Document DvMyOn98qbj955yabjYOoybpN

file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 0001 1 CAUSE NO. 02-09281 2 MARTY MITCHELL, ) IN THE DISTRICT COURT PLAINTIFF, ) 3) VS. ) 134TH JUDICIAL DISTRICT 4) AMETEK, INC., et al., ) 5 DEFENDANTS. ) DALLAS COUNTY, TEXAS 7 ORAL DEPOSITION OF 8 DR. DAVID EGILMAN 9 MAY 21, 2003 11 12 13 14 15 ORAL DEPOSITION OF DR. DAVID EGILMAN, produced as a 16 witness at the instance of the Defendant, Beazer East, 17 Inc. and Elliott Turbomachinery Co., Inc. and duly 18 sworn, was taken in the above-styled and numbered cause 19 on the 21st day of May, 2003, from 10:04 a.m. to 5:15 20 p.m., before Jennifer Hoodenpyle, CSR, RPR, in and for 21 the State of Texas, reported by machine shorthand, at 22 the Hyatt Regency DFW, International Parkway, Dallas, 23 Texas, pursuant to the Texas Rules of Civil Procedure 24 and the provisions stated on the record or attached 25 hereto. 0002 1 APPEARANCES 2 FOR THE PLAINTIFF: 3 MR. MARK TAYLOR KAESKE LAW FIRM 4 6301 Gaston Avenue, Suite 735 Dallas, Texas 75214 5 214-821-1221 214-821-0977 fax 6 FOR THE DEFENDANTS, BEAZER EAST, INC. AND ELLIOTT 7 TURBOMACHINERY CO., INC.: 8 MS. AMY E. NETTLE file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (1 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt CROUCH & INABNETT 9 2300 Fountain Place 1445 Ross Avenue 10 Dallas, Texas 75202 214-922-7100 11 214-922-7101 fax 12 FOR THE DEFENDANT, AMERICAN STANDARD, INC.: 13 MR. STEPHEN K. GUIDRY GERMER, BERNSEN & GERTZ, L.L.P. 14 550 Fannin Street, Suite 700 Beaumont, Texas 77701 15 409-654-6700 409-835-2115 fax 16 FOR THE DEFENDANT, GENERAL ELECTRIC COMPANY: 17 MR. TIMOTHY MCGOWAN 18 KELLEY JASONS MCGUIRE & SPINELLI, L.L.P. Centre Square West, Suite 1500 19 1500 Market Street Philadelphia, Pennsylvania 19102 20 215-854-0658 215-854-8434 fax 21 and 22 MS. KAY ANDREWS 23 BROWN MCCARROLL, L.L.P. 111 Congress Avenue, Suite 1400 24 Austin, Texas 78701-4043 512-479-9772 25 512-479-1101 fax 0003 1 FOR THE DEFENDANTS, VIACOM & FOSTER WHEELER ENERGY CORPORATION: 2 MR. IVAN A. GUSTAFSON 3 EVERT & WEATHERSBY, L.L.C. 200 Cleveland Road, Suite 6 4 Bogart, Georgia 30622 706-583-8665 5 706-583-8525 fax 6 FOR THE DEFENDANT, TUTHILL CORPORATION: file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (2 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 7 MS. JOANNE EARLY GARDERE WYNNE SEWELL LLP 8 3000 Thanksgiving Tower 1601 Elm Street 9 Dallas, Texas 75201-4761 214-999-3000 10 214-999-4667 fax 11 FOR THE DEFENDANT, MALLINCKRODT, INC.: 12 MR. MICHAEL L. BLAKENEY JENKINS & MARTIN, L.L.P. 13 2615 Calder, Suite 500 Beaumont, Texas 77702 14 409-832-4100 409-832-4242 fax 15 FOR THE DEFENDANTS, INDUSTRIAL HOLDINGS CORPORATION, 16 F/K/A THE CARBORUNDUM COMPANY: 17 MR. KURT W. GREVE FORMAN PERRY WATKINS KRUTZ & TARDY, PLLC 18 400 Woodview Tower 1349 Empire Central 19 Dallas, Texas 75247 214-905-2924 20 214-905-3976 fax 21 FOR THE DEFENDANTS, QUIGLEY COMPANY & PFIZER, INC.: 22 MR. LARRY W. THORPE BEIRNE, MAYNARD & PARSONS, L.L.P. 23 1300 Post Oak Boulevard, 25th Floor Houston, Texas 77056 24 713-623-0887 713-960-1527 fax 25 0004 1 FOR THE DEFENDANT, MONSANTO COMPANY: 2 MR. LAWRENCE E. GOLDENTHAL ELLIS CARSTARPHEN DOUGHERTY & GOLDENTHAL P.C. 3 720 North Post Oak, Suite 330 Houston, Texas 77024-3834 4 713-647-6800 713-647-6884 fax 5 FOR THE DEFENDANTS, CERTAINTEED CORPORATION, 6 FOSECO: file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (3 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 7 MR. TODD J. SUDDLESON DEHAY & ELLISTON, L.L.P. 8 3500 Bank of America Plaza 901 Main Street 9 Dallas, Texas 75202 214-210-2400 10 214-210-2500 fax 11 FOR THE DEFENDANT, CORHART REFRACTORIES CORNING, INC.: 12 MR. MARK S. SCUDDER 13 STRASBURGER 901 Main Street, Suite 4300 14 Dallas, Texas 75202-3794 214-651-4654 15 214-651-4330 fax 16 FOR THE DEFENDANT, OAKFABCO, INC.: 17 MR. NICHOLAS S. BALDO 18 STEVENS, BALDO & FREEMAN, L.L.P. 550 Fannin Street, Suite 400 19 Beaumont, Texas 77701 409-835-5200 20 409-838-5638 fax 21 22 23 ALSO PRESENT: Melanie Oliver 24 25 0005 1 INDEX 2 Appearances.................................... 