 22 Hammer on questions like that. I am not testifying 15 1 A Right. This morning, for example, I 2 spoke at a class at Johns Hopkins Hospital 3 University. The professor at the time class told me 4 that he was able to get me an honorarium of $250 for 5 taking the time to prepare and make that 6 presentation. 7 And I get paid more for doing one hour of 8 medical legal work than I get paid for half a day of 9 working on that. 10 Q Do you have current employment other than 11 doing medical legal work? 12 A I don't know what you would call 13 employment, but for the last 25 years I have been 14 doing whatever I consider to be the best use of my 15 time and energy in the field of public health. I am 16 an independent consultant, and I have been since 17 1975. 18 Q What percentage of your time as opposed 19 to income do you spend on an annual basis on medical 20 legal issues as opposed to the other types of things 21 that you do? In work related. 22 A I don't get involved in medical legal 16 1 stuff other than asbestos. I mean I occasionally get 2 a phone call about some chemical, but it's rare. So, 3 basically the figures I have given you are for all 4 medical legal work. 5 Q So, about 90 percent of your time also? 6 A I would say 80 to 85 percent of my time 7 is spent on other things than medical legal work, or 8 anything else other than medical legal. 9 Q You said in your declaration at one point 10 you performed consulting work for United States 11 Occupational Safety and Health Administration? 12 A Yes. 13 Q What year or years was that? 14 A ' That was 1978. I was looking 15 possibility that OSHA regulations were causing 16 displacement of hazardous industries to other 17 countries. So, I looked at things like production 18 and imports of lead acid batteries, asbestos 19 textiles, and other products. Benzidine, dyes. 20 Q Were you looking at that as part of your 21 study, part of your education? 22 A No. 17 1 MR. MESHER: Now, could you mark, please, 2 the declaration as the first exhibit, sir? 3 (Castleman Exhibit No. 1 was 4 marked for identification.) 5 BY MR. MESHER: 6 Q Sir, you have in front of you what has 7 been marked for identification as Exhibit 1. And 8 that's a two-sided copy of your declaration that you 9 signed in this case. Is that correct? 10 A Yes. 11 Q Now, Iwant to gothrough it because I 12 have some questions on it for you. If you could turn 13 to page two. Under paragraph four, you make 14 reference to your doctoral thesis. Also involved 15 research based on unpublished government records. 16 The government records included workers' compensation 17 claims files. Do you see-that? ,18 A Yes. 19 Q Did you everreview anyworkers' 20 compensation files of Texaco? 21 A Not at the time I was writing my doctoral 22 thesis. I don't think I have seen any since, either. 18 1 Q Are you aware that there were no workers' 2 compensation claims related to asbestos presented to 3 Texaco through the time of Mr. Jameson's employee at 4 Texaco? 5 A No. I was not aware of any evidence on 6 that question one way or the other. 7 Q Okay. Number five. In addition to 8 published information, I examined unpublished 9 information available from the U.S. Government 10 Archives. The Archives of Scientists, et cetera? 11 What unpublished information are you referring to? 12 A The record of the Saranac Laboratory 13 Industrial Hygiene Foundation I was able to obtain 14 access to. The record of Dr. Arthur Vorwald at the 15 Armed Forces Institute of Pathology, former director 16 of the Saranac laboratory. 17 Those are the sorts of things I am 18 referring to here. 19 Q To your knowledge, Texaco had no 20 involvement or association with the Saranac 21 Laboratories. Is that correct? 22 A That is correct. 19 1 Q Saranac :Laden Laboratories? 2 A Correct. 3 Q Nor with Dr. Vorwald? 4 A Correct. 5 Q Nor with Lansa? Is that correct? 6 A I am not aware of any connection with 7 Lansa and Texaco. That is correct. 8 Q When did you review any Industrial 9 Hygiene Foundation documents? 10 A I think that was about 1979 or '80. 11 Q Do you recall what documents you 12 reviewed? 13 A Mostly, it was published stuff. They had 14 by that time gone and destroyed a lot of the record 15 of their reports to individual companies. Reports of 16 the kind that so-called Hemeon Report, H-E-M-E-O-N. 17 They prepared hundreds of reports like that. And one 18 of the first things that happened when the asbestos 19 litigation came along was that in 1979, I believe, 20 they developed -- adopted the policy of destroying 21 records of that kind. 22 So, I looked at the published 20 1 transactions, proceedings, meetings. And I guess 2 there were a few files of things that were 3 unpublished that I found mildly interest in.. 4 Q Do you have any. Texaco was not a member 5 of the Industrial Hygiene Foundation in 1979, was it? 6 A I don't know if they were still a member 7 by 1979. I know they were earlier. 8 Q You have been provided no information to 9 show that Texaco was a member in 1979. Is that 10 correct? 11 A Well, I don't really know. I just can't 12 recall having seen exactly what the years of the 13 membership were. There were lots of companies 14 members from prior years but not in 1979. 15 Q At least through this litigation, no one 16 has provided you with any information to show that 17 Texaco was a member in 1979, correct? 18 A That's correct. 19 Q Okay. What years do you believe that 20 Texaco was a member of the IHF? 21 A I don't recall. I may have checked. 22 Probably I did check my files. Let me just look 21 1 through this thing. . 2 Q Certainly. 3 (Off the record.) 4 BY MR. MESHER: 5 Q Sir, you can feel free to look at your 6 declaration. I don't mean by asking you questions to 7 restrict you from looking at it. 8 A Of course. Yes. My records show that 9 IHF had Texas Company or Texaco as a member from 1949 10 and 1959. And this is indicated in the index cards 11 of members that were produced in the deposition of 12 director of the IHF. 13 Q You have no recollection, independently, 14 of whatever index cards were available concerning the 15 years that Texaco was a member of the IHF? Is that 16 correct? 17 A Not as to exact years. I might have 18 something in my files that speaks to that question. 19 Probably not. 20 Q Okay. 21 A But there are other documents that are 22 record - - o f records in this .case that indicate that 22 1 during the '50s that Texaco was active in the 2 Industrial Hygiene Foundation. 3 Q What documents are those? 4 A IHF documents that describe membership of 5 some of their medical committees and other 6 committees. 7 Q Do you have those here today? 8 A I don't recall if they are in here or 9 not. 10 Q Go ahead. 11 M R . FROCKT: I can point them out. 12 MR. MESHER: Sure. 13 (Off the record.) 14 THE WITNESS: The Industrial Hygiene 15 Digest was often published with a page called 16 Fundation Fct as a cover page which would include one 17 or two pages of information about the IHF and the 18 service that it was providing. 19 And so they would mention things like new 20 member companies that had joined the IHF as in 1949 21 where their transactions bulletins list Texas 22 Company, the Soconi Vacuum Oil Company, and other 23 1 companies as new members. And in July 1955 the 2 monthly issue of foundation facts talks about Melvin 3 Mincus, the medical director of the Texas Company as 4 a member of the medical committee of the Foundation.' 5 BY MR. MESHER: 6 Q Other than 1949 to 1955, have you been 7 provided with any other documents to show when Texaco 8 was a member of the IHF? 9 A No. 10 Q Okay. 11 A Like I say, I have seen the index card 12 that says the span of years, and then two documents. 13 And that's -- 14 Q You also indicate you have reviewed 15 documents from the API, American Petroleum Institute? 16 A Right. 17 Q What documents were those? 18 A Well, they include the Bonsib Report of 19 1937. 20 Q Was that part of the API? 21 A I understand it was circulated among 22 members of the API, but I understand that the 24 1 documentation of that is a matter of some dispute 2 about. 3 Q What evidence do you have that that was 4 an API document, the 1947 Bonsib? 5 MR. FROCKT: You mean '37. 6 BY MR. MESHER: 7 Q The '31. Excuse me. 8 A . I might have seen a copy that indicated 9 that it also was circulated to members of the API. I 10 know I have seen a copy of his 1948 report which 11 indicates that it was circulated to members of the 12 API. And I believe that Herschel Hobson may have 13 seen it through his own involvement in the oil 14 industry, but I'm not sure about that. 15 Q Or Herschel involvement as the 16 plaintiff's attorney? 17 A Right. When he first saw it, I really 18 don't know. 19 Q I believe that '48 Bonsib on the top of 20 that makes reference to the API? 21 A I believe so. 22 Q But the '37 does not. Is that correct? 25 1 A Well, not this copy at least. 2 Q Okay. Do you have any evidence that my 3 client received a copy of the 1937 Bonsib Report? 4 A No, I don't . 5 Q Okay. Back to the API documents. What 6 documents are you referring to that you have 7 reviewed? 8 A Well, there are meetings of the medical 9 advisory committee:. 10 Q Those are all contained in the notebook? 11 Is that right? 12 A That'si right. 13 MR. MESHER: I think what we will do is 14 have that marked as an exhibit and get a copy at the 15 end. 16 THE WITNESS: This is my copy. I suppose 17 we can work something out. 18 MR. FROCKT: That is okay. As long as he 19 can have 'his copy back. 20 MR. MESHER: Sure. 21 BY MR. MESHER: 22 Q You indicate you have interviewed 26 1 numerous current and former leading officials in the 2 field of industrial medicine and hygiene. 3 A Yes. 4 Q Did you ever review or interview John 5 Pendergrass? 6 A The formerOSHAdirector? 7 Q Yes, sir. 8 A I met him once at a meeting. We had some 9 words. 10 Q What kind of words did you have? 11 A He was just ending his tenure as the OSHA 12 chief. He was giving a speech about the role of 13 industrial hygienists. And there was -- and I was 14 there as an invited guest to talk about the threshold 15 of limited values and the things that I have 16 published about the limitations of the threshold of 17 limited values down in Georgia about 1989 or so. It 18 was '89. 19 And Pendergrass was asked by this young 20 woman industrial hygienist who was upset that the 21 employer that she had wasn't willing to go beyond the 22 threshold limit values in controlling exposure 27 1 limits. The company wasn't really willing to protect 2 workers anymore than what she thought was the minimum 3 amount of legally required protection. 4 And Pendergrass made this statement that 5 when he worked for the industry -- I think it was 3M 6 Corporation --he was always able to persuade 7 management to do the right thing. He said you just 8 have to marshall your arguments, make a strong case. 9 And this is too much for me. I was 10 sitting in the front row. I burst out what if they 11 are just too damned cheap to spend the money. At 12 which point the person who was the moderator 13 dismissed everybody for lunch. 14 Q Who was the moderator? The moderator was 15 not John Pendergrass, was it? 16 A No. 17 Q Who was the moderator? 18 A I don't know. 19 Q Have you ever interviewed Carl Manville? 20 A No. 21 Q How about Alan Dooley? 22 A No. 28 1 Q You make reference to Hueper or Hueper? 2 How do you -- 3 A Hueper, H-U-E-P-E-R. 4 Q He provided you with some of his -- What 5 do you call them? Memoirs? I don't mean to slight 6 that, but some his personal information? Is that 7 right? 8 A Not really. We had a number of meetings. 9 The only documentation of his I've seen is all 10 available at the National Library of Medicine, 11 history of medicine section. 12 He wrote an autobiography called 13 something like a physician in field of occupational 14 cancer, a medical Cassandra tail, and then he had a 15 list of his publications. 16 Q Did he provide you withany of his 17 private papers? . 18 A Private papers? 19 Q Yes, sir. 20 A Nothing that's not at theNational 21 Library of Medicine. There is one presentation I 22 recall he made to -- There are just some 29 1 presentations that he made that are typed up that 2 weren't, as far as I could tell, published in any 3 kind of medical journal. There were a few things 4 like that. 5 I don't know if I saw them while he was 6 alive or after he died. I went to the National 7 Library of Medicine. 8 Q Dr. Hueper believed that cigarette 9 smoking was not a cause of lung cancer. Is that 10 correct? 11 A He was skeptical about that in an article 12 published in 1954. 13 Q In more than one article. Isn't that 14 right? 15 A I don't recall articles published after 16 1955. I recall articles in which he acknowledged 17 that -- that indicated that cigarette smoking caused 18 cancer and did not take issue with that. He would 19 just list that in reviewing the literature on cancer 20 of the lung as a subject that was a matter of 21 discussion in literature. 22 Q Didn't Dr. Hueper take issue with people 30 1 implicating cigarettes as a cause of lung cancer? 