Document BZJo6xrvdXjedD2oebxnRBpX

SUPERIOR COURT OF NSW JERSEY LAW DIVISION - MIDDLESEX COUNTY DOCKET NO. L-0 3 01 48-87 JOHN PETERSON and SHIRLEY MAE PETERSON, Plaintiff, -v sUNION CARBIDE CORPORATION, Defendants. DEPOSITION UPON ORAL EXAMINATION OF: DR. HENRY VELEZ Transcript of the deposition of DR. HENRY VELEZ, witness, called for Oral Examination by the parties in the above-entitled action, said deposition being taken pursuant to rules governing Civil practice in the Courts of New Jersey by and before MAXINE BLOCK, C.S.R., a Notary Public and Certified Shorthand Reporter of the State of New Jersey at the offices of Dr. Velez, 19-03, Maple Avenue, Fair Lawn, New Jersey on Wednesday, November 1, 1989, commencing at 6:10 in the evening. AGENT FOR REPORTING SERVICES: ROB ERT CIRILL0, INC. 5M Regent Street Suite 503 Livingston, New Jersey 07039 ( 201) 7 40-1331 RNW 2389 2 2 LEV in SON , All ELROD , WIIEATOl-7 Zj BY: SAE T. HOROWITZ, ESQ., 4 Attorneys for the Plaintiff. 5 PITNEY, HARDIN, KIPP & SZUCH, ESQS. BY: MICHAEL K. TUZZIO, ESQ., 6 Attorneys for the Defendant. 7 8 9 10 11 12 13 14 15 15 17 13 19 20 21 .J .1 2 5 RNW 2390 3 1 **\ 1 9-0 3 Ha pi e Avenue , Fair L av7 n , New g\ Jersey having been previously sworn 4 according to law by the Notary, 5 resumed testifying as follows: 5 7 MS. HOROWITZ: I have a letter 8 dated October 25th from Pitney, Hardin 9 requesting certain documents to be 10 produced. As to number three, the 11 request is for all medical literature 12 upon which Dr. Velez relied at the time 13 of the writing of his report in this 14 case which supports the opinions which 15 he has rendered and upon which he will 16 rely at the time of trial. 17 For the record. Dr. Velez has 18 indicated at his prior deposition that 19 he has requested materials which he has 20 not yet received and that he will not be 21 limited to the materials he produces at 2 this deposition but, if other materials 2 3 will be furnished later to the defense ~ * as we get them, he'll be able to rely on 2 Dr* those at the time of trial. RNW 2391 4 1 HR. TUSZIO: I'm going to ask bin again about all of tha medical literature which he relied upon in the 4 preparation of his report -- we started 5 talking about that last time -- which 6 he's seen before the time of his last 7 deposition, which was just last week, 8 and basically what he's seen up to this 9 point and we will take the position that 10 if we don't hear about any other 11 material between now and the time of 12 trial -- actually we're 20 days before 13 trial -- this is what he will be limited 14 to. If he does see something between 15 now and then and intends to rely upon 16 it, I think he has an obiigation to tell 17 you about it and you have an obligation 18 to tell us about it, whether it's in the 19 form of a supplemental report or oral 20 report or a bibliography, but one way or 21 the other we should be told and at that 22 point we'll take the position that we nave the right, if we want to, to 2 4 continue his deposition to question him -- Or- about tnat new material. RNW 2392 5 X ns. HOROWITZ: I don't have any or obi an with true. We will furnish you n with anything additional that we get. 4 MR. TUZZIO: Okay. 5 MS. HOROWITZ: If we get it, 6 MR. TUZZIO: As long as we're 7 all clear. 3 9 DIRECT EXAMINATION BY MR. TUZZIO (continued): 10 Q. We were talking last tine -- 11 You're still under oath from last time. You 12 understand that. Right? 13 A, No, I didn't know that. 14 Q. That's why I asked. 15 We were talking last time about the medical 16 literature support for the conclusions which you 17 rendered in your report. You were telling me -- I'm 13 trying to paraphrase a little bit so we can get to the 19 first question and go along from there. 20 You were telling me about the Wagoner review and 21 I think at a certain point we left it where you were 22 going to or at least you had some intention between 23 then and whenever to look at the material specifically 2 4 cited in the Wagoner report. 25 Have you looked at any of the materials cited in RNW 2393 Velez - direct - Tuzzio i 1 the Wagoner review? o A. I think my memory was that I was in the process or trying to get my nanus on everything and anything 4 that I had given you before to look at. Not 5 necessarily limited to Wagoner. 6 Q. I have no problem with that, and, again, 7 why don't I ask the first question. 3 Have you looked at anything since the time of 9 the last deposition which in any way supports any of 10 the opinions which you have given in your report? 11 A. I have several other things at this time. 12 Q. Can you tell me what they are? 13 A. This is entitled Oncology Overview. There's an 14 abstract recording Pulmonary Tumors Induced From 15 vinyl chloride monomer. 16 Q. Who wrote the particular abstract? 17 A. This is by Dr. Suzuki -- S-U-Z-U-K-I -- from 18 Mount Sinai. 19 Q. What's the date of the abstract? 20 A. Nineteen seventy-eight. 21 Q. Can we have that marked? Is that your 22 only copy or is that something you got from a library? "> *> Maybe a better question is where did you get that from? '' J, A. This was supplied to me. 25 Q. 3y whom? RNW 2394 Velez - direct - Tuzzio 7 1 A. Dv Mr. Levinson. Probabiy nis copy. 'J Actually theca's a lot which I haven't looked at in octal. It has a section dealing with vinyl chorice. 4 You can look at it if you'd like, starting with the 5 page clip. 6 MR. TUZZIO: I'm going to ask 7 the reporter to mark the outside of the 8 book D-29. 9 Q. Just so we're clear, you're talking 10 about abstract 161, Carcinogenicity of Vinyl Chloride 11 and Vinylidene Chloride. 12 A. No. 13 Q. Why don't you just let me know what one 14 you're talking about? 15 A. It's on the other page. It starts here. 16 Actually the whole F section entitled Carcinogenicity 17 of Vinyl Chloride and Related Compounds in Experimental 18 Animals. There are several abstracts here. 19 Q. So you're telling me that you relied on 20 section F in its entirety? 