2-4 3 Stipulations.................................... 8 4 DR. DAVID EGILMAN Examination by Ms. Nettle............... 8 5 Changes and Signature.......................... 227 6 Reporter's Certificate......................... 229 7 8 EXHIBITS file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (4 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 9 NO. DESCRIPTION PAGE 10 1 24 Notebook with printouts from Elliott's 11 web page 12 2 ...................................... 25 Letter from David Crowe to Sandra 13 Humphrey, 4/28/2000 with attachments 14 3 26 Elliott Link websites 15 4 ...................................... 30 16 Defendant Elliott Turbomachinery's First Supplemental Responses to 17 Plaintiffs' Master Interrogatories and Request for Production 18 5 ...................................... 30 19 Defendant Elliott Turbomachinery's Second Supplemental Responses to 20 Plaintiffs' Master Interrogatories and Request for Production 21 6 ...................................... 31 22 Defendant Elliott Turbomachinery's Second Supplemental Response to 23 Plaintiff's Request for Disclosure 24 7 ...................................... 31 Defendant Elliott Turbomachinery's 25 Objections and Responses to Plaintiffs' (Second) Duces Tecum Document Requests 0006 1 8 ...................................... 31 Defendant Elliott Turbomachinery's 2 Objections and Responses to Plaintiffs' Duces Tecum Document Requests 3 9 ...................................... 32 4 Elliott's Third Supplemental Objections to Master Interrogatories 5 and Requests for Production, Definitions and Instructions 6 10 ...................................... 39 file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (5 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 7 8 11 9 10 12 11 12 13 13 14 14 15 15 16 17 16 18 19 17 20 21 18 22 23 19 24 25 20 0007 1 21 2 3 22 4 5 23 6 Re-Notice of Taking Deposition and Request for Production of Documents ...................................... 43 Stack of documents provided to Dr. Egilman from Baron & Budd ...................................... 52 Notebook with Medical Records of Marty Mitchell List of a Word Database ...................................... 65 Folders with Moody's Printouts 59 66 List of Excerpts from Articles from the National Safety Council Publications ...................................... 101 Order Record 101 Letter from Industrial Gasket & Shim Co. to Elliott Company, 1/22/74 104 Woodward Bulletin, Bellows Direct Type Speed Setting Mechanism 104 Stack of documents provided by Mr. Taylor 108 Turbine Service Report Summary 109 Elliott Company - Engineering Department, Record Descriptive Specifications - Turbine 109 Elliott Material Specification No. 51, 51A 109 Garlock Sheet Gasketing document file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (6 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 24 ...................................... 110 7 Elliott Material Specification No. 367 8 25 ...................................... 110 J.C. Style 2150 Compressed Asbestos 9 Sheet Packing 10 26 ...................................... 111 Turbine Service Report From Oklahoma A&M 11 27 ...................................... 112 12 Johns-Manville Insulation Product Information packet 13 28 124 14 Johns-Manville Insulation Product Information packet 15 29 125 16 Development of Axial-Flow Supercharger 17 30 ...................................... 126 S.O. 7402, Repair and Testing Document 18 31 176 19 Results of a Medline Search 20 32 ...................................... 211 OCF Knowledge of Risk to Users 21 33 211 22 Johns-Manville, First in Insulation, Materials, Engineering, Application 23 24 25 0008 1 (Witness sworn.) 2 MS. NETTLE: Can we have an agreement it 3 be taken pursuant to the rules and objection for one is 4 good for all defendants? 5 MR. TAYLOR: Yes. 6 DR. DAVID EGILMAN, 7 having been previously sworn, testified as follows: 8 EXAMINATION 9 BY MS. NETTLE: 10 Q. Sir, could you state your name for the record? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (7 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 11 A. David Steven, with a V, Egilman, 12 E-G-I-L-M-A-N. 13 Q. And what is your business address? 