2 A Like I say, all I remember is the 1954 3 article in which he expressed skepticism on that 4 point. And I do recall seeing other writings of 5 Hueper's in which he notes that without really 6 arguing that people have written that cancer can be 7 caused by cigarette smoking. 8 Q Do you remember Dr. Hueper in 9 Occupational and Environmental Pulmonary Cancer with 10 special reference to pneumoconiosis writing it may be 11 concluded that the existing evidence neither proves 12 nor strongly indicates that tobacco smoking and 13 especially cigarette smoking represent a major or 14 even predominant causal factor for the production of 15 cancers of the respiratory tract and are the main 16 reason for the phenomenal increase of pulmonary 17 tumors during recent decades. 18 A May I see that? 19 Q Certainly. And the next sentence says if 20 excessive smoking actually plays a role in the 21 production of lung cancer it seems to be a minor one 22 if judged from the evidence on hand? 31 1 A I thought you were showing me the 2 article. 3 Q Yes. You want the entire article? I 4 didn't know you wanted that. 5 A Well, I would like to see the whole 6 article. Yes. 7 Q Certainly. 8 A I am trying to ascertain the vintage of 9 this thing because it's not at all clear whether it 10 was published or if so where it was published. 11 There are references listed, but there is 12 no list of references at the end of the copy that you 13 have handed me. This might have been his 14 presentation at the 7th Saranac Symposium in 1952. 15 The literature on lung cancer as a consequence of 16 cigarette smoking, at least the epidemiology on this 17 was only beginning to develop in 1950, 1952, 1950 to 18 1952. 19 So, I can understand why he might have 20 not been totally persuaded at that time. In any 21 case, I cannot tell from looking at this thing when 22 it was written. The latest date I notice in flipping 32 1 through it is 1950. 2 There is trends in respiratory cancer 3 table that goes through 1950. So, my guess is that 4 this was written around 1950. 5 Q Okay. And in 1951, Dr. Hueper, do you 6 recall, also wrote on the subject of cigarette smoke 7 in the Industrial Medicine and Surgery in February 8 '51? 9 A I remember seeing the article. I don't 10 recall what he said about smoking in the article. 11 Q On page 55, the entire statistical 12 evidence as to the lung cancer hazard from tobacco 13 dust is unreliable and requires confirmation before 14 such allegations can be entertained seriously. 15 Do you recall he published words to that 16 effect? 17 A No. But I am not disputing that he did. 18 In 1951. 19 Q And then again in October of 1954 in the 20 Current Medical Digest Dr. Hueper submitted an 21 article the cigarette theory of lung cancer? Do you 22 recall that? 33 1 A Vaguely. 2 Q There is little, if any, medical evidence 3 advanced in support of the cigarette theory. Do you 4 recall Dr. Hueper writing that? 5 A No. Not really. 6 Q The data on hand make it unlikely that 7 cigarette smoking presents a major factor in the 8 production of lung cancer and in its resent 9 phenomenal rise in frequency. Do you recall that? 10 A No. But he's not saying it does not 11 cause lung cancer. He seems to be saying he is not 12 convinced that it's the main cause of the overall 13 rise of lung cancer that's being reported in the 14 population during those years. 15 Q Dr. Hueper in looking at the evidence in 16 support of the cigarette smoking theory stated the 17 following on page 38. The evidence in support of the 18 cigarette smoke theory of lung cancer even upon 19 superficial examination presents several serious 20 defects and inconsistencies which become even more 21 glaring when the claims advanced are critically 22 scrutinized for the scientific adequacy and accuracy. 34 1 Do you recall that? 2 A I don't recall the specific sentence 3 there, but I don't dispute that it is there. 4 Q And then Dr. Hueper wrote articles on a 5 lot of different claimed carcinogens? 6 A Hueper covered a lot of subjects, 7 different agents that caused cancer. Just as he was 8 skeptical at first about tobacco the cause of the 9 lung cancer, similarly he waited about five years 10 after the first German authors were writing that 11 asbestos caused lung cancer before he came down 12 firmly on that point. 13 Q Hueper wrote about causes of cancer 14 including organic soot? Is that correct? 15 A I am sure he did. 16 Q He wrote on coal tar as a carcinogen, the 17 lignite coal tar. 18 A I don't recall about lignite, but coal 19 tar fumes certainly is a material that's been 20 described in medical literature for many years as the 21 cause of cancer. 22 Q He wrote by creosote oil as a cause of 35 1 cancer? 2 A Again, I can recall him writing something 3 about creosote, but what he said I don't recall. 4 Q He wrote about anthracene oil as a cause 5 of cancer? Do you recall that? 6 A I don't know about anthracene oil. But I 7 think anthracene is a chemical that's been extracted 8 from tar and shown in experimental animals to cause 9 skin tumors. 10 Q He wrote about paraffin oil as a cause of 11 cancer, correct? 12 A Again, Hueper wrote about studies of 13 things that were going on. Now with the case of 14 paraffin, paraffin is wax. I suppose there are 15 paraffin compounds that are liquids, as well, that is 16 true. In fact, some are gases. 17 Well, liquids anyway. But Hueper was 18 concerned about paraffins being used for milk cartoon 19 containers and found that it was not the paraffins he 20 was concerned about. It was the tar compounds that 21 were causing a darker coloration of some of these 22 paraffins that were contaminants of the paraffins. 36 1 So, the reason I am giving you these long 2 answers is because your questions, if answered yes or 3 no, would over-simplify the subject that he was 4 covering in these analyses of the literature. 5 Q He wrote about aromatic amines as a cause 6 of cancer, correct? 7 A Yes. Not only in other people's studies 8 but in his own experimental work, pioneering 9 experimental work. He published when he worked for 10 DuPont in the 1930s. 11 Q He wrote of isopropyl oil as a cause of 12 cancer, correct? 13 A I believe that is one of the agents that 14 he described publications in literature on. Yes. 15 Q And he wrote of arsonic as a cancer, 16 correct? 17 A Yes. There was an abundance of 18 literature on arsonic as a cause of cancer going back 19 to the 1930s. 20 Q And he wrote of chromates as a cause of 21 cancer? 22 A Yes. 37 ; 1 Q And he wrote of nickel as a cause of 2 cancer? 3 A Yes. 4 Q And he wrote of ultraviolet radiation as 5 a cause of cancer? 6 A Yes. This is also well established, well 7 recognized. 8 Q And he wrote roentgentic radiation as a 9 cause of cancer? 10 A Yes. X-rays. 11 Q And he wrote of radioactive substances as 12 a cause of cancer? 13 A Yes. 14 Q And he wrote of engine exhaust as a cause 15 of cancer? 16 A I think he certainly talked about 17 whatever literature there was on the causes. Yes. 18 Q He wrote of aluminum as a cause of 19 cancer? 20 A I don't recall. But Hueper was really 21 encyclopedic in trying to review the medical 22 knowledge about exogenous causes of cancer, and he 38 1 would list what he found in terms of citations 2 through published literature. 3 Q And he wrote of magnesium as a cause of 4 cancer? 5 A I don't recall that. 6 Q He wrote of barium as a cause of caner? 7 A I don't remember that, but it might be in 8 there. Hueper publish about 350 articles, chapters, 9 and books on occupational and environmental cancer. 10 Q He wrote of cadmium as a cause of cancer? 11 A Most likely. 12 Q He wrote of calcium as a cause of cancer? 13 A I don't remember that. 14 Q He wrote of Cobalt as a cause ofcancer? 15 A I don't remember. 16 Q He wrote titanium as a cause of cancer? 17 A I don't remember titanium. Again this is 18 just from my recollection of articles I have seen, 19 not in my having studied all of his publications and 20 in anticipation of being quizzed about all of these. 21 Q He wrote of antimony, A-N-T-I-M-O-N-I -- 22 M-O-N-Y, as a cause of cancer? 39 1 A I don't know. 2 Q Who wrote of beryllium as cause of 3 cancer? 4 A I don't know. 5 Q He wrote of selenium as a cause of 6 cancer? 7 A I don't know what he wrote about 8 selenium. 9 Q He wrote of manganese, M-A-N-G-A-N-E-S-E 10 as a cause of cancer? 11 A I don't know. 12 Q He wrote of copper as a cause of cancer? 13 A I doubt he wrote about it as a cause of 14 cancer but he may have written about articles in 15 which the possible cancer-causing property of copper 16 were scientifically subjected to some studies. 17 Q He wrote of tin as a cause of cancer? 18 A The answer would be the same as for 19 copper. I don't know that tin was ever shown to be 20 carcinogenic. But he might have written about 21 negative experiments, studies on tin or copper. 22 Q He wrote of zinc as a cause of cancer? 40 1 A Same answer as for copper and tin. I 2 don't know. 3 Q He wrote of banabium, B-A-N-A-B-I-U-M, as 4 a cause of cancer? 5 A I don't know if he did or not. I mean to 6 say that he wrote about these things as a cause of 7 cancer is not quite fair. What me wrote about was 8 the medical and scientific literature on these 9 subjects. If the literature showed that they 10 appeared to be carcinogenic, his writings would 11 reflect that. If the literature showed they did not 12 appear to be carcinogenic, he would note that. 13 MR. MESHER: Objection, nonresponsive, 14 move to strike. 15 BY MR. MESHER: 16 Q He wrote of iron as a cause of cancer? 17 A Again, he may have written about any 18 studies that may have attempted to elucidate about 19 whether or not iron might have caused cancer. 20 Q And he wrote of chromium as well as 21 chromates as a cause of cancer? Do you recall that? 22 A I don't remember that separate from 41 1 chromate, but there may well have been treatment of 2 chromium metal in some study or another that Hueper 3 referred to. He was writing review articles about 4 the literature published -- primary literature 5 published by others. 6 Q He wrote that certain information should 7 be provided to certain industrial users in a quiet 8 way? Do you recall that? 9 A No. I don't recall that at all. Can you 10 show me what you're referring to? 11 Q Sure. Dr. Hueper and comments on 12 occupational cancer surveys, in the United States 13 1952. On page 208. Here is the entire. 14 A Thanks. 15 . Q Your welcomed. 16 MR. FROCKT: It actually is two separate 17 articles. 18 MR. MESHER: I'm sorry. 19 MR. FROCKT: Do you want him to look at 20 both of them? 21 MR. MESHER: Sure. 22 THE WITNESS: I think the context of that 42 1 is very important. Hueper is basically saying that 2 industrial hazards should be dealt with in an 3 effective way and not necessarily in a way that's 4 needlessly public or humiliating to companies that 5 handle these materials. 6 He says -- talks about, well, it's only 7 fair to industrial users and the general public that 8 a reasonable amount of information about the 9 existence and types of occupational carcinogens is 10 made available to them so that such hazards cannot be 11 spread or sustained any longer by shear ignorance of 12 such matters. 13 This does not imply that such information 14 has to make headlines in newspapers but in a quiet 15 way preferably through trade circles, pertinent data 16 on recognized, suspected, and potential carcinogenic 17 agents should be distributed so that the necessary 18 technical and commercial adjustment processes can be 19 initiated and carried out in an orderly fashion 20 without causing any serious disruptions in the 21 industrial, economic, and social pattern. 22 So, Hueper is basically calling on the 43 1 people involved to handle this in a dignified, 2 proper, thorough, and professional manner, and not 3 necessarily with resort to publicity or headlines. 4 BY MR. MESHER: 5 Q Sure. 6 A I think that the context is important in 7 asking and answering questions about that. 8 Q Dr. Hueper published an article about 9 experimental studies in metal, cancer, or genesis. 10 Do you recall that asbestos in lanolin was injected 11 in some rats? 12 A I don't remember that specifically, but 13 there may have been. I think there were some 14 negative experimental studies that he referred to on 15 asbestos. I think there's at least one referred to 16 in my book. 17 Q And Dr. Hueper concluded an article in 18 1954 rats injected into the narrow cavity of the 19 femur, pleura cavity, or paranasal sinuses with 20 powdered arsonic beryllium or asbestos suspended in 21 lanolin did not develop any significant number of 22 cancers either at the site of deposition or in any 44 1 remote organ causally related to the chemicals 2 introduced. Do you recall that? 3 A I don't recall the specific quote. I do 4 have a reference, I think, in my book to studies he 5 did on very small numbers of animals in which he did 6 not find any positive results for asbestos. 7 Q Dr. Hueper also believed that for -- in 8 order to have a lung cancer that he believed could be 9 related to asbestos that he had to have asbestosis 10 present. Is that correct? 