Document 99YRemV3e2VV53RBwYbwJ3zkq

FILE NAME Kubota KUB DATE 2014 Apr DOC KUB042 DOCUMENT DESCRIPTION Legal - Trial Testimony - Masahiko Uchino Vol 8 TRIAL - VOLUME 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF CONTRA COSTA BEFORE THE HONORABLE LESLIE NICHOLS JUDGE DEPARTMENT 9 PAMELA J. O'BRYAN VS. PLAINTIFF A.H. VOSS COMPANY sued individually and as successor to VOSS INTERNATIONAL CORPORATION et al DEFENDANTS No. C13-01926 VOLUME VIII PAGES 755-889 REPORTER'S TRANSCRIPT OF PROCEEDINGS THURSDAY APRIL 17 2014 REPORTED BY BARRIE HART 6954 reporters.com Donna Blum 11133 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 APPEARANCES ON BEHALF OF THE PLAINTIFF THE LANIER LAW FIRM 2049 CENTURY PARK EAST SUITE 1940 LOS ANGELES CA 90067 BY MARK D. BRATT ESQ mdb@lanierlawfirm.com TREY JONES ESQ CORPORATION ON BEHALF OF VOSS COMPANY KUBOTA CORPORATION VOSS INTERNATIONAL WILSON ELSER 525 MARKET STREET 10 17TH FLOOR SAN FRANCISCO CA 94105 11 BY ROBERT ENGLE ESQ 12 robert.engle@wilsonelser.com 13 MARY ELLEN GAMBINO ESQ 14 ON BEHALF OF WESTBURNE SUPPLY 15 WALSWORTH FRANKLIN BEVINS & MCCALL LLP 601 MONTGOMERY STREET 16 NINTH FLOOR SAN FRANCISCO CA 94111-2612 17 BY LINDA S. VOTAW ESQ 18 lvotaw@wfbm.clvotaow@wfbmm.com 19 PAMELA E. STEVENS ESQ pstevens@wfbm.cpstevoens@wfmbm.com 20 21 ON BEHALF OF CERTAIN TEED MCKENNA LONG & ALDRIDGE 22 ONE MARKET PLAZA 24TH FLOOR SAN FRANCISCO CA 94105 24 BY FRANK K. BERFIELD ESQ fberfield@mckennalong.com 25 MICHELLE C. JACKSON ESQ 26 mjackson@mckennalong.com 27 28 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 INDE WITNESS MASAHIKO UCHINO Redirect Examination by MS GAMBINO Recross Examination 776 MR BRATT Redirect Examination by MS GAMBINO PAGE 760 780 804 10 Deposition of Leon Horowitz 11 12 EXHIBITS 13 822 847 14 Exhibit No. Exhibit Description Offered Admitted 15 372 Exhibit Horowitz 878 16 377 Exhibit Horowitz 878 17 391 Exhibit Horowitz 878 18 392 Exhibit Horowitz 878 19 393 Exhibit Horowitz 878 20 394 Exhibit Horowitz 878 21 396 Exhibit Horowitz 878 22 412 Exhibit Horowitz 878 23 503 Excerpt annual report 804 24 25 26 7019 7021 7023 ACP export shipment Photo last day production Reed pipe cutter ad 762 768 776 27 28 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 THURSDAY APRIL 17 2014 --o0o-- Page 758 9:30 A.M. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE COURT Good morning Nice to see you We're all together Come to order now We're going to continue with the examination conducted by Ms. Gambino but I wanted to touch base with you on the schedule and make sure everybody feels comfortable here Of course you've committed to service up to and including May 16th and if jury deliberations were continuing as much longer as was necessary to complete those discussions But consistent with my experience we're right on track here and I think it will be concluded earlier that's always my hope but we don't rush people just have full days It's the expectation announced by plaintiff's counsel that their case in chief that's the main case and they rest subject to any rebuttal if necessary at the end of the defense presentation will be concluded by next Wednesday -- the end of the day on next Wednesday And then if that's the case no harm no foul or if it goes a little longer But we've been going through the witnesses and so forth and that's the expectation Then we would be in session on the following day Thursday and Friday And it's the week after that the week after that we'll certainly be together where we will not be in session on Monday the 28th and Tuesday the 29th I have a case I've got to drive down to Modesto on HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 _ and complete preparation for that Page 759 Then we'll be in session on the 30th the 1st and the 2nd Wednesday Thursday and Friday and probably the whole week following May 5th But I have reason to hope that we won't be in session all week on the 12th One other housekeeping issue I told counsel that and they certainly agreed that I want them to bring in by tomorrow morning all of the originals and copies of those jury questionnaires that people filled out and 10 we'll get them to affirm here in court They'll be 11 presented to our clerk for shredding 12 We told you that that would be confidential 13 information and we'll make sure we do that and we keep 14 track of those things and don't forget them 15 So I think without further ado we will 16 continue with the examination 17 It's examination but you understand that 18 this is all being conducted now so our witness can go back 19 to Japan rather than have Ms. Gambino call him later 20 You may continue 21 MS GAMBINO Thank you your Honor Good 22 morning 23 MASAHIKO UCHINO 24 Called as a witness on behalf of the Plaintiff 25 and after being previously duly sworn to tell the truth 26 the whole truth and nothing but the truth testified as is 27 hereinafter set forth 28 //// HG LITIGATION SERVICES HGLITIGATION.CHGLIO TIGATIMON.COM TRIAL - VOLUME 8 . BY MS GAMBINO REDIRECT EXAMINATION Page 760 Q. Good morning Mr. Uchino MS GAMBINO Before I start asking Mr. Uchino questions I'd like to direct the Court and counsel to Exhibit 7017 which was admitted THE COURT Yes into . evidence yesterday MS GAMBINO And on page seven I would like to read from the -- 10 THE COURT And just to refresh our 11 recollection this is the document that has Voss and 12 Kubota Asbestos Cement Pressure Pipe and the witness 13 testified about that document and you may refer to it 14 MS GAMBINO And at the top of the page I'd 15 like to read the first caption there 16 THE COURT And that's which page again 17 MS GAMBINO I'm sorry it's page seven Bate 18 stamp seven you 19 THE COURT Thank 20 MS GAMBINO Voss yards are equipped for 21 cutting short sections and green machine ends to accept 22 Voss K A couplings 23 BY MS GAMBINO 24 Q. Okay Mr. Uchino would you please look at the 25 exhibit that's marked for identification as 7019 26 A. Yes 27 Q. And have you seen this document before 28 A. Yes I have HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Page 761 | Q. Is this one of the documents that you located when you were researching the history of the Kubota asbestos cement plant company Asbestos cement manufacturing plant A. Yes that's correct Q. And do you know who prepared this document A. Yes I know who prepared this document Q. And who was that A. It was prepared by a person named Nakao 10 N Although I can't remember exactly what it was 11 referring to but I believe he was with the department 12 called Overseas Support Department 13 Q. And do you know when Mr. Nakao prepared this | | 14 document 15 A. Yes 16 Q. And when was that 17 A. Yes he prepared it in September 1980 18 Q. Do you know if Mr. Nakao is still alive 19 A. No I don't 20 THE COURT I'm sorry I'll ask our 21 interpreter You just said the year this was prepared 22 what year was that 23 THE INTERPRETER September 19 1980 24 THE COURT Thank you 25 BY MS GAMBINO 26 Q. Do you know how to get into contact with Mr. 27 Nakao -- or strike that 28 Have you tried to get into contact with Mr. HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 Nakao Page 762 A. Yes I have tried Q. correct And you were unable to locate him is that A. That's correct Q. Did you find this document with other business records that are maintained by the Kubota Corporation A. Yes MS GAMBINO Your Honor I would like to offer 10 this document into evidence Actually before I do that - 11 I'm sorry 12 BY MS GAMBINO 13 Q. Mr. Uchino could you please briefly describe 14 to us what this document is 15 A. This is a line graph reflecting the total 16 amount of asbestos cement pipes exported to the United 17 States in a community manner from 1962 to 1975 18 MS GAMBINO Your Honor I'd like to offer 19 this exhibit into evidence please 20 THE COURT Yes that's admitted 21 MS GAMBINO Thank you 22 Defendant's Exhibit 7019 was received in evidence 23 24 THE COURT It's one of the few cases I can 25 refer to the recitals and ancient writings exception to 26 the hearsay rule 1331 of the Evidence Code 27 MS GAMBINO And may I publish it please 28 THE COURT Yes HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MS GAMBINO BY MS GAMBINO Thank you Page 763 Q. Mr. Uchino do you know what Kubota's share of the asbestos cement pipe market was in 1972 MR BRATT Lacks foundation Calls for speculation your Honor THE COURT Ask him to lay a foundation Objection sustained as to form MS GAMBINO I'll ask a different question BY MS GAMBINO Q. Mr. Uchino could you please read the years that are referred to on this document Exhibit 7019 and the first page of that document. A. The first year reflected is 1962 Q. document And is there a last year mentioned on that A. 1975 Q. And Mr. Uchino I'm putting the first page it looks to me like a graph up on the screen Yes Q. I think we've got most of the graph up there Mr. Uchino can you read from this graph how much AC pipe Kubota sold in the United States after 1972 THE WITNESS Your Honor may I stand up THE COURT Yes you may THE WITNESS 1972 is right there and the Japanese fiscal year begins in April So if you please follow '72 and at the month of April on that is where HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the flat part of the graph starts Page 764 So from this graph you can tell that starting April 1972 on there was next to none amount exported to the United States from us BY MS GAMBINO Q. All right And now Mr. Uchino I'm going to put up a second page of that Exhibit 7019 Can you tell me what dates are indicated on that chart A. This chart reflects two numbers One number reflected in this chart is a total tonage of AC pipes exported between 1962 and 1975 Second number reflected in this chart is Yen based total amount associated with AC pipes being exported between 1962 and 1975 Q. And Mr. Uchino can you tell from this chart -- does this chart indicate what the total tonage was for the export of Kubota asbestos cement pipe to the United States in 1970 A. Did you say 1970 Q. Yes 1970 A. Again your question was what was the total amount or total tonage sold to the United States in 1970 Q. That's correct A. Oh yes I can see that yes Q. Okay And can you tell me what that number is A. Let me show you in 1970. First half the total tonage sold is 9,126 tons according to Also same thing 1970 second half the this chart total amount 9176 sold is 7,974 tons HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 765 Q. Okay Mr. Uchino can you -- can I ask you the same question regarding 1971 What was the total amount of AC pipe that was sold that went to the United States THE INTERPERTER He is saying '76 '76 176 THE WITNESS Yes the first half of 1971 the total amount sold was 8,568 tons The second half of 1971 the total amount BY MS GAMBINO sold was 10,922 tons | Q. Okay And was there -- does the chart indicate what was sold in the first half tons THE COURT Didn't he just say that 8,568 MS GAMBINO BY MS GAMBINO Thank you Q. And I'd like to ask the same question for 1972 Can you tell me what the total tonage was of asbestos cement pipe sold to the United States A. The first half of 1972 the total amount sold was 2,241 tons Second half of '72 the total amount sold was 5,547 tons Q. Mr. Uchino I noticed that you were struggling a little bit to answer those questions and I realize does the Japanese system of dates use in the United States does it differ from what we A. That is correct Q. Okay And so if you look at what is on this chart I believe the second column we see a series of numbers starting with '60 '61 '62 '63 Can you tell me HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 what those numbers refer to Page 766 A. These numbers indicate our corporate fiscal years Q. And is that according to the Japanese system or the system that we use in the United States A. It was according to the Japanese accounting system Q. So if we look on the chart at -- down at the very bottom of that first column and if you refer to the 10 date that says October looks like October '86 is there a 11 counterpart in -- under the U.S. system of what year that 12 would be 13 THE COURT Ms. Watanabe I've handed you a 14 note Would you please quietly pass it to each attorney 15 who might read it to themselves and then return it to the 16 clerk 17 Please continue 18 THE WITNESS I don't believe there is a 19 difference between the Japanese and American accounting 20 systems This is Kubota's accounting system reflecting 21 calendar or fiscal years For example this number 60 has 22 nothing to do with the United States 23 If you're referring to the number next to it 24 however yes it is Japanese specific For example you 25 are going to see the number 475210 47 stands for Showa 26 w 47. Showa 47 indicates the 47th year of Showa 27 emperor Each emperor has a very unique year name after 28 he came to assume his duty So Showa 47 equal to 1972 HG LITIGATION SERVICES HGLITIGATI HGLIO TIGATNION..COMCHGLIO TIGATIM ON.COM TRIAL - VOLUME 8 Consequently 475210 indicates May to October 1972 BY MS GAMBINO Page 767 Q. Let me ask see if I can ask one more question and try to clarify this Can you show the jury on the chart which line refers to 1975 in American -- according to the American system A. 1972 is this line MS GAMBINO I'm sorry madam interpreter was | 10 that 1972 or 1975 11 THE WITNESS 175 12 MS GAMBINO Okay Thank you 13 BY MS GAMBINO 14 Q. Thank you Mr. Uchino I think you're done 15 with that know 16 Mr. Uchino do you when Kubota stopped 17 making asbestos cement pipe all together 18 A. Yes I do 19 Q. And when was that 20 A. November the 2nd 1975 21 Q. And when you were searching the history of the 22 pipe making plant did you come across any records that 23 indicated that that was the closing date 24 A. Yes 25 Q. Okay And what document did you come across 26 A. I found a copy of anniversary booklet prepared 27 by union of the factory and in this anniversary booklet 28 there was a picture entitled November the 2nd Showa 50 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 meaning 1975 the final day of AC pipe production Page 768 . Q. Mr. Uchino would you please look at what we marked for identification as Exhibit 7021 A. Yes Q. Okay referring to And is this the picture that you were A. Yes that's correct Q. And did you find this picture that was on the anniversary booklet with other documents that Kubota 10 maintained other business records 11 A. Yes 12 Q. And can you tell me what the date is of this 13 particular picture here . 14 A. It says Showa 50 November the 2nd which means 15 1975 November the 2nd 16 MS GAMBINO Your Honor I'd like to offer 17 this exhibit into evidence 18 THE COURT Yes it is received 19 Defendant's Exhibit 7021 was received in evidence 20 21 THE COURT So just a clarifying question once 22 again It says S period 50 period 11 period two So the 23 the way of recording it is the 11 is November 24 THE WITNESS Yes 25 THE COURT And the two is the second 26 THE WITNESS Yes 27 THE COURT The only thing that would be 28 unfamiliar to us is that the S 50 means Showa 50 which HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 769 is explained but he can tell us that that means 1975 the way that we record it THE WITNESS That's exactly right THE COURT Thank you Mr. Uchino You may publish it MS GAMBINO Yes thank you your Honor BY MS GAMBINO Q. Mr. Uchino is this the photograph that we have been talking about A. Yes that's correct Q. And do you know -- do you recognize the location where this photograph was taken A. If you take a look at the caption in this photograph it says S 50 November the 2nd In front of the number six pipe machining device for AC pipes So I can tell this was taken inside of the plant But if you ask me if I ever got inside of the plant no because when I joined the Kubota Corporation the plant was already gone so I never had a chance to walk inside of the plant myself Q. Do you recognize any of the people in this photograph A. No I don't know any of them Q. Okay Thank you A. Some of them look younger than I am Q. Do you know why Kubota closed the plant on November 2nd 1975 A. Yes HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Q. And what is the reason Page 770 A. There are three main reasons The first reason is a domestic reason also known as the Japanese national road issues -- issue In Japan most of the water pipes were buried under national road which were faciliated by Ministry of Construction Back then Japan was in industry of growth time It was after World War II ended so Japan was trying to rebuild therefore national roads were expanding and consequently underneath of these roads 10 AC pipes were buried However because the amount of the 11 traffic increased and the weight of each truck increased 12 AC pipes couldn't bear these heavy traffic as well as the 13 amount of -- excuse me weight of the trucks anymore and 14 they started to burst under the national road and that 15 happened quite often 16 As a result Ministry of Construction made a 17 decision that they were no longer using AC pipes quote 18 water supply pipes which were buried underneath of the 19 national roads which was a big problem for AC pipe 20 manufacturers Everybody tried to create stronger AC 21 pipes so that our demand would have continued but we were 22 unable to do so Consequently the demand for the AC 23 pipes in the domestic Japanese market decreased 24 significantly That was the first reason 25 The second reason was the issue of U.S. dollar 26 and the Japanese Yen exchange rate Upon December of 27 1971 the dollar ratio was fixed A dollar was worth 28 360 Yen Dollar was very strong compared to Japanese Yen HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 But in December of 1971 the fixed rate was removed Page 771 and changed the variable exchange rate All of a sudden the dollar ratio changed from 360 to 308 and then down to 200 meaning that Japanese Yen became suddenly very strong against the U.S. dollars This was not a good news for Japanese export companies who were trying to sell goods in the United States because all of a sudden we lost our competitive edge by 20 percent or more ITC made On top of a decision that in May of 1972 that if you choose to the U.S. agency export your AC pipes in the United States any Japanese AC pipe manufacturers has to pay dumping duty because ITC decided that Japanese AC pipe manufacturers were pricing their AC pipes much lower than the price of U.S. AC pipe manufacturers therefore we lost our comptetiveness by the strong Japanese Yen phenomena on top of that we have to pay duty due to the decision made by ITC Because of this after May 1972 realistically it was next to impossible for us to export our goods to the United States The third reason was the Japanese government revising the existing law In this law which was revised on September the 30th 1975 the Japanese government suggested a possible connection between asbestos and cancer This was announced on September 30th 1975 and became effective October 1st 1975. We made the decision of closing our AC pipe plant long before this with other reasons but this revision and the position of asbestos HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 . Page 772 could be connected to cancer made our decisions even firmer that this is a business we need to stop So with all these reasons we stopped manufacturing our AC pipes at our plant in November 175 Q. Thank you . Mr. Uchino do you know where Kubota obtained the asbestos fibers that it used in its AC pipe A. Yes I do Q. Okay And where was that | 10 And do you know 11 THE COURT Excuse me she needs to tell us the 12 answer 13 MS GAMBINO Thank you 14 THE WITNESS We purchased our asbestos fibers 15 by Johns Manville through a trading company called Tokyo 16 Kogyo Boeki Shokai Tokyo y Kogyo y 17 Boeki e Shokai h 18 BY MS GAMBINO 19 Q. Thank you Do you know if Johns Manville ever 20 provided any warnings to Kubota Corporation when it was 21 providing this fiber for the AC pipe 22 A. No I don't At least -- at least what I 23 understand is that they did not provide us anything before 24 1975 but I don't know the details 25 Q. Mr. Uchino yesterda Mry. Bratt asked you if 26 Kubota ever put warnings on AC pipes sold in the United 27 States and your answer was that they did not Do you 28 know why they didn't put warnings on their pipe HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 773 A. Because we didn't think that the end users of Voss needed to cut our pipes at their work site that was the reason why we didn't provide warnings As I explained to the counsel yesterday we provided many different types of length amongst our products so that they are easy to use and by the users We quarter length provided full length half length As a matter of fact this product is so easy because you don't have to cut them was one of the sales point of our products We really didn't expect the end users to cut our products at their work site Also our thinking was let's just say once in a blue moon if anyone needed to cut these pipes at their work site it would be done outside it's not going to be done inside therefore even if they needed to cut even though it would be very rarely the amount of exposure toward asbestos would be so minimum that we didn't need to warn them That was our reasons Q. Mr. Uchino did Kubota Corporation ever send any technical support to the United States to work with its clients such as East Bay Mud and to trouble shoot any problems that those clients might have with their pipe A. No Kubota Corporation did not provide such support to the end users . Q. Mr. Uchino yesterday Mr. Bratt asked you about some legislation titled the 1960 Pneumoconiosis Act Are you familiar with that act HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Yes Page 774 THE COURT The year again counsel MS GAMBINO I'm sorry it was the 1960 pneumoconiosis THE COURT You said it -- THE WITNESS BY MS GAMBINO Yes I do | Q. And just very briefly can you tell us just generally what that act said A. This act was created mainly through product mine workers who are working in coal mines They were exposed to coal dust in significant way and many of these mine workers were having many lung disease including tuberculosis This act was provided -- providing to protect these mine workers specifically requiring the employers to provide regular physical exams and make sure that mine workers wear appropriate protection gears and so forth Q. Does this act specifically mention any particular mineral dust A. Yes If you look at the detailed attachment portion of the law yes you can see the list Q. And do you remember any of the dusts that are identified A. I remember that asbestos was included Q. Any others that you remember A. I apologize here today I can't remember while I'm sitting HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 775 . Q. All right Mr. Uchino if my understanding is correct this was an act that was intended to protect workers and employees is that correct A. Yes Q. And did Kubota Corporation follow the requirements of this act A. Yes it did Q. And what did it do to follow the requirements