14 A. 8 North Main Street, Attleboro, 15 A-T-T-L-E-B-O-R-O, Massachusetts 02703, Suite 404. 16 Best view in Attleboro. 17 Q. Do you live in Massachusetts? 18 A. I do. 19 Q. Did you bring any documents with you today 20 pertaining to this case, Marty Mitchell's case? 21 A. I did. 22 Q. What did you bring? 23 A. Well, I brought several sets of Elliott 24 Turbine interrogatories, I brought documents Elliott 25 Turbine has produced, I brought documents Elliott 0009 1 Turbine has not produced. I brought some National 2 Safety Council overheads during the time period Elliott 3 Turbine was a member of the National Safety Council. 4 When they forgot they were a member based on their 5 interrogatories. I brought some nice overheads from 6 that time period when they were a member of the 7 National Safety Council. I brought National Maritime 8 Commission meeting from 1942. I brought all of the 9 newspaper articles and other magazine articles and 10 medical literature from 1898 until last month. 11 Q. Where are these documents? 12 A. I'm not done with my list, ma'am. Let me just 13 finish my list. I brought all the medical records that 14 I was given by -- provided by Mr. Kaeske's law firm 15 which I will not represent are the total sum of all the 16 medical records in this case. I have depositions of 17 Mr. Mitchell. I have depositions of corporate 18 representatives of Elliott Turbine; 1, 2, 3 of those I 19 think. I have -- oh, let's see what else I have. I 20 have a little bit of -- I've got some Moody's on 21 Elliott Turbine. I've got a little chart of the 22 corporate history of Elliott Turbine. I've got -- what 23 else I got? Let me just think for a minute. Getting 24 towards the end of the list, probably another 10, just 25 15 things more. What else we got? Oh, I got the IHF 0010 1 Digests. I got -- let's see, oh, I got a Manville -- file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (8 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 2 I've got a Manville 1954 marinite brochure. Use that 3 there on your product. I got some specifications for 4 your products. What else I got? I got the Dartez case 5 with me. Let's see. I think that's all I got, but if 6 I think of something, I'll be glad to remind myself and 7 fix that answer. 8 Q. Okay. 9 MS. NETTLE: I'm going to object to the 10 nonresponsive portion. 11 Q. Where are these documents? 12 A. Well, some of them is here, right here in the 13 room; some of them is in my room upstairs; some of them 14 are on my computer, which I can burn a CD ROM for you 15 and give it to you. 16 Q. Where are the documents that you brought in 17 the room with you? 18 A. Some of them are still in the room and some of 19 them is here. 20 Q. Is it -- are the only documents you brought to 21 this deposition room that stack right there in front of 22 the attorney? 23 A. Only because there's two boxes in my room and 24 we wanted to make sure we could start on time and - 25 THE WITNESS: What's your name? 0011 1 MR. TAYLOR: Taylor. 2 A. Mr. Taylor would be glad to go right up there 3 and get them right now. 4 THE WITNESS: Wouldn't you, Mr. Taylor? 5 MR. TAYLOR: I certainly would. 6 A. And so Mr. Taylor is going to go right up 7 right now and you could continue without Mr. Taylor. 8 No problem. 9 MS. NETTLE: I'm going to object to the 10 nonresponsive portion. 11 Q. Are the only documents you brought to the room 12 with you this stack right here? Yes or no? 13 A. At this particular moment. But Mr. Taylor was 14 supposed to be bringing those other boxes down. But 15 instead of doing that, he was just sitting here as a 16 potted plant. So I want to unpot him and have him 17 bring the rest of the documents down, okay? So why 18 don't you go upstairs. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (9 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 19 Q. Sir, what are your feesin this case? 20 A. What are my fees in this case? 21 Q. Uh-huh. 22 A. You mean how much I generally bill? 23 Q. How much are you charging the Kaeske firm in 24 this case? 25 A. I don't know yet. 0012 1 Q. When are you going to make that determination? 