11 A Well, he used the term asbestosis cancer 12 of the lung. But people attending some of his 13 presentations understood from them that he was 14 talking about the microscopic scarring that could be 15 caused by as little as one fiber as the initiating 16 cause of such cancer. 17 Q Dr. Hueper wrote that there was support 18 for a causal relation between asbestosis and cancer 19 of the lung, correct? 20 A He wrote that asbestos caused cancer of 21 the lung and that that was based on studies of 22 workers with asbestosis who also got lung cancer. 45 1 Q Apparent dependence of cancerous changes 2 in the lungs of asbestos workers on the presence of 3 asbestosis and in view of the possibility that the 4 proteins of the lung tissue may specifically interact 5 with three groups of filamentary asbestos molecules. 6 Do you recall Dr. Hueper writing about that? 7 A I don't recall that sentence. No. 8 Q It says you have testified as an expert 9 in over 100 cases throughout the nation on issues 10 related to asbestos state of the art and the 11 historical development of asbestos knowledge. Have 12 you ever testified on behalf of a defendant in an 13 asbestos-related case? 14 A Just once. 15 Q Who was this? 16 A United States of America. 17 Q And when was that? 18 A 1987. 19 Q And who was the plaintiff in that? 20 A Johns Manvilie. 21 Q And what was Johns Manville suing the 22 government over? 46 1 A Johns Manville was alleging that the 2 contracts it had with the government during World War 3 II made the government contributorily responsible for 4 the asbestos-related disease sustained by workers 5 from the use of asbestos in shipyards during World 6 War II. 7 Q The design specification versus 8 performance specifications? . 9 A There was certainly testimony on military 10 specifications in the case, but the case as far as my 11 testimony went came down to did the government or the 12 Johns Manville have superior knowledge that it wasn't 13 sharing with the other party about the hazards of 14 asbestos. 15 And, you know, the argument from the 16 standpoint of Johns Manville has also been 17 characterized as the devil made me do it. It was 18 because the government required these materials Johns 19 Manville argued you was the government's fault. 20 Q Who is Kenneth Linch? 21 A He was a medical doctor in Carolinas who 22 published the first article linking cancer and 47 1 asbestos in 1935 in the medical literature in the 2 United States. 3 Q Was he pretty well known and respected? 4 A I don't know. He was -- I think he 5 became the president of some medical college in South 6 Carolina in the 1950s or so. He continued to publish 7 on asbestos an cancer in 1939, 1948, and 1955. 8 Q Are you aware that Dr. Linch reported in 9 1960 that he had no knowledge of any data on pleura 10 mesothelioma associated with asbestos dust exposure? 11 A I have not seen that. Can you show me 12 what you're talking about? 13 Q I will before we get through today. Yes. 14 Let's turn to page five of your declaration, please. 15 Lines seven and eight. The journal of the American 16 Medical Association was believed to have been read by 17 80 percent of the American physicians in those years 18 medical historians agree. Who wrote? What's the 19 basis of that statement? 20 A The references are in chapter one of my 21 book. And in the current edition, there are 22 references 57 and 58 of the chapter one. 48 1 Q Okay. I have that. That's fine. I note 2 you have your book. Could you turn to the 3 acknowledgments in that, please? 4 A Yes. 5 Q The author is grateful for the assistance 6 of a large number of people in the preparation of 7 this book, and I see Dr. Hueper, correct? 8 A Right. 9 Q When did Dr. Hueper provide you with the 10 papers that he provided you? 11 A Well, I've told you what he provided me 12 with. 13 Q I am sorry. I just meant the year. 14 A We had manydiscussions, and they were 15 between 1976 and 12 days before he died in December 16 1978. 17 Q I also note in here that Conard Metcalf 18 assisted in the compilation of the material and 19 review of your book. Is that correct? 20 A Well, he provided material for the book. 21 Yes. 22 Q So, it says attorneys in asbestos 49 .1 litigation who gave generously of their time to 2 assist in the compilation of material and review. 3 It's presentation included Conard Metcalf. Is that 4 right? 5 A I changed the language slightly in 6 subsequent editions to clarify. But in the first 7 edition you are reading from, I lumped it kind of 8 together and indicated that there were a bunch of 9 lawyers who had done several things. 10 Very few of the lawyers actually reviewed 11 material prior to its publication. I don't think 12 Metcalf is one of them, but he provided material 13 prior to the publication of the book because, of 14 course, information obtained in legal discovery is 15 not otherwise available to scholars such as myself. 16 Q I did read thatcorrectly, didn't it? 17 A I think so. 18 Q Now, Merrewether and Price published an 19 article in 1930? 20 A They did. 21 Q And in that article not all the persons 22 who were exposed to asbestos got any type disease, 50 1 correct? 2 A That's correct. 3 Q Have you found any literature that 4 indicates that persons who are exposed to asbestos 5 are certain to contract disease? 6 A I don't think there's -- I can't think of 7 a paper that says that although I think there is at 8 least one I have seen where everybody in the study 9 had asbestos disease. But that doesn't mean that it 10 always happens or that the author of the study made 11 any comments about whether or not it always happens. 12 Q Yes, sir. My question to you, sir, is 13 have you seen any study that indicates that all 14 workers who were exposed to asbestos are certain to 15 get disease? 16 A No. I think it's well understood that 17 some people do manage to walk through the valley in 18 the shadow of death and not get struck down by 19 something like this. 20 MR. MESHER: Objection, nonresponsive. I 21 move to strike. 22 BY MR. MESHER: 51 1 Q Sir, my question is are you aware of any 2 study that shows that all workers who are 3 occupationally exposed to asbestos are certain to get 4 the disease? 5 A No. 6 MR. FROCKT: Objection. Asked and 7 answered. 8 BY MR. MESHER: 9 Q Thank you. Sir, are you familiar with a 10 journal Lancet, that publication? 11 A Yes. 12 Q Is that the same as The Lancet published 13 over in England? 14 A I don't think so. 15 Q Where was the journal Lancet published? 16 A I think it was published in the United 17 States, but I don't off the top of my head recall the 18 mast head page of the journal would say about that. 19 Q Was it a widely recognized publication, 20 the journal Lancet? 21 A I don't really know. I don't suppose I'm 22 an authority on medical journals as to how widely 52 1 they were. Obviously the Lancet was a widely 2 recognized journal, but the journal Lancet is not in 3 the same class as the Lancet in terms of its global 4 circulation and reputation. I don't really know how 5 to answer the question. 6 Q Would you be surprised to learn that Dr. 7 Eagleman thought that virtually no one knew of the 8 journal Lancet outside of maybe the people who were 9 publishing it? 10 A I don't really -- I don't really know 11 what to do with a question like that. I mean 12 Eagleman has whatever opinions that he has. I can't 13 think of another article I have seen except was cited 14 in that journal, but that does not mean a whole lot. 15 Q When did you first see the journal Lancet 16 . publications? 17 A Well, the article by Eisenstadt really is 18 what I recall the journal for. I don't recall having 19 seen other articles published in it, but I have seen 20 the work of Eisenstadt going way back. It was 21 certainly one of the things that was cited in the 22 literature on asbestos and disease which I have been 53 1 familiar with for many years. 2 Q Who cited the Eisenstadt Wilson '60 3 article? 4 A I don't remember now. 5 Q Okay. 6 A There may have been lots of articles that 7 cite it 8 Q There may not have been also, correct? 9 A Again, it is just an impression. I don't 10 really have any kind of quantitative annotated 11 answers to give you for a question like this off the 12 top of my head, but I think I have seen reference to 13 it in a number of places. 14 Q Longer than, say, ten years ago? 15 A Well, you can open up the volume in front 16 of you that I wrote 20 years ago and see if it's in 17 there. Chapter five, table two. 18 Q It is in here. At page 271. 19 (Off the record.) 20 BY MR. MESHER: 21 Q In the Wilson and Eisenstadt article t 22 there are certain references listed in that article. 54 1 MR. FROCKT: Can he look at it? 2 MR. MESHER: Yes. I can show you my 3 4 MR. FROCKT: We also have a copy. 5 BY MR. MESHER: 6 Q I apologize. It's not the best copy that 7 I have. Are you looking at table two or a different? 8 A I am looking at table five, chapter two 9 of my book. It is probably very much unchanged from 10 the first edition which you have. 11 Q Okay. Now, sir, the articles 11 through 12 15 that are listed in the references, those are 13 foreign studies, aren't they? 14 A Well, 11, 12, and 13 are. 15 Q Okay. What is 14? 16 A Fourteen is published by the medical 17 director Johns Manville. Fifteen is published by a 18 physician in Pennsylvania. 19 Q Okay. Thank you. What significance do 20 you place on the Eisenstadt and Wilson article in the 21 state of the art? 22 A Well, I think that this really is an 55 1 article that recognizes that as asbestos causes 2 mesothelioma and cites a number of references to that 3 effect. By no means all of the references that have . 4 been published along those lines, but some of them. 5 The article shows a familiarity with the literature 6 on mesothelioma and asbestos which is pretty good for 7 its day I would say. I think this is 1960. 8 Q Do you know who actually wrote the 9 article? 10 A Well, I don't know the extent of how the 11 labor of writing the articles is divided between the 12 two authors. No, I don't. 13 Q Okay. Now, Vogner or Wagner, 14 W-A-G-N-E-R? How do you pronounce that? 15 A Vogner. 16 Q Vogner came out with an article on 17 mesothelioma in 1960 also. Is that correct? 18 A He did. 19 Q And he believed that crocidolite was the 20 cause of the mesothelioma. Is that correct? 21 A He believed that he had in his paper 22 includes strong evidence that crocidolite caused 56 1 mesothelioma. I don't think that he indicated that 2 no other type of asbestos could cause mesothelioma. 3 Q In subsequent papers, Dr. Vogner believed 4 that the only cause of mesothelioma based on his 5 research was crocidolite? Is that correct? 6 A I would like you to show me which papers 7 you are referring to. There are certainly papers he 8 published in which he tended to indicate that -- But 9 these were not published until in the late '80s and 10 '90s, I think, that where he tended to indicate that 11 most or - 12 Again, I am trying to think of how to 13 characterize his publications. I guess all I can say 14 is that the publication is the papers that he issued 15 after he became a consultant to Owens Illinois were 16 consistent with the positions taken by Owens Illinois 17 in asbestos litigation. 18 Q Owens Illinoismanufactured a product 19 called Kalo. Is that right? 20 A Right. 21 Q And Owens Illinois to yourknowledge 22 didn't place warning labels on their packages and 57 1 asbestos-containing products until what? Almost 2 1972? 3 A Well, Owens Illinois got out of the 4 business in 1958. But through the years they made 5 the product, they did not put warning labels on it. 6 That's correct. 7 Q And Owens-Corning Fiberglas took over 8 that product line at some point. There is a dispute 9 whether or not they took over in '53 or '58. But at 10 some point, am I correct, sir, that Owens-Corning 11 Fiberglas continued to manufacture and market a Kalo 12 product? 13 A Yes. They did that. 14 Q And that Kalo product was asbestos 15 containing? Is that correct? 16 A At first it was. 17 Q Through at least the time that Mr. 18 Jameson was employed at the refinery, correct? 19 A So I understand. Yes. 20 Q And Owens-Corning Fiberglas never placed 21 any warning labels on the boxes of Kalo, correct, 22 through at least through 1966, correct? 58 1 A So I understand. Yes. 2 Q Is it your opinion that manufacturers of 3 the asbestos containing, pipe covering, block cement, 4 Kalo should have placed warning labels on the 5 packages by at least the end of 1966? 6 A Well, before that time. Yes. 7 Q And the purpose of that warning label 8 would be to warn the purchaser or ultimate user of 9 that product of known hazards that were involved with 10 the use of such products, correct? 11 A Yes. Known and suspected hazards and 12 means to reduce or eliminate them. 13 Q And that Owens-Corning Fiberglas and 14 other manufacturers of asbestos-containing, thermal 15 insulation products should have warned prior to 1958, 16 correct? . 