21 A. With specific reference to vinyl chloride. 22 There are several ocher compounds chat are listed there 9 T I be 1 i ev e. 2 4 MR. TUZZIO: Me'11 mark as D-29 2 5 Section F which goes -- which is from a RNW 2395 Velez direct - Tuzzio 8 1 book called Oncology Overview, Selected Abstracts on the Carcinogenicity of "5 Vinyl Chloride and Related Compounds, 4 and D-29 as an exhibit will run from 5 page 35 of that book through page 41. 6 (Whereupon D-29, book entitled 7 Oncology Overview, Section F, was marked 8 for identification.) 9 Q. These abstracts markedcollectively as 10 D-29, are they cited in the Wagoner review? 11 A. They may be. 12 Q. You don't know? 13 A. The Suzuki. I think that one stands out. 14 Q. Do any of these abstracts refer in any 15 way to a connection between exposure to vinyl chloride 16 and cancer of the larynx? 17 A. As it is detailed, they're talking about in 18 experimental animals. 19 Q. Which experimental animals are they 20 talking about? 21 A. Most of them are rats. 2 2 0. Do rats have larynxes? 0 *5 A. Good question. I don't know. I really don't. -V 1 I can tell you chat the pig is the closest to the ~ 5 human. RNW 2396 Velez - direct - Tuzzio 9 1 Q. Let me ask a question. In what way does anything in there support any opinion you've given in chis case? '/hen I say in there, I mean in D-23. 4 A. Vie* re talking about the carcinogenic potential 5 of a compound and that's -- while we all know the 6 difficulties in abstracting clinical animal studies to 7 humans, they are nevertheless helpful for all of us, 8 myself, in coming upon an opinion as to the 9 carcinogenicity of a particular compound; so in a 10 general, broad fashion, they're helpful. 11 Q. Is there anything in any of those 12 abstracts concerning a relationship between VCM 13 exposure and cancer of the larynx? 14 A. There doesn't appear to be any that I can see. 15 Q. What else, other than the things that we 16 marked at the deposition last time, do you rely upon to 17 support any of the opinions you have in this case? 18 A. These were cited in several of the reviews that 19 I supplied you last time and these are by Tabershaw and 20 Cooper. 21 Q. Spell that, please. nn *+ A. Tabershaw -- T-A-B-E-R-S-H-A-W -- and Cooper -- 23 C-O-O-P-E-R. And this was a study that was done for ? 4 the .Manufacturing Chemists Association and supported 2 5 by -- Union Carbide was one of the numerous companies RNW 2397 Velez direct Tuzzio 10 1 that supported this research. n Q. Can I see that first and then we'll mark this as D -30 and I'll identify it as dpi tiemi ologi cal 4 Study of Vinyl Chloride Workers by Taber shaw/Cooper 5 final report dated May 3, 1974. 6 (Whereupon D-30, study entitled 7 Epidemiological Study of Vinyl Chloride 8 Workers, was marked for identification.) 9 Q. Dr. Velez, what specifically in this 10 article do you rely upon and what do you say supports 11 any of the opinions which you've given in this case? 12 First of all have you had a chance to read this 13 article? 14 A. Yes, I have. 15 Q. When did you read it? 16 A. Over the last couple of days. 17 Q. Not before you wrote your report in this 18 case ? 19 A. That's correct. Essentially, this is a 20 historical prospective study of approximately 85 21 hundred workers who have had exposure to vinyl 2 2 "chloride. The data was collected on the individuals as n far as initial date of exposure to vinyl chloride and last care of exposure. Again, utilicing the arbitrary 2 5 mechanism, for lack of anything better, they were able RNW 2398 Velez - direct - Tuzzio 11 1 co come up with an exposure index which was rated from o one to three; one being the lowest and three being the 3 hi guest. 4 What they then did was they identified these 5 individuals and then they traced them and by tracing 6 them from company records they were able to see how 7 many people were still alive, how many people were ill 8 or, in essence, what was more important to them was how 9 many people had died. They then collected death 10 certificates and appropriate records in order to 11 establish an exact cause of death. When doing that 12 they came up with a group of people who had died. They 13 then compared this group to the general population by 14 year of birth and also by age in, I believe, five-year 15 intervals in an attempt to come up with what is called 16 a standardized mortality ratio. The general population 17 is considered -- is given a number of one hundred, 18 therefore, if you look at the general population across 19 the United States, you can come up with data that X 20 number of people are going to die from lung cancer, X 21 number of people are going to die from laryngeal 22 cancer, et cetera. 23 What you then do is you then compare your study 2 4 outcome to the general population and you come out with 2 5 standard mortality ratios and you look to see if the RNW 2399 Velez - direct - Tuzzio 12 1 group that you examined or the group for which you have o data has a standard mortality ratio equal to more than J or less than the general population. 4 When doing the standard mortality ratio for 5 cancers of the repiratory system, which in my mind can 6 be further borne out in this -- in the tables or in the 7 information supplied here, essentially cancers from the 3 nasal passages down to the lung, if you look at the end 9 portion of it -- the tables are marked -- the cancers 10 of the respiratory system, there is an increase in the 11 SMR or standard mortality ratio as compared to the 12 general population. 13 If you then look at the individual cancers which 14 are then broken down, there are two, and most probably 15 a third cancer of the larynx in that group. The bulk IS of them were primary lung carcinomas for which there is 17 also an increaseed mortality ratio. 