2 A. I don't know. I haven't decided when I'm 3 going to do that either. I generally charge $450 an 4 hour, 475 for depositions. 5 Q. So 475 an hour for depositions and 450 for all 6 other work? 7 A. Right. 8 Q. Does that include trial testimony? 9 A. Right. 10 Q. Do you have a retainer fee? 11 A. Yeah. 12 Q. How much is that? 13 A. $2,500 for which I bill against. 14 Q. Have you been paid the retainer in this case? 15 A. That's an excellent -- that is the question of 16 the day. I do not know. I will check, though. That 17 is a -- let me write that down, retainer, check on 18 that. 19 Q. How many hours have you spent preparing in 20 this case? 21 A. For this case? 22 Q. Yes. 23 A. Well, it's really about the last 30 years 24 probably about 20 percent of my waking hours. But 25 specifically on this case, that is, reviewing 0013 1 Mr. Mitchell's medical records, which is the only part 2 of this case that I'd call specific review, I'd say 3 three or four hours. 4 MS. NETTLE: And I object to the 5 nonresponsive portion. 6 Q. So you spent three to four hours preparing 7 specifically for the opinions in the Mitchell case? 8 A. No, ma'am. 9 Q. All right. Have you spent -- what other time file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (10 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 10 than three to four hours have you spent specifically 11 pertaining to the Mitchell case, how many hours? 12 A. This is a rough guess, a very -- I'd have to 13 really figure up -- probably over 20,000 hours of 14 research goes into the opinions I'm giving in this 15 case. 16 Q. All right. What I'm asking, sir, is how much 17 time you have spent reviewing documents pertaining to 18 the Mitchell case specifically or preparing for 19 opinions specific to the Mitchell case? 20 A. As I said, ma'am, about 20 to 50,000 hours of 21 my research go into the opinions I will be giving in 22 this case. 23 Q. That was not the question I asked. How much 24 time have you spent preparing or reviewing documents 25 specific to the Mitchell case? 0014 1 A. Well, that goes to the three or four hours 2 that relate to Mr. Mitchell's medical records. 3 Q. All right. 4 A. And Elliott documents as well. 5 Q. All right. So your review of the Elliott 6 documents and the medical records took three to four 7 hours; is that correct? 8 A. No, let's go six. 9 Q. Helps your fees, right? 10 A. No, ma'am. Object to the sidebar. 11 Q. That wasn't a sidebar, that was a question. 12 A. Object to the question. 13 Q. Well, that's fine. 14 A. Not reasonably likely to end up in getting 15 some discoverable evidence. Intended to harass the 16 witness. 17 MS. NETTLE: I'm going to object to the 18 nonresponsive portion. 19 Q. Did you spend any additional time reviewing 20 the deposition of Mr. Mitchell? 21 A. No. 22 Q. That's included in the six hours? 23 A. Right. 24 Q. Okay. Can you tell me what percent of your 25 income annually you receive from asbestos-related 0015 file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (11 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 1 litigation and consulting in asbestos-related 2 litigation? 3 A. Probably 60, 70 percent. 4 Q. How many times have you testified in a 5 deposition? 6 A. All my life? 7 Q. Yes. 8 A. Probably 3, 400. 9 Q. How many times have you testified at trial? 10 A. 100, 150. 11 Q. What percent of those times that you were 12 deposed were for plaintiff rather than defendant? 13 A. None. 14 Q. You've never been retained by a plaintiff to 15 testify in asbestos-related litigation? 16 A. Different question. Yes, I have. 17 Q. All right. Well, what percent of the times 18 that you have been retained and have testified have 19 been for the plaintiff rather than the defendant? 20 A. Different question. None. 21 Q. So is it your testimony then that you've never 22 been retained by a plaintiff in a case where you've 23 given a deposition? 24 A. No. 25 Q. All right. Then tell me the number of times 0016 1 that has happened. 2 A. Probably 300. 