17 A I believe they should have based on what 18 was in the medical and scientific literature about 19 the hazards of asbestos that this would have been an 20 additional way of assuring that workers who were 21 exposed to hazardous conditions with asbestos 22 products in places like oil refineries would be aware 59 1 of these hazards whether or not the owners of the 2 refineries chose to take steps to protect them. 3 MR. MESHER: Objection, nonresponsive, 4 move to strike. 5 BY MR. MESHER: 6 Q Manufacturers of asbestos-containing, 7 thermal insulation products such as the Kalo product 8 that was manufactured by Owens Illinois and 9 Owens-Corning Fiberglass should have placed warning 10 labels on those packages based on your knowledge of 11 the medical literature prior to 1958, correct? 12 A Yes. That's my belief. 13 Q So that people such as Mr. Jameson who 14 testified in his deposition that he would take the 15 boxes of asbestos-containing, insulation products and 16 load them on a truck and place it on -- take it to 17 the area where he stated that he was working would 18 have had the opportunity to read what was on those 19 boxes, correct? 20 A Yes. 21 Q Now, let's talk a minute about Alan 22 Dooley,please. You or Mr. Frockt brought today the 60 1 Fulton Dooley. At least parts two and three. Is 2 that correct? 3 A . Yes. 4 Q Where was that published? 5 A It was published as a government report 6 by the State of Pennsylvania. 7 Q Okay. And in what? Was it published in 8 any literature, in any, like, the Lancet or anything 9 like that? 10 A It was not published in a medical 11 journal . It was published separately as a government 12 report. 13 Q And is that Fulton study listed in your 14 book? 15 A Oh, yes. Of course. 16 Q In table. 17 A It's a very important study. 18 Q In table two? 19 . A No, no, no. That's in the fourth 20 chapter. I have even reproduced the table from the 21 study. In table one of chapter four. And in the 22 current edition of my book, I discuss on pages 287 61 1 through 289. 2 Q And you state at least in your 3 declaration on page eight and nine at the bottom 4 starting on line 22 this guideline, and that's 5 referring to the Dressen '38 publication. This 6 guideline was recommended as a tentative occupational 7 exposure limit though it was noted that the 8 Pennsylvania study had found cases of asbestosis at 9 that level of exposure. Is that correct? 10 A That's correct. 11 Q And the Pennsylvania study that you are 12 referring to that found cases of asbestosis at the 13 five million particles per cubic foot of air was the 14 Fulton Dooley? 15 A Actually they found at less than five, 16 but the public health service rounded it off and said 17 and this is quoted a few pages later in my book. And 18 in their report of a similar study carried on in 19 Pennsylvania asbestos textile factories Fulton, 20 Dooley, Matthews, and Houtz, H-O-U-T-Z, found that 21 eight percent workers exposed to an average dust 22 concentration of five million particles per cubic 62 1 foot had asbestosis, and goes on from there. 2 Q How many of those were exposed at the 3 level at or below five million particles of per cubic 4 foot of air? 5 A All we know is the eight percent figure 6 applies to the group of workers whose actually 7 exposure is indicated as 4.64 million particles per 8 cubic foot as shown in the table in my book which 9 comes a few pages earlier and is reproduced directly 10 from the Pennsylvania study. 11 Q When Dressen published in 1938 the - 12 published his work when Dressen was working with the 13 Public Health Service, he cites the Fulton article. 14 Is that right? 15 A Yes. 16 Q But Dressen concluded that the threshold 17 limit value guideline should be five million 18 particles per cubic foot of air? Is that correct? 19 A They did. They called it a tentative 20 threshold, and, as I note, they do not attempt to 21 resolve the conflict between their recommendation and 22 the findings of the Pennsylvania study which they 63 1 referenced. 2 Q Sure. There is no doubt that Dressen 3 would have reviewed the Fulton Dooley article prior 4 to the time that Dressen published his -- his 5 bulletin, correct? 6 A I think that is fair to assume 7 considering they cited the study. Of course, it's 8 always possible people cite things they have not read 9 through carefully. But in this case, I think it's 10 reasonable to assume that he not only cited the study 11 but he devoted some efforts to reading through what 12 it said. 13 Q Regardless of what the Fulton articles 14 talk about, Dressen reported for the Public Health 15 Service the guideline of a tentative occupational 16 exposure limit of five million particles per cubic 17 foot of air, right? 18 A Right. 19 Q Was that on a time-weighted average? 20 A Dressen didn't really say, I think, 21 anything about time-weighted average in his report 22 although it is probably reasonable to infer that is 64 1 what he was meaning. 2 Q Let's talk a little bit about threshold 3 limit values, if you we could. 4 After Dressen came out in '48 Sayers and 5 Dressen published an article -- I am sorry. After 6 Dressen came out in '38 with the Public Health 7 Service bulletin, Sayers and Dressen published an 8 article in '39. Is that correct? 9 A Yes. They attempted to summarize their 10 findings in a much shorter article in the American 11 Journal of Public Health. 12 Q And that article one of the purposes was 13 to find out what concentrations of asbestos dust can 14 be tolerated without injury. Do you recall that? 15 A That sounds more like the listing of 16 objectives from the 1938 study. But again, I haven't 17 got the 1939 report memorized. 18 Q I am sorry. 19 A That is the '39 record. 20 Q Yes. The 1939 Sayers and Dressen 21 objective number three. To find out what 22 concentrations of asbestos dust can be tolerated 65 1 without injury. That was one of the objectives of 2 the '39 Sayers and Dressen, correct? 3 A Yes. In the sense that somebody might be 4 publishing a study on research into a cure for AIDS 5 and saying the objective of our research is to find a 6 cure for AIDS and then describe some microscopic, 7 molecular phenomenon that might some day some how be 8 contributory to a cure for AIDS. 9 Q And Sayers and Dressen published in '39 10 it appears that if asbestos dust concentrations in 11 the air breathed are kept below five million 12 particles per cubic foot new cases of asbestosis will 13 not appear. That is what they published, correct? 14 A I think so. 15 Q Okay. So, we've got Sayers and Dressen . 16 were talking about the same thing that Dr. Dressen 17 was talking about the year earlier, correct? 18 A Well, if you read the original report 19 that Dressen published in 1938, he describes it at 20 greater length and talks about it as a tentative 21 threshold value to be followed until more complete 22 information becomes available. 66 1 Q After Sayers and Dressen, Fleischer 2 Drinker came out with their study in '46? Is that 3 right? 4 A There was also a study Fleischer and 5 coworkers published in 1946. That's correct. 6 Q Flesher Viles, V-I-L-E-S, Gad, G-A-D, and 7 Drinker? Is that correct? 8 A Correct. Those were their names. 9 Q And that was published in the Journal of 10 . Industrial Hygiene and Toxicology? Is that correct? 11 A Yes. 12 Q And was that a widely distributed 13 journal? 14 A It was available in medical libraries in 15 major cities, in quite a few probably major cities 16 around the United States. It was not a journal that 17 would have been read by most doctors like the journal 18 of The American Medical Association, but it was a 19 journal that was -- would have been well known in the 20 field of industrial hygiene and medicine having 21 started in 1919. 22 By 1946, I would expect that people in 67 1 the field of industrial hygiene and medicine would 2 have, most of them would have known about this. 3 Q You would have expected, for example, 4 Alan Dooley would have known about the Fleischer 5 Drinker article? Is that correct? 6 A Well, he would have known about the 7 journal it appeared in. How much attention he paid 8 to the article is I don't know. 9 Q That journal was known to industrial 10 hygienists at the time? Is that correct? 11 A Yes. 12 Q And Fleischer Drinker concluded that - 13 conclusion number four. Since each of the three 14 cases of asbestosis had worked at pipe covering in 15 shipyards -- had worked at asbestos pipe covering in 16 shipyards for more than 20 years, it may be concluded 17 that such pipe covering is not a dangerous 18 occupation. That is a what they wrote, correct? 19 A That is part of what they wrote, yes. 20 Q Now, the Fleischer Drinker article at the 21 same time in 1946 the ACGIH published their 22 guidelines on threshold limit values for asbestos. 68 1 Is that correct? 2 A In 1946, the American Conference of 3 Governmental Industrial Hygienists published the 4 first of their annual lists of threshold limit values 5 which they then called maximum allowable 6 concentrations, and Phillip Drinker was the author of 7 this Fleischer Drinker Report, as you call it, was 8 one of the members of the TLV committee. 9 Q In 19422, the NCGIH adopted guidelines 10 for asbestos exposure, correct? 11 A Well, this is the early documentation of 12 the American Conference of Governmental Industrial 13 Hygienist which may have called itself a national 14 conference in 1942. As I recall had a subcommittee 15 in 1942 that simply compiled lists of occupational 16 exposure limits for different toxic substances. But 17 I don't recall that they made any recommendations 18 until 1946. 19 Q Okay. And then the guideline or what 20 I've termed is it a guideline or recommendation? 21 A You could call it either of those. 22 Q Okay. The threshold limit value of five 69 1 million particles per cubic foot of air remained in 2 effect by the ACGIH from 1946 until at least 1968, 3 correct? 4 A Yes. I mean in effect it's words that 5 may warrant some definition in this case. 6 They were simply recommendations that 7 were put out by a professional association which had 8 no legal authority or governmental authority on its 9 own. 10 Q Welsch Heely adopted five million 11 particles per cubic foot of air standard in 1952. Is 12 that correct? 13 A I don't know if it was in '52 or later. 14 I recall seeing regulations pursuant to the Welsch 15 Heely Act published in December 1960 that did adopt a 16 list of TLVs, threshold limit values, for that period 17 and had some additional introductory text stating how 18 this ought to be applied in industries where -- well 19 in companies that were subject to do Welsch Heely Act 20 for government contract. 21 Q You recall in 1960 that was the U.S. 22 Department of Labor, the U.S. Bureau of Labor 70 1 Standards Safety and Health regulations for ship 2 repair? That was 1960? 3 A That sounds right. It was certainly the 4 Department of Labor. I don't recall the exact name 5 of the sub-bureaucracy. 6 Q Do you recall prior to that in about 1960 7 was the Welsch Heely standard? 8 A We -- There was a Welsch Heely Act back 9 in the 1930s, but I don't know that they had any kind 10 of formal adoption of the threshold limit values 11 prior to 1960. They may have, but I don't know about 12 that for sure. 13 Q The ACGIH is an organization devoted to 14 the advancement of industrial safety and health. Is 15 that your understanding? 16 A Well, it's a professional association, 17 and it has the usual flowery language that 18 professional associations lists as their charters and 19 goals. 20 Q It was created in 1941 to bring order and 21 uniformity to various and sometimes conflicting state 22 and local industrial air standards. Is that your 71 1 understanding? 2 A Not necessarily. I mean it was basically 3 a new field, industrial hygiene. The professional 4 associations of industrial hygiene were created in 5 1938 and 1939. And at this point, they were like the 6 comedian. Still trying to get respect. 7 They were probably also interested in 8 developing some more standardized approaches in 9 refining the standards of their profession. But they 10 were just beginning to find their way back in 1941 as 11 a profession. 12 Q And in 1948, there was a TLV committee as 13 part of the ACGIH? Is that correct? 14 A In 1948? 15 Q Yes, sir. 16 A There was. 17 Q And that committed recommended and the 18 ACGIH adopted the five million particle per cubic 19 foot threshold per limit value for asbestos, correct? 20 A That's correct. 21 Q That is on a time-weighted average? 22 A No. They didn't say. They never defined 72 t 1 the TLVs in the 1940s. It wasn't until 1953 that 2 they published a list of TLVs and said by the way 3 these are time-weighted average daily exposure 4 limits. 5 Previously they had confronted the 6 question in 1946 when they first introduced such a 7 list and listed basically three different types of 8 definitions for these exposure limits without 9 explainingwhich limits were of which type. 10 Q And THE TLV standard that the ACGIH 11 adopted in 1948 was based upon the 1938 Dressen 12 study, the 1946 Fleischer Drinker study, as well as 13 other available information. Is that correct? 