10 Q. Was there any study as to the -- You say 19 the two and perhaps three individuals who were the 20 subject of that study died from cancer of the larynx or 21 had cancer of the larynx? 22 A. That's correct. 23 Q. 2 4 study ci Was there any consideration in that : n the cancer of the larynx or any 25 conclusions drawn? RNW 2400 Vel ez - direct - Tuzzio 13 1 A. The conclusion is than vinyl chloride was an agent which was active. -\ Q. Were there any other factors in those 4 individuals ? 5 A. Those aren't considered here because in essence 6 what you're doing is you're comparing them against the 7 general population. So let me see if I can get this in 3 an understandable way to you. 9 If you look at the general population, any one 10 agent tends to average itself out, you would agree, 11 therefore, when you use this methodology and you have 12 an agent which you're saying that the general 13 population in total is not exposed to but there may be 14 some people out there that have had the exposure, their 15 exposure is averaged out over the general population, 16 so, therefore, other factors -- I would imagine.the 17 most important factor in your mind is smoking -- is 18 averaged out. In other words, the general population, 19 X number of people smoke and therefore its effect on 20 the general population in all smoking-associated 21 cancers are averaged out. So when you compare this 2 2 population against the standard population those 23 factors, by this methodology, are inherently taken care * of. Therefore, there is no mention of smoking habits. 25 alcohol habits RNW 2401 Velez - direct - Tuzzio 14 T_ Q. Asbestos? A. -- asbestos or any other potential confounding -> variance. 4 Q. Were these people given an exposure 5 index? 6 A. Yes, to vinly chloride. 1 Q. What was their exposure index on that 8 one-to-three scale that you told me about? 9 A. Respiratory cancers -- and that's how they deal 10 with them; I can't do better than that -- appear to 11 have a higher exposure index. 12 Q. Closer to three? 13 A. Yes. 14 Q. Were these -- What type ofwork did 15 these people do that they were exposed to vinyl 16 chloride? 17 A. I assume I'm going to give this to you. Right? 18 Q. Sure. 19 A. thers an introduction and a summary on this 20 which details the exact work. I'm not sure except to 21 say that these people were at one point or another 22 exposed to vinyl chloride monomer. 23 Q. Mow, do you understandthat the people * who were studied in this study marked as D-30 had 25 exposures similar to that experienced by ilr. Petersen? RNW 2402 Veler - direct - Tuzzio 15 X1 A. If I may quota the selection of study plants, pace three. The i'.anur act urine Chemists Association icertified 43 United States plants belonging to 4 nineteen companies which either produced vinyl chloride 5 or used it in the products of polyvinyl chloride. 6 Q. Do you understand that Hr. Petersen 7 worked in a plant where vinyl chloride was used or used 3 in the production of polyvinyl chloride? 9 A. My understanding regarding Hr. Petersen is that 10 they received -- that the poly -- they received the 11 polyvinyl chloride and that there was no production 12 from monomer to the polymerized form. 13 Q. Is that significant to you? 14 A. With respect to what? 15 Q. To any of the opinions in this case or 15 to a comparison of Hr. Petersen's situation to the 17 situations of the people in D-30? 18 A. I think analogies can be drawn from one to the 19 other, and while they're definitely -- I would 20 expect -- 21 It depends, because I don't have the information 2 2 as to the industrial hvgenic type of exposures. But 23 what we're looking at here is the effects of the vinyl chloride monomer ana mat in Mr. Petersen's case he was 25 exposed to vinyl chloride monomer in these plants. RNW 2403 Velez - direct - Tuzzio 16 1 tnere was exposure to vinyl chloride monomer, so the exposure is there in both situations. ~> Q. Upon what do you base your statement 4 that Mr. Petersen was exposed to vinyl chloride 5 monomer ? 6 A.. I think it's pretty well accepted and understood 7 that polyvinyl chloride is -- not all of the monomer is 3 polymerized or inactive, that there is a certain amount 9 of monomer which is released in the polymerized form or 10 the polymerized particulate either due to instability 11 of the polymerized form or due to the adsorption, which 12 in essence means that vinyl chloride monomers are 13 sticking to the particulates in a loose manner thereby 14 in essence giving off the vinyl chloride monomer or 15 exposing individuals to vinyl chloride monomer. 15 Q. Do you have knowledge from which .you can 17 form an opinion as to whether or not you would expect a 13 worker in a manufacturing facility which uses vinyl 19 chloride monomer to make polyvinyl chloride to have 20 more or less of an exposure than a worker such as Mr. 21 Peter sen? 22 A. I can't really say more or less. I can only say ** that there's exposure in both situations. 2 4 Q. What else have you relied upon -- Well, 2 5 other than those references you've given me, is there ___________ RNW 2404 Velez - direct - Tuzzio 17 1 anything else in the form of a conclusion in that D-30 report that talks about cancer of the larynx? n Pi. These are the two articles here, one published 4 in the Journal of Occupational Medicine, that are 5 really similar and probably adjunctive to the final 6 report which I presented to you. 7 Q. Where did you get these two articles? 3 A. These were given to me by Dr. Epstein. 9 Q. Just this past week? 10 A. Yes, since we last spoke. 11 Q. Did you speak with Dr. Epstein since we 12 last spoke? 13 A. Just regarding if he would do me the favor and 14 send me some more information. 15 Q. Did you have any conversations with him 16 concerning the availability of information regarding a 17 link between vinyl chloride exposure and cancer of the 13 1arynx? 19 A. We discussed that in the last deposition, that 20 he and I had discussed that point prior to the last 21 deposition. None since then. 2 2 Q. What did he say when you spoke to him 23 the first time so I might be able to compare it to what n A he said about it now? What did he say about the body 25 of literature available on cancer of the larynx and RNW 2405 Velez - direct - Tuzzio 18 1 exposure to vinyl chloride monomer when you spoke co him first? 2 A. What stands out in ray mind most, what I can 4 remember is that it was his opinion that vinyl chloride 5 was a multi-potent carcinogen. 6 Q. What does that mean? 1 A. In other words, it produces cancers in various 8 body systems. 9 Q. Did you and he at that time speak 10 specifically about cancer of the larynx, which is what 11 Mr. Petersen's case is? 12 A. Well, at that time, knowledge of that was known 13 to me because of review of these submitted documents. 14 Q. Knowledge of what was known to you? I 15 didn't get that. 16 A. That one of its sites was the larynx. That 17 there was data for the larynx. 18 Q. What data did you have when you spoke 19 with Dr. Epstein the first time that one of the sites 20 was the larynx? 21 A. These articles which we discussed at the last 22 deposition. "N -S Q. I had asked you last time to show me in 2 4 chose ar rides where chere was a reference to cancer of 25 the larynx and, not to be argumentative, I don't think RNW 2406 Velez - direct - Tuzzio 19 1 you've done that yet. n A. I pulled out the Wagoner article at that tine and stated that the reference was to the respiratory 4 system in -- when I briefly went through the Wagoner 5 review article I did not, other than the respiratory 6 system, I did not see any particular mention of the 7 larynx; however, if we were to go through all of this 8 again, there would be, with respect to the larynx, 9 mention of the larynx. 10 Q. You're telling me that somewhere in 11 those articles there is mention of the larynx? 12 A. That's correct. 13 Q. Which articles are we talking about? 14 A. You asked me specifically about the Wagoner 15 article. 16 Q. Let me ask the question about the 17 Wagoner article. Does the Wagoner article refer to 13 cancer of the larynx specifically? 19 A. If one includes cancer of the respiratory 20 system, that is the limit. And then there is -- if I 21 remember correctly, then there is mention in the 22 Tabershaw and Cooper study. 23 Q. The Taber shaw/Cooper stuch doesn't 2 4 mention canccer of the larynx specifically, does it? 25 A. It shows as cause of death. RNW 2407 Velez - direct - Tuzzio 20 1 Q. Which one is Tabershaw? Is that D-30 or D -29 J-* a. D-30 . 4 Q. That's the one we just talked about? 5 A. That's correct. 6 Q, Okay. 7 A. So D-30, again, speaks of cancers of the 8 respiratory system and then when one goes through the 9 actual data, cancer of the larynx is there. 10 Q. What would be, in your mind, examples of 11 cancers of the respiratory system? What organs, parts 12 of the body would that involve? 13 A. Anywhere from the nasal sinuses or the nasal 14 mucosa; nasal pharynx; oral pharynx; hypopharynx, which 15 is the area right above the larynx; the larynx, that 16 area; the vocal cord area; the trachea and I thi-nk the 17 rest -- and I guess out to the pleura or the lining of 18 the lung. 19 Q. So you include as part of the 20 respiratroy system the larynx. Is that what you're 21 telling me? 22 A. From the nasal passages down. That's correct. 23 Q. And the larynx is included in that ? I'm 2 4 only a lay person. o<- r* A. That's included RNW 2408 Velez - direct - Tuzzio 21 Q. Other than the Wagoner article, which of *> the other articles that we marked or any of the materials we marked last rime speak about cancer of the 4 larynx? 5 A. What I have not done is I haven't taken this 6 body of literature and presented it for you in a 7 summary fashion, each one, and which one is mentioned 3 and the specific references. I not trying to be vague, 9 I'm trying to be as specific as I can with you. In 10 this body of literature which I supplied to you, which, 11 I guess, has been copied, because you brought it back 12 to me, there are specific references to the larynx. 13 Q. As opposed to having you read all of the 14 articles here and show me, we,'11 let the articles speak 15 for themselves, everything they say or they don't. But 16 your position is here somewhere along the line you 17 remember reading in the body of literature something 18 about a causal relationship between VCM and cancers of 19 the larynx. Is that fair to say? 20 A. That's fair to say. 21 Q. Beyond what we've marked last time, 22 werve now marked two more items of the Taber shaw/Cooper 23 study and the abstracts, D-29 and D-30, from the 2 4 Oncology Overview. 25 A. That's correct. RNW 2409 Velez - direct - Tuzzio 22 1 Q. Is there anything else which you feel supports your opinion? 3 A. There's something else that I'm looking for, 4 which I don't have for you. There was a monograph on 5 vinyl chloride presented by the New York Academy of 6 Sciences. 7 Q. Well, again, as we started out the 8 deposition, anything that you find that you feel 9 supports your opinion upon which you feel you should 10 and must rely at the time of trial in support of your 11 opinion I think you are obligated to advise the Levison 12 office of that, whether you provide them with a copy of 13 the article or a citation or something, and at that 14 point the Levinson office has an obligation to let us 15 know what it is. 16 A. I understand that. 17 Q. Okay. Is there anything that you've 18 seen in the last week which you feel supports your 19 opinion that Mr. Petersen's exposure to VCM resulted in 20 cancer of the larynx? 21 A. Nothing else. 22 MR, TUZZIO: Off the record. 23 (Whereupon a discussion took 24 place off the record.) 25 Q. There are two other articles. Doctor, RNW 2410 Velez - direct - Tuzzio 23 1 you made reference to and one of them is from the 2 Journal of Occupational Medicine dated August 1974 O entitled Mortality Study of Workers in the Manufacture 4 of Vinyl Chloride and Its Polymers and it's written by 5 Tabershaw and Gaffey. Why don't we mark that as D-31 6 and then I'll ask you a couple of questions about it. 7 (Whereupon D-31, article 8 entitled Mortality Study of Workers in 9 the Manufacture of Vinyl Chloride and 10 Its Polymers, was marked for 11 identification.) 12 Q. I'm not so sure what you mean when you 13 say this is adjunctive. I'm talking about D-31. 14 Is there anything in there that supports your 15 opinion, adds to anything, detracts from anything 16 that -- 17 A. The information is the same that came out of 18 this -- What's marked D-30 is the final report which 19 incorporates information in this document marked D-31 20 and the same as what you probably will be marking D-32. 21 Q. Is there anything in D-31 about a 22 relationship between exposure to vinyl chloride monomer 23 and cancer of the larynx that you can recollect? And, ? & again, with the same provision that the article will 25 speak for itself and we'll have a chance to look at it. RNW 2411 Velez - direct - Tuzzio 24 1 But do you rely on anything in there or any conclusions 2 specifically that you can recollect at this time? A. Again, this article relates to cancers of the 4 respiratory system, which, in looking at the individual 5 cases in the parent article, if you want to call it 6 that, laryngeal cancer is cited. 7 Q. The parent article that you refer back 8 to is D-30? 9 A. That's correct. 10 MR. TUZZIO: Okay. Now we're 11 going to mark this Taber shaw/Cooper 12 supplementary Epidemiological Study of 13 Vinyl Chloride Workers, one report dated 14 May 30, 1975. We'll mark that as D-32. 15 (Whereupon D-32, study entitled 16 Epidemiological Study of Vinyl Chloride 17 Workers I, was marked for identi 18 fies tion.) 19 Q. You were starting to say something. 20 Doctor, while the reporter was marking the exhibit. 21 A. Right. There's a mention here -- 22 Q. You're referring to D-31? 23 A. D-31. Soecificallv another table. It's marked table ten. It's page 518. Study number or case 25 number, that would be the individual, 354 had been RNW 2412 Vele2 - direct - Tuzzio 25 1 diagnosed as having actually had removal of the larynx 2 and the surrounding pharynx surgically due to a cancer -> of the left per if orn (phonetic) sinus. The left 4 periform sinus is considered an extrinsic cancer of the 5 larynx so that's considered laryngeal cancer. 6 Q. Is there anything about D-32 that you 7 find significant or upon which you relied to support 8 your conclusion that Mr. Petersen's exposure of VCM 9 resulted in his development of laryngeal cancer? 10 A. Again, the tables are duplicated as in D-30, and 11 again there is mention of the carcinoma of the larynx 12 that we've discussed already. 13 The only other thing that I can think of all in 14 three articles -- they really weren't articles but 15 different presentations of the data -- is that the 16 opinion of the authors was that the information 17 presented by them was probably an under estimate of 18 what was going on in the general population for two 19 major reasons: one reason being that 15 hundred 20 individuals who had been exposed to vinyl chloride, in 21 their mind, significantly were not traced, and these 22 were 15 hundred individuals, if I remember correctly, -- .j who had had earlier and heavier exposures as determined by their exposure index. In addition, there was the 25 healtny-worker effect. In essence, people working tend RNW 2413 Velez - direct - Tuzzio 26 1 to be healthier -- or lee's back up a little bit. o If you examine -- If you take a hundred people 3 who are working and examine them and compare them to a 4 hundred people who aren't working, there will be a 5 marked difference in what you find in one group 6 compared to the other due to the inherent disabilities 7 that illnesses produce in non-working people. 3 Therefore, citing that healthy-worker effect, they felt 9 that their data overall was an under estimate of the 10 toxicity or carcinogenicity of vinyl chloride. 11 Q. When you get retained to consult, either 12 in anticipation of litigation or for some other 13 consulting purpose or in your daily practice, do you 14 tend to rely upon and do research through journals and 15 medical findings such as the articles that we've marked 16 here? 17 A. Yes, I do. 18 Q. So you're familiar with the concept of 19 medical research. That's something that you're taught 20 and that is a part of your practice and discipline. 21 A. Well, the question you're asking me is do I know 22 how to research the literature? 23 Q. Right. O A. That's correct. 25 Q. And is that something that every RNW 2414 Velez - direct - Tuzzio 27 i physician or at least physicians in your field are 2 called upon to do from time to time? A. I voaid think so to one extent or another. 4 Q. In your experience doing medical 5 research have you developed or do you feel that you've 6 developed an ability to characterize when something is 7 strongly established as opposed to something that's 8 more weakly established to something that has not been 9 established at all in the medical literature? 10 A. As part of my training at Mount Sinai Hospital, 11 we were taught to critically review the literature and 12 also we were taught the basics and fundamentals of 13 epidemiology. In the learning of medicine it's 14 sorted -- while it's not broken out specifically, we 15 rely on that same information to diagnose and to use 16 treatment modalities; so, therefore, the answer would 17 be yes. 18 Q. It does happen, and you probably see it 19 all the time in your work with asbestos, that there is 20 a body of physicians out there that disagrees with 21 certain findings in the asbestos articles, reads them 22 differently. Sometimes two expert reports in a given 23 case might come to different conclusions reading the. 24 same literature and looking at the same patient. 25 You've found that I assume. RNW 2415 Velez - direct - Tuzzio 28 1 A. All the time. 2 Q. All the time. Can you categorize or >, cxiaracterize the body of literature on cancer of the 4 larynx specifically as strongly establishing a link 5 between VCM exposure or any other rating system that 6 you might be comfortable with? 7 I don't want to ask the question is there a lot 8 out there because you'll probably tell me that 9 sometimes it's the quality of the research or the 10 quality of the article that is more important than the 11 number of articles. Is that what you would tell me if 12 I would ask you that? 13 A. Probably not. 14 Q. Well, let me ask you the question. Is 15 there a lot out there on cancers of the larynx and VCM 16 exposure? 17 A. We discussed that the last time and I stated to 18 you there wasn't a lot of literature. 19 Q. The fact that there's not a lot of 20 literature, does that affect your conclusions at all or 21 cause you to question your conclusions at all in this 22 ca se? A. I think that the most honest way in which I can answer this, and this is no different than my clinical 25 practice because as I go further and further in my RNW 2416 Velez - direct - Tuzzio 29 1 clinical practice, I realize that many of the treatment z modalities that we use are based on folk lore, that the literature supporting them is not that greac but that's 4 what we were stuck with and that's what we call the 5 norm in treatment. 6 But the bottom line in all of this is that I 7 formulated an opinion. I feel at this point in my 8 life, in my career, that I can formulate an opinion 9 based on the available information, and with respect to 10 that, I feel comfortable with all the information 11 that's been provided to me and experience, et cetera, 12 and I feel comfortable with the opinion that vinyl 13 chloride is a potent carcinogen and that there is 14 evidence that it is site-specific in this particular 15 case to the larynx. 16 Q. By this particular case you mean Mr. 17 Peter sen? 18 A. That's correct. 19 Q. Based on your experience and the medical 20 research which you've done ever since you started 21 medical school, can you tell me if you have an opinion 22 as to whether there is a larger body of literature out 23 there concerning a relationship between asbestos 24 exposure and cancer of the larynx than the body of 25 literature concerning exposure to VCM and cancer of the RNW 2417 Velez - direct - Tuzzio 30 1 1arynx? 2 A. From the standpoint of volume, there is clearly n a greater body out there. 4 Q. Can you come to any opinion in this case 5 as to whether or not Mr. Petersen's cancer of the 6 larynx was the result of his exposure to asbestos or 7 his exposure to VCM or some other factor? And, again, 3 the question was can you come to a conclusion as to 9 that. 10 A. I think that I could come to a reasonable 11 conclusion in this matter, specifically in Mr. 12 Petersen's case, based on the information in front of 13 me at this time. 14 Q. That it was one or the other? 15 A. No. It would be my opinion, at this time, based 16 on the following: number one, a brief smoking history; 17 a non-drinker in essence, probably no more than any of 18 us in this room, social, whatever we call a social 19 drinker -- I'm sure it has a wide range -- so in this 20 particular case it would be my opinion that the smoking 21 and alcohol were minimal. Mr. Petersen's asbestos 22 exposure occurred earlier on in the earlier years 23 sufficient enough to give him aocumentable asbestosis 2 4 so I know that he had a reasonable exposure at that 25 time. But the single factor which stands out in my RNW 2418 Velez - direct - Tuzzio 31 1 mind is that he had a day-in-and-day-out prolonged exposure to polyvinyl chloride anc therefore vinyl J chloride, therefore, putting this case together and 4 putting forth my own personal opinion in essence based 5 on those facts, it would be my opinion that the vinyl 6 chloride was a greater factor than the others that I 7 have just mentioned in the subsequent development of 8 his laryngeal cancer. 9 Q. Do you, by that, eliminate asbestos as a 10 factor? 11 A. There's no way that I could honestly eliminate 12 asbestos as a factor. Again, if you ask me -- the 13 question you're asking me is which one did I think is 14 the most causative, then I can wave the flag and say 15 vinyl chloride, but it's impossible to do the latter, 16 which is exclude another source or another toxin. 17 Q. Why would you think it was VCM as 13 opposed to asbestos here? You sort of told me why but 19 why don't you tell me again? Explain in a little more 20 detail. 21 A. I think most people would agree that vinyl 22 chloride is a potent carcinogen, so we can set the 23 stage with that knowledge. The most basic action of a 0 J carcinogen is that it alters the normal properties of a 2 5 cell causing that cell to become malignant. And then RNW 2419 Velez - direct Tuzzio 32 1 for reasons not clearly understood by us, the body does ") non recognise it as foreign and in essence let's it 3 grow. Because these malignant cells are not part of 4 our normal constituency, therefore, when you have 5 constant exposure to any toxin or any carcinogen, the * 6 chance occurrence is increased. If you have a one-shot 7 exposure, the -- even with the strongest of 8 carcinogens, the probability is low, but with repeated 9 exposure over time, then the probability increases. 10 And that's what we're really -- That's what you're 11 asking me in essence, the probability, if I understand 12 you correctly. Therefore, when there is exposure to 13 the same agent day in and day out, day in and day out, 14 especially in an area where I expect to find the 15 polyvinyl chloride and therefore the monomer, then this 16 is what leads me to my final opinion that if I had to 17 identify one or if asked for an opinion which was the 18 most causative, then I would put the vinyl chloride at 19 the head of the class. 20 Q. Just so I understand, is that because he 21 was exposed to more vinyl chloride than he was 22 asbestos? 23 A. Duration, length of time is what stands out in 24 my mind as being most important. If you were to take 25 all the asbestos that he was exposed to and put him in RNW 2420 Velez - direct - Tuzzio 33 1 a bag and expose him over 24 hours and then take all the vinyl chloride monomer, let's say, and put it in a Jj bag and somehow expose him over 24 hours, there 4 probably wouldn't be very much difference between both, 5 whether one was more or less. But in carcinogenisis, 6 time is an important factor. 7 Q. How much asbestos and over how long a 8 period of time would he have had to be exposed to 9 asbestos for cancer of the larynx to have developed? 10 A. It's funny. It's a question I asked myself. I 11 was trying to think about the literature because I 12 thought that this would come up. There are people who 13 develop their cancer of the larynx while exposure 14 continued and there are people who developed their 15 cancer after the exposure ceased. The actual interval 16 I don't know and it's a question in my mind. 17 Q. When did you come to the conclusion that 13 if you were questioned as to what was a more likely 19 causative agent, the asbestos or the VCM, that it was 20 the VCM? When did you come to that conclusion? 21 A. Well, I was asked for an expert's report and so 22 that's dated as the time of my report. 9 *3 b. s*> 0. You did tell me last time, though, that 24 you did intend, and by reference in your report, to say 25 that asbestos was a potential causative agent in the RNW 2421 Velez - direct - Tuzzio 34 1 cancer of the larynx. 2 A. If I remember correctly, what I said -- 3 C. I don't mean to characterise. Why don't 4 you tell me? 5 A. -- was that it was obvious the information was 6 there that that would come up and that would be 7 questioned. 8 Q. Anywhere in your report do you 9 differentiate or come to the conclusion that you just 10 told us about that you think VCM was a more likely 11 cause in this case? 12 A. I believe the report states that the laryngeal 13 cancer was causally related to his exposure to vinyl 14 chloride. That was the statement that was made. 15 Q. Can you ascribe a percent as to the -- 16 in other words, the ratio or relationship between 17 asbestos as a likely causative agent and VCM as a 18 likely causative agent, if one is more likely than the 19 other? I mean 55 percent to 45 percent? 51 percent to 20 49 percent? Can you speak in those kinds of terms? 21 A. My understanding of the law, as I'm looking over 22 to you, is that is it more probable than not, in my 23 mind now, is from a legal standpoint that we're talking 2 4 about. Is that correct? 25 t!. Well, I'm not asking you for the legal RNW 2422 Velez - direct - Tuzzio 35 1 standard. I'm asking you based upon medical standards, numbers that you're comfortable with because more 3 likely than not could mean just pushing one over the 4 edge in terms of the scale going more one way than the 5 other, but I want to know if you have any kind of 5 numbers that you can ascribe percentages to the 7 causative agency of VCM as opposed to the causative 8 agency of asbestos exposure. 9 MS. HOROWITZ: I think what he's 10 asking you to do is to give percentages 11 only if you're able to, if you've come 12 to some decision in your mind. If you 13 haven't, then ~ 14 MR. TUZZIO: That'3 why I 15 prefaced the question. 16 Q. Can you put percentages on that that 17 more likely than not the opinion that you've given 18 me -- I think you understand now. Not based on 19 legalese, based on your medical knowledge. 20 A. Yes, I understood the question. The reason I 21 looked towards Ms. Horowitz is because my thinking and 22 being asked as an expert is it more -- you know, more 23 probable than not and that means to me at minimum 51 24 and 49. So the answer is that's the way I see it. But 25 in this case with respect to your specific question, I ________________________________ Velez - direct - Tuzzio 36 1 cannot. Q. Do you have an opinion in this case that 3 the exposure to asbestos and the exposure to VCM caused 4 his development of cancer of the larynx? 5 A, I think that I've gone on record as saying that 6 it's my opinion that the agent responsible for his 7 laryngeal cancer is the vinyl chloride, for the reasons 3 as specified before. 9 Q. Do you have an opinion that the two 10 agents in any way working together or synergisticaliy 11 caused him to develop cancer of the larynx? 12 A. That information is not available. I don't 13 think anyone knows and I wouldn't hazard a guess. 14 Q. If there was no history of VCM exposure 15 or no reliable medical information linking VCM exposure 16 to development of cancer of the larynx, would your 17 opinion change in this case? % 18 A. I certainly would think it would. 19 Q. What would your opinion be under those 20 circumstances? 21 A. I'd have to look at other exposures that we know 22 that he does have. 23 Q. And in this case that would be, of 2 4 course, asbestos. 25 A. Asbestos, smoking, even though remote and RNW 2424 Velez - direct - Tuzzio 37 1 distant. c, Q. The smoking is remote and distant or the asbestos? 4 A. The asbestos. 5 Q. I don't know what you meant by that. 6 A. I think both of them. The asbestos, I think, 7 occurred the first six years that he worked at the 8 Amboy terminal or whatever they call themselves. 9 Q. If Mr. Petersen came to you as an 10 asbestos case as opposed to a vinyl chloride case and 11 he had no exposure to vinyl chloride but presented the 12 same history of asbestos exposure as Mr. Petersen had 13 with no history of vinyl exposure at all, would you be 14 comfortable in saying with a reasonable degree that his 15 cancer of the larynx was the result of his asbestos 16 exposure? 17 A. I would be comfortable, yes, 13 Q. How else does somebody get cancer of the 19 larynx as opposed to the external agents that we've 20 talked about? Is it something that can just develop? 21 A. The risk factors. That's how we really look at 22 the development of the disease, whether" it be heart 23 disease or this particular cancer. The risk factors 24 are the smoking, drinking. 25 Q. Smoking I counted and drinking as the RNW 2425 Velez - direct - Tuzzio 38 1 external things. If you couldn't find any exposure or 2 risk factor and someone presented with cancer of the n larynx, what would you think then? 4 A. Bad luck. 5 Q. Is that really all there is to it? 6 A. If I wanted to be smart and medical I'd call it 7 etiopathic causes. Etiopathic means we don't know 8 and -- 9 Q. I'm not suggesting that that's the case 10 here, but I'm curious. 11 A. Yes. I understand. 12 So etiopathic and bad luck sort of go together 13 in ray own thinking. 14 Q. You told me that you had another 15 conversation with Dr. Epstein. When did you call him? 16 A. Just recently. 17 Q. Since the time of the last deposition? 18 A. Yes. That's what I'm talking about. 19 Q. About how long did you talk to him at 20 that particular time? 21 A. Two minutes. 22 Q. What did you talk about? 23 A. I just asked him to send me these particular n J articles if he would be so kind. 25 G. How did you know about those articles? RNW 2426 Velez - direct Tuzzio 39 1 A. I read his summary, which I provided to you. / G. These are articles that were cited in J*> the Spstein report? 4 A. That's correct 5 Q. Did you have any other conversation with 6 him about the conclusion that either one of you had 7 reached in this case? 8 A. None others. 9 Q. Did you ever work with him before? 10 A. No. I know of him and I've heard his name but 11 I've never worked with him. 12 Q. I didn't mean to imply ,that you're 13 working with him now, but you had not worked with him? 14 A. No, I didn't take it that way. 15 Q. I guess I've asked this question a lot 16 of different ways but let me ask it this way: Gan you 17 say to any reasonable degree of medical probability 13 that his asbestos exposure, as you've documented, was 19 not the cause of his cancer of the larynx? 20 A. I don't think I could truthfully or honestly say 21 that. 22 Q. In the last two pages of your report you 23 have an addendum, and I'm reading it now and it seems, < if I can characterize it, and you can correct me, that 25 you're giving an opinion as to a prognosis witn regard _________________________ ________________________ __ RNW 2427 Velez - direct - Tuzzio 40 T X to his asbestos exposure. You're talking about an o increased risk of lung cancer. You can take a look at 7 it. Tell me what you're doing in there. 4 A. I think that's an assumption. 5 Q. Anywhere in your report did you give any 6 sort of prognosis as to his VCM exposure? 7 A. No, I didn't. 3 Q. Were you asked to do that by the 9 Levinson office? 10 A. No, I wasn't. 11 Q. If you're going to do that between now 12 and the time of trial and, of course, you understand 13 your obligation, if you're going to add to your 14 opinions in this case or find additional support for 15 what you've already told me, again, you are obligated 16 to let the Levinson office know about that and they are 17 obligated to let me know about it or we will take the 13 position that you will be limited by these depositions. 19 I think counsel understands. 20 MS. HOROWITZ: I think we've 21 discussed that about ten times already. 22 MR. TUZZIO: Off the record. 23 (Whereupon a discussion took 2 4 place off the record.) 25 MR. TUZZIO: Thac's all I have. RNW 2428 Velez - direct - Tu2zio 41 1 MS. HOROWITZ: I don't have any questions. (Whereupon che deposition of Dr. 4 Henry Velez was concluded and the 5 proceeding was adjourned.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RNW 2429 42 1 CERTIFICATE OF OFFICER 2 3 4 I, MAXINE BLOCK, C.S.R., a Notary Public 5 and Certified Shorthand Reporter of the State of New 6 Jersey, do hereby certify that prior to the 7 commencement of the examination, the witness, DR. HENRY 8 VELEZ, was sworn by me to testify the truth, the whole 9 truth and nothing but the truth. 10 I DO FURTHER CERTIFY that the foregoing 11 is a true and accurate transcript of the testimony as 12 taken stenographically by and before me at the time, 13 place and on the date hereinbefore set forth. 14 I DO FURTHER CERTIFY that I am neither a 15 relative nor attorney nor employee nor counsel of any 16 of the parties to this action, and that I am neither a 17 relative nor employee of such attorney or counsel, and 18 that I am not financially interested in the action. 19 20 21 MAXINE BLOCK, C.S.R. XI 01206 A Notary Public of the State 22 of Mew Jersey 23 My Commission Expires 24 January 15, 1390 25 RNW 2430 43 1 INDEX 2 3 IHTrlSSS 4 DR. HENRY VELEZ 5 Mr. Tuzzio DIRECT 5 6 7 8 9 10 NUMBER 11 H IIHIS DESCRIPTION IDENT- 12 D -29 13 D--30 14 15 D-31 16 17 D-3 2 18 19 Oncology Overview, Section P Study Entitled Epidemiological Study of VC Workers by Tabershaw/Cooper Study Entitled Mortality Study of Workers in the Manufacture of Vinyl Chloride and Its Polymers by Tabersahw and Gaffey Study Entitled Supplementary Epidemiologcal Study of VC Workers I 8 10 23 24 20 21 22 23 24 25 RNW 2431