A. Kubota Corporation provided dust masks for the workers who were in the working environment where dust were flying in the air to protect them from inhaling these dusts In addition Kubota Corporation made sure that these workers would would get regularly scheduled health examinations In addition to make sure these are going to be permeated throughout the company I believe it was around 1962 Kubota Corporation started to publish a newsletter entitled Safety and Hygiene Monthly Report Using this newsletter Kubota Corporation told its workers and employees the importance of wearing protection gears and also importance of getting regular health examinations Q. Mr. Uchino I'd like to direct your attention to what's been marked for identification as Exhibit 7023 THE COURT Just for your information at quarter to the hour we'll take our break MS GAMBINO BY MS GAMBINO Thank you your Honor Q. Mr. Uchino have you seen this document before HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 . A. Counsel did you say 7023 Q. Yes 7023 A. Yes I have it in front of me Page 776 Q. Okay A. I have the document in front of me and I have seen this before Q. Thank you And that is a page document that's Bate stamped through page four Mr. Uchino can you just briefly tell me what 10 is this document 11 I think it's an ad for a pipe cutter 12 Q. And is there a date on this document 13 A. I'm sorry I couldn't hear you 14 Q. Is there a date on the document 15 A. Yes there is a date on this document 16 Q. And can you tell me what that ias 17 A. The date is February the 3rd 1975. The ad 18 placed on the paper issued February the 3rd 1975 19 MS GAMBINO Your Honor I'd like to offer 20 these documents into evidence 21 THE COURT Very well they're admitted 22 MS GAMBINO Thank you 23 Defendant's Exhibit 7023 was received in evidence 24 25 26 27 28 MS GAMBINO And may I publish them THE COURT Yes MS GAMBINO BY MS GAMBINO Thank you HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIM ON.COM TRIAL - VOLUME 8 Page 777 Q. Mr. Uchino on the first page of this Exhibit 7023 there are it looks like three drawings Do you -- THE COURT Can you turn it THE WITNESS BY MS GAMBINO Yes I see three drawings Q. Do you know what those drawings depict A. May I stand THE COURT Yes BY MS GAMBINO 10 Q. Okay What are they If you could explain to 11 the jury please 12 A. This indicates different types of cutters for 13 cutting your pipes I believe that this is a patented 14 technology held by the U.S. based company called Reed 15 What this is is that the Reed brand cutter was sold in 16 Japan trying to introduce this cutter to the Japanese 17 users basically saying that if you needed to cut AC 18 pipes you can use a cutter like this and recommending 19 you to use a cutter like this by using this ad 20 Q. And Mr. Uchino now I'm going to show you a 21 document it's page -- it's Bate stamped number four in 22 that same exhibit And obviously -- well I'll ask you 23 Is this a document that's in Japanese 24 A. Yes 25 Q. And can you tell me what's depicted in this 26 document in the diagram or the photograph -- drawings 27 Excuse me 28 A. This is also an ad introducing several HG LITIGATION SERVICES HGLITIGATION.COM Kubota 42 April April April 2014 TRIAL - VOLUME 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA . COUNTY OF CONTRA COSTA BEFORE THE HONORABLE LESLIE NICHOLS 9 DEPARTMENT JUDGE PAMELA J. O'BRYAN VS. PLAINTIFF A.H. VOSS COMPANY sued individually and as successor to VOSS INTERNATIONAL CORPORATION et al . DEFENDANTS ) ) ) ) ) ) No. C13-01926 ) ) ) ) ) ) ) VOLUME VIII PAGES 755-889 REPORTER'S TRANSCRIPT OF PROCEEDINGS THURSDAY APRIL 17 2014 REPORTED BY BARRIE HART 36954 reporters.com Donna Blum 11133 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 APPEARANCES ON BEHALF OF THE PLAINTIFF THE LANIER LAW FIRM 2049 CENTURY PARK EAST SUITE 1940 LOS ANGELES CA 90067 BY MARK D. BRATT ESQ mdb@lanierlawfirm.com TREY JONES ESQ CORPORATION ON BEHALF OF VOSS COMPANY KUBOTA CORPORATION VOSS INTERNATIONAL WILSON ELSER 525 MARKET STREET 10 17TH FLOOR SAN FRANCISCO CA 94105 11 BY ROBERT ENGLE ESQ 12 robert.engle@wilsonelser.com 13 MARY ELLEN GAMBINO ESQ 14 ON BEHALF OF WESTBURNE SUPPLY 15 WALSWORTH FRANKLIN BEVINS & MCCALL LLP 601 MONTGOMERY STREET 16 NINTH FLOOR SAN FRANCISCO CA 94111-2612 17 BY LINDA S. VOTAW ESQ 18 lvotaw@wfbm.clvotaow@wfbmm.com 19 PAMELA E. STEVENS ESQ pstevens@wfbm.cpstevoens@wfmbm.com 22 22 ON BEHALF OF CERTAIN TEED MCKENNA LONG & ALDRIDGE 22 ONE MARKET PLAZA 24TH FLOOR SAN FRANCISCO CA 94105 24 BY FRANK K. BERFIELD ESQ fberfield@mckennalong.fcberfieldo@mcken amlong.com 25 MICHELLE C. JACKSON ESQ 26 mjackson@mckennalong.cmjacksoon@mcken amlong.com 27 28 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 DE WITNESS MASAHIKO UCHINO Redirect Examination by MS GAMBINO Recross Examination 776 MR BRATT Redirect Examination by MS GAMBINO PAGE 760 780 804 10 Deposition of Leon Horowitz 11 12 EXHIBITS 13 822 847 14 Exhibit No. Exhibit Description Offered Admitted 15 372 Exhibit Horowitz 878 16 377 Exhibit Horowitz 878 17 391 Exhibit Horowitz 878 18 392 Exhibit Horowitz 878 19 393 Exhibit Horowitz 878 20 394 Exhibit Horowitz 878 21 396 Exhibit Horowitz 878 22 412 Exhibit Horowitz 878 23 503 Excerpt annual report 804 24 7019 25 7021 26 7023 ACP export shipment Photo last day production Reed pipe cutter ad 762 768 776 27 28 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 THURSDAY APRIL 17 2014 --000-- Page 758 9:30 A.M. THE COURT Good morning Nice to see you We're all together Come to order now We're going to continue with the examination conducted by Ms. Gambino but I wanted to touch base with you on the schedule and make sure everybody feels comfortable here Of course you've committed to service up to and 10 including May 16th and if jury deliberations were 11 continuing as much longer as was necessary to complete 12 those discussions But consistent with my experience 13 we're right on track here and I think it will be 14 concluded earlier that's always my hope but we don't 15 rush people just have full days 16 It's the expectation announced by plaintiff's 17 counsel that their case in chief that's the main case 18 and they rest subject to any rebuttal if necessary at 19 the end of the defense presentation will be concluded by 20 next Wednesday -- the end of the day on next Wednesday 21 And then if that's the case no harm no foul or if it 22 goes a little longer But we've been going through the 23 witnesses and so forth and that's the expectation 24 Then we would be in session on the following 25 day Thursday and Friday And it's the week after that 26 the week after that we'll certainly be together where we 27 will not be in session on Monday the 28th and Tuesday the 28 29th I have a case I've got to drive down to Modesto on HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 _ and complete preparation for that Page 759 Then we'll be in session on the 30th the 1st and the 2nd Wednesday Thursday and Friday and probably the whole week following May 5th But I have reason to hope that we won't be in session all week on the 12th One other housekeeping issue I told counsel that and they certainly agreed that I want them to bring in by tomorrow morning all of the originals and copies of those jury questionnaires that people filled out and 10 we'll get them to affirm here in court They'll be 11 presented to our clerk for shredding 12 We told you that that would be confidential 13 information and we'll make sure we do that and we keep 14 track of those things and don't forget them 15 So I think without further ado we will 16 continue with the examination 17 It's examination but you understand that 18 this is all being conducted now so our witness can go back 19 to Japan rather than have Ms. Gambino call him later 20 You may continue 21 MS GAMBINO Thank you your Honor Good 22 morning 23 MASAHIKO UCHINO 24 Called as a witness on behalf of the Plaintiff 25 and after being previously duly sworn to tell the truth 26 the whole truth and nothing but the truth testified as is 27 hereinafter set forth 28 //// HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 _ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BY MS GAMBINO REDIRECT EXAMINATION Page 760 Q. Good morning Mr. Uchino MS GAMBINO Before I start asking Mr. Uchino questions I'd like to direct the Court and counsel to Exhibit 7017 which was admitted THE COURT Yes into | evidence yesterday MS GAMBINO to read from the -- And on page seven I would like THE COURT And just to refresh our recollection this is the document that has Voss and Kubota Asbestos Cement Pressure Pipe and the witness testified about that document and you may refer to it MS GAMBINO And at the top of the page I'd like to read the first caption there THE COURT And that's which page again MS GAMBINO I'm sorry it's page seven Bate stamp seven THE MS COURT Thank you GAMBINO Voss yards are equipped for cutting short sections and green machine ends to accept Voss K A couplings BY MS GAMBINO Q. Okay Mr. Uchino would you please look at the exhibit that's marked for identification as 7019 A. Yes Q. And have you seen this document before A. Yes I have HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 761 Q. Is this one of the documents that you located when you were researching the history of the Kubota asbestos cement plant company Asbestos cement manufacturing plant A. Yes that's correct Q. And do you know who prepared this document A. Yes I know who prepared this document Q. And who was that A. It was prepared by a person named Nakao N Although I can't remember exactly what it was referring to but I believe he was with the department called Overseas Support Department Q. document And do you know when Mr. Nakao prepared this | A. Yes Q. And when was that A. Yes he prepared it in September 1980 Q. Do you know if Mr. Nakao is still alive A. No I don't THE COURT I'm sorry I'll ask our interpreter You just said the year this was prepared what year was that THE THE INTERPRETER COURT Thank September you 19 1980 BY MS GAMBINO Q. Do you know how to get into contact with Mr. Nakao -- or strike that Have you tried to get into contact with Mr. HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nakao Page 762 A. Q. correct Yes I have tried And you were unable to locate him is that A. That's correct Q. Did you find this document with other business records that are maintained by the Kubota Corporation A. Yes MS GAMBINO Your Honor I would like to offer this document into evidence I'm sorry Actually before I do that- BY MS GAMBINO Q. Mr. Uchino could you please briefly describe to us what this document is A. This is a line graph reflecting the total amount of asbestos cement pipes exported to the United States in a community manner from 1962 to 1975 MS GAMBINO Your Honor I'd like to offer this exhibit into evidence please THE COURT Yes that's admitted MS GAMBINO Thank you Defendant's Exhibit 7019 was received in evidence THE COURT It's one of the few cases I can refer to the recitals and ancient writings exception to the hearsay rule 1331 of the Evidence Code MS GAMBINO And may I publish it please THE COURT Yes HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MS GAMBINO BY MS GAMBINO Thank you Page 763 Q. Mr. Uchino do you know what Kubota's share of the asbestos cement pipe market was in 1972 MR BRATT Lacks foundation Calls for speculation your Honor THE COURT Ask him to lay a foundation BY MS Objection sustained as to form MS GAMBINO I'll ask a different question GAMBINO Q. Mr. Uchino could you please read the years that are referred to on this document Exhibit 7019 and the first page of that document. A. The first year reflected is 1962 2 document And is there a last year mentioned on that A. 1975 Q. And Mr. Uchino I'm putting the first page it looks to me like a graph up on the screen Yes Q. I think we've got most of the graph up there Mr. Uchino can you read from this graph how much AC pipe Kubota sold in the United States after 1972 THE WITNESS Your Honor may I stand up THE COURT Yes you may THE WITNESS 1972 is right there and the Japanese fiscal follow '72 and year begins in April at the month of April So on if you please that is where HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 764 the flat part of the graph starts So from this graph you can tell that starting April 1972 on there was next to none amount exported to the United States from us BY MS GAMBINO Q. All right And now Mr. Uchino I'm going to put up a second page of that Exhibit 7019 Can you tell me what dates are indicated on that chart A. This chart reflects two numbers One number reflected in this chart is a total tonage of AC pipes exported between 1962 and 1975 Second number reflected in this chart is Yen based total amount associated with AC pipes being exported between 1962 and 1975 Q. And Mr. Uchino can you tell from this chart -- does this chart indicate what the total tonage was for the export of Kubota asbestos cement pipe to the United States in 1970 A. Did you say 1970 Q. Yes 1970 A. Again your question was what was the total amount or total tonage sold to the United States in 1970 Q. That's correct A. Oh yes I can see that yes Q. Okay And can you tell me what that number is A. Let me show you in 1970. First half the total tonage sold is 9,126 tons according to Also same thing 1970 second half the this chart total amount 9176 sold is 7,974 tons HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 765 Q. Okay Mr. Uchino can you -- can I ask you the same question regarding 1971. What was the total amount of AC pipe that was sold that went to the THE INTERPERTER He is saying United States '76 '76 '76 THE WITNESS Yes the first half of 1971 the total amount sold was 8,568 tons The second half of 1971 the total amount BY MS GAMBINO sold was 10,922 tons | Q. Okay And was there -- does the chart indicate what was sold in the first half tons THE COURT Didn't he just say that 8,568 ; MS GAMBINO BY MS GAMBINO Thank you . Q. And I'd like to ask the same question for 1972 Can you tell me what the total tonage was of asbestos cement pipe sold to the United States A. The first half of 1972 the total amount sold was 2,241 tons Second half of 172 the total amount sold was 5,547 tons Q. Mr. Uchino I noticed that you were struggling a little bit to answer those questions and I realize does the Japanese system of dates does it differ from what we use in the United States A. That is correct Q. Okay And so if you look at what is on this chart I believe the second column we see a series of numbers starting with '60 '61 '62 163. Can you tell me HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM TRIAL - VOLUME 8 what those numbers refer to Page 766 A. years These numbers indicate our corporate fiscal Q. And is that according to the Japanese system or the system that we use in the United States A. It was according to the Japanese accounting system Q. So if we look on the chart at -- down at the very bottom of that first column ; and if you refer to the 10 date that says October looks like October '86 is there a 11 counterpart in -- under the U.S. system of what year that 12 would be 13 THE COURT Ms. Watanabe I've handed you a 14 note Would you please quietly pass it to each attorney 15 who might read it to themselves and then return it to the 16 clerk 17 Please continue 18 THE WITNESS I don't believe there is a 19 difference between the Japanese and American accounting 20 systems This is Kubota's accounting system reflecting 21 calendar or fiscal years For example this number 60 has 22 nothing to do with the United States 23 If you're referring to the number next to it 24 however yes it is Japanese specific For example you 25 are going to see the number 475210 47 stands for Showa 26 w 47. Showa 47 indicates the 47th year of Showa 27 emperor Each emperor has a very unique year name after 28 he came to assume his duty So Showa 47 equal to 1972 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Consequently 475210 indicates May BY MS GAMBINO to October .1972 Page 767 Q. Let me ask see if I can ask one more question and try to clarify this Can you show the jury on the chart which line refers to 1975 in American -- according to the American system A. 1972 is this line MS GAMBINO I'm sorry madam interpreter was 10 that 1972 or 1975 11 THE WITNESS '75 12 MS GAMBINO Okay Thank you 13 BY MS GAMBINO 14 Q. Thank you Mr. Uchino I think you're done 15 with that know 16 Mr. Uchino do you when Kubota stopped 17 making asbestos cement pipe all together 18 A. Yes I do 19 Q. And when was that 20 A. November the 2nd 1975 21 Q. And when you were searching the history of the 22 pipe making plant did you come across any records that 23 indicated that that was the closing date 24 A. Yes 25 Q. Okay And what document did you come across 26 A. I found a copy of anniversary booklet prepared 27 by union of the factory and in this anniversary booklet 28 there was a picture entitled November the 2nd Showa 50 HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM TRIAL - VOLUME 8 meaning 1975 the final day of AC pipe production Page 768 . Q. Mr. Uchino would you please look at what we marked for identification as Exhibit 7021 A. Yes Q. Okay referring to And is this the picture that you were A. Yes that's correct Q. And did you find this picture that was on the anniversary booklet with other documents that Kubota 10 maintained other business records 11 A. Yes 12 Q. And can you tell me what the date is of this 13 particular picture here 14 A. It says Showa 50 November the 2nd which means 15 1975 November the 2nd 16 MS GAMBINO Your Honor I'd like to offer 17 this exhibit into evidence 18 THE COURT Yes it is received 19 Defendant's Exhibit 7021 was received in evidence 20 21 22 23 24 25 26 27 28 THE COURT So just clarifying question once again It says S period 50 period 11 period two So the the way of recording it is the 11 is November THE WITNESS Yes THE COURT And the two is the second THE WITNESS Yes THE COURT The only thing that would be unfamiliar to us is that the S 50 means Showa 50 which HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 769 is explained but he can tell us that that means 1975 the way that we record it THE WITNESS That's exactly right THE COURT Thank you Mr. . You may publish it Uchino MS GAMBINO BY MS GAMBINO Yes thank you your Honor Q. Mr. Uchino is this the photograph that we have been talking about A. Yes that's correct Q. And do you know -- do you recognize the location where this photograph was taken A. If you take a look at the caption in this photograph it says S 50 November the 2nd In front of the number six pipe machining device for AC pipes So I can tell this was taken inside of the plant But if you ask me if I ever got inside of the plant no because when I joined the Kubota Corporation the plant was already gone so I never had a chance to walk inside of the plant myself Q. Do you recognize any of the people in this photograph A. No I don't know any of them Q. Okay Thank you A. Some of them look younger than I am Q. Do you know why Kubota closed the plant on November 2nd 1975 A. Yes HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ; Q. And what is the reason Page 770 A. There are three main reasons The first reason is a domestic reason also known as the Japanese national road issues -- issue In Japan most of the water pipes were buried under national road which were faciliated by Ministry of Construction Back then Japan was in industry of growth time It was after World War II ended so Japan was trying to rebuild therefore national roads were expanding and consequently underneath of these roads AC pipes were buried However because the amount of the traffic increased and the weight of each truck increased AC pipes couldn't bear these heavy traffic as well as the amount of -- excuse me weight of the trucks anymore and they started to burst under the national road and that happened quite often As a result Ministry of Construction made a decision that they were no longer using AC pipes quote water supply pipes which were buried underneath of the national roads which was a big problem for AC pipe manufacturers Everybody tried to create stronger AC pipes so that our demand would have continued but we were unable to do so Consequently the demand for the AC pipes in the domestic Japanese market decreased significantly That was the first reason The second reason was the issue of U.S. dollar and the Japanese Yen 1971 the dollar exchange rate Upon December of ratio was fixed A dollar was worth 360 Yen Dollar was very strong compared to Japanese Yen HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 But in December of 1971 the fixed rate was removed Page 771 and changed the variable exchange rate All of a sudden the dollar ratio changed from 360 to 308 and then down to 200 meaning that Japanese against the U.S. dollars Yen became suddenly This was not a good very news strong for Japanese export companies who were trying to sell goods in the United States because all of a sudden we lost our competitive edge by 20 percent or more ITC made On top of a decision that in May of 1972 that if you choose to the U.S. agency export your AC pipes in the United States any Japanese AC pipe manufacturers has to pay dumping duty because ITC decided that Japanese AC pipe manufacturers were pricing their AC pipes much lower than the price of U.S. AC pipe manufacturers therefore we lost our comptetiveness by the strong Japanese Yen phenomena on top of that we have to pay duty due to the decision made by ITC Because of this after May 1972 realistically it was next to impossible for us to export our goods to the United States The third reason was the Japanese government revising the existing law In this law which was revised on September the 30th 1975 the Japanese government suggested a possible connection between asbestos and cancer This was announced on September 30th 1975 and became effective October 1st 1975. We made the decision of closing our AC pipe plant long before this with other reasons but this revision and the position of asbestos HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM . TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 772 could be connected to cancer made our decisions even firmer that this is a business we need to stop So with all these reasons we stopped manufacturing our AC pipes at our plant in November 175 Q. Thank you Mr. Uchino do you know where Kubota obtained the asbestos fibers that it used in its AC pipe A. Yes I do Q. Okay And where was that | And do you know THE COURT Excuse me she needs to tell us the answer MS GAMBINO - Thank you THE WITNESS We purchased our asbestos fibers by Johns Manville through a trading company called Tokyo Kogyo Boeki Shokai Tokyo y Kogyo y Boeki e Shokai i BY MS GAMBINO Q. Thank you Do you know if Johns Manville ever provided any warnings to Kubota Corporation when it was providing this fiber for the AC pipe A. No I don't At least -- at least what I understand is that they did not provide us anything before 1975 but I don't know the details Q. Mr. Uchino