14 A We don't know what it was based on. The 15 TLV basically was -- First, the asbestos limit was 16 first published in the list in 1946, as I have said. 17 After that, I don't think any attention was paid to 18 it for a number of years. It was republished as part 19 of a list, a preexisting list to which new substances 20 were being slowly added year by year by the 21 committee. 22 QThe TLV committee annually reviewed the 73 1 asbestos threshold limit from at least 1951 until 2 1977. Is that correct? 3 A Well, they had a preface statement to the 4 effect they annually reviewed all the limits on the 5 list. But these things are easier said than done, 6 and there is no evidence that I have been able to 7 find that they actually did carry out that function. 8 This was a volunteer committee. And in 9 1948, for example, they didn't have a single medical 10 doctor on the committee. Neither did they in 1946 or 11 1947, the years that Phillip Drinker was on that 12 committee, have a medical doctor. 13 So -- And this is reflected in the TLV 14 documentation which didn't start getting published 15 until 1962. But they really didn't read the medical 16 literature so much. 17 These were mainly industrial hygienists 18 and toxicologists. And one of the things that they 19 have been criticized for was the -- their failure to 20 fully avail themselves of stuff that was in print in 21 the medical literature. 22 MR. MESHER: Objection, nonresponsive. I 74 1 move to strike. 2 BY MR. MESHER: 3 Q Do you have personal knowledge whether 4 the TLV committee annually reviewed the asbestos 5 threshold limit value from 1951 to 1977? 6 A All I can say is I have investigated this 7 as thoroughly as anyone could, and I have not found 8 any evidence that they actually did such a thing. 9 Q Based on the TLV committee, the opinion 10 of the TLV committee was that the five million 11 particle per cubic foot threshold limit value 12 provided adequate protection until 1968 or '69 when 13 there was a downward revision proposed, correct? 14 A Well, they basically recommended this 15 exposure limit and declined to change it until 1968 16 or '69 at which time Andrew Selikoff publications and 17 other stuff they were moved to reconsider the limits 18 that they had previously been republishing. 19 And as I indicated based on their 20 documentation of threshold limits first published in 21 1962, we can see that the exposure limits were based 22 only on the -- mainly on the 1938 Dressen Report of 75 1 the Public Health Service and that cancer wasn't 2 considered in the development of the threshold limit 3 values in the 1960s. 4 Q The ACGIH would have also based the TLV 5 on the '46 Fleischer Drinker study, wouldn't it, 6 since Drinker was on the committee? 7 A Not necessarily. The '46 Fleischer 8 Drinker study was not referenced in the documentation 9 of threshold limit values I don't think. 10 So, we don't have any real basis for 11 saying that it played a role in that unless it was 12 referenced, and I don't believe it was. 13 Q You don't think that Phillip Drinker 14 would have told the committee his experience in 1946 15 or do you? 16 A I don't know what he told the committee. 17 In 1946, they published a list of exposure limits for 18 a hundred and forty-four substances. How much time 19 they spent discussing each one is a matter of 20 conjecture. 21 Q The five million particle per cubic foot 22 threshold limit value meant five million particles of 76 1 asbestos dust per cubic foot regardless of whether 2 such dust was composed of particles, or fibers, or 3 both, correct? 4 A I am not sure I understand your question. 5 Fleischer clearly indicated in his article in 1946 6 that this 1938 public health study had been based on 7 total dust counts using midget impinger. 8 Q The threshold limit value of five million 9 cubic particles per cubic foot of air meant five 10 million particles of asbestos dust. Is that your 11 understanding? 12 A No. Fleischer himself made it clear that 13 that was not the case in his 1946 article. He isn't 14 talking about the work on this committee with the 15 American Conference of Governmental Industrial 16 Hygienists, but he is referring to the Public Health 17 Service study that had established in some sense a 18 recommended guideline. And he makes reference to 19 that as a total dust count, not as a count of just 20 asbestos particles. 21 Q There was no separate asbestos threshold 22 limit value for cancer since it was believed by the 77 1 TLV committee at the time that cancer was considered 2 in 1964 that cancer did not occur without the 3 presence of asbestosis and, therefore, the 4 established threshold limit value adequately protects 5 against cancer. Is that correct? 6 A I think that is highly conjectural. The 7 TLV committee published documentation on threshold 8 limits issued in 1966 contains not a single reference 9 after -- published after 1955. 10 The subject of cancer is not discussed in 11 the documentation. So, you don't have any way of 12 knowing the extent to which this committee gave any 13 consideration to the literature which was by then 14 rather abundant on the subject of cancer as an 15 asbestos disease. 16 Q Stokinger, S-T-O-K-I-N-G-E-R, wrote about 17 threshold limit values in 1955. Is that correct? 18 A Yes. 19 Q And Stokinger wrote that limiting values 20 assigned to each substance on the list which would 21 include asbestos represent the maximal atmospheric 22 concentration to which workers may be exposed 78 1 repeatedly day after day without injury to health. 2 Do you recall that? 3 A That sounds like something Stokinger 4 would have written. He was interested in making 5 these kinds of grand statements about the competence 6 of the TLV committee, the thoroughness of their 7 diligence in coming up with TLVs, and their 8 omniscience in writing lists of exposure limits that 9 would be protective of workers based on sometimes 10 very scant scientific literature. 11 Q Stokinger was on the ACGIH TLV committee. 12 Is that right? 13 A Yes. 14 Q From what was it? Like '51 into the 15 16 A Into the late '70s. Yes. I think 'll or 17 18 Q When you were doing your thesis, did you 19 ever speak to Mr. Stokinger? 20 A I eventually did catch up with him. I 21 interviewed him when I was investigating the history 22 of the threshold limit values, and corporate 79 1 influence on the threshold of limit values. And went 2 out to lunch with him when I was in Cincinnati going 3 through hold Stokinger files. 4 I had about two hours of questions for 5 Dr. Stokinger along the lines of things like I 6 noticed, for example, that the standard TLV for 7 tetraethyllead was determined at a meeting of the 8 threshold limits committee in 1968 April 2nd and 3rd. 9 And the critical reference in raising the 10 allowable exposure limit for this deadly substance 11 was phone call, not phone call. It was called 12 personal communication to the chairman from A. Linch. 13 And it was not disclosed in the TLV 14 documentation that Adrienne Linch was an industrial 15 hygienist with the DuPont Company nor was it 16 disclosed what sort of communication it was. 17 But Stokinger in his interview with me 18 more or less admitted that it was probably a 19 telephone call or because the mail didn't go there 20 back in 1968. 21 Q What do you recall discussing with Mr. 22 Stokinger about asbestos? 80 1 A I don't recall what, if anything, he said 2 about asbestos. There are hundreds of chemicals on 3 the list, TLVs, and I wasn't that single-minded about 4 asking about asbestos. I believe I asked him 5 something, but I don't recall now what it would have 6 been. This is probably about 15 -- more than 15 7 years ago. 8 Q Sure. National Safety Council. When was 9 the first National Safety Council that was entirely 10 devoted to the subject of asbestos? 11 A I don't know. There were plenty of 12 articles that talked about asbestos going back to 13 1929, I think. But I don't recall specifically 14 articles solely devoted to asbestos. 15 MR. MESHER: Objection, nonresponsive, 16 move to strike. 17 BY MR. MESHER: 18 Q Sir, my question to you was when was the 19 first National Safety Council article that was 20 entirely devoted to asbestos? Do you recall? 21 MR. FROCKT: Objection. Asked and 22 answered. 81 1 THE WITNESS: I don't recall any article 2 from the National Safety Council that was, as you put 3 it, entirely devoted to asbestos. 4 BY MR. MESHER: 5 Q What leads you to conclude in your 6 declaration that the transactions from National 7 Safety Council meetings were automatically mailed to 8 the industrial members? 9 A Because that's what it said on the 10 opening pages of the volumes of these annual 11 conference proceedings. 12 Q Do you have any of those with you today? 13 A No. 14 Q What record do you reference in paragraph 15 22 of your declaration that indicates that Texas 16 Company officials were members, participants, and 17 . even newsletters for the Council going back as far as 18 the 1930s? 19 What specific documents do you have 20 indicating when Texaco was first a member? 21 A These would probably be from the National 22 Safety congresses in which they talk about the 82 1 different sections of the National Safety Council 2 including the petroleum section. Usually these 3 documents list large numbers of officers of the 4 section. 5 And one sees their corporate affiliations 6 after their names. That would be the likely basis of 7 that. 8 Q When did you last review such National 9 Safety Council records to indicate when Texaco was 10 first a member? 11 A Well, I don't know exactly when they were 12 first a member, but the documents I have seen 13 indicate that they were members, you know, back in 14 the 1930s. 15 Q What specific document is that in? Do 16 you have that with you today? 17 A No, I don't. . 18 Q Okay. Then Bonsib. You make reference 19 to Bonsib in 1937. And you don't have any personal 20 knowledge whether my client received a copy of that 21 document, correct? 22 A That's correct. 83 1 Q Now, you say that in your opinion the 2 Bonsib Report establishes the state of the art ' 3 concerning a variety of dust hazards and refining 4 operations generally including for asbestos dust? Is 5 that correct? 6 A Yes. 7 Q Have you surveyed any other refineries or 8 any refineries at all for or any owners of refineries 9 to determine whether or not anyone other than 10 Standard Oil received a copy of that 1937 report? 11 A I haven't been able to establish. At 12 least nothing I have seen establishes clearly what 13 the circulation of that report would have been 14 outside of the company that employed Mr. Bonsib. The 15 reason for my comment is that Bonsib is for the most 16 part writing about stuff that was based on what was 17 in the open published scientific literature and not 18 based on any kind of specially contracted research or 19 studies done by his group at Standard Oil. 20 Q One of the references in Bonsib in that 21 '37 Bonsib, was Mr. Sayers or Dr. Sayers. Do you 22 recall that? 84 1 A No, I don't. I mean, Dr. Sayers worked 2 for the Bureau of Mines or the Public Health Service 3 for many years. 4 MR. FROCKT: Can you give us a reference? 5 MR. MESHER: Sure. 6 BY MR. MESHER: 7 Q It's the last page of the '37 Bonsib. We 8 also appreciate the advice and assistance rendered by 9 Dr. R.R. Sayers, Senior Surgeon, who is Public Health 10 Service. Is that right? 11 A That's what it says. Yes. 12 Q Is that the same Sayers that wrote at 13 least the article with Sayers and Dressen that we 14 were talking about earlier? 15 A That's right. Of course, that was years 16 after this report by Bonsib. 17 Q Do you know whether or not Standard Oil 18 even followed what Mr. Bonsib wrote in 1937? 19 A I don't know the extent to which Bonsib's 20 I suppose you could call them recommendations in this 21 report were followed. I don't know the extent to 22 which they were followed within the company. It is 85 1 all too common that knowledgeable people in the field 2 of industrial hygiene are employed by big companies 3 and make recommendations that don't tend to be very 4 widely followed. 5 Q Or widely disseminated also? Is that 6 correct? 7 A That is also something that happens 8 sometimes. Yes. 9 Q 1949, Alan Dooley. Mr. Dooley joined 10 Texaco in what year? 11 A I think 1946 or '47. 12 Q So within two years of Alan Dooley 13 joining Texaco, he is doing a survey of Texaco's Port 14 Arthur works and issues a report, correct? 15 A Yes. 16 Q And Mr. Dooley was the same person who 17 was involved with the Fulton Dooley article, correct? 18 A Right. 19 Q And Mr. Dooleyacknowledged thatthere is 20 a maximum allowable concentration for exposure to 21 asbestos, correct? 22 A He makes reference to that. 86 1 Q And that was five million particles per 2 cubic foot of air? 3 A I assume so. Yes. 4 Q I note that you make a quotation or you 5 quote a portion of Mr. Dooley on page ten and the top ' 6 of page 11. Is that correct? 7 A Yes. 8 Q And maybe you could just turn to Mr. 9 Dooley's survey. 10 A Yes. 11 Q Do youhave that in front of you? 12 A I do. 13 Q I note that you quoted a sentence from 14 this report. Is that correct? 15 A Yes. 16 Q I note that you didn't quote the next 17 sentence also. 18 A That iscorrect. I did not. In the 19 report. 20 Q And that next sentence, what does that 21 say? 22 A It says the maximum allowable 87 1 concentration of asbestos dust in the breathing zone 2 of workers has been set at five million particles per 3 cubic foot of air. 4 Q Was it believed that if there was an 5 exposure -- exposures below the maximum allowable 6 concentration that people would suffer injury? 7 A I think Dooley had reason to believe 8 that. He had published on it in 1935. 9 Q That was Dooley's 4.64? 10 A Right. 11 Q Dooley also says that the maximum 12 allowable concentration has been set at five million 13 particles per cubic foot of air. Was that based on a 14 time-weighted average? 15 A I don't think it's possible to say that 16 it was or that it wasn't. At that time, I don't 17 think you could reference an answer to that either 18 way. 19 Q I guess we would have to know what Alan 20 Dooley was thinking to figure that one out, wouldn't 21 we? 22 A I suppose so. It's not a question I \ 88 1 could answer one way or the other and give you an 2 explanation as to why I answered it that way. 3 Q Now, the person who Mr. Dooley was 4 reporting about was working in a reclaiming shed? 5 A I think so. 6 Q And this person was wearing a respirator, 7 but Mr. Dooley told him he needed to get a different 8 type of respirator, correct? 9 A I think so. I'm not absolutely sure. 10 MR. FROCKT: Would he be able to review 11 that part of the document or do you want to keep 12 asking questions? 13 MR. MESHER: I will keep asking. It's 14 just on the top of the next page. It makes reference 15 to the respirator. 4 16 THE WITNESS: Yes. I see what you mean. 17 BY MR. MESHER: 18 Q Mr. Dooley came back to the Port Arthur 19 work in 1952. Were you provided any information 20 about that? 21 A I don't think so. 22 Q You are aware that the problem that 89 1 Mr. Dooley reported about in 1949 was resolved when 2 Mr. Dooley went back to the refinery in 1952? 3 A Mr. Frockt told me something to that 4 effect. I have not seen the document, but I 5 understand at least this particular problem that 6 Dooley called attention to the record indicates that 7 that had been cleaned up. 8 Q Mr. Dooley appeared to be a conscientious 9 industrial hygienist when he wrote his 1949 survey. 10 Is that correct? 11 A I don't see any reason to dispute that 12 based on what the survey says. 13 Q He had only been with Texaco for just a 14 couple of years when he was coming out with these 15 recommendations and this survey, correct? 16 A So I understand. Yes. Two or three 17 years. 18 Q That shows that he was a person of 19 integrity, willing to stand up and at least put pen 20 to paper his opinions and his observations in this 21 survey, correct? 22 A Well, all he's talking about is getting 90 1 the guy a new respirator here. It is not going to 2 costs Texaco a whole lot of money to do that. 3 Q No, sir. Excuse me. Through the entire 4 survey, he's talking about more than just what he 5 observed in the reclaiming shed, didn't he? Or have 6 you read the other portions of this survey? . 7 A Well, I haven't sat down and studied this 8 thing with it in mind to, you know, answer questions 9 about what he said about lead and naphthenate or some 10 of the other substances he's discusses in here. 11 You know if you want go ask me questions 12 about these things, we can sit down -- I can sit down 13 and study the report, and I would be happy to answer 14 your questions. 15 Q Sir, my question to you was Mr. Dooley 16 was reporting more about than what he observed in the 17 reclaiming shed, correct? 18 A That's right. He points out there were 19 lead exposure hazards and other types of exposures 20 that some of which he found were not warranting 21 control measures and some of which he recommended 22 control measures for. 91 1 Q Sure. Now, let's talk a little bit about 2 asbestos and lung cancer. You make reference in page 3 11 of your declaration to case reports. What is a 4 case report? 5 A It's a report of the individual cases of 6 disease. It might be one case. It might be ten or 7 more cases. Generally the term refers to reports of 8 cases of disease without reference to a defined 9 reference population from which the cases are drawn. 10 Q Does - 11 A Numerically defined Imean. 12 Q Does a case report in essence present a 13 hypothesis as to what could be occurring that need 14 further studies? 15 A Some casereportsclearly do serve that 16 purpose. Almost all of the cancer causing substances 17 that we know about today we started to learn about 18 through case reports. 19 Q Right. Now, I note in paragraph 26 you 20 make reference to the journal of industrial hygiene 21 and toxicology. Do you see that? 22 A Yes. 92 1 Q Was that the same journal that you 2 published the Fleischer Drinker? 3 A Sure. 4 Q Now, in Nordman which you make reference 5 there, not everyone in Nordman's study who was 6 exposed or Nordman report who was exposed to asbestos 7 came down with any asbestos type of injury or 8 disease, correct? 9 A Well, I think that they did, but the 10 reason they did was that these were selective cancer 11 cases. 12 Q But Nordman didn't report on the entire 13 population. 14 A N o . He didn't do a survey of the 15 industry, and he didn't do a mortality study on the 16 industry. So, we don't have any sense of -- We don't 17 have a very good quantitative sense of what the 18 excess risks were although he does say in Germany as 19 in England Nordman was aware of 12 autopsied cases of 20 asbestosis, and both countries two out of 12 also had 21 cancer of the lung. 22 Q Nordman talked about an increased risk. 93 1 Is that correct? 2 A Well, he called it the occupational .3 cancer of asbestos workers. So, I guess you could 4 say he did. 5 Q Now, have you done any analysis of 6 workers' compensation acts? Have you looked at, for 7 example, the Washington Workers' Compensation Act? 8 A I might have seen it. Over the years, I 9 have been shown some of the state laws, and I don't 10 remember which ones I have seen. 11 Q Is it your understanding in order to be a 12 compensable disease under the Washington State 13 Workers' Compensation Act that you have to have some 14 type of impairment? 15 A That wouldn't surprise me, but I really 16 don't know about these details. I would assume that 17 that would be the case. Again, I don't know. 18 Maybe -- I just don't know how the law speaks on 19 these questions. 20 Q The average person wouldn't consider 21 himself to be injured merely because they inhaled 22 asbestos fibers, would they? 94 1 MR. FROCKT: Objection. Speculation. I 2 object to form. 3 THE WITNESS: Depends on what they knew 4 about hazards of asbestos. Some people who have 5 inhaled asbestos fibers who have seen doctors and 6 have been told that the doctors don't see any 7 asbestos disease are still scared to death about 8 asbestos fibers and what they think it might be doing 9 or is doing to their bodies. 10 BY MR. MESHER: 11 Q Do you think you have an asbestos-related 12 injury? 13 A No. 14 Q You believe you have asbestos fibers in 15 your lungs, don't you? 16 A I have certainly been exposed to 17 asbestos. My childhood exposure is described in 18 chapter 11 of the book. 19 Q And you don't believe that you have an 20 injury from your asbestos exposure, correct? 21 A All I can say is so far so good. I mean 22 people with less exposure that I had as a five- or 95 1 six-year old have in some cases developed 2 mesothelioma. 3 Q But you don't consider yourself injured 4 from your exposure asbestos, do you? 5 A It depends on what you define as injured. 6 It's all a question of how you define the term. I 7 just hope I never develop cancer from my asbestos 8 exposure. But I know that's a possibility that I 9 will develop cancer from my asbestos exposure. 10 Q You've had your lungs -- your chest 11 X-rayed. Is that correct? 12 A Well, not for the way that chest X-rays 13 are done for pneumoconiosis. I have had TB chest 14 X-rays in my 20s. I don't think I have had any since 15 then. 16 Q You have talked about the archives of 17 industrial hygiene and occupational medicine. 18 Information from Lamar University. You see that in 19 paragraph 28? 20 MR. FROCKT: Page 12. 21 THE WITNESS: Yes. 22 BY MR. MESHER: 96 1 Q When were you first aware that any - 2 that there was anything associated with the Texas 3 Company at Lamar University? 4 A I guess that would be within the last < 5 several months. 6 Q Is that from Mr. Frockt or his law firm? 7 A Yes. And he has also provided me an 8 affidavit to that effect with the documents attached 9 with the stamps of the company on the pages. 10 Q Then you talk about Dr. Hueper, correct? 11 A Yes. 12 Q Dr. Hueper in 1948 reported that asbestos 13 was a doubtful carcinogen. Do you recall that? 14 A I don't recall Hueper reporting that it 15 was a doubtful carcinogen. Hueper was a member of 16 the committee in New York in I think 1949 that issued 17 a report in which I think they used the word doubtful 18 in describing unproven carcinogenicity for particular 19 substances. 20 Q Is that the Environmental and 21 Occupational Cancer in 1948 by Hueper that you are 22 referring to or something else? 97 1 A No. Let me see that. 2 Q Sure. 3 (Off the record.) 4 BY MR. MESHER: 5 Q Sir, I believe we left off asking you 6 about the public health report of 1948 Environmental 1 and Occupational Cancer by W.C. Hueper for - 8 published by the Federal Security Agency. In that 9 report was asbestos as a doubtful carcinogen. Is 10 that correct? 11 A That is indicated in the table, but the 12 incomplete copy of the report which you have provided 13 me I don't think includes the entire text on the 14 question of asbestos and cancer. 15 Q Sure. I apologize for not getting the 16 whole article for you today. But when I looked at 17 that table, it made reference to doubtful. Is that 18 correct? 19 A Yes, it does. 20 Q Thank you. You make reference to the 21 opinion that members of the API medical advisory 22 committee during the 1940s and '50s including Texas 98 1 Company officials were aware that asbestos was a 2 cause of cancer. What do you base that on? 3 A Well among other things, there is a 4 report by a Texas Company officials -- First of all, 5 the Texas Company was represented at the medical 6 advisory committee in 1945. 7 Q Are you referring to bituminous 8 compounds? 9 A The bituminous compounds report is one 10 thing the Texas Company contributed, and it makes 11 reference to asbestos as a carcinogenic agent. 12 Q Did the Texas Company to your knowledge 13 contribute anything else other than that article? 14 A N o . But they were present and 15 participating in the work of the medical advisory 16 committee and subcommittees including the 17 subcommittee on cancer or carcinogenicity. 18 Q What leads you to believe that it was the 19 practice of that committee to circulate copies of 20 memorandums to their members? 21 A Well, you mean minutes of meetings. 22 Those things I would assume were circulated to 100 1 is indicated that two members of the API medical 2 advisory committee. And here is another report that 3 talks about asbestos as a cause of occupational 4 cancer and references the publication of, the 5 publications of German authors as well as some 6 publications by Dr. Hueper. 7 Q The German authors are published in 8 German language? Is that correct? 9 A Yes. Some of these papers were the 10 subjects of abstract in English. Lensback and 11 Vagler, and Nordman. But they were originally 12 published in the German language. Apparently that 13 presented no problems for the chemist Zuidema who I 14 believe was Dutch. 15 Q You notice at the top of that page makes 16 reference -- What does it say? Distribution to. The 17 language on there about who it was sent to? 18 A It says for information only. Not for 19 publication. A contribution of information to 20 members of the API medical advisory committee. 21 Q That type of language does not appear on 22 the 1937 Bonsib article, does it? 101 1 A Not the copy that I have here. No. 2 Q Okay. The IHF, Industrial Hygiene 3 Foundation. We talked earlier about the basis of 4 your understanding as to when it was a member, when 5 Texaco was a member, correct? 6 A Yes. I think we covered that thoroughly. 7 Q You have no information to indicate that 8 Texaco was a founding member of the IHF, correct? 9 A Correct. Although come to think of it, 10 they may have been present at the founding meeting in 11 1935. I would have to go back and look at the list 12 of people who were present at the founding meeting. 13 I have actually a memorandum courtesy of 14 Dr. Lansa listing the names of all the people present 15 in January 1935 when they came up with the idea of 16 setting up the IHF. 17 Q Back to the API for a minute. They did a 18 survey in 1965 and 1966. Is that correct? 19 A They seemed to have started such a 20 survey. Yes. 21 Q Lousch and Renes, R-E-N-E-S, sent out a 22 letter indicating that they wanted to survey or 102 1 request the members of the API to submit information 2 on certain insulators, correct? 3 A Yes. I believe. 4 Q And that one of the things that Loush and 5 Renes stated was that unless two or more companies 6 can offer some definitive data or information the 7 survey report will consist of a review of the 8 literature in the hope that it will stimulate future 9 investigations among member companies. Do you recall 10 that? 11 A I see that. Yes. 12 Q And Texaco,my client, submitted 13 information to the API. In particular, Lousch and 14 Renes, in response to his request for information, 15 didn't it? . 16 A I don't see something to Mr. Renes. I 17 see something to Mr. Tigh, T-I-G-H. 18 Q Right. 19 A Is that what you're referring to? 20 Q Are you aware that the information that 21 Texaco gathered at the request of the API was 22 forwarded on to the API? 103 1 A Well, I'm trying to establish whether or 2 not it was. 3 Q The Texaco representative, Ron Richards, 4 testified to that in his deposition. 5 A Okay. So, Mr. Richards, you say, has 6 testified that this information submitted March 11, 7 1965, strictly personal and confidential to 8 Mr. T-I-G-H in Houston was then passed along to the 9 people at the API? 10 Q Yes, sir. Were you ever aware of that? 11 A Well, I didn't know about the testimony 12 in the deposition. 13 Q And were you aware that the information 14 that was forwarded on to the API was more than just 15 the information contained in the March 11, 1965, 16 memorandum? 17 A Well, I didn't recall having seen 18 documentation to that effect although it may be here. 19 Q Now Mr. Renes wrote in April of 1965 20 that -- and enclosed a preliminary audit indicating 21 in part that they didn't have an adequate population 22 base to resolve the question as to the degree of 104 1 hazard which asbestos posses to refinery workers, 2 correct? 3 MR. FROCKT: Can the witness look at the 4 document itself? 5 MR. MESHER: Sure. 6 MR. FROCKT: Was that a quote? 7 MR. MESHER: Yes. This is on page three 8 of the conclusion. 9 THE WITNESS: ' Right. They say have 10 inadequate data to come to any conclusion. 11 BY MR. MESHER: 12 Q And that they should continue studying 13 this potential health problem. That was another 14 recommendation of Mr. Renes. Is that correct? This 15 is on the last -- page four of his report. 16 A Right. He warns that he doesn't think 17 this is an insignificant problem. He urges further 18 study. 19 Q Right. In fact, Alan Dooley took over 20 for Mr. Renes and attempted to complete this 21 compilation of information, didn't he? 22 A Well, I see a letter from Alan Dooley of 105 1 November 1, 1965, in this sequence of letters. 2 Q Right. He reports in part that there 3 appears to be some confusion about the health of 4 insulators because of an assumption among some 5 writers that all insulators are exposed only to 6 asbestos dust. Do you see that? 7 A Yes. I see that sentence. 8 Q And then Mr. Dooley on November 6 of 1965 9 reports that the medical director of one company that 10 manufactures a great deal of insulating materials 11 including asbestos products believes that the role of 12 asbestos as a health hazard among insulators has been 13 exaggerated in some reports. Do you see that? 14 A I see that sentence. 15 Q Do you agree with that? 16 A Well, I find it hard to believe that Alan 17 Dooley was such a fool that he would think that the 18 medical director of an asbestos manufacturing company 19 would be a reliable source of information of that 20 kind. 21 Q That's what he was reporting, correct? 22 A He simply says what this individual had 106 1 told him. That's right. 2 Q And then Alan Dooley continued to request 3 information through 1966 through the other members of 4 the API, correct? 5 A I am afraid I don't think I have seen 6 other documentation beyond November 1965 about what 7 Dooley was requesting from the other members. 8 Q You're not aware that Gulf Oil sent in a 9 letter of June 6th, 1966, reporting certain of their 10 findings? 11 A I don't believe I've seen that. 12 Q So, Texaco through Alan Dooley continued 13 to study this problem that Loush and Renes talked 14 about in 1965 in 1966, correct? 15 A They appear to be continuing to gather 16 data on the question of the mortality or at least the 17 presence of asbestos disease among insulators 18 retired, recently retired, and so forth. 19 Q And Alan Dooley was trying to get that 20 information to complete the study that Loush and 21 Renes was talking about, correct? 22 A It appears so. Yes. 107 1 Q Okay. Now, one of the things with the 2 insulators during that time period, Dr. Selikoff 3 wrote on - 4 MR. FROCKT: Clarify which time period. 5 MR. MESHER: Sure. 1965-1966. 6 BY MR. MESHER: 7 Q Dr. Selikoff, S-E-L-I-K-O-F-F, wrote in 8 the annals of the New York Academy of Sciences that 9 measurement of dust exposures of insulation workers 10 have been but infrequently reported and have been 11 hampered by the varied nature of the work. 12 As in other asbestos work, peak counts 13 are met with excessively high but generally counts 14 for asbestos fibers have been within the five million 15 particles per cubic foot MPC of the ACGIH. Do you 16 recall that? 17 A Yes. I recall that sentence. 18 Q Now, let's talk just for a minute about 19 the Industrial Health Foundation. You make reference 20 in paragraph 42 that the IHF conducted industrial 21 hygiene research and medical surveys for the various 22 asbestos companies and the Asbestos Textile 108 1 Institute. Is that correct? 2 A Yes. 3 Q Texaco was not one of these asbestos 4 companies or a member of the Asbestos Textile 5 Institute, correct? 6 A They were not. 7 Q The IHF also arrangedclosed informal 8 medical meetings among members in particular 9 industries. Do you see that? 10 A Yes. 11 Q Strikethat. Texacowas not a 12 participant in such meetings to your knowledge, was 13 it? 14 A No. My knowledge about this is extremely 15 scant. 16 Q Okay. The Industrial Hygiene Digest. 17 What leads you to believe that it was printed and 18 distributed monthly to IHF members? 19 A Well, it was obviouslydistributed 20 monthly. I mean it was printed monthly. It was one 21 of the services of the IHF to its members. One of 22 the important services that they receive copies of 109 1 the Digest as part of the conditions of their 2 membership. 3 Q The Digest in line nine of page 17 you 4 make reference to an epidemiological report of 5 asbestosis and a cohort of insulators? 6 A Yes. 7 Q What are you referring tothere? 8 A The reports of Frost and his coworkers in 9 the Danish Medical Bulletin published in 1956. 10 Q Where was that published? 11 A In a journal called the Danish Medical 12 Bulletin. The article was published in the English 13 language. 14 Q Was that published in the U.S.? 15 A No. But it was abstracted in at least 16 three places and was widely cited in subsequent 17 literature on asbestosis. 18 Q Paragraph 44, you make reference to the 19 Industrial Hygiene Digest published numerous other 20 abstracts. What are you referring to there? 21 A Well, there was the -- in 1949 the 22 journal of the American Medical Association, 110 1 editorial on asbestosis and cancer of the lung 2 abstracted in the Industrial Hygiene Digest in August 3 1949, and there were a number of other articles. 4 Let's see. I don't have a complete list. 5 The Frost article was abstracted in the Industrial 6 Hygiene Digest. The insulators in the Danish Medical 7 Bulletin in June of 1957. The article by Franchini 8 Canepa was abstracted. 9 This was an article describing, as I 10 recall, a man who had been run over by a street car 11 at age of 40. And he was a member of the cohort of 12 shipyard workers under study for asbestosis, and they 13 did an autopsy and verified this man had asbestosis 14 of the lungs. 15 Q Then asbestos and mesothelioma. We have 16 talked about Eisenstadt and Wilson, and we talked 17 about Vogner. You report in 1964 Selikoff reported 18 in his mortality study in JAMA? Is that right? This 19 is on paragraph 53. 20 A I am sorry? 21 MR. FROCKT: Page 20. 22 THE WITNESS: What about Selikoff? 111 1 BY MR. MESHER: 2 Q Selikoff you report in paragraph 53 that 3 he published a mortality study in JAMA. 4 A He did. 5 Q That didn't show that all persons who 6 were exposed to asbestos were certain to cause any 7 type of disease, correct? . 8 A Well, this was a mortality study, and it 9 showed a large number of people died, excess deaths. 10 More than would have been expected from asbestosis 11 and occupational cancer, but not all of the deaths in 12 the trade could be attributed to asbestos disease. 13 It was also in 1946 that he made a 14 presentation at the annual --at the meeting of the 15 New York Academy of Sciences in which he did say 16 something like 94 percent of the people in the 17 insulation trade had asbestosis 30 years after 18 starting in the trade if they had not already died 19 from some cause or another. 20 MR. MESHER: Objection, nonresponsive, 21 move to strike. 22 BY MR. MESHER: 112 1 Q Now, do you have any knowledge whether my 2 client Texaco deliberately intended to cause Mr. 3 Jameson to contract mesothelioma? 4 MR. FROCKT: Objection. It calls for a 5 legal conclusion as to the standard that we are 6 operating under this case. 7 THE WITNESS: I am sure what happened to 8 Mr. Jameson was not the direct result of personal 9 harm intended to him individually. 10 BY MR. MESHER: 11 Q You don't think Texaco willfully 12 disregarded the knowledge that they had in exposing 13 Mr. Jameson to any asbestos, do you? 14 MR. FROCKT: Same objection. 15 THE WITNESS: I think they did if they 16 didn't warn him about the hazards of asbestos or 17 protect him from the hazard of asbestos. It sounds 18 to me like willful disregard. 19 BY MR. MESHER: 20 Q What does willful disregard mean to you? 21 A That means you know that the person's 22 exposed to a mortal hazard and you neither warn him 113 1 about the hazard or means to reduce it. 2 Q So, you would also conclude that the 3 manufacturers of the asbestos-containing products 4 that Mr. Jameson was exposed to willfully disregarded 5 any knowledge that they had in exposing him to 6 asbestos-containing products when they didn't place 7 warning labels on boxes, correct? 8 MR. FROCKT: Same objection. 9 THE WITNESS: Yes. I think that they 10 also contributorily were responsible in the manner 11 that they neither warned, nor protected, nor gave him 12 the choice of protecting himself that would have been 13 available had they put warnings on these products 14 that properly disclosed the extent of knowledge 15 available about the hazard they posed. 16 BY MR. MESHER: 17 Q Are you aware of any literature that 18 talks about cellular injury from the inhalation of 19 asbestos? 20 A I've seen articles like that, but I don't 21 consider myself authoritative in analyzing the fine 22 points that they describe. 114 1 Q Was the TLV that was adopted in the 2 guidelines through the ACGIH widely accepted? 3 A Well, you mean prior to 1967? 4 Q Yes. 5 A Well, it was accepted in a number of 6 states. It was kind of accepted by default. There 7 were state agencies that were looking around for some 8 kind of guidelines, and the only -- the ACGIH had by 9 that time become the only game in town. 10 Q Washington. Did Washington adopt the TLV 11 or do you know? 12 A Well, there was no Occupational Safety 13 and Health Administration in the 1960s. The law 14 creating OSHA didn't come until -- it was not enacted 15 until the end of 1970. 16 Q I am sorry. I meant the State of 17 Washington. Sorry. 18 A I don't really know about the State of 19 Washington's adoption, or non-adoption, or reliance, 20 or whatever on the threshold limit values in terms of 21 the official state policy and how it may have been 22 expressed. 115 1 Q Through the literature that you have 2 reviewed, is it more likely than not that the 3 refinery workers exposed to asbestos would not 4 contract an asbestos-related disease as a result of 5 refinery exposure? 6 MR. FROCKT: Objection. I think that 7 goes beyond the proffered testimony of this witness. 8 It calls for a conclusion which we have not presented 9 him to offer. Having said that, I will let the 10 witness answer, if he wants to. 11 THE WITNESS: That's right. I don't 12 testify on causation in these cases. 13 BY MR. MESHER: 14 Q I was asking whether or not the reported 15 literature you are aware of reports whether it is 16 more likely than not that a refinery worker exposed 17 to asbestos would not contract an asbestos-related 18 disease as a result of refinery exposures. 19 MR. FROCKT: Same objection. 20 THE WITNESS: I don't think that the 21 literature is perfectly clear on this question. The 22 literature published by Selikoff in 1964 and 1965 116 1 indicated that insulation workers at least would be 2 expected to. The vast majority of them we're talking 3 about. I think 94 percent with more than 30 years in 4 the trade, 86 percent with more than 20 years in the 5 trade had asbestosis. 