3 Q. 300 of the 300 times you've been deposed has 4 been times you were retained by the plaintiff? 5 A. No. The 300 was an approximation. I've also 6 been retained at the request of defendants in asbestos 7 litigation and other litigation and have given 8 depositions. 9 Q. All right. And that is my question, sir. 10 What percent was for plaintiff and what percent was for 11 a defendant? 12 A. None. 13 Q. Explain that. 14 A. I don't testify for either side. I testify at 15 the request of people. 16 Q. What percent was at the request of the 17 plaintiff and what percent was at the request of the file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (12 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 18 defendant? 19 A. Percent of what? 20 Q. Times that you were deposed? 21 A. Well, most of the depositions are at the 22 request of defendants, like in this case. 23 Q. That's not my question. Please listen to my 24 question and answer my question. Of the times you've 25 been deposed, what percent were times you were retained 0017 1 by the plaintiff? 2 A. One question, maybe I'm not hearing right, 3 could you read back the last two questions, please? 4 (Requested portion was read.) 5 Q. The only question on the table is the last one 6 that I asked. 7 A. Thank you very much, ma'am. Could you reread 8 the last question before the last question? 9 (Requested portion was read.) 10 A. Just wanted to make sure I was listening 11 right. Of the times that I was deposed, I was 12 generally listed as a witness at the request of the 13 plaintiffs. 14 Q. And my question was: what percent of times 15 for the plaintiff? 16 A. I don't know. 17 Q. Can you give me a ballpark figure? 18 A. I could speculate. 19 Q. What would that estimate be? 20 A. What would my speculation be? 21 Q. Yes. 22 A. My speculation would be over 80 percent, 23 speculating. 24 Q. All right. Do you have a list of cases in 25 which you've previously given testimony, either at 0018 1 deposition or at trial? 2 A. No. 3 Q. Have you ever created one of those lists? 4 A. Yes. 5 Q. Do you still have that list? 6 A. No. 7 Q. Why not? 8 A. I don't know. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (13 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 9 Q. Did you destroy the list? 10 A. Don't think so. 11 Q. Did you give it away? 12 A. Don't know. 13 Q. All right. What did you prepare that list 14 for? 15 A. A trial. 16 Q. Was it a federal court case? 17 A. Yes. 18 Q. And when did you prepare that list? 19 A. Don't recall, '93,'94, '95. 20 Q. Have you updated that list since the time it 21 was created and added any more cases? 22 A. I've prepared other lists. 23 Q. All right. Do you have in your possession - 24 and I don't mean in this room, I mean in your 25 possession -- any of those lists? 0019 1 A. I don't think so. 2 Q. Have you destroyed those lists? 3 A. I don't know. 4 Q. Where are they? 5 A. I don't know. 6 Q. Can you recreate those lists? 7 A. Probably not exactly. 8 Q. Have you ever provided the Kaeske firm with a 9 list of cases in which you've testified? 10 A. I doubt it. 11 Q. And so is it your testimony that you have no 12 list of the cases in which you've testified? 13 A. As far as I can recall, I have no current list 14 or old list of cases in which I've testified, but I 15 think Mr. Gustafson keeps a list. 16 Q. How many times have you been retained by the 17 Kaeske firm? 18 A. I don't know, 10, 15. 19 Q. How many times have you testified at 20 deposition or trial for the Kaeske firm? 21 A. At the request of you mean? 22 Q. Yes. 23 A. Between 5 and 10 probably. 24 Q. Have any of those been in Texas? 25 A. Sure. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (14 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 0020 1 Q. Do you remember the names of any of those 2 cases? 3 A. No. 4 Q. Have you ever been disqualified as an expert 5 witness? 6 A. No. 7 Q. Have you ever been partially disqualified to 8 testify in any area of expertise? 