yesterda Mry. Bratt asked you if Kubota ever put warnings on AC pipes sold in the United States and your answer was that they did not Do you know why they didn't put warnings on their pipe HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 773 A. Because we didn't think that the end users of Voss needed to cut our pipes at their work site that was the reason why we didn't provide warnings As I explained to the counsel yesterday we provided many different types of length amongst our products so that they are easy to use and by the users We quarter length provided full length half length As a matter of fact this product is so easy because you don't have to cut them was one of the sales point of our products We really didn't expect the end users to cut our products at their work site Also our thinking was let's just say once in a blue moon if anyone needed to cut these pipes at their work site it would be done outside it's not going to be done inside therefore even if they needed to cut even though it would be very rarely the amount of exposure toward asbestos would be so minimum that we didn't need to warn them That was our reasons Q. Mr. Uchino did Kubota Corporation ever send any technical support to the United States to work with its clients such as East Bay Mud and to trouble shoot any problems that those clients might have with their pipe A. No Kubota Corporation did not provide such support to the end users Q. Mr. Uchino yesterday Mr. Bratt asked you about some legislation titled the 1960 Pneumoconiosis Act Are you familiar with that act HG LITIGATION SERVICES HGLITIGATION.CHGLIOTIGATIMON.COM TRIAL VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Yes Page 774 THE COURT The year again counsel MS GAMBINO I'm sorry it was the 1960 pneumoconiosis THE COURT You said it -- THE WITNESS BY MS GAMBINO Yes I do . Q. generally And just very briefly what that act said can you tell us just A. This act was created mainly through product mine workers who are working in coal mines They were exposed to coal dust in significant way and many of these mine workers were having many lung disease including tuberculosis This act was provided -- providing to protect these mine workers specifically requiring the employers to provide regular physical exams and make sure that mine workers wear appropriate protection gears and so forth Q. Does this act specifically mention any particular mineral dust A. Yes If you look at the detailed attachment portion of the law yes you can see the list Q. And do you remember any of the dusts that are identified A. I remember that asbestos was included Q. Any others that you remember A. I apologize here today I can't remember while I'm sitting HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 775 Q. All right Mr. Uchino if my understanding is correct this was an act that was intended to protect workers and employees is that correct A. Yes Q. And did Kubota Corporation follow the requirements of this act A. Yes it did Q. And what did it do to follow the requirements A. Kubota Corporation provided dust masks for the workers who were in the working environment where dust were flying in the air to these dusts In addition protect them from inhaling Kubota Corporation made sure that these workers would would get regularly scheduled health examinations In addition to make sure these are going to be permeated throughout the company I believe it was around 1962 Kubota Corporation started to publish a newsletter entitled Safety and Hygiene Monthly Report Using this newsletter Kubota Corporation told its workers and employees the importance of wearing protection gears and also importance of getting regular health examinations Q. Mr. Uchino I'd like to direct your attention to what's been marked for identification as Exhibit 7023 THE COURT Just for your information at quarter to the hour we'll take our break MS GAMBINO BY MS GAMBINO Thank you your Honor Q. Mr. Uchino have you seen this document before HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Counsel did you say 7023 Page 776 Q. Yes 7023 A. Yes I have it in front of me Q. Okay A. I have the document in front of me and I have seen this before Q. Thank you And that is a page that's Bate stamped through page four document Mr. Uchino can you just briefly tell me what is this document A. I think it's an ad for a pipe cutter Q. And is there a date on this document A. I'm sorry I couldn't hear you Q. Is there a date on the document A. Yes there is a date on this document Q. And can you tell me what that ias A. The date is February the 3rd 1975. The ad placed on the paper issued February the 3rd 1975 MS GAMBINO Your Honor these documents into evidence I'd like to offer THE COURT Very well they're admitted MS GAMBINO Thank you Defendant's Exhibit 7023 was received in evidence MS THE GAMBINO And COURT Yes mayI publish them MS GAMBINO BY MS GAMBINO Thank you HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 777 Q. Mr. Uchino on the first page of this Exhibit 7023 there are it looks like three drawings Do you -- THE COURT Can you turn it THE WITNESS BY MS GAMBINO Yes I see three drawings Q. Do you know what those drawings depict A. May I stand THE COURT Yes BY MS GAMBINO Q. Okay What are they If you could explain to the jury please . A. This indicates different types of cutters for cutting your pipes I believe that this is a patented technology held by the U.S. based company called Reed What this is is that the Reed brand cutter was sold in Japan trying to introduce this cutter to the Japanese users basically saying that if you needed to cut AC pipes you can use a cutter like this and recommending you to use a cutter like this by using this ad Q. And Mr. Uchino now I'm going to show you a document it's page -- it's Bate stamped number four in that same exhibit And obviously -- well I'll ask you Is this a document that's in Japanese A. Yes Q. And can you tell me what's depicted in this document in the diagram or the photograph -- drawings , Excuse me A. This is also an ad introducing several HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 different types of pipe cutters From the left the Page 778 rotary style cutter is ideal for cutting cast iron pipes step pipe and so forth while the middle one titled hinge cutter is ideal for cutting cast iron pipes and others And the very right one which is called Reed ACC cutter is ideal for cutting AC pipes That is the summary of this ad Q. Mr. Uchino the drawing that's for ACC slash PCC pipes I'm sorry that a power tool PVC pipes can you tell me is A. No it's not a power cutter Q. Are these all hand tools that are depicted in this exhibit A. They are all hand tools At least back then in Japan if you must cut cutters verbatim at work site everything was done manually and these tools were used THE COURT We'll take our recess 15 minutes MS GAMBINO I only have two questions I guess it doesn't matter THE COURT Did you want to just finish up MS GAMBINO If I may THE COURT We'll finish up one of the questions on this exhibit and that's fine BY MS GAMBINO Q. Mr. Uchino do you know if any of the agencies that visited Kubota from the United States or that used the Kubota pipe in the United States ever advised Kubota of any health hazards resulting from working with the AC HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pipe Page 779 A. Yes I do And no that didn't happen at all Q. And in your capacity as manager of the Legal Department at Kubota have you become familiar with the Japanese laws and regulations related to asbestos A. Yes As the head of the Legal Department I . became very aware of Japanese laws and regulations concerning asbestos very well Q. Do you know if the use of asbestos in products in the manufacture of products has ever been banned in Japan A. Yes I know what happened in Japan for Q. the And use in can you tell me the manufacture when asbestos of products was banned A. We went through three different phases In 1995 the blue asbestos also known as crocidolite and the brown asbestos these two were banned In 2004 all of the construction materials containing asbestos including roofing and siding materials were banned In 2006 all of the products containing asbestos were banned except for very small amount of exceptions THE COURT Okay I think I just have to recess now MS GAMBINO . Thank you your Honor THE COURT We'll takea recess until five minutes after the hour And do not discuss the case or form or express any opinions We'll take our recess Thank you HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 22 28 Whereupon the jury enters the Page 780 courtroom THE COURT Ms. Gambino I think you made it clear that that happened to be your last question MS GAMBINO Yes questions for Mr. Uchino your Honor . I have no more Thank you Mr. Uchino THE COURT I think I heard from other defendants that you have no other questions MS VOTAW No questions your Honor MR BERFIELD No questions MR BRATT I started the day with a few questions and now I have a baker's dozen a few little areas I want to cover at the end --- Okay RECROSS EXAMINATION UNDER 776 BY MR BRATT Q. Mr. Uchino you've been testifying both when I asked questions and when counsel has asked questions about Kubota's manufacturer of asbestos cement pipe the decision that Kubota made to not warn and that Kubota workers were getting sick with mesothelioma But my first question I want to clarify is you have no expertise with asbestos Is that true sir MS GAMBINO Objection Overbroad THE COURT Sustained Just make it more precise BY MR BRATT Q. You've never been specially trained in asbestos HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sir Is that true Page 781 | That's correct Q. You're not a doctor Is that true sir Correct I'm not a physician Q. You're not the person within the company that's responsible to treat Kubota employees that have had asbestos diseases Is that true MS THE GAMBINO Objection Lacks foundation COURT Sustained but I think he's made clear he's a lay person in these areas BY MR BRATT Q. Sir you're not trained industrial hygienist Is that true A. No I'm not an industrial hygienist Q. And so you're not the person within Kubota that is responsible for making sure that employees are safe Is that true A. safe I'm sorry what do you mean by employees being Q. You're not the person within Kubota that has responsibility to make sure that employees are safe from hazardous dust like asbestos True A. True I do not have a responsibility Q. You've worked for many years in Kubota's legal department to help keep Kubota out of legal trouble Is that correct THE MS COURT It's argumentative GAMBINO Objection Argumentative Thank HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 you THE COURT continue BY MR BRATT He's described his duties Page 782 You may Q. You've worked for many years in Kubota's legal department Isn't that true A. Yes it's true THE COURT When I sustain the objection it means just disregard the question and just move on to the next one And when I overrule an objection it's not a comment on the evidence either We just get the answer BY MR BRATT Q. Now Mr. Uchino in your entire life's history you have never worked in the field with your hands installing pipe Is that correct A. That is true I've never done that before Q. And you've never installed any asbestos pipe Is that true A. That's correct Q. And you've never been trained on how to properly install pipe Is that true A. before Correct I never received a training like that Q. And you're not a trained civil engineer who would make any decisions on how to design or install underground water and sewer piping Is that true A. That's correct Q. You've been trained in law Correct HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE INTERPRETER have not BY MR BRATT . Page 783 Did you say been trained or Q. A. laws You have been trained in law Is that correct Yes I have trained with regards to Japanese Q. I want to refer your attention to an exhibit that's been entered into evidence you on the screen 7023 and it's behind Are you familiar with this document A. I have seen this before Now in America we like power tools THE COURT Just ask a question BY MR BRATT Q. Did -- did you ever or did Kubota ever send this advertisement or this piece of paper to anyone that was buying the pipe the asbestos pipe in America A. I can't be for sure because I don't know the details but I don't believe so THE COURT This is just a cautionary note H . don't want to interrupt but when counsel said we in America like power tools that's not a question You'll ask the next question MR BRATT Thank you your Honor THE COURT BY MR BRATT You're certainly welcome Q. Now you admitted when you were answering questions when Ms. Gambino was asking the questions that HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kubota understood that may be rare but that pipe Page 784 would be cut Is that true A. No I do not admit it but at the same time I cannot say never because there is some possibility out there that I cannot deny But what I wanted to convey to her was that we didn't think about a situation where the workers would cut our pipes at work site Again if you say are you certain the possibility is zero the way I did I can't say zero That's why I said Q. What did Kubota do to find that information out MS GAMBINO Objection Vague THE COURT Just ask him if Kubota -- MR BRATT I'm sorry your Honor THE COURT I'm saying you may ask him if Kubota made special inquiry or if they did something BY MR BRATT Q. Did Kubota do anything in particular to find out what workers were doing with pipe on the field A. We did not conduct any specific researches concerning how the workers working in United States during the time we were the field exporting in the our AC pipes up to 1975 Q. And that's because Kubota never sent any technical support to the US to work with the people buying the pipe over here Correct vague MS GAMBINO Objection Argumentative and HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE COURT questions BY MR BRATT Sustained Those are two Page 785 separate Q. Did Kubota ever send any technical support any person from Kubota over to the United States to observe any work that was being done with its pipe A. I remember there was somebody from Kubota Corporation went to visit Voss between the time when we were exporting our AC pipes up to 1975 But counsel there is something I need you to remember We were talking about 1950s 1960s It wasn't too long ago when World War II finally was over and Japan was basically destroyed We were on our way to moving back to where we were But we were poor and when you are poor getting a foreign currency was very difficult But without getting foreign currency you were unable to go overseas Back then going to the United States wasn't this easy It was extremely difficult thing to do Please remember that but somehow someone from Kubota was lucky enough to be able to visit Voss but whether or not he made an additional trip to visit somewhere else after Voss's office I don't know MR BRATT Your Honor move to strike responsive portions THE COURT MR BRATT Request granted You may proceed Thank you your Honor Q. Is it true that you have documentation showing that Kubota not was seen any visiting job sites HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 where the pipe was being installed in America Page 786 THE INTERPRETER I'm sorry that question for me please could you repeat MR BRATT Sure Q. Is it true that you've seen no Kubota documents that would indicate that Kubota was sending technical support to observe pipe being installed in America A. It's true Q. In the manufacturing process is it also true that the pipe would be cut by Kubota A. Yes yes that is true Majority of the time pipes were cut by Kubota Q. And it was cut with a power saw Is that true A. No it wasn't the power saw We were manufacturing them So when you are manufacturing pipes you really don't need to cut them that often So the frequency was small to begin with And if we needed to cut them it was done manually Q. How do you know that A. told me Because people who were engaging in that work | Q. Kubota didn't use this to put in the manufacturing plant did it Right behind you sir A. No we don't because this was designed for the workers to use at work sites Not manufacturing plant- Q. You used power saws at the manufacturing plant Right HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MS GAMBINO Objection Argumentative question has been asked and answered Page 787 That THE COURT BY MR BRATT You may ask that question again Q. You didn't use the manual saw that we just showed you Kubota used power saws Isn't that true A. No. Q. But you've got no documents that you can show this jury to support that Is that true A. Correct I do not have any evidence that I can show the jury to support my statement Q. Thank you Sir if pipe was being installed in the field and it came to a point in the road where it had to turn and the space between where it had to turn and where the last pipe ended was different than the sizes of the Kubota pipe -- So I'm going to put this in front of you and . this may help THE COURT Just one second You put something on the board to try to illustrate a question Correct MR BRATT Yes I drew this THE COURT has an objection Excuse me let's find out if defense MS GAMBINO I'm sorry your Honor the question read back May I have MR BRATT THE COURT I was leading my question Let me pause and explain Counsel HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is going to ask a the board that is new not questio Hen 's in evidence but Page 788 placed something on to illustrate his question and to help get an answer If you can answer yes or no fine If it requires elaboration feel free to do so But the general caution is to focus on the question and respond only fairly to the question follow up she can If Ms. Gambino wants to Okay BY MR BRATT That's the procedure Thank you Q. Sir if pipe was being installed and the area between where the pipe ended and where it needed to turn if that was not 13 feet if that was not six foot six feet and if that was not three foot three feet is that the situation that Kubota understood that pipe would be cut in the field by workers MS GAMBINO Objection Improper hypothetical THE COURT I'll let you -- through the interpretive process it's a follow up You may go ahead challenge but I'll you may answer let you | THE WITNESS May I stand THE COURT Of course THE WITNESS First of all you only listed three length but there were quite a few more available 3.3 4 5 6.6 8 10 13 to name a few And in the actual field what is normally done is depicted here You know the distance not the way even before you came to this close and you measure it so that you would HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 26 27 28 put smaller one a little shorter one Page 789 a little longer one so that without cutting the actual pipe you can actually reach from one end to the very end That's the normal procedure And also 13 feet for example is not exactly 13 feet There was some tolerance So you could play with different length to make sure that they will fit in the length that you needed to fill However even if you play with all these different length from the different starting point the a different end we were thinking however there might be a very minor situation where none of these playing around would work That's what I meant by I cannot say zero possibility BY MR BRATT Q. And Kubota doesn't have any evidence today a document or anything to show that it went and observed the companies that were installing the America to see if that's how they were Kubota pipe in doing things True MS GAMBINO Objection Asked and answered THE COURT Yes he's answered that two or three times counsel Sustained MR BRATT Thank you your Honor Q. Sir you indicated that in response to a question from Ms. Gambino that when it was cut in the field that the -- that Kubota expected the exposure to be minimal Do you remember that testimony HG LITIGATION SERVICES HGLITIGATION.CHGLIOTIGATIMON.COM TRIAL - VOLUME 8 A. Yes I remember that Page 790 Q. Kubota never did any tests to determine how much exposure would be released when it was cut Is that true A. Correct Q. Kubota never hired any other company that had expertise in that to determine if you cut asbestos cement pipe how much fiber would be released Is that correct A. That's correct Before we stopped manufacturing 10 and selling of our asbestos cement pipe in 1975 we 11 didn't do that 12 Q. Kubota did hire other companies to certify its 13 pipe so it could sell it Is that true 14 A. I'm sorry I didn't understand your question 15 THE COURT Will you read back the question 16 We'll ask the court reporter to read the 17 question and if it's not understood I'll ask counsel to 18 clarify 19 Record read 20 THE WITNESS We did attach certifications yes 21 BY MR BRATT -- .22 Q. None of those certifications that you talked 23 let me strike that and start over 24 None of the certifications that you talked to 25 the jury about yesterday dealt with any certification 26 about safety and health Is that true 27 A. That's correct there was no item concerning 28 safety or health in the specifications attached to our HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 products Page 791 Q. You also mentioned yesterday that in 1979 Kubota started placing warnings about hazards of asbestos in the manuals of its roofing products Is that true A. Yes but I think I said somewhere around 1979 because I don't recall I didn't recall the exact era Q. Correct But they were in manuals | not on the products A. Correct We didn't apply a warning on the product itself Q. Now I want to move on to the 1960 law about mineral dust Okay A. Yes Q. Kubota provided dust masks to its workers in response to that law to protect them against asbestos Correct A. Yes The company provided dust masks for all of - the workers regardless what they were doing if they are working on the area where mineral dust or flying in the air Q. Kubota never told consumers after 1960 or any time up until '75 when it made asbestos pipe that they should wear A. If a mask you are Is that correct talking about workers who are working on the actual work site no we didn't tell them to wear masks THE COURT His question was about consumers THE WITNESS Your Honor because the product HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Page 792 was asbestos cement pipes the general consumers were not really general -- the general consumers in this capacity was actually construction workers That's what I meant by actual workers working on the construction site But if you'd like to expand it to anybody else under the category of consumer including them we did not provide any warnings that they must -- they should wear masks THE COURT Thank you I don't -- it's not my function to examine- I was just following up on 10 counsel's question related to the word consumer and 11 counsel may ask other questions 12 MR BRATT Thank you your Honor 13 Q. Kubota didn't warn anyone to wear a mask when 14 handling or working with its asbestos cement pipe ever 15 Correct 16 MS GAMBINO Objection Argumentative 17 THE COURT Counsel would you clarify because 18 you did ask a series of questions related to people 19 working at the Kubota facility when you talked about the 20 masks Perhaps I misunderstood your question 21 MR BRATT Well can I have it read back your 22 Honor because I think I said -- all right Let me 23 rephrase 24 THE COURT I think you said Kubota didn't 25 notify anybody and I was just trying to avoid the 26 repetition of one area But please proceed 27 MR BRATT Thank you 28 Q. Kubota never placed a warning on its pipe to HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Page 793 notify anyone who might be around it handling it or working with it at any time Is that correct And this is in regards to wearing a mask to protect against . asbestos A. Although I looked for documents indicating that I was unable to locate any documents reflecting that Q. Kubota manufactured water pipe all the way back to the 1800s Is that true A. Yes I was told it started its manufacturing 10 work in 1893 11 Q. And they made back then ductile iron Is that 12 correct 13 I'll rephrase 14 The water pipe they made back in the 1800s was 15 made of ductile iron Correct 16 MS GAMBINO Objection Lacks foundation 17 THE COURT If he knows he can answer 18 MS GAMBINO Thank you your Honor 19 THE WITNESS To be specific no Because 20 ductile iron is only one type of cast irons which wasn't 21 became available until 1950s But if you are asking me the question if we were using some kind of cast irons 23 yes that's what we were using in 1800 24 BY MR BRATT 25 Q. Does Kubota today make cast iron or any iron 26 type of water pipe 27 A. Yes 28 Q. And throughout the 60s and 70s did Kubota HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 make iron pipe for use in water systems Page 794 A. Yes we did Q. Did Kubota in its whole history of making pipe did they make any other types of pipe other than iron and asbestos for water systems A. Yes Q. What kinds A. We also manufacture polyvinyl chloride pipe also known as PVC pipes as well as polyethylene pipes 10 .Q And what years did Kubota make PVC pipes for use 11 in water systems 12 A. It was around 1954 or 1955 I'm afraid 13 Q. And do they still make PVC today 14 A. Yes but they are made by one of the Kubota 15 subsidiary companies 16 Q. Was PVC pipe made by Kubota or one of its 17 subsidiaries in the 60s and 70s 18 A. Yes 19 Q. Sir yesterday you mentioned that there may have 20 been in Kubota's opinion some problems with the 21 epidemiological studies that were done related to the 22 neighborhood around the Kubota asbestos cement pipe 23 factory 24 Do you recall that testimony 25 A. I remember my saying that yes 26 Q. Kubota acknowledges that both men and people 27 living in the neighborhood of its asbestos cement pipe 28 factory have died of mesothelioma Is that true HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MS GAMBINO asked and answered Objection Page 795 Beyond the scope and exam THE COURT It goes beyond the scope of the We can take this up so you can move on until noon and I'll talk to you informally revisit that if appropriate and perhaps we can MR BRATT Thank you MS GAMBINO Thank you THE COURT You can ask a new question If there's an issue to resolve I'll do it at lunch time MR BRATT THE COURT Okay Because I assume do you have questions that will go after noon MR BRATT Yeah I think now would be a good time to talk about this | THE COURT We'll take a recess now until 1:30 please I'll ask counsel to remain and spend a few moments before I let you go for lunch Thank you very much Whereupon the jury leaves the courtroom MR BRATT Would it be appropriate for the witness to leave the room for the discussion THE COURT That's fine Witness leaves courtroom THE COURT Okay Let me just tell you what I was thinking about and that's why I'm glad to have a discussion on this Ms. Gambino I'm just going to say you can be HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 seated you know Page .796 Objections come and you make your best effort at the time and we'll explore it now at this moment I know that I don't recall when there was an examination earlier that it was put to the witness about epidemiological study as opposed to studies more generally I don't know that we've heard testimony that there were epidemiological studies So that shouldn't be referred to unless we get evidence But I do recall generally his testimony saying that within the -- as I recall it generally when asked about this that within the Kubota Corporation they seemed it's my word not his miffed that it's a factory city he said and it seems all focused on Kubota and there was a lot of places with asbestos and so forth And so I thought that there had been testimony about the -- and acknowledged and not disputed that there was a knowledge of a health consequence associated with asbestos and so forth So when you asked about the admission I didn't know if that would open the door to the litigation or claims that had been touched upon So -- but what was the -- what's the gist of your objection MS GAMBINO Your Honor my only objection was the question asked actually an identical question to what was asked yesterday Yes I think the question was asked that did Kubota acknowledge that there were people around the plant that were getting mesothelioma and he said HG LITIGATION SERVICES HGLITIGATION.C HGLITO IGATIM ON.COM TRIAL - VOLUME 8 Page 797 yes So that was really my very specific objection just . to that particular question If we're going to go into questions about the study I don't have a problem with it THE COURT MR BRATT Okay Your Honor the testimony by the witness essentially took this whole issue related to people around the plant becoming particular and he's reflected it by saying that there's other causes and 10 other people other companies that are at cause It's 11 not Kubota's responsibility at least entirely And in 12 response I intend to inquire of him the fact that Kubota 13 has acknowledged and accepted responsibility related to 14 deaths that have occurred in that neighborhood of both 15 men and women of mesothelioma and it's important because 16 the jury right now has information from him that it wasn't us it was others 18 And -- 19 THE COURT I didn't -- I didn't really draw 20 that I think there could be a variety of contributing 21 causes and I haven't seen the study but I think he was 22 saying -- that wouldn't take away the possibility of that 23 being the substantial cause There could be other 24 contributors 25 MR BRATT I think it's important to inquire 26 with the witness about Kubota's accepting of that 27 responsibility and acknowledgement of the deaths and 28 you know in response to the examination or I'm HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 sorry the direct examination on that subject Page 798 THE COURT Let me just see if you can work this out to your satisfaction It is true that you got into an area when the examining if you open an area a little bit it usually can be more fully explored And so I'm not sure if in response to a brief line of inquiry that he would say yes there were people in the area And I thought he'd said it but we acknowledge that you know we've 10 some responsibility for that and not dance around on it 11 but that would -- and then you wouldn't have to go over 12 all of those other things that he already said about the 13 -- their view of the study 14 MS GAMBINO I think I agree with your Honor 15 I think my objection is very specific to this particular 16 question It was based on a question that was asked 17 identical to one asked yesterday 18 THE COURT Did you ask that yesterday 19 MS GAMBINO No. Mr. Bratt asked it yesterday 20 THE COURT And then the question is if you 21 asked it and got a clear answer it's cumulative 22 MS GAMBINO Exactly 23 MR BRATT I don't believe this is cumulative 24 because it was clarified by counsel and the witness 25 relatetd o the fact that they in fact aren't accepting 26 responsibility for all of the people that have died 27 Where in fact we have admissions by the company that 28 they did And so that's why -- HG LITIGATION SERVICES HGLITIGATION.HGLITGATION.COMCHGLO ITIGATM ION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 799 THE COURT MR BRATT -- All the people have gotten Well we have admissions by the company that at least 248 individuals they're responsible for and that's in the neighborhood And 184 people within the plant And this is in their 2013 annual report MR JONES And if I could just suggest really quick over the break I think we have the daily transcript So what we can do is check and see And my recollection is that this was a follow from Ms. Gambino that elicited the testimony about other factories in the area If that's the case that will let us know if that's an open door situation or not THE COURT Why don't you check it out and be here around 1:30 We'll look at it And it also gets some understanding of how it can be argued Okay Thank you Lunch recess taken HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 800 1:30 P.M. THE COURT Okay I was on a conference call so I'm a few minutes late It's 22 minutes before the hour But when we left there was a question about the extent of the redirect but it's really in the nature of cross MS GAMBINO Your Honor may I just say that in the last couple minutes we were able to resolve our differences and I withdraw the objection THE COURT Very good I'm glad that worked out Thanks Sweet reason for that That's good So let's call the jury in MR BERFIELD We only worked that out because you were late In your imminent wisdom THE COURT MR JONES My experience Your Honor the only other matter is the Ambler issue I don't know if we want to take that up now THE COURT No not now MR JONES We may want to brief that about it THE COURT Before you brief that let's talk It's getting late in the trial I'll talk to you this afternoon Whereupon the jury enters the courtroom THE COURT We're all together ready to continue Now we're going to go forward and we'll ask Mr. Bratt to continue MR BRATT Thank you your Honor Thank you HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 BY MR BRATT Page 801 Q. Mr. Uchino Kubota Corporation has taken responsibility for the deaths of people that lived in the neighborhood around its asbestos cement pipe plant is that correct A. From the viewpoint of a CSR Kubota Corporation paid some money as a compensation money but we did not admit the correlation or relationship between our plant and the deaths matter 10 THE COURT Was the resolved -- were _ 11 those matters resolved then to the satisfaction of the 12 parties Were those matters then resolved to the 13 satisfaction of the parties if he knows Through a 14 settlement or agreement 15 THE WITNESS Yes it's been settled 16 THE COURT Okay Thank you .17 BY MR BRATT Q. And it's true that as of March 31st 2013 19 relief payments had been made to 248 individuals 20 MS GAMBINO Excuse me your Honor 21 Objection We had a motion 22 THE COURT Well confer with each other I 23 was not prepared to make rulings but I think you said you 24 had discussions and whatever you agree to is fine with 25 me 26 This is probably -- if lawyers can work it out 27 I let them work it out 28 Okay Please continue HG LITIGATION SERVICES HGLITIGATION.HGLC ITIGO ATIONM.COM TRIAL - VOLUME 8 BY MR BRATT Page 802 Q. It is true sir that as of March 31st 2013 relief payments had been made by Kubota to 248 individuals pursuant to the internal policy of the relief payment system for the asbestos patients and the family members of the deceased near the former Kanzaki plant is that correct A. I don't know the exact number but it is true that roughly 200 people have been compensated by Kubota 10 Corporation 11 Q. It's true though that Kubota in its annual 12 reports that it provides to its -- its owners the people that own stock in their corporation that it acknowledges 14 248 individuals have died 15 A. Because I don't have a copy of annual report in 16 front of me I cannot really tell you the number you are 17 citing is accurate nor inaccurate 18 THE COURT Let me ask counsel Can this be 19 the subject of an agreement I don't know if you through 20 trial discovery have covered that document 21 MS GAMBINO Yes your Honor It is 22 stipulated 248 people 223 THE COURT That saves the time for proof 24 Counsel the parties agree that's beyond dispute the 25 number is 248 26 MS GAMBINO Your Honor that's 248 in the 27 annual report correct 28 THE COURT Yes That's the answer to the HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 question Is the number 248 in the annual report agree that it is correct Page 803 You Honor MS GAMBINO That correct Thank you your number THE COURT He wasn't denying it MS GAMBINO Right THE COURT He just didn't remember the exact MS GAMBINO Yes your Honor THE COURT Thank you BY MR BRATT Q. And Kubota has also taken responsibility for 184 people as of March 31st 2013 of whom 163 are diseased and 21 are undergoing treatment that were suffering from asbestos diseases that were either employees or former employees is that correct A. If these are the numbers recorded in our annual reports then I don't argue with these numbers MR BRATT Counsel number from the annual report can we stipulate to that MS GAMBINO the annual report Yes that is the number stated in THE COURT All right Thank you That's accepted MR BRATT Your Honor can I mark as Exhibit 503 an excerpt from the 2013 annual report and admit it into evidence THE COURT Show it to counsel HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Any objection Page 804 MS GAMBINO Your Honor I think that if anything is going to be admitted annual report admitted we would want . the entire | THE COURT The entire annual report MS GAMBINO Yes THE COURT You may mark it for identification now and I'll deal with its admissibility later MR BRATT Thank you your Honor 10 MS GAMBINO Thank you 11 Plaintiff's Exhibit 503 was marked for identification) 12 13 THE COURT I think in light of the 14 stipulation it may be not necessary MS GAMBINO Yes I'd like the entire report 16 MR BRATT Thank you sir I have no further . 17 questions 18 THE COURT Thank you 19 Don't leave yet sir There may be a few more 20 questions We'll find out 21 22 23 you Do you have any questions MS GAMBINO I'm sorry All right Thank 24 THE COURT I'm not rushing you I just 25 assumed you might have some 26 MS GAMBINO I'm just trying to get my 27 thoughts together there Thank you 28 REDIRECT EXAMINATION HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 BY MS GAMBINO Page 805 Q. Mr. Uchino there wasa question asked by Mr. Bratt about the consumer of the asbestos cement pipe and I believe there was a little confusion I just wanted to ask you do you consider asbestos cement pipe a consumer product MR BRATT THE COURT Objection your Honor relevance Overruled To the extent there's an objection that calls for a legal conclusion of course 10 the witness is not instructing you on the law I'm the 11 only judge that gets reversed for instructing on the law 12 But he's permitted to answer that question as to what he 13 considered 14 THE WITNESS No I don't consider them as | 15 consumer product 16 BY MS GAMBINO 17 Q. And why is that 18 A. Asbestos cement pipes were used to carry waters 19 for drinking I think it is true both in Japan and United 20 States waters are something taken care of by the 21 government maybe local government or municipal 22 government 23 I really don't think people in the United 24 States is required to buy your own asbestos cement pipes 25 and to bury them in your backyard and to carry the water 26 into your house I really don't think that's the case 27 I think that it's taken care of by the 28 government and the government order these pipe HG LITIGATION SERVICES HGLITIGATION.COM - TRIAL - VOLUME 8 installation works for appropriate contractors | Page 806 That's how usually these asbestos cement pipes were used So I really don't know if there are any situations where one consumer purchases these asbestos cement pipes bury them in your own backyard or anywhere near your house just like you would buy something from a store and bring it to your home I just can't foresee that That's why I don't call asbestos cement pipes as a consumer good 10 Q. Thank you 11 Mr. Uchino Mr. -- counsel Mr. Bratt asked 12 you if asbestos -- the asbestos cement pipe was cut by 13 power saws in the manufacturing plant and you responded 14 that it was not and you said that you had no documents 15 evidencing that but that people that you had talked to 16 who engaged in that work had told you Can you tell me who those people were 18 A. Mr. Junichi Koike who was responsible for 19 manufacturing all asbestos cement pipe at that time told 20 me that 21 MR BRATT Objection your Honor 22 THE COURT Do you have the spelling for the 23 court reporter 24 THE INTERPRETER Yes Junichi n 25 Koike k 26 THE COURT Thank you 27 MR BRATT Go ahead 28 //// HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 BY MS GAMBINO Page 807 Q. Mr. Uchino Mr. Bratt also asked you if any of the certifications that Kubota got for its pipe dealt with any safety and health issues and you said no Would you like to change or correct that . statement A. Yes I'd like to make correction There was no statement with regards to hygiene or health however this certificate did include information about safety 10 For example there was a statement regarding the pressure 11 that the product could bear including water pressure So there were some informations concerning safety in that 13 certification . 14 Q. Mr. Uchino Mr. Bratt asked you about the 15 different materials used by Kubota to make different types 16 of pipe including iron pipe and PVC pipe If Kubota was 17 making these other types using alternative materials why 18 between 1954 and 1975 did Kubota make pipe that had 19 asbestos in it 20 A. At the time which was somewhere around 1954 21 and 1955 we wanted to develop lightweight pipes because 22 cast iron pipes were extremely heavy Having that 23 concept my understanding is that we started to develop 24 asbestos cement pipe in polyvinyl chloride pipes known as 25 PVC pipes at the same time But whatever the reasons may 26 be PVC pipe development wasn't going very well They 27 just could not come up with the PVC pipes which were well 28 received by the market So the development was sort of HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM TRIAL - VOLUME 8 being slowed slowed down Page 808 Meanwhile asbestos cement pipes which started its development at the same time was moving along its development very smoothly And right around 1960 a little before -- a little after the popularity for asbestos cement pipes were extremely high However as I explained to you before it had an issue which was weakness It wasn't durable enough- Once that issue became surfaced the popularity toward 10 asbestos cement pipes became weaker and weaker at least 11 in the Japanese market and eventually the popularity just 12 became very very little to the point we couldn't continue 13 doing it 14 But at the same time the PVC pipe 15 development which was stubborn for a while continued 16 slowly but steadily and actually that was the product 17 which continued to be manufactured even after asbestos 18 cement pipes disappeared from the market 19 Q. Mr. Uchino was asbestos cement pipe more 20 profitable than the other types of pipe 21 MR BRATT Beyond the scope lacks foundation 22 your Honor 23 THE COURT Overruled 24 THE INTERPRETER Counsel did you say 25 profitable 26 MS GAMBINO Profitable Yes Thank you 27 THE WITNESS No it was not profitable at all 28 MS GAMBINO Thank you Mr. Uchino I have no HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 more questions for you Thank you very much Thank you your Honor Page 809 THE COURT MR BRATT Are there any other questions Not from me your Honor Thank you THE COURT Anyone else MR BERFIELD No. THE COURT I propose to excuse the witness is that agreeable 10 MS GAMBINO Yes your Honor 11 THE COURT Sir you are excused as a witness 12 You are free to remain and watch or travel about or go 13 home Whatever you want Thank you sir 14 THE WITNESS Thank you your Honor 15 THE COURT . Thank you sir 16 Will you be reading a deposition 17 MR BRATT We will but before that I wanted 18 to complete a reading on the Kubota interrogatories that I 19 was reading from yesterday 20 THE COURT Fine Just refresh our 21 recollection concerning the date 22 MR BRATT Yes 23 THE COURT And my prefatory comment would be 24 is it correct that -- were these interrogatories in 25 connection with this proceeding 26 MR BRATT These interrogatories were in 27 connection with a prior proceeding 28 THE COURT The complex litigation HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 MR BRATT Yes Page 810 THE COURT Okay Yesterday there was a reading from written interrogatories which were propounded or sent to Kubota in connection with the matter And it was read from yesterday and you may read from it again MR BRATT Thank you your Honor And I read from yesterday it was the Defendant Kubota Corporation's Amended Responses to General Order 129 Interrogatories to Defendants from In Re Complex Asbestos Litigation And 10 they were signed on July 27th 1998 but they were 11 verified by Takashi Aramori ph who is the manager of 12 the international legal section of Kubota Corporation on 13 July 22nd 1998 in Osaka Japan 14 THE COURT Verification is the process of a 15 personal attestation under penalty of perjury that the 16 information is true and correct to the best of the 17 person's knowledge 18 MR BRATT And I had read Interrogatory Number 19 30 which dealt with whether or not they engaged in 20 particular containing product business 21 activities I will now read from 31 and it says -- 23 MS GAMBINO Excuse me Can you give us one | 24 second 25 MR BRATT Sure 26 Interrogatory 31 If your answer 27 to any subparts of Interrogatory 30 28 regarding containing products HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIM ON.COM TRIAL - VOLUME 8 Page 811 is in the affirmative then state Ar the trade brand name and generic name of such containing product marketed in any form or quantity between 1930 and 1985. And the answer given was Kubota asbestos cement pressure pipe B the dates such containing product was first 10 placed on the market including the 11 dates each such containing 12 product was first marketed either 1 13 on an experimental basis 2 on a test 14 basis or 3 for sale 15 The answer under B August 1954 in Japan 16 C the dates such 17 containing products ceased to 18 be produced or 2 was recalled from 19 the market if ever 20 C Number 1 1975 and 2 not 21 applicable 22 D a description of the chemical 23 composition of each containing 24 product including the type and grade of 25 asbestos and asbestos fiber contained in 26 each such product and the quantitative 27 percentage of asbestos or asbestos fiber in 28 each such product and all asbestos HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 later components of the containing Page 812 product and if the chemical composition changed over time the inclusive dates of each formulation Answer to D Chemical composition PortLand cement silica and asbestos Type of asbestos fiber crocidolite and chrysotile Grade of asbestos fiber 4X Upon information and belief 4M 4T and 5D | 5R may have also been used And percentage of asbestos 18 percent E a description of the physical appearance and nature of each such containing product including any color coating distinctive marking and logo either on the product or on the packaging E color was grey Texture slightly bumpy with a feel similar to plasterboard Form asbestos cement pipe Physical appearance and nature pipe size 4 inch size 6 inch size 8 inch size 10 inch and size 12 inch in diameter Color coating grey Marking see a later response see Response Number 38. And I'll read that Type of asbestos fiber HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 crocidolite and chrysotile Page 813 Grade of asbestos fiber 4X 4M 4T and 5D Upon information and belief 5R may have also been used Intended use or function drainage drinking water supply and Type of work site under the sidewalk in a residential area F a detailed description of the intended use of such 10 containing product including 11 any temperature limits for each such 12 use 13 F asbestos cement pressure pipe 14 for conveying liquids 15 G whether any such 16 containing product was on the 17 U.S. Government's qualified products 18 list and if so the inclusive dates 19 it was on such list 20 G unknown 21 H the name and address of the 22 supplier of raw asbestos used in each 23 such product and the time period of 24 such supply 25 H Japanese Trading Company 26 Example Tokyo Kogyho Boyeki Shokai 27 Limited 28 I'll provide the spelling It's Tokyo HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM TRIAL - VOLUME 8 y Kogyho y Page 814 Boyeki y i Shokai h And then Limited The time period 1954 to 1975 And I whether any of this defendant's raw asbestos or containing products have at any time been sold shipped or otherwise distributed to any company including power company or utility 10 governmental agency or entity 11 shipyard distributor refinery 12 contractor supplier manufacturer 13 premise owner or occupant ship owner 14 or other premise or site in the 15 geographic area 16 If so state 1 the names of each 17 such company governmental agency or 18 entity shipyard distributor 19 supplier manufacturer refinery 20 contractor premise owner or occupant 21 ship owner premise or site 2 the 22 inclusive dates of each such sale 23 shipment distribution use or 24 installation and the amount volume 25 and the trade or brand name of each 26 such containing product sold 27 and 3 whether you have any records 28 indicating any such sale shipment HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 distribution use or installation Page 815 and if so the name address and job classification of each such person who currently has possession of such records I answer Voss International corporation in parentheses a distributor 2 under I unknown And for 3 under I Kubota currently does not possess any such 10 records 11 J either ,. attach all documents 12 evidencing the information sought in this 13 interrogatory and in subparts to your 14 answers to these interrogatories or 2 15 attach discs containing such data or 3 16 describe such documents with sufficient 17 particularity that they may be -- they 18 may be made the subject of a request for 19 production of documents 20 J the answer is unknown 21 Your Honor I will now read Interrogatory 22 Number 38 23 MS GAMBINO Excuse me Your Honor we'd 24 would request that the entire response be read 25 THE COURT Yes please do that I think that 26 request can be accommodated on the rule of completeness 27 MS GAMBINO Thank you 28 THE COURT Is that on the previous HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIM ON.COM TRIAL - VOLUME 8 interrogatory MS GAMBINO Yes the section A. Page 816 | THE COURT full response Yes if you would just read the MR BRATT There's another paragraph here One second THE COURT While you're looking at that This is a common sense rule in the Evidence Code called the rule of completeness that if some part of it is read 10 then the whole can be read And rather than having it 11 read later I'm just asking counsel to read the whole response now 13 MR BRATT Okay There's another paragraph 14 under J your Honor -- or after J I should say So the 15 answer to J which I'll read J. It's attaching the 16 documents 17 THE COURT Thank you 18 MR BRATT J was unknown 19 The next paragraph reads In preparing 20 the response to this interrogatory 21 Kubota searched for the information in its 22 document warehouse Additionally Kubota 23 contacted employees who have retired from 24 employment with Kubota and gathered 25 information from these individuals The 26 efforts Kubota made in order to obtain the 27 requested information was testified to in 28 deposition of Mr. Takashi Aramori person HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 817 most knowledgeable and custodian of records for Kubota on September 30th 1996 under the captioned Willy F. Bacon v Apex Corporation et al matter San Francisco Superior Court Case Number 973070. Number 38 Okay I'll make sure here your Honor is the next one Interrogatory With respect to each of your containing products state whether this defendant's name trademark logos color coating or other identifying markings ever appeared on the actual product itself If so identify each such product state when the practice to place such identifying markings upon the product was begun and when it ended if applicable and describe in detail the pertinent markings and the purpose if any of such markings Response Yes Product asbestos cement pressure pipe Dates of practice the marking in principle consisted of the following markings on the pipe subject to the business practice The first Size Size 4 inch 6 inch 8 inch 10 inch 12 inch in diameter Class pressure Brand Voss superimposed on a triangle with rounded HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 53 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 818 corners and underlined with Kubota written beneath the triangle Country of origin made in Japan Manufacturing date 1960 to 1975. And specification for example C400-64T Purpose of marking identification of product And lastly your Honor Interrogatory Number At any time between 1930 and 1985 did you import export ship tranship or otherwise transport raw asbestos or containing products into out of or through any port in the geographic area If so for each occasion A identify and describe the nature and amount of raw asbestos and containing products B identify the ship or ships including the owners and operators thereof onto or from which the raw asbestos and containing products were loaded unloaded or transshipped C state the dates port and pier involved for each occasion D either 1 attach all documents evidencing the information sought in this interrogatory and its subparts to your answer to these interrogatories or 2 HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM - TRIAL - VOLUME 8 Page 819 attach discs containing such data or 3 describe such documents with a sufficient particularity that they may be made the subject of a request for production of documents Response to Interrogatory Number 53 When export of Kubota asbestos cement pipes to the United States began in 1960 Kubota sold the pipe to Asahi Bussan that's 10 A n in parentheses a 11 trading firm who then sold it to Voss 12 International Corporation 2302 East Carson 13 Street Long Beach California 90801 14 In 1967 a different trading firm was ' 15 appointed and Kubota began selling it's pipe 16 to Marubeni spelled n Tokyo who sold to it Marubeni USA who sold 18 it to Voss . 19 Furthermore the first shipment of 20 Kubota pipe to the United States was in 21 July 1960 and 80 tons of millimeter 22 length pipe were exported The total volume 23 of pipe was however apparently shipped 24 back and Kubota did not begin exporting 25 pipe to the United again until 1962 26 With respect to Interrogatory 53 27 subparts B C and D Kubota has made a 28 reasonable and good faith search for all HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Page 820 records and by inquiry to other natural persons for all responsive information And that concludes the reading of the Kubota interrogatories THE COURT MR BRATT our first deposition Okay Next your Honor we would present And unfortunately we do not have a video of this so we'll have to do a read of it THE COURT That's fine Will we have -- if we 10 have a reader will the reader be seated and you'll 11 address the question and answer 12 MR BRATT Yes your Honor I have a copy for | 13 the Court 14 THE COURT Will that be Mr. Jones 15 MR BRATT I will answer the questions and . 16 Mr. Jones will ask them 17 THE COURT Mr. Jones will propound Fine 18 Any time you're ready That's fine 19 Let me just explain this process There are 20 procedures in the law Those requirements -- hold on 21 A JUROR Sir I just need to grab my glasses 22 THE COURT I just didn't hear you 23 A JUROR Glasses I need to step out of the 24 chair to grab my glasses 25 THE COURT Oh sure Please Please go 26 ahead 27 Are you displaying something on the screen 28 MR BRATT No. No your Honor HG LITIGATION SERVICES HGLITIGATION.CHGLIO TIGATIMON.COM TRIAL - VOLUME 8 THE COURT Okay : Page 821 There are procedures in the law It's all set forth in statute And then of course | if there are disputes people like me decide them and higher courts decide them and we try to keep up about ways in which and whether former testimony in judicial proceedings can be read or referred to in a lawsuit like this And as you can imagine there are procedures to do that and this is one of them In this case the -- at another place in time 10 the deposition of Leon David Horowitz was taken and it 11 what taken in Pennsylvania in 19 -- we refer to it as the . 12 1980 deposition 13 MR BRATT Yes Honor 14 THE COURT In 1980. And in order to record 15 this we're going to have Mr. Jones ask the questions 16 right off the printed page that have been agreed to and 17 then Mr. Bratt will answer 18 Now the only difference that you'll treat this 19 as if it were testimony given right here The main 20 difference that you can think about of course is that 21 Mr. Bratt is not a witness and so you won't be evaluating 22 his demeanor or credibility He'll just be reading off | 23 the page 24 And so you'll evaluate of this testimony 25 counsel will be able to argue effect of this and other 26 depositions later But one of the things you won't 27 consider is the demeanor of the witness He's just going 28 to try to do a straight reading from it And each side HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 has had a chance to designate portions Page 822 And it doesn't matter who offers it because all the evidence will be considered by you regardless of who designated it So with that background you may go forward This is the deposition of Leon David Horowitz taken back in 1980 in the Eastern District of Pennsylvania MR BRATT And for the record June 30th 1980 your Honor THE COURT Very good Yes Thank you Thank 10 you very much 11 Counsel has the full title of the case we don't have that 13 MR JONES Thank you your Honor 14 Deposition of Leon Horowitz as read by Trey 15 Jones Esq and Matt Bratt Esq 16 Q. What is your full name Mr. Horowitz | 17 A. Leon David Horowitz 18 Q. Where do you work 19 A. I work with American Mutual Liability Insurance 20 Company in Wakefield Massachusetts 21 Q. How old are you 22 A. I'm 62 years old 23 Q. What is your position at the insurance company 24 A. I'm chief of the industrial hygiene section of 25 the company 26 Q. Did you go to college 27 A. Yes I went to City College of New York 28 Q. When did you graduate HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 A. I graduated as a bachelor of chemical engineering Q. When A. 1942 Page 823 Q. What did you do after getting out of college A. I went to war World War II and then after World War II I got a job in the Division of Industrial Hygiene for the New York State Department of Labor Q. What year was that 10 A. That was 1947 11 Q. What was your title at the time 12 A. I started as an industrial hygienist and ended 13 as a senior industrial hygienist 14 Q. When did you end 15 A. In 1956 16 Q. 17 York What were your duties there in the state of New 18 A. My duties were examining industrial exhaust 19 systems for the control of toxic gases and fumes for all 20 of industry in New York state as well as surveying 21 industry in New York state for exposure to industrial 22 toxic dust gases and fumes 23 Q. What kinds of toxic dust gases and fumes did 24 your job deal with 25 A. All dusts gases and fumes that were considered 26 toxic at the time 27 Q. Did your work embrace asbestos 28 A. Yes it did HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIM ON.COM TRIAL - VOLUME 8 Page 824 Q. Was there a prescribed level of asbestos in the ambient air that was prescribed for that plant A. Yes there was for that -- Q. A. plant Type of plant For that type of the exposure not for the 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. And what was that prescribed level A. Five million particlpeesr cubic foot of air Q. I called it a prescribed level Was it standard that the plant had to meet A. It was a level considered or advised by the American Conference of Governmental and Industrial Hygienists to be an exposure below which it was considered safe for at least 80 percent of people exposed to that level Q. Have you been led to believe that exposures to asbestos dust above that standard might be harmful to . health A. Would you ask the question again Q. asbestos Yes Prior to the glove plant had you time been that you visited that led to believe that exposures to asbestos above the standard that you just described and might be harmful to human health A. We were taught and our understanding was to interpret the list of threshold limit values in general not asbestos specifically or any specifically In general those values were guidelines to those of us in the industry to aim for that level for a safe value In HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 other words when you designed anexhaust system Page 825 you would try to get it below that level in general was a guide it was not an absolute figure So it Q. When you were with the state of New York did anyone tell you that exposures to asbestos at any particular levels might be harmful to human health A. Asbestos was considered one of the toxic materials by the fact of its threshold limit value No specific discussion was made about asbestos more than any 10 other material The discussions would generally go to 11 where we had more work Silicosis was definitely a 12 greater amount of discussion than asbestos at that time 13 Q. Now when did you leave the state of New York 14 A. I left in 1956 . 15 Q. What did you do after that 16 A. I became a consultant in industrial hygiene in 17 New York City 18 Q. How long did you remain in that 19 A. For four years until 1960 20 Q. What did you do after you left that consulting . 21 position 22 A. I was hired by Keasbey & Mattison of Ambler 23 Pennsylvania as a dust control engineer 24 Q. How did you first make contact with Keasbey & 25 Mattison 26 A. They had an advertisement for a dust control 27 engineer in the New York Times and I responded to that 28 Q. Did he describe the position to you HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 826 A. He told me they were looking for a specialist in dust control engineer Q. Do you remember anything else he told you about the background of the problem or the purpose of the job A. I don't remember anything else no I did not meet Mr. Schneider at the time but that is all I really remember Q. Did Mr. Spedding explain to you why they were looking for someone with your capabilities A. No. I just assumed they needed somebody who knew a little more about dust control than they had at the time Q. Did you accept their offer A. Yes I did Q. A. Q. A. engineer When did you go to work I believe it was May of that year 1960 What was your title I believmey first title was dust control Q. How long did you remain dust control engineer A. I was dust control engineer until a few years later after CertainTeed took over and when I took over duties as corporate safety director I don't know the exact year but it may have been '65 Q. director How long did you remain corporate safety A. From '65 to '68 when I left the company Q. When you first started with Keasbey & Mattison HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 827 were your duties company wide or did they relate to a particular plant A. They were company wide with respect to dust control engineering and I added with their agreement to do industrial hygiene work Q. Did the industrial hygiene work pertain to all plants or just to a particular plant A. All the plants they had at that time Q. Was there anyone who worked with you on the same level that you were on A. John McGinley -- M for the record -- was a young graduate of Drexel I believe and Al Spedding asked me to train him in dust control engineering as well as in industrial hygiene to sort of work with me . Q. How long did Mr. McGinley work with you A. I don't know the length of time but he left to go to another job and then came back after some space of time and was hired as a regular engineer not to work with me Q. Did someone replace him in working with you A. No. Q. Was there anyone else who had as his primary role either dust control engineering or industrial hygiene A. Nobody had industrial hygiene But when I took id over the safety work I dropped the dust control except in an advisory capacity to a draftsman that they had HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 assigned that role to Page 828 Q. Who was that A. I'm afraid I don't remember his name first name was George His Q. Let's go back to 1960 when you first went to Keasbey & Mattison Tell us what your duties were with regard to dust control engineering A. It is hard to remember My duties in general were to improve old areas that may need improvement as 10 well as design new areas that needed dust control exhaust 11 systems in general 12 Q. I guess maybe I didn't ask you this When did 13 you stop doing dust control engineering work 14 A. When I was given the function as safety 15 supervisor of the company 16 Q. And when was that 17 A. I just don't remember the year but I think it 18 was about '65 19 Q. It was after CertainTeed took over 20 A. Oh yes definitely you 21 Q. Exhibit Number 1 do have that in front of 22 you Mr. Horowitz 23 A. Yes I do 24 Q. Just to make sure we're all working with the 25 same paper would you just read what appears to be the 26 title of that document 27 A. Memorandum on Proposed Epidemiological Study of 28 Lung Cancer in Asbestos Workers for the Asbestos Textile HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM TRIAL VOLUME 8 Institute Page 829 Q. Have you ever seen this document before A. Yes Q. When did you first see it A. I can only guess that I picked it up during my meetings between 1960 and '62 at the Asbestos Textile Institute Q. What personal file was that that you placed this document in Mr. Horowitz 10 A. I kept files of everything relating to the 11 hazards relating to the job having to do with the job 12 And I would have it in my desk or a file near my desk 13 Q. Could you be a little bit more specific about 14 what you mean by hazards relating to the job 15 A. Well any papers or any documents relating to 16 silica how to sample any new concepts relating to silica 17 diatomaceous earth asbestos or any materials that I 18 would be responsible for for the company I worked I kept 19 files on I always have done that 20 Q. Did you take those files with you when you left 21 CertainTeed 22 A. Yes I did 23 Q. Did you leave any documents that had been 24 contained in your personal file that you just described at 25 CertainTeed 26 A. I took my personal files with me 27 Q. To whom did you normally pass on such 28 information HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL VOLUME 8 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 830 A. To the one I was directly responsible to and that would be Al Spedding Q. Did you ever pass on such information to Mr. Schneider A. In general discussion can't recall yes Specifically I Q. Do you remember whetheor r not you ever discussed this document or its contents with any plant managers or other employees at a particular plant A. Not the documents in particular no Q. How about the contents of the documents A. The whole concept was in general discussion at various times Q. While you were at Keasbey & Mattison A. Again I don't have total recall By whole concept I mean all hazards Q. Did you ever discuss the subject of the risk of cancer from asbestos exposure with anyone at Turner & Newell A. Yes Q. Do you remember when you first had such a discussion A. A visit was made by Dr. Knox from Turner & Newell and he brought the subject up Q. A visit to where A. To Keasbey & Mattison Q. Do you remember when that was A. I believe it was 1960 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 that Page 831 Q. What did Dr. Knox tell you at that meeting A. His concern as well as the general knowledge seemed to prevail in the British Empire that cancer was associated with asbestos Q. Did he discuss any particular form of cancer A. Yes He mentioned mesothelioma Q. What did he say about mesothelioma A. That it was a unique cancer That a person could get it with even low exposure and they were not sure about whether it was due to ingestion or -- well I shouldn't say they were not sure They think it might have been caused by both ingestion as well as inhalation Q. Let's turn to the document that has been marked Horowitz Number 2. Would you read the heading on that document A. Proposed Industrial Hygiene Program for all Keasbey & Mattison Plants Q. Have you ever seen that document before A. I wrote it Q. Is this a copy of a document that you wrote A. Yes Q. Can you tell us the circumstances under which you wrote this document A. I believe it was -- Q. Can you tell us the circumstances under which you wrote this document A. meeting I believe it was a result of Dr. Knox's I was asked to work up a program for all the HG LITIGATION SERVICES HGLITIGATION.CHGLIOTIGATIMON.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 Ry 21 22 23 24 25 26 27 28 Keasbey & Mattison plants Page 832 Q. Do you remember who asked you to do that Mr. A. I think it was a consensus of Mr. Schneider and Mr. Spedding Childs Q. I'd like you to turn to the document that has been marked Horowitz Exhibit 6 Would you please read the heading on the document A. The original document was made by myself on October 13th 1960 in Ambler It was a memo to all plant managers and the subject was Respirator Program For All first it was K and M plants and then when we switched over to CertainTeed I kept the same memo and just crossed out K and M and used CPC to mean CertainTeed Products Q. Would you look at the document that has been marked as Horowitz Exhibit 20 A. Yes Q. document A. Would you look at the last page of that Yes Q. Could you identify that for us A. It's the same as the one I just mentioned Respirator Program For All K and M Plants Q. Did you write that document A. Yes Q. And this is a copy of it A. Yes Q. That is your signature down at the bottom A. Yes HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 833 Q. Now let's jump back to Number 6 and see if I understand correctly The document attached to Exhibit Number 20 is the original form and the document that is marked as 6 is a revised form A. I don't even know if I made a revision on it I may have made -- may I look at 20 again Q. Yes A. Apparently I made some additions when I changed it to the CertainTeed Products Corporation Q. Is that what CPC stands for A. CertainTeed Products Corporation right H added one statement there Do you see that Quote individual clean containers must be provided to each employee for storagoef his personal respirator if a central storage cabinet is not available end quote That was added to the CPC That wasn't on the original Q. Did you also add the note at the very bottom A. Yes I did Q. Do you see the handwriting next to the note in which there appeared to be dates A. Yes Q. Can you explain those notations A. It indicates the fact that added statement on the bottom was put the addition and in on that date the Q. Q. Which date was that It was 1967 8/9/67 How about the date below that A. About 11 excuse me HG LITIGATION SERVICES HGLITIGATION.HGLITAION.CM CHGLIOTIGATIMON.COM TRIAL - VOLUME 8 a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 834 There is a little delta reference to it on December 6th was put in 1967 and I don't have any recall why that Q. Look at paragraph 1 if you will Dust respirators must be used by K and M or CPC personnel at all operations Do you know whether or not the plant managers enforced that requirement A. Not 100 percent but they tried Q. The plant managers tried A. I believe so yes Q. Do you know how they communicated this policy to the employees if they did A. No total recall I believe signs And when I visited I asked them about it and they said they provided respirators Not everybody was willing to use them That kind of a discussion Q. Do you remember whether there were areas at Ambler where dust conditions were noticeably bad view at Keasbey Mattison in your A. Perhaps it needs a little explanation The making of pipe constitutes a cutting away of a certain amount of material So making dust is part of making pipe Dust control is needed for two reasons First to take the dust away so that you can make the pipe otherwise it would pile up and also for the reason of taking away the very fine particles that go into the air HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and could the whole create a hazard So to answer your operation consisted of making dust Page question 835 Q. Did Keasbey & Mattison maintain any kind of file or collection of books or articles on industrial hygiene or occupational disease A. None other than what I collected Q. Did you collect books and articles from time to time on these subjects A. Mostly abstracts Q. Where did you get your abstracts A. The Industrial Health Foundation in Pittsburgh would provide abstracts in general Q. Abstracts of what A. Of all subjects relating to industrial hygiene and toxicology Q. A. Q. desk Did that include -- Worldwide publications How often did those abstracts arrive on your A. month Well I -- well presently I get it once a I don't recall how often it was then Q. Do you have any reason to believe that it was less frequently than once a month when you were at Keasbey & Mattison A. It might have been quarterly I don't recall Keasbey & Mattison and CertainTeed were a member of the Pittsburg -- Q. The Industrial Health Foundation HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 A. Q. asbestos Page 836 | The Industrial Health Foundation . Did you regularly get articles that dealt with A. got it I would cull it from the literature wherever I Q. Did you get some articles dealing with asbestos from the Industrial Health Foundation or abstracts of articles A. Probably yes 10 Q. Did you get abstracts from any other source 11 A. I asked an insurance company what knowledge 12 they had when the problem of cancer came up I tried to 13 get more information and I got a few abstracts from them 14 Q. Do you remember who the insurance company was 15 at that time A. American Mutual the one I work for now 17 Q. Did they give you additional information on 11 18 A. A few abstracts They gave me photocopies of 19 published references on the subject articles or papers 20 that had been written in England and South Africa 21 Q. That dealt with asbestos asbestos 22 A. That dealt with Well lung cancer 23 was a question at the time 24 Q. So the abstracts dealt with the potential 25 relationship between asbestos and lung cancer 26 A. Right 27 Q. Would you now turn to Horowitz Exhibit 21 and 28 read the heading of that HG LITIGATION SERVICES HGLITIGATION.COM we TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 ty 22 23 24 25 26 27 28 A. Subject Page 837 To Mr. H. C. Johnson September 25th 1962 Asbestos Textile Institute meeting in parentheses ATI Air Hygiene and Manufacturing Committee September 13 and 14 1962 Q. Is this a copy of a document you prepared A. Yes it is Q. Do you recall whether you were working for CertainTeed or Keasbey & Mattison at the time this document was prepared A. The fact that it's written to H. C. Johnson indicates it is CertainTeed Q. Who is Mr. H. C. Johnson A. group of Mr. H. C. Johnson was chief of the engineering CertainTewheedn CertainTeed took over Q. Do you know who Mr. M. S. Davis Jr. is A. He was vice president of CertainTeed I don't recall which division I think eventually he was vice president of the pipe division but I cannot be sure Q. How about Mr. M. Fink who was he A. Mr. Matt Fink was the safety director for CertainTeed Q. Would you now turn to Exhibit 23 read the heading of that Would you A. to Mr. R. Asbestos Exposure in Neoplasia L. Lanz June 1st 1964 Q. Have you ever seen this document before A. Yes I have Q. Is this a copy of a document you prepared for HG LITIGATION SERVICES HGLITIGATION : COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 26 27 28 Mr. Lanz at CertainTeed A. Yes Page 838 Q. to prepare Do you remember the circumstances this document for Mr. Lanz that led you A. I believe from my notes that I was trying to indicate to management that we should cooperate with the U.S. Public Health Service visit Q. Can you read the handwriting at the bottom of . the page for us A. I made a note of the last paragraph saying R. L. Lanz phoned June 2nd 1964 Okay for U.S. Public Health Service visit Q. Would you look at the first paragraph A. Yes Q. I take it you did attend the meeting referred to in Philadelphia on April 29 1964 A. Yes Q. Are you aware that Dr. Selikoff read a paper at a meeting of the New York Academy of Medicine in New York City in the fall of 1964 A. In the Waldorf Astoria referring to is that the one you are Q. Well I think so yes A. He read many papers there . Q. And -- A. He and his team gave many papers there Q. And did some of those papers deal with the subject of the risk of cancer from exposure to asbestos HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 arty 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 22 28 A. Yes Page 839 Q. Did you attend that New York Academy session A. Yes I did Q. Who went with you Mr. Horowitz A. A Dr. Shaw of the ATI went with me Q. Dr. Shaw A. That is right Q. Who arranged for the two of you to be together A. I believe Mr. Hutchcroft but I'm not sure Q. And who again is Mr. Hutchcroft A. He was in the R & D section of both Keasbey & Mattison and CertainTeed research and development Q. Did you write a report to your employer on the New York Academy meeting A. Q. file Yes I did | Did you place that report in your personal A. Yes 24 Q. Mr. Horowitz would you please turn to Exhibit Would you read the heading of Exhibit 24 please A. To Mr. H. J. Angstadt Spelled A October 16th 1964 ray Program Q. Do you know who prepared this document A. I believe I did Yes I did Q. Would you look at Exhibit 25 please you read the heading of that Would A. To all pipe managers August 11th ray Program 1965 Chest HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM TRIAL - VOLUME 8 10 11 fy 12 13 14 15 16 17 18 19 20 21 22 23 24 A 25 26 27 28 Q. A. Q. A. Q. corner A. corner Do you recognize this document Yes It is my document You prepared this document Yes I did Page 840 Are those your initials up in the right Those are my initials up in the right Q. Would you look over at the names that are shown to have received a carbon copy Would you identify Dr. D. J. Donald for me A. I believe he was an outside medical consultant - to the company Q. Well in response to one of my earlier questions you said including your answer as far as the ATI is concerned -- now were you referring to some other organization of which you also attended meetings A. Well I would attend annual meetings of the American Industrial Hygiene Association I would attend either annual or semiannual meetings of the Industrial Health Foundation in Pittsburgh at the Melon Institute And that is all I recall for the time Oh I attended local industrial hygiene meetings American Industrial Hygiene Association meetings and then I would attend any that I thought related to the subject specific meetings of my area of responsibility Q. Did you have any contact during your years both HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM TRIAL ~ VOLUME 8 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 28 fy. Page 841 } at Keasbey & Mattison or CertainTeed with the National Safety Council A. Council I represented our annual meeting after company at a National Safety I became safety supervisor of the company yes Q. that Just refresh my recollection sir When was A. was Somewhere around '65 or 4. '65 I think it Q. That was just one meeting A. No annually after that Q. As part of your contact with the National Safety Council was asbestos and health ever discussed or did you ever receive any information from the council on | that subject A. It wasn't a dominant problem with them Industrial hygiene is of greater interest to them now Industrial hygiene was just one section of a whole week program asbestos and the subject varied but I don't recall any discussion at the time between '65 and '68 Q. Did Keasbey & Mattison receive anything from the National Safety Council in the nature of posters or leaflets for distribution to employees A. I would order them as the safety director and so did Matt Fink before that I am pretty sure Q. When did you first order them In 1965 A. Whenever I saw a subject that I thought would be helpful for a particular subject that I had in mind HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM . TRIAL - VOLUME 8 10 11 12 13 14 15 16 18 19 20 21 pay 22 23 24 25 26 27 28 Page 842 which would publicize or help tell the employees keep your fingers out of the machine and stuff like that Movies I would rent and stuff like that I would pay for subscriptions to their magazine for each of the plants things like that Q. What was the name of the magazine A. National Safety Council News I think Q. For how many years was Keasbey & Mattison or CertainTeed receiving copies of that magazine A. I don't remember Keasbey & Mattison but CertainTeed received it every year as far as I know Q. Beginning in '62 A. Maybe prior to that I don't know Q. meetings You started attending ATI Air for your employer in what year Hygiene Committee A. 1960 about September I think Q. From what year to what year A. When CertainTeed took over I don't know exactly when I started going to meetings but it was probably within a year or so after CertainTeed took over Q. Would that have been up until the time you left the company A. Up until the time I left the company Q. On the day before CertainTeed took over this plant in '62 you had certain files did you not A. Yes Q. When the transfer was made from Keasbey & Mattison to CertainTeed did you throw away all those old HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 1 An. 2 3 4 5 6 7 8 9 10 11 12 13 i, 14 15 16 17 18 19 20 21 22 23 24 25 26 i 27 28 files Page 843 A. No I did not Q. A. yes Did you keep them all - I kept what I had or what I thought I needed Q. Would it be fair to say that the information in terms of documents industrial hygiene that your department had relating to and asbestos and health prior to the take over by CertainTeed CertainTeed was kept after the take over by A. Yes it was Q. Likewise of course you had certain knowledge yourself personally that you had acquired both from training A. background experience Yes definitely and on the job right Q. Naturally you retained that as well with the new employer and A. Yes I weeded out I retained what I thought was what wasn't necessary And I necessary didn't specify asbestos as being anything different other hazard All hazards had my attention than any and its proportionate weight Q. Mr. Horowitz I want to ask you one catchall question you have about the documents that we produced for us Exhibits 1 have seen today through 26 that . To the best of your recollection are they true and accurate copies of documents that you kept in your personal file in the ordinary course of your work for HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 * 20 21 22 23 24 25 26 27 28 . Keasbey & Mattison or CertainTeed Page 844 A. They are true copies of records of my function describing some of my work there yes Q. At Keasbey & Mattison and CertainTeed A. Right Q. Do you agree with the statement made by Hugh Jackson of Johns Manville that respirators are our last line of defense A. It is an opinion question anyway so I think it is kind of ridiculous Hugh have met the fellow yes I Jackson comes will tell you to mind I this I as an industrial hygienist would use it as a last method of defense and only where I can't use something better Q. Did you ever at any time while you were with Keasbey & Mattison or the employees hourly CertainTeed directly discuss with or pieceworking employees health hazards related to asbestos exposure A. It was not my responsibility Interruption) Q. Did you ever at any time while you were with Keasbey & Mattison or CertainTeed directly discuss with the employees hourly or pieceworking employees health hazards related to asbestos exposure A. It was their attention not But my responsibility when I was taking to bring that to air samples it was natural for them to ask me what I was doing Some of them -- and I would explain to them what I was doing Q. That you were taking air samples HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 & 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 845 A. That I was taking air samples to determine the concentration of dust in the air Q. But did you talk to them at the time about asbestosis or cancer A. No I did not Q. Do you know of anything that any of the companies that supplied asbestos Ambler did by way of warning the workers of health hazards of working with asbestos A. I'm not aware of anything Q. Did you ever discuss with any of the suppliers of asbestos and to Ambler anything dealing with putting warnings on the bags of asbestos A. I did not Q. Did you ever see any warnings on the bags of asbestos while you were employed by Keasbey & Mattison or | CertainTeed A. I don't recall seeing it THE COURT MR BRATT Does that It does complete * the reading THE COURT Okay We'll take just a moment and recess I'll just say that without emphasizing anything here June 2nd or 3rd 1964 I saw reference there that was getting close to my last day of my first law exams A few days later on June 7th married 50 years ago I was | So we'll take our recess now and we'll -- for 15 minutes 15 minutes after the hour HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIM ON.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 We'll Whereupon THE COURT come to order the jury . enters the Page courtroom ) 846 All right We're all together The -- Our bailiff presented a request from a juror perfectly reasonable request which was when I declare a recess if I could give you 30 seconds or so to complete any note you were taking that kind of thing Glad to accommodate that I'm always just very mindful that it's your time that's involved and we're trying to move the case efficiently not have you a day longer than necessary without in any way appearing to rush it So sometimes I move it along mayb~ not at everyone's comfort level So we're going to continue next with the reading of a deposition If you'd like to come up I'll set it up here MR BRATT Yes your Honor Sure Thank you THE COURT This is going to be another reading It's a different deposition a couple years -- taken a couple years later of Mr. Leon Horowitz and it was taken in a judicial proceeding in Pennsylvania and the date of the deposition was February 1 1982. And the questions were put to Mr. Horowitz and answers were given Is that right MR BRATT And there's a second towards the end We'll finish the February first and then we'll go to a February second which is the second volume THE COURT Very good So that just continues HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM ny TRIAL 1 VOLUME 8 on a second day apparently Page 847 I -- of course the oath was administered back then to the witness and it was an authorized deposition Mr. Jones you can go forward MR JONES Thank you your Honor _ DEPOSITION OF LEON HOROWITZ AS READ BY TREY JONES AND MARK BRATT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. please Would you state your full name for the record A. Leon David Horowitz Q. At the time you went with Keasbey and Mattison in 1960 what was your understanding of the nature of asbestos disease A. My understanding as to the nature of this disease at the time was that it was one of what we call pneumoconiosis disease Q. What disease entity are you talking about A. That has to do with a lung disease due to exposure of dust Q. about What is the name of the disease you're talking A. Asbestosis Q. And how did you understand that that disease was contracted A. By breathing Q. At some time after joining Keasbey and Mattison HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 10 11 12 13 14 15 * * 17 18 19 20 21 22 23 24 25 26 27 A did you learn of a suspected link between asbestos exposure and cancer Page 848 A. Yes I did Q. How did that occur A. I read it in the literature somewhere Q. What did you read Do you recall A. Reference to the fact that in other countries like England and South Africa some investigation concluded or did not conclude but did say there may be an association to between the cancer the lung cancer and asbestos Q. Approximately what time did you come across these articles that you just described A. Early in my career with Keasbey and Mattison between May of 1960 and September of 1960 Q. At some point still in 1960 did you have personal discussions or did you participate in any conferences where the subject was discussed A. Well prior to that I contacted my insurance company to find out what they knew about it They sent me a few abstracts relating to the news that I had read or the items that I had read Q. Did you subsequently or did you at some point in 1960 participate in discussion with Dr. Knox A. Yes I did Q. Could you tell us who he is please A. Dr. Knox represented Newall in a visit to the United States at that time HG LITIGATION SERVICES HGLITIGATION.COM p A TRIAL - VOLUME 8 Page 849 Q. Would you tell us what was discussed at that meeting and first of all tell us when it was A. Again I don't know the exact date but it was in 1960 somewhere around September Q. What was discussed A. The discussion -- it appeared the purpose of his visit was to inform the management of Keasbey and Mattison that there was an association between cancer and , asbestos exposure 10 Q. Did you participate in the meeting 11 A. I was invited and I sat in the meeting yes 12 Q. What was discussed at the meeting 13 A. I don't recall the whole discussion but the 14 part that I do recall in the time I sat in was the 15 urgency that Dr. Knox informed the management or was 16 trying to inform the management that the awareness of the 17 association between cancer and asbestos in England was 18 much greater than it was in the United States He did 19 show us a picture which described a mesothelioma which I 20 had never heard of before and it was the first time I 21 heard of it at that time 22 Q. As a result of your participation in that 23 meeting did you initiate certain procedures and 24 guidelines for the Keasbey and Mattison company 25 A. We organized under Mr. Childs direction a Loss 26 Control Committee and I was asked to propose an 27 industrial hygiene program 28 Q. Did you in fact make such proposal HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 A ay. 10 11 12 13 4h 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. I did so Page 850 Q. During the course of your work with Keasbey and Mattison and CertainTeed did you attend various meetings dealing with industrial hygiene A. Yes I did Q. Meetings by various organizations A. Yes I did Q. And was it your usual practice to report to your | superior the transactions of these meetings A. Only those that were pertinent to our problems Q. And those problems being what sir A. Anything having to do with exposure to asbestos dust silica dust talc and mica et cetera Q. Were these all substances that were used in the Keasbey and Mattison and CertainTeed processes A. Yes they were Q. In reporting to the people you reported to in writing this memorandum were you following the usual procedure that you have in your years with Keasbey and Mattison of preparing memoranda for meetings you attended A. Yes Q. Did that practice continue after you went to CertainTeed A. Yes Q. After CertainTeed took over A. Yes Q. Would you please turn to -- please turn to HG LITIGATION SERVICES HGLITIGATION.COM TRIAL ~ VOLUME 8 fy 10 11 12 13 14 15 16 17 18 20 21 22 23 24 25 26 28 Horowitz 21. | Page 851 Would you read us the title and date of it A. I'm just comparing this right from my own copy You prefer that I read from | Q. From your actual copy Right A. Right The subject was Asbestos Textile Institute meetinaigr hygiene and manufacturing committee September 13 and 14 1962 and the date it was written was September 25 1962 Q. Would you tell us what your involvement was with the meeting and A. I was a member of the air hygiene -- air hygiene | manufacturing committee and this was my -- one of the meetings that I usually attended Q. When did you become a member of the air hygiene and manufacturing committee A. Within two or three months of my being hired by Keasbey and Mattison Q. And that was a committee of the ATI the Asbestos Textile Institute A. Yes it was Is that right Q. And when you attended this meeting on September 25 1962 were you attending for Keasbey and Mattison or for CertainTeed A. I was attending for CertainTeed Q. And why is it that you continued to attend the ATI meetings after CertainTeed took over A. Yes If you notice the first subject or the main subject was US Public Health Survey ae hy hs HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 > 12 i i 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . Page 852 At that time or previous to that while still representing Keasbey and Mattison the US Public Health Survey had presented a program -- THE COURT Service MR BRATT I'm sorry Thank you your Honor A. The US Public Health Service had presented a program a program to the ATI in which they wanted to evaluate dust exposure as well as make a medical study at the asbestos plants and they had proposed it to the members of the ATI and as a representative of Keasbey and Mattison I was involved with that and I recommended to CertainTeed management that since the meetings were still continuing and that they would probably -- and that they would visit our plants that CertainTeed now owned that I continued going to these meetings I went and that's why Q. And this is a document written by you A. This is a document written by me Q. Just so we clarify Mr. Horowitz when you summarized these meetings that you attended and specifically meetings of the Asbestos Textile Institutes Air Hygiene Committee were you basically summarizing the discussions and transactions that took place at the meetings A. I was reporting on the transactions that took place at the meeting and naturally it was in summary form yes Q. Turning now to Horowitz 22 can you tell us what HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 1 2 3 4 ; 50 6 7 8 9 10 11 12 13 14 15 16 Ne 17 18 19 20 21 22 23 24 25 26 22 28 this document is and its date Page 853 A. Again another meeting with the Asbestos Textile Institute Air Hygiene and Manufacturing Committee which was on January 24 1963. And I wrote it on January 29 1963 reporting it to Mr. HC Johnson vice president of engineering at the time exact title or chief of engineering . his Q. And referring to the first paragraph would you read that please the first underlined title A. Environmental and medical inplant occupational health study of the asbestos products industry Q. Who was doing this study or planning to do it A. The US public health service This was a continuation of the previous discussions that the US public health service had on their proposal to study the asbestos industry Q. Did the study actually take place A. What part -- sorry The study part of the study actually took place Q. What part A. There were two parts One was supposed to be environmental the other medical The only part that was ever conducted was the environmental Q. As part of that study were any CertainTeed plants visited by the US public health service A. Yes Q. Which plants if you recall Santa A. Two plants one in St. Louis and one in HG LITIGATION SERVICES HGLITIGATION.COM fig. TRIAL - VOLUME 8 Ay. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Clara Page 854 Q. And -- A. Santa Clara That was the other one Q. Exactly what procedures were performed or what tests or measurements were performed A. The -- a team of US public health service workers or people came to the plant One person was assigned to take work histories of the employees while a team of four people were using various methods available at the time as well as new methods of dust counting or dust sampling and they were counting on the premises Q. Is this a document actually written by you A. Yes it is . Q. Or a copy of a document written by you A. This is a copy of a document written by me Q. please Would you turn now to Horowitz Exhibit 23 - is Would you tell us what this page document A. I was reporting on some material I had read about asbestos exposure and neoplasia to Mr. RL Lanz and the date was June 1 1964 Q. Who is Mr. Lanz A. Mr. Lanz was vice president of the pipe division at that time THE COURT Just one second a THE WITNESS Lanz yeah Q. Of CertainTeed rene preg HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Q. him Of CertainTeed Page 855 ; And what was your purpose in writing this to A. To keep him updated on the discussions and the press and in the field about asbestos and its relationship to cancer Q. to a Dr. Just one other thing There's a reference here Selikoff in the first paragraph in an American Industrial Hygiene meeting in Philadelphia on April 29 1964 Right A. Is that a meeting that you attended Yes Q. Did you attend any other conferences where Dr. Selikoff was involved as a speaker A. Yes Q. What other conferencdeisd you attend A. The main one and first one was the large conference in 1964 at the Astoria which was an international conference first Q. Okay What was the conference that you attended where Dr. Selikoff was involved A. It was the international conference on asbestos at the Astoria Q. And what was the subject of that conference A. The subject of the conference was asbestos and its relationship to occupational disease Q. What occupational diseases was the conference HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM alge TRIAL - VOLUME 8 D- y, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 involved with Page 856 A. They were and mesothelioma involved with asbestosis lung cancer Q. And were all three of those diseases discussed at the conference at the Astoria in 1964 A. They were Q. What was the subject matter of Dr. Selikoff's speech to the American Industrial Hygiene Foundation in Philadelphia -- Meeting The Industrial -- American Industrial in Philadelphia on April 29 1964 Hygiene | A. The subject was related to the asbestos exposure and neoplasia and the article that I attached to this which we don't have the newspaper article describes that event So that was the subject matter Q. What was meant by neoplasia A. I understand it to mean cancer related Going now to Horowitz 24 Q. Yes Do you have that Q. Yes I have Q. Can you give us the title and date of that A. The title is ray program The date I wrote it was October 16 1964. And it was written to Mr. Ankstat For the record t -- who was plant manager of Santa Clara plant in California HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Would you read the -- that's all right you take a look please at Horowitz 25 A. Yes Page 857 Would Q. What is that and who wrote it A. I wrote it The title was chest ray program The date it was written was August 11 1965. It was an attempt to tell all pipe plant managers and direct them on having a chest ray | program Q. Did you conduct any dust counts in plant 8 when you were working for CertainTeed A. Yes I did Q. Did you ever take dust counts at any Keasbey and Mattison or CertainTeed plant in Ambler in areas where respirators were required A. Yes Q. If you did take a dust count in such an area and you observed that respirators weren't being used -- Well first of all did you ever observe respirators not being used in an area where they were required A. Yes Q. Did that occur A. Yes it did Q. you do And if you made such an observation what would A. I would talk to the manager plant manager about it Q. And what would you tell them HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Page 858 A. I would tell them there's a respirator program and refer to it and tell them they weren't adhering to , it Q. They meaning whom A. They meaning the plant manager Q. You mentioned in your testimony that you learned about possible link between asbestos and cancer through some literature that you read Did you receive that literature in the course of 10 your employment at Keasbey and Mattison 11 A. It was the type of literature that crosses your 12 desk 13 Q. From where would you receive such literature 14 A. General literature information pertaining to 15 occupational health 16 Q. Was it one of your duties at Keasbey and 17 Mattison to read that literature 18 A. Yes 19 Q. Was that also true when you worked for 20 CertainTeed 21 A. Yes it was 22 Q. Now you mentioned you met with Dr. Knox who represented Newall sometime in 1960 when you 24 worked for Keasbey and Mattison 25 A. Yes 26 Q. Why was it that Dr. Knox came to Keasbey and 27 Mattison to give you that information 28 A. I understand he was visiting the country and HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 oe f 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 making several visits and as a representative of Page 859 Newall he wanted to speak to management to inform them of the information that he had -- that he was disseminating in this country Q. between Did you understand that Keasbey and Mattison and there was a relationship | Turner and Newall A. Yes I did Q. And what did you understand that relationship to A. I thought it was an English company that owned Keasbey and Mattison Q. Sir you've been shown quite a number of exhibits this morning Are those items that belong to you A. They were in my file at home Q. When you say your file at home were these items that you took with you when you left the employ of CertainTeed A. Yes they were Q. Were they documents that were kept in the ordinary course of business at CertainTeed A. It is my practice to keep copies of any documents that I have any letters ) I've had anything to do with memos and so on that Q. Okay A. And I took it with me Q. Okay And that was part of your practice in the HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 A 18 19 20 21 22 23 24 25 26 27 28 Page 860 ordinary course of business while you were employed at CertainTeed A. Yes it was Q. And the memos that you yourself wrote that are in here that would report on a meeting would they be made relatively soon after the meeting itself occurred A. Usually yes Q. And you'd prepare a separate report usually to your company letting them know what your impressions or -~ were of the meeting or what you had learned from the meeting A. Certain cover letter yes Q. Okay And that was done in the ordinary course of your business and your job A. Yes Q. The respirator program which was one of the documents that was marked that was something likewise prepared in the ordinary course of business was it A. Yes it was Q. In the various letters that were written to and from you and the memoranda those likewise were issued in the ordinary course of business A. Yes Q. At CertainTeed A. Yes Q. Or at Keasbey and Mattison by them at that time if you were employed A. Both places HG LITIGATION SERVICES HGLITIGATION.COM fy TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 20 21 22 &a 24 25 26 27 28 Page 861 Q. When you went from Keasbey and Mattison to CertainTeed your papers and files that you had in your job as industrial hygienist for Keasbey and Mattison you kept them did you not A. Physically we stayed in the same place so -- Q. You had the same office same filing cabinets same papers A. Correct Q. And you did not I assume flush out of your mind what you knew when you worked for Keasbey and Mattison at the time you went to work for CertainTeed did you A. It was a continuance of the job Q. So what you knew on the day that you last worked for Keasbey and Mattison was essentially what you knew about asbestos on the first day that you went to work for CertainTeed Right A. Yes it was Q. Were you ever an officer with Keasbey and Mattison A. was not an officer of Keasbey and Mattison Q. Were you ever an officer with CertainTeed A. I was not an officer of CertainTeed Q. During your employment with CertainTeed from 1962 to 1968 did the dust conditions improve get worse or stay the same A. I would say -- Q. With respect to the asbestos cement pipe plants HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. I would say they improved Page 862 Q. Did CertainTeed remain a member of the ATI A. They did not Q. -- once it purchased the asbestos cement A. They did not They had no reason to Q. Why did you not have a reason to remain a member of the of the ATI A. They no longer had a textile plant Q. So how many times did you attend the ATI after CertainTeed purchased the pipe plant in Ambler and -- A. I think it was twice Q. What were the years of the US public health studies at the CertainTeed plants if you know A. The years that they actually visited the plants Q. Right A. -- or the years of their complete study Q. said in The year St. Louis they actually visited and Santa Clara the plant you A. I don't recall the exact year but I would say anywhere between '64 and '68 -- '67 Q. Well did the US public health governmental agency decide to study the textile plants first A. I believe they did yes they did because of the higher exposure to asbestos in that area Q. What do you mean by higher exposure A. Well the use of asbestos in textile plants is generally 90 to 95 percent of the product is asbestos HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 But the use of asbestos in let's say Page 863 the asbestos cement is only 14 percent Q. Mr. Horowitz prior to coming to work for Keasbey and Mattison in May of 1960 did you have any knowledge concerning any possible hazards connected with exposure to asbestos A. Yes I did Q. Where did you acquire that knowledge A. From my training as an industrial hygienist for the State of New York Q. And when did you acquire that knowledge A. Well you don't -- it's difficult to put a date on it but -- Q. How about a decade A. Oh decade was definitely within my first year of my working with the Division of Industrial Hygiene Q.Q. And which year was that Q.A. Which was 1947 And what knowledge did you acquire at that time A. The knowledge I acquired at the time and which I retained throughout my working time until I joined Keasbey and Mattison was that asbestosis was a . pneumoconiosis disease or a disease caused by dust in the lungs and that it had a threshold limit about five million particles per cubic foot which made it approximately as toxic as silicaat the time Q. And that was the information you brought with you when you were employed -- oe = - a - f s aes Fens * HG LITIGATION SERVICES HGLITIGATION.CHGLIOTIGATIMON.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Yes it was Page 864 Q. -- with Keasbey and Mattison A. Yes it was Q. that No one there told you this you already knew A. No one there told me Q. At Keasbey and Mattison A. They didn't have to tell me that right Q. Well now as I understand it you testified earlier that you would design this exhaust system for individual machines A. Yes Q. Did you design one generally for the general area area in a building or were you just limited did you just limit yourself to individual machines A. Mostly I would use my industrial hygiene skills if you a need want to call it and where there that to determine where there was was -- and where there was a need I would recommend to the company the need and give them an estimate of the cost and then design for picking up the dust right at the machine and conveying it to a dust collector and then discharging the clean air outside That was my complete function Q. Okay How did you determine where there was a need through these dust counts that you took A. Through the dust counts yes Q. And once you -- I gather you would determine that there was a need if you took dust counts which HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exceeded the then threshold limits A. Exactly Page 865 Is that right Q. Well take the -- By the way do you recall when the last day was or the month at least that you worked with Keasbey and Mattison and when you started for CertainTeed I don't think you had testified to that before A. I think it was June of 162 anywhere between April and June of '62 Q. Well now I think you testified that in September of 1960 you attended a meeting with a Dr. Knox A. Yes Q. I believe you testified that he informed you and the people who were there either that there was an association between asbestos and cancer or I'm not sure whether you said there was a suspected association Which was it A. I think it was very positive that there was an association Q. Okay Now that -- And I think you said the word mesothelioma came up at that time A. That's right Q. And that was the first time that you had ever heard that word A. That's true Q. Well now as a result of this information you obtained about mesothelioma and cancer did you go out HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ; fy Page 866 and acquire any new knowledge that you needed to design your dust control system A. There was no new knowledge needed The acceptance of -- of cancer and mesothelioma in association with asbestos was not taken verbatim merely because a Dr. Knox or a Dr. Selikoff said there was The whole community industrial hygiene community or technical community scientific community said well you know now there are suspicions let's do further studies let's find proof of thing It wasn't an immediate type Did I respond to your question digressed I may have Q. I think my basic question was did you feel the need to go out and acquire any more knowledge about what you were doing in light of the fact you had now heard the word mesothelioma and now heard about the possible connection between asbestos and cancer A. There was no need to get any more skills in the design of industrial exhaust systems Q. You already had as far as you were concerned sufficient skills -- A. Yes Q. -- in designing industrial dust control systems A. Right Q. -- to keep dust down whenever the dust exceeded allowable limits HG LITIGATION SERVICES HGLITIGATION.COM Ag TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 867 A. No matter whether it caused asbestosis or cancer there's a large question about mesothelioma Q. And I think one of your memos talks about informing the A. Yes foreman about hazards | it does does it not Q. Do you know whether that was actually done A. No I do not Q. Now whose responsibility was it to do that informing A. My direction was to the plant manager his responsibility It was Q. Whose idea was it to make the plant manager responsible to do that Was that yours A. My direction was to make these memos and send it to the plant manager So it was Mr. Spedding my boss's direction Q. Well did you have any feeling of concern at that time that well maybe not telling the right people A. It was out of my responsibility Q. Did you feel that you yourself needed any additional warnings from anyone about the hazards of asbestos or were you satisfied that you knew that there were such hazards A. I was as knowledgeable I feel as anybody else in my area of expertise about the hazards of asbestos The knowledge which came let's say slowly to me also came slowly to the rest of the community Q. And did you know sir at that time at what HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Page 868 level or how many particles per cubic feet of dust in the air would have to be reached for you to actually see it , in the air if you knew A. Generally if you see it it's an area that you would want to determine with instruments and usually it depends on the lighting but it's a very subjective method Q. If you could see dust in the air did that automatically mean that you were exceeding five million 10 particles per cubic foot 11 A. No it did not Definitely not 12 Q. Okay And the only way that you could make that 13 determination it was your understanding was through the 14 use of certain machines and I think you mentioned certain types of impingers 16 A. Yes 17 Q. Could you describe that Exhibit 29 -- pardon me 18 Could you describe what Exhibit 29 is please 19 A. It is a memo from me to Mr. Davis who is vice 20 president of the pipe division written on November 10 21 and reviewed the commentary made by Dr. Shaw as a result 22 of our attendance at the meeting at the conference on 23 biological effects of asbestos at the New York Assembly 24 of Science 25 Q. And was this memorandum prepared by you in the 26 27 normal course of business as an employee of CertainTeed . A. Yes it was 28 Q. Who was Mr. JL Anderson whose name appears on HG LITIGATION SERVICES HGLITIGATION.COM ie TRIAL - VOLUME 8 # 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this memorandum Page 869 A. Can you tell me where it appears Q. Right under Mr. Lanz's name On the -- A. Yes I believe at the time he was made chief engineer in replacing Spedding in our staff office and therefore he would have been my superior Q. Was your immediate superior in November -- Was he your immediate superior in November of 1964 A. For that time very short time manager of one of the pipe plants He later was Q. Do you ever recall at any time seeing any abstracts from IHF A. From that time on I received all of them Q. From when you say from 1964 forward A. From 1960 forward yes Q. And would that include the period of time where you became an employee of CertainTeed A. Yes it was Q. And approximately how often did you receive abstracts specifically concerning asbestos health hazards from IHF A. IHF does not publish anything specifically concerning anything in particular unless they have a symposium or something Most of their abstracts cover -- they have a library they cover occupational disease and industrial hygiene related subjects and they don't specialize in other words So we have to cull out an HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 A 9 10 11 12 13 14 i. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 abstract on asbestos Page 870 Q. And upon what basis can you say that they did not send scientific abstracts dealing with asbestos disease A. I did not say that question I don't understand your Q. Let me go back Your statement was I believe that IHF did not send specific abstracts creating only the subject of asbestos disease Is that correct A. Only if they had a symposium on asbestos disease But otherwise the asbestos would be on every subject that was -- that came out within that period of | time Q. Well are you aware today as to whether IHF ever sent abstracts to its members that specifically dealt only with the subject of asbestos disease A. Definitely they did Q. Now when was the earliest recollection you have of specifically receiving such abstracts A. Almost immediately and this raised the question of the relationship between cancer and asbestos almost immediately after I joined the company Q. Now if I understand correctly from your testimony this morning up until 1960 throughout your experience with the state of New York the city of New York you had no knowledge of any carcinoma hazard being associated with asbestos exposure HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 Ne 20 21 22 23 24 25 26 27 28 a A. I was not aware of that yes Page 871 Now when you got to Keasbey and Mattison and began receiving the specific IHF abstract relating to asbestos disease were there abstracts from years to the time you came at Keasbey and Mattison prior | A. There were a few Q. Honor Okay MR BRATT And that ends volume one your And then we continue with the next day they did a deposition I think on February 2 THE COURT Do you have that it MR JONES Yes your Honor Is there a pink sticky THE COURT Yes I have it I have a sticky on . MR BRATT case your Honor So February 2 1982 from the same THE COURT Yes Thank you So the testimony continues BY MR JONES You may inquire Q. Is mesothelioma to your knowledge a form of carcinoma A. Yes Q. While you were employeadt Keasbey and Mattison did you ever have occasion to learn that there was not or there's a -- or there's a body of medical or scientific literature that suggested that you could not utilize the threshold limit value or TLV when you're talking about a HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM " TRIAL - VOLUME 8 A Ee Ay Ay 4 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 27 28 risk of carcinoma Page 872 A. Nobody ever in my knowledge discussed threshold limit related to -- threshold limits in general related to cancer in general So therefore nobody discussed threshold limits of asbestos to cancer in general When it became let's say if and when it became accepted that asbestos was related to cancer if and when it became asbestos -- accepted the understanding would be that the ACGIH or anybody that would create threshold limit values would -- would not use a threshold limit value for a producing material It would be zero Q. And why would it be zeros opposed to some standard above zero A. cancer Because they don't know what quantity will cause Q. How -- way A. And it still exists as a threshold limit There is a threshold limit for asbestos now by the Q. That is correct but does the threshold limit exist insofar as the development of cancer is concerned A. As I said they do not -- they do not relate it to cancer threshold limit Q. Now that was as to your knowledge as of the time you were employed by Keasbey and Mattison -- Can you tell me at the time that you became employed by CertainTeed Corporation what was your position with CertainTeed HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM TRIAL - VOLUME 8 A. I industrial continued as a hygiene work desk . control engineer Page doing 873 Q. Now at any time while you were employed by the CertainTeed Corporation did you ever have occasion to learn that the threshold limit value might not be applicable when dealing with carcinoma A. The same answers I gave before It was -- there was no discussion about threshold limit relating to cancer 10 Q. So you -- 11 A. That I was aware of 12 Q. Now Let me ask you again the same questions 13 with regard to mesothelioma employed 14 First when you were by Keasbey and 15 Mattison did you have any knowledge or understanding 16 that threshold limit value was applicable when discussing 17 mesothelioma 18 19 Ay 20 21 22 A. The same answer as before There was no relationship between -- between threshold limit or discussion of and mesothelioma a relationship . as a cancer. Q. No discussion that you had with anyone A. That I knew of 23 Q. And again during the period of time that you 24 were employed by CertainTeed would your answer be the 25 same 26 27 28 A. Same thing Q. Now you stated that at least as of September of 1960 you became aware of the fact that it was the HG LITIGATION SERVICES HGLITIGATION.COM - VOLUME 8 European experience more specifically the English Page 874 experience that there was a relationship between cancer and exposure to asbestos through your discussions with Dr. Knox Is that correct A. That was the information Dr. Knox passed on to us Q. Did you have any reasons to doubt the -- that discussion by Dr. Knox A. I never doubt a professional I just absorb the 10 information and use it if I can 11 Q. Now moving forward in time once you were hired 12 as an employee of CertainTeed Corporation as an 13 industrial hygienist in addition to a dust control 14 engineer did you advise any CertainTeed employees of the | 15 cancer or mesothelioma risks that they may face 16 A. You're talking about employees that may face 17 that but not management I was advised -- strike that 18 I advised management of course But you don't . 19 mean management 20 Q. No. I'm talking about employees 21 A. Employees no I did not 22 Q. Management was already aware that these two 23 diseases could exist by virtue of their attendance at 24 that September meeting with Dr. Knox 25 A. Not the CertainTeed people They were not 26 there 27 Q. Now and that is the reason therefore that you 28 advised CertainTeed management of the -- HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM Me A, TRIAL ~ VOLUME 8 A. New management Page 875 Q. -- new management of what had occurred at that meeting with Dr. Knox Is that correct A. I don't know if I advised them of a particular meeting with Dr. Knox but I advised them of the existing knowledge or questions concerning cancer and mesothelioma at the time That's management Q. Can you tell me whether CertainTeed Corporation had a medical director at any time that you were employed 10 by it 11 A. None that I know of 12 Q. As of January 1963 at CertainTeed was there a 13 concern with particular problems that could arise to 14 employees because of exposure to asbestos 15 A. If there wasn't a concern I spent my time 16 between '60 and '63 uselessly 17 Q. Okay 18 A. My reports were obviously directed in that 19 direction 20 Q. Let me refer you now to -- again I don't have 21 an be exhibit number on the top It's an August 11 22 1965 memorandum 23 A. I have that That's number 25 24 Q. I would like to refer you to page two and this 25 discusses the chest ray program Paragraph three days 26 role of the plant local physician -- 27 A. What paragraph 28 Q. Last paragraph under No. 3 Each plant must be HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 876 associated with a competent doctor who is interested in industrial medicine and sympathetic to industry's point of view so that he will screen all applicants at employment physicals involved in accidents or and reject those who potential claims would be And then it goes on to make a description of what type of claims might be made Can you tell me why -- why was it felt necessary to get a doctor who was sympathetic to the viewpoint of industry as opposed to someone who's objective and competent A. The choice of word sympathetic was a very poor choice of words I admit that In retrospect and even at the time what I really meant was an understanding one that understands the company's problems MR JONES THE COURT MR BRATT That concludes -- Does that conclude the reading Yes THE COURT that reading Very good That's the conclusion of MR BRATT Your Honor little housekeeping We'd like to move into evidence the exhibits that were referenced in the two Mr. Horowitz depositions and for the record the first one is Exhibit 372 and I don't know if you have it before you but I can hand it up to you THE COURT I'm going to ask you to recite them and then I'll find out if there's any objection If HG LITIGATION SERVICES HGLITIGATION.COM " TRIAL - VOLUME 8 there is we'll take care of it Page 877 MR BRATT Okay The next one is Exhibit 377 the next one is Exhibit 391. The next one is Exhibit 392 The next one is Exhibit 393. The next one is Exhibit 394 395 396 and Exhibit 412 THE COURT Any objection Mr. Berfield MR BERFIELD CertainTeed does not object THE COURT Any objection MS GAMBINO No objection 10 THE COURT Any objection 11 MS VOTAW No objection your Honor 12 MR BRATT Thank you your Honor I'm not 13 going to show them all and publish them all now but I 14 would like to publish or at least let the jury read 15 Exhibit 412 which was just admitted into evidence 16 THE COURT You can put it up on the screen if 17 you'd like 18 MR BRATT I have copies of it because it's A 19 kind of difficult to read the copy if that's oye 20 permissible 21 THE COURT Any objection 22 MR BERFIELD No. Is this the 1964 -- 23 THE COURT The way we'll do this is that you 24 can pass them out and take a little bit to look at them 25 Then we'll collect them It'lble received into 26 evidence but this allows you to do that now and we'll 27 give you time to do that and then we'll pass those 28 around You can peruse them Be assured it will come HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM a\g- \ ve w . ate >So Ax TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 878 into the jury room at the time _ I'll ask counsel to step around so we can see how we want to do the rest of the day Plaintiff's Exhibits 372 377 391 392 393 394 395 396 412 were received in evidence Discussion at the bench THE COURT Once you've had a chance to look at that just want to let you know we'll have one reading from an interrogatory and then we have a brief video deposition to finish up the day Once you feel you've had a chance to peruse that we'll collect them Just give us the high time Recognizing that's in evidence it'll come back to you at the end of the case too We'll collect those now and counsel will have a chance to in closing arguments refer to them as they choose and then you'll have them in the jury room This is the Responses of CertainTeed Corporation to Plaintiffs Master Interrogatories and Requests for Production in a proceeding in Texas called in Re Asbestos Litigation And the interrogatories were responded to is it correct by Curtis M Ponz n associate general counsel and assistant secretary of CertainTeed Corporation MR BRATT Your Honor I don't know if your copy has a verification but I have one right here THE COURT If you give the date of verification I'll mention that this Curtis M Ponz the associate counsel and assistant secretary subscribed his HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Page 879 name to this statement Curtis M Ponz being duly sworn according to the law says he is associate general counsel and assistant secretary of CertainTeed Corporation and is duly authorized to make this verification on its behalf and that the facts set forth in the foregoing answers to plaintiffs master interrogatories and requests for production are true and correct to the best of his knowledge information and belief CertainTeed Corporatiobny Curtis M Ponz 10 associate general counsel and assistant secretary and 11 subscribed before Barbara Sauerby y and her 12 notary seal is affixed on the 27th day of January 1995 13 And you may proceed whenever you'd like 14 MR BRATT Thank you your Honor I'll be 15 reading -- 16 Before we do the video that you mentioned I'll 17 be reading just one interrogatory response but it's 18 fairly long 19 Interrogatory No. 4 Identify by name 20 each product containing asbestos fibers that 21 defendant or any of its predecessor or 22 subsidiary companies at any time manufactured or 23 sold 24 Response Roof cements and coatings and 25 foundation coating 26 1. Asbestos roof coating First placed 27 on the market prior to 1930. Withdrawn from the 28 market in 1982. It was composed of asphalt HG LITIGATION SERVICES HGLITIGATION.COM TRIAL ~- VOLUME 8 Page 880 mineral spirits and approximately 6.7 percent 7M chrysotile asbestos fiber It was designed for use as a coating for smooth surface asphalt roofs 2. Blind nailing cement First placed on the market prior to 1930. Withdrawn from the market in 1979. It was composed of asphalt mineral spirits and approximately 13 percent 7M chrysotile asbestos fiber It was designed for 10 use in sealing the laps of roll roofing applied 11 with no exposed nails 12 3. Plastic cement First placed on the 13 market prior to 1930 Withdrawn from the market 14 in 1983. It was composed of asphalt mineral 15 spirits pulverized limestone and approximately 16 18 percent 7K chrysotile asbestos fiber and 18 17 percent 7M chrysotile asbestos fiber It was 18 designed for flashing caulking heavy duty roof 19 repairs and patching roof flashings 20 4. Sealing Cement First placed on the 21 market prior to 1930. Withdrawn from the market 22 in 1976 due to economic considerations poor 23 profit margins It was composed of asphalt 24 mineral spirits and approximately 29 -- 25 THE COURT I'm sorry Did you read that full Pp 26 response 27 MR BRATT It was supposed to be redacted your 28 Honor HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Page 881 \ Sorry THE COURT Okay Why don't you just Thank you By agreement . read that over again I was just following along Start with No. 4 please MR BRATT 4. Sealing cement First on the market prior to 1930. Withdrawn placed from the market in 1976. It was compose of asphalt mineral spirits and approximately 29 percent 7M chrysotile asbestos fiber It was designed for sealing down asphalt shingles 10 5. Cold processed cement First placed 11 on the market in approximately 1940. Withdrawn 12 from the market in 1976. Replaced by cold 13 process asphalt It was composed of asphalt 14 mineral spirits and approximately 6.7 7M 15 chrysotile asbestos fiber It was designed for 16 use in applying rolls of smooth roofing to 17 obtain a built roof 18 6. Cold process asphalt First placed 19 on the market in 1967. Withdrawn from the 20 market in 1983. It was composed of asphalt 21 mineral spirits and approximately 6.7 percent 22 7M chrysotile asbestos fiber Cold process 23 asphalt was the name given to cold processed 24 cement subsequent to 1967 25 7 Stabilized roof coating First 26 placed on the market in approximately 1940 27 Withdrawn from the market in 1967 It was 28 composed of asphalt mineral spirits and AB eee HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Page 882 approximately 6.7 percent 7M chrysotile asbestos fiber It was designed for coating cold process smooth surface built asphalt roofs 8. Wet seal plastic cement First placed on the market in 1961. Withdrawn from the market in 1983. It was composed of asphalt mineral spirits an amine wetting agent pulverized limestone and approximately 18 percent 7K chrysotile asbestos and 18 percent 7M 10 chrysotile asbestos It was designed for use in 11 providing adhesion to wet or damp surfaces in 12 making heavy duty repairs to wet roofs 13 9 Asphalt Fibered Emulsion First 14 placed on the market sometime during the 1950s 15 Withdrawn from the market in 1983. It was 16 composed of asphalt water clay electrolyte 17 and an unknown quantity of asbestos fiber It 18 was designed for coating smooth surface asphalt 19 roofs 20 10. Fibered Aluminum Roof Coating 24 First placed on the market in 1951. Withdrawn 22 from the market in 1979. It was composed of 23 asphalt mineral spirits aluminum powder and an 24 unknown quantity of asbestos fiber It was 25 designed for coating smooth surface asphalt 26 roofs 27 11 Asphalt Foundation Coating First 28 placed on the market in approximately 1940 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 Withdrawn from the market in 1981 Page 883 It was composed of asphalt mineral spirits and approximately 6.7 7M chrysotile asbestos fiber It was designed for coating the exterior of foundations before backfilling At some point CertainTeed commenced affixing its logo C and T with the stem of the T inserted sideways into the C to the containers in which its roof coatings and 10 cements and foundation coating were packaged 11 The next section Built roof -- 12 strike that Built Roofing Ply Sheet 13 12. No. 15 Perforated Saturated Asbestos 14 Felt First placed on the market in 1968 15 Withdrawn from the market in 1976. It was 16 composed of asphalt organic fiber and 58 17 percent asbestos fiber type and grade unknown 18 It was designed for use as plys for built - 19 roofs and flashing 20 13. Asbestos Base Sheet First placed 21 on the market in 1968. Withdrawn from the 22 market in 1976. It was composed of asphalt 23 organic fiber glass fiber pulverized 24 limestone pulverized talc and 20 percent 25 asbestos fiber type and grade unknown It was 26 designed for use as the first ply in applying a 27 built roof 28 14 Asbestos base flashing First HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 placed on the market in 1968. Page 884 Withdrawn from the market in 1976. It was composed of asphalt organic fiber pulverized limestone pulverized talc 19 percent asbestos fiber type and grade unknown and either glass hemp or jute fiber It was designed for use as one ply in installing . flashing 15. Asbestos Cap Sheet mineral surfaced First placed on the market in 1973 10 Withdrawn from the market in 1976 It was 11 composed of asphalt organic fiber pulverized 12 limestone pulverized talc coarse crushed rock 13 and 13.8 percent asbestos fiber type and grade 14 unknown It was designed for use as the top 15 ply on built roofs 16 The next section Asbestos Cement Siding 17 Shingles 18 No. 16 Asbestos Siding Shingles 19 manufactured by others First placed in the 20 market in approximately 1950. Withdrawn from 21 the market in approximately the early 1970s 22 Asbestos siding shingles were flat slabs 23 which came in various colors Itime aveede TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 placed on the market in 1968. Page 884 Withdrawn from the market in 1976. It was composed of asphalt organic fiber pulverized limestone pulverized talc 19 percent asbestos fiber type and grade unknown and either glass hemp or jute fiber It was designed for use as one ply in installing flashing 15. Asbestos Cap Sheet mineral surfaced First placed on the market in 1973 Withdrawn from the market in 1976. It was composed of asphalt organic fiber pulverized limestone pulverized talc coarse crushed rock and 13.8 percent asbestos fiber type and grade unknown It was designed for use as the top ply on built roofs The next section Asbestos Cement Siding Shingles No. 16 Asbestos Siding Shingles manufactured by others First placed in the market in approximately 1950. Withdrawn from the market in approximately the early 1970s Asbestos siding shingles were flat slabs which came in various colors type grade and quantity of asbestos fiber unknown They were designed for use on the exterior of homes Asbestos Pipe No. 17 Asbestos Pipe may have carried the brand name Fluid -- HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 t Page 885 1962 First placed on the market on June 1 CertainTeed ceased and manufacture of asbestos pipe in 1992. The asbestos fiber was bound into the asbestos pipe by a combination of cement silica and water through an autoclave high pressure steam atmosphere curing process It contained the following amounts of asbestos by weight Pressure pipe had 15 to 20 percent Sewer pipe 10 to 15 percent Irrigation pipe had 11 to 20 percent Of the total asbestos content of the asbestos pipe anywhere from zero to 24 percent was crocidolite blue fiber by weight with the remaining fiber being chrysotile white The ratio of these fibers varied in accordance with various factors including type of pipe and physical dimensions Asbestos pipe was used for the underground transmission No packaging was used in of water and sewage connection with this product The sewer pipe contained black lettering including the name in quotes CertainTeed with the C and T capitalized The contained pressure pipe either black or orange lettering including the name in quotes CertainTeed with the C. and T capitalized and HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 the irrigation pipe had black lettering Page 886 including the name quote CertainTeed with the C and T capitalized It was installed in the form in which it was sold except to the extent that it may have required machining in order to meet a specific length Asbestos pipe was cylindrical in nature and -- shape I'm sorry Cement gray in color with a smooth interior relatively rough 10 textured exterior with ends machined to give 11 dimensions Pipe lengths were connected with an 12 asbestos coupling with two rubber rings 13 contained in machined grooves The temperature 14 limit was 200 degrees Fahrenheit 15 The next section is Joint Treating Compound 16 Joint Treating Compound may have carried 17 the brand name Bestwall First placed on the 18 market 1937 sales of this product were 19 discontinued on June 30 1956 when CertainTeed 20 sold its gypsum assets The composition is 21 unknown other than it is believed to have 22 contained approximately 4 percent asbestos fiber 23 by weight Joint treating compound was applied 24 to the joints of gypsum wallboard The next section is Acoustical Plaster 26 Acoustical plaster carried the tradename 27 Kalite Sales commenced sometime between 1936 28 and 1940 but the product may not have been sold HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 887 in containing form until approximately 1943. Sales of this product were discontinued on June 30 1956 when CertainTeed sold its gypsum assets This plaster was a hard plaster and is believed to have contained approximately two percent asbestos by weight Now your Honor that concludes the interrogatory four THE COURT MR BRATT Yes Very good Might I suggest that Mr. Kittilstad's deposition is going to take quite a bit longer THE COURT We'll adjourn You won't protest 12 minutes before the end of the day So be here at 9:30 tomorrow We'd be very grateful We're right on track We've been discussing scheduling Please remember not to discuss the case or form or express any opinion until these matters are finally submitted to you Thank you Have a good evening folks Proceedings adjourned at 4:18 p.m. HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 STATE OF CALIFORNIA ) COUNTY OF MARIN SS ) CERTIFICATE OF OFFICIAL REPORTER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 certify I BARRIE L. HART C.S.R. 6954 hereby THAT on Thursday April 17 2014 at the hour of 9:30 a.m thereof I reported in shorthand writing the proceeding had in the matter of Pamela J. O'Bryan versus A.H. Voss Company et al No. MSC13-01926 THAT I thereafter caused my said shorthand writing to be transcribed into longhand typewriting THAT the foregoing pages 755-779 and 800-845 constitute and are a full true correct and accurate transcription of my said shorthand writing and a correct and verbatim record of the proceedings so had and taken as aforesaid DATED this 18th day of April 2014 BARRIE L. HART CSR 6954 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 8 REPORTER'S CERTIFICATE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I DONNA J. BLUM CSR No. 11133 Certified Shorthand Reporter certify That the foregoing proceedings were taken before me at the time and place therein set forth at which time the witness was put under oath by me That the testimony of the witness the questions propounded and all objections and statements made at the time of the examination were recorded stenographically by me and were thereafter transcribed That the foregoing is a true and correct transcript of my shorthand notes so taken for pages 780-799 and 846-887 of Volume VIII I further certify that I am not a relative or employee of any attorney of the parties nor financially interested in the action I declare under penalty of perjury under the laws of California that the foregoing is true and | correct Dated this day of . , 2014 DONNA J. BLUM CSR No. 11133 HG LITIGATION SERVICES HGLITIGATION.COM