6 And as to mortality, something like 40 7 percent, I think, would -- could be said to have died 8 from occupational cancers and asbestosis. So, 9 Selikoff showed at least with respect to insulators, 10 you did have, you know, a very strong chance -- more 11 than an even chance of developing an occupational 12 disease if you had a career of working the trade. 13 Now, I think that would have been 14 applicable to insulators who work in oil refineries. 15 The insulators studied by Selikoff did include people 16 who worked in oil refineries. 17 MR. MESHER: Objection, nonresponsive, 18 move to strike. 19 BY MR. MESHER: 20 Q Sir, when was it reported in the 21 literature about household exposures to asbestos and 22 when that hazard was appreciated? 117 1 A Well, Hueper warned of neighborhood 2 exposure back in 1950. Household exposure, again, 3 this is covered in chapter seven of my book. And the 4 real definitive evidence of that didn't appear until 5 Selikoff's conference in 1964 in New York with the 6 presentation that I summarize in number -- item 54 in 7 the declaration. 8 Q Now, it says Dr. Castleman may testify - 9 that all defendants conspired to suppress 10 information. Do you see that? 11 MR. FROCKT: What are you referring to? 12 MR. MESHER: The declaration. I am 13 sorry. The disclosure. 14 MR. FROCKT: I don't have a copy of mine. 15 MR. MESHER: Here. I think that's 16 Exhibit 2. I think I have it highlighted. 17 THE WITNESS: Conspired? 18 BY MR. MESHER: 19 Q Yes. 20 A I see that. 21 Q What information do you have concerning 22 your opinions on conspiracy on my client, Texaco? 118 1 MR. FROCKT: We will stipulate we are not 2 going to offer that kind of testimony with Dr. 3 Castleman. 4 MR. MESHER: Okay. 5 BY MR. MESHER: 6 Q The last thing in here, there are two 7 other things. You were going to talk about exposure 8 levels through asbestos and at what levels asbestos 9 may cause disease. That is what your disclosure 10 talks about? 11 A To the extent that that's reflected in 12 the medical and scientific literature, I might make 13 reference to it. I wouldn't normally expect it to be 14 something I would cover in trial. 15 Q That's normally outside the scope of your 16 testimony? 17 A Yes. Sounds like stuff that would 18 normally come in through industrial hygienists or 19 physicians. There is a table of stuff that -- table 20 four in chapter four of my book talks about. 21 Q That's what you rely upon? 22 A About published literature on exposures 119 1 for people doing insulation work and other kinds of 2 activities. 3 Q Okay. Availability of materials as 4 substitutes for asbestos and information concerning 5 substituting these materials appeared in the medical 6 and scientific literature. 7 MR. MESHER: Are you offering him on 8 that? 9 MR. FROCKT: We will, if asked. But we 10 are not for sure. But that would be something within 11 the scope of what he may be offered for. 12 I hope that is okay with you. 13 THE WITNESS: Well, I'm not delighted 14 with it. 15 MR. MESHER: He does not normally testify 16 to that. . 17 MR. FROCKT: Why don't we explore that. 18 THE WITNESS: I have in the book on page 19 456 and 457 a section called Use of Mineral 20 Insulation in Oil Refineries and Industrial Plants in 21 the current edition of the book. This is a chapter 22 written by Steven Berger. I edited the chapter, but 120 1 I didn't write it. 2 BY MR. MESHER: 3 Q He is an attorney? 4 A He is not an attorney. He formerly 5 worked in the U.S. Patent Office. He's trained as a 6 chemical and environmental engineer and most recently 7 I think retired from the work for the government of 8 the State of California in water pollution control. 9 But he is really the expert on the 10 availability of substitutes, and there are certainly 11 a number of references he cites in this chapter. 12 Q You don't consider yourself to be an 13 expert in substitutes? Is that correct? 14 A That's correct. 15 Q Okay. You defer to someone else such as 16 Steven Berger to render opinions in that regard 17 concerning substitutes for asbestos products? 18 A Yes. 19 Q Just a couple of other questions. A 20 letter from Scowcroft to Lebel, November 1966. Do 21 you have a copy that? November 7, 1966? 22 A Maybe. What's that?Asbestos clothing 121 1 exposure? 2 Q Yes. I have got some of these things 3 that are circulated or that are circled, and we'll 4 mark that as an exhibit. And I just want to know if 5 you have copies of those? 6 A You have a lot of things circled here. 7 Q Yes. 8 A I may have them buried somewhere in my 9 files. Some of these things are things I have not 10 seen in a long time. The Scowcroft item is probably 11 from Raybestos-Manhattan documents. They have not 12 been involved in the asbestos litigation for almost 13 15 years. 14 MR. FROCKT: You want him to go through 15 with respect to each one circled whether or not he 16 has these documents? 17 MR. MESHER: Yes. 18 MR. FROCKT: Why don't we mark it as an 19 exhibit and identify it by the number. 20 (Castleman Exhibit Nos. 2 and 21 3 were marked for 22 identification.) 122 1 MR. FROCKT: Counsel, what you would like 2 him to do is look at Exhibit Number 3 and identify by 3 number, go through which of these documents he has? 4 MR. MESHER: Yes. 5 MR. FROCKT: Okay. The ones circled. 6 THE WITNESS: I probably have most, if 7 not all, of these documents. I would say I probably 8 have all but one or two. That would be my guess. 9 BY MR. MESHER: 10 Q Which ones do you think you don't have? 11 A I don't know. I would have to go through 12 my files. A lot of these are documents I have not 13 looked for for years. 14 Q Okay. That is fine. 15 MR. MESHER: I have no other questions at 16 this time. 17 EXAMINATION BY MR. FROCKT: 18 Q Just a few questions. Dr. Castleman, 19 have you ever in the past offered testimony regarding 20 articles that appear in trade journals pertaining to 21 alternative sources of materials other than asbestos 22 that could be used in industrial settings? 123 1 A Yes. I have been occasionally asked 2 whether such articles existed. And to that extent, I 3 am comfortable answering the question. Having seen 4 the articles and Mr. Berger's analysis of what they 5 say. 6 Q With regard to the IHF digest, the IHF 7 digest did not only print abstracts of journals that 8 appeared in U.S. or American medical industrial 9 hygiene literature, is that correct? 10 A That's quite right. They I think 11 describe it in the beginning of chapter ten where I 12 talk about IHF, that they drew their abstracts from 13 hundreds of journals published around the world. 14 Serving hundred of journals. I don't recall if I 15 reproduced the number. But at some point, they 16 provided some figures along those lines. . 17 MR. MESHER: Objection. Nonresponsive, 18 move to strike. 19 BY MR. FROCKT: 20 Q But they were abstracts of reports from 21 other countries and other languages other than 22 English? 124 1 A That is certainly true. 2 Q In reference to counsel for Texaco asked 3 you questions about paragraph 28 of your declaration. 4 And this is the paragraph regarding the archives of 5 industrial hygiene and occupational medicine and 6 Lamar University? 7 A Right. 8 Q And you stated Ibelieve in your answers 9 that you were able to look at a declaration provided 10 to you that had some attachments. Do you recall 11 that? 12 A Yes. 13 Q Sir, I am going to handyou this document 14 which we will identify as Number 4. 15 (Castleman Exhibit No. 4 was 1.6 marked for identification.) 17 Doctor, is that the declaration and 18 attached documents that you were referring to when 19 you gave that answer? 20 A Yes, it is. 21 Q Doctor, you were asked just briefly and 22 you can answer fairly briefly. You were asked about 125 1 the Fleischer Drinker study and conclusion number 2 four. Do you recall that part of the questioning? 3 A Yes. 4 Q And were there some other conclusions 5 from the Fleischer Drinker study that were also 6 provided besides what was in paragraph number four,, I 7 believe? 8 A Yes, there were. 9 Q What were they? 10 A Well, I have them all quoted. 11 Q Could you summarize them for us? 12 A Yes. Basically the second one of these 13 recommendations reads the operations of band saw 14 cutting, of grinding, cement mixing, and insulation 15 on board ship should be equipped with exhaust 16 ventilation to keep the total dust concentration low. 17 So, there is a recommendation for worker hygiene 18 measures here. 19 Q Was that the only recommendation for 20 worker hygiene measures or were there others? 21 A Well, the report in the text of the 22 report talks about the use of respiratory protection, 126 1 and wet methods, and other approaches to reducing 2 dust exposure to workers, and trying to explain the 3 variability of the exposures that were recorded at 4 the various shipyards. 5 Q Do you have an opinion whether or not an 6 industrial hygienist reading that report in the 7 journal in which it was published would have had 8 those kinds of recommendations available to him or 9 her based upon the conclusions in the study? 10 MR. MESHER: Objection to form. 11 Foundation. 12 THE WITNESS: Well, the information of 13 the report was all available to the reader of the 14 report. People don't just read conclusion number 15 four when they read a report. 16 BY MR FROCKT: 17 Q Doctor, you have never met Alan Dooley, 18 correct? 19 A No. 20 Q So, I take it you would have no ability 21 to comment one way or another on his integrity or any 22 other aspects of his character? 127 1 A That's right. 2 MR. MESHER: Objection to form. 3 BY MR. FROCKT: 4 . Q Doctor, what is the NCI in the lexicon of 5 your field? 6 A Well, the NationalCancer Institute - 7 Q Is that the NCI? 8 A Yes, it is. It's the leading source of 9 information within the National Institutes of Health 10 in the United States Government on the subject of 11 cancer. 12 Q Did Dr. Hueper ever have any relationship 13 to the NCI? 14 MR. MESHER: Objection to form. 15 THE WITNESS: Yes. 16 BY MR. FROCKT: 17 Q Are you aware whether or not Dr. Hueper 18 had any such relationship with the NCI? 19 A Yes. In 1948, he was made the chief of 20 the environmental cancer section at the NCI, and he 21 held that post until he retired in 1964. 22 Q I am sorry. Would you say the years 128 1 again, please. 2 A 1948 to 1964. 3 . Q. Okay. Doctor, who was Dr. Kehoe, if you 4 know? 5 A Dr. Kehoe was a physician hired by the 6 lead industry who in my opinion was someone who was 7 basically a defender of the lead industry. 8 Publishing medical and scientific articles about the 9 potential hazard of lead exposure on the job. 10 MR. MESHER: Objection. That is beyond 11 the scope. 12 BY MR. FROCKT: 13 Q Are you aware of whether or not Dr. Kehoe 14 had a relationship with the American Petroleum 15 Institute? 16 A I don't believe I have come across any 17 contact although there may well be documentation 18 along those lines. I don't think I have seen it. 19 MR. FROCKT: I think that's it. 20 FURTHER EXAMINATION BY MR. MESHER: 21 Q Fleischer Drinker talked about work 22 aboard ships, correct? 129 1 A The subjects of their study were people 2 who worked in shipyards which included work aboard 3 ships as well as in the shops that serviced the 4 ships. 5 Q Do you know what the difference in a 6 exposure to a product is if you're in a confined 7 space or building as opposed to exposed to the 8 elements working outside? 9 A Well all of the things being equal, the 10 outdoor exposure would be less than the exposure in a 11 confined space with the same products doing the same 12 activities. 13 MR. MESHER: Thank you. I have no 14 further questions. 15 MR. FROCKT: What do you want to do about 16 this in terms of making it an exhibit? 17 MR. MESHER: Can the court reporter make 18 a copy of that and attach it to the deposition as the 19 next exhibit? 20 MR. FROCKT: You're talking about the 21 stuff within the binder clips? 22 MR. MESHER: No. The whole thing. 130 1 MR. FROCKT: All the documents? 2 Everything in here? 3 MR. MESHER: Yes. 4 MR. FROCKT: One is Ron Richards' '5 deposition. Do you want that? 6 MR. MESHER: Yes. There are some notes 7 on the back of that. Can you make a copy of that? 8 MR. REPORTER: Okay. 9 (Castleman Exhibit No. 5 was 10 marked for identification.) 11 MR. MESHER: I would like an ASCII, and 12 can you send me an e-mail copy. 13 (Whereupon, at approximately 6:00 p.m., 14 the deposition ended.) 15 * * * * * 16 17 18 19 20 21 22 131 1 CERTIFICATE OF NOTARY PUBLIC 2 I, Ronnie C. Palmer, the officer before whom 3 the foregoing proceedings were taken, do hereby 4 certify that the foregoing transcript is a true and 5 correct record of the proceedings; that said 6 proceedings were taken by me stenographically and 7 thereafter reduced to typewriting under my 8 supervision; and that I am neither counsel for, 9 related to, nor employed by any of the parties to 10 this case and have no interest, financial or 11 otherwise, in its outcome. 12 13 My commission expires: 14 July 1, 2004 15 16 17 18 NOTARY PUBLIC IN AND FOR THE 19 STATE OF MARYLAND 20 21 22