9 A. Yes. 10 Q. And what are the circumstances surrounding 11 that? 12 A. In a Port Authority case in New York, the 13 special master ruled that I could not testify on ethics 14 generally. That is, I couldn't testify on abortion 15 ethics or ethics as it related to death and dying, but 16 that I could testify on occupational/environmental 17 ethics in that case. So that was a limitation on my 18 ability to testify as an ethicist in that case. 19 Q. Have you ever been disqualified -- well, let 20 me back up. Are you aware of a Havner motion, 21 generally, that term? 22 A. You mean have I read the Havner case? 23 Q. Okay. No, I'm asking if you're aware of a 24 motion to disqualify an expert under the Havner 25 opinion? 0021 1 A. Am I aware that a motion has ever been filed 2 under the Havner Texas case - 3 Q. Yes. 4 A. -- to disqualify a witness? 5 Q. Yes. 6 A. That's not my understanding of the law. My 7 understanding of the law is that Havner says that no 8 one can testify on a particular issue because there's 9 insufficient data. It's not a personal attack, it's a 10 question of general or specific causation and the 11 ability of anyone to give testimony. So it's not like 12 this person can or that person can't. 13 MS. NETTLE: I'm going to object to the 14 nonresponsive portion. 15 Q. Has anyone ever filed a motion to exclude you 16 under either Daubert or Robinson or Havner cases to file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (15 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 17 your knowledge? 18 A. Oh, yes. 19 Q. Have any of those motions been granted or 20 partially granted? 21 A. Oh, no. 22 Q. You have listed earlier documents specific to 23 the Mitchell case, including medical records of 24 Mr. Mitchell, the deposition of Mr. Mitchell. Are 25 there any other documents pertaining to Mr. Mitchell 0022 1 specifically that you have reviewed? 2 A. Sure. 3 Q. What are they? 4 A. Coworker deposition, all these documents, all 5 the medical literature that relates to asbestos and 6 asbestos health effects, everything else on that list 7 that I reviewed relates to Mr. Mitchell. 8 MR. NETTLE: I'm going to object to the 9 nonresponsive portion. 10 Q. What coworker depositions have you reviewed? 11 A. I can't remember the name of the guy. 12 Q. Is it Lonnie Mitchell? 13 THE WITNESS: Let me ask. 14 MR. TAYLOR: Yeah. 15 A. Lonnie Mitchell. 16 Q. Can I see that stack of documents, please, 17 since you pointed to it and said "these documents"? 18 A. Sure. I don't want you to get my laundry tag 19 in there. 20 Q. All right. You've handed me a notebook which 21 appears to have printouts from the Elliott web page; is 22 that correct? 23 A. Uh-huh. That would be a yes. 24 Q. Is that the only thing in this notebook is 25 printouts from the Elliott web page? 0023 1 A. Well, it's printouts from -- I think so. 2 Q. Okay. 3 A. There's a nice picture of asbestos on turbines 4 on the front page though. 5 MS. NETTLE: Object to the nonresponsive 6 portion. 7 Q. All right. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (16 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 8 THE WITNESS: Don't you want to mark 9 that? Do you want to mark that? 10 MS. NETTLE: Sir, I'm asking the 11 questions. 12 MR. TAYLOR: Let's mark the things we're 13 going to refer to as exhibits. 14 MS. NETTLE: I'm not referring to that as 15 an exhibit right now. 16 THE WITNESS: She asked me about it. I 17 want it marked. 18 MR. TAYLOR: If they're discussed in the 19 record, we want the record to be complete. Let's go 20 ahead and mark it. Let's mark that as Exhibit 1. 21 THE WITNESS: It took a lot of time to 22 download that, it's much easier to just make a copy and 23 distribute it. 24 Q. It appears you have here a letter from - 25 THE REPORTER: Do you want me to mark 0024 1 this or... 2 MR. TAYLOR: Yes. 3 THE WITNESS: Yes, that needs to be 4 marked. 5 MS. NETTLE: I'm not marking that as an 6 exhibit. 7 MR. TAYLOR: I am. 8 THE REPORTER: Well, just one second, I 9 can't mark and - 10 THE WITNESS: She can only do one thing 11 at a time. So let her mark it. 12 THE REPORTER: Do we want to agree to 13 mark this? 14 MS. NETTLE: I'm not marking that as an 15 exhibit. 16 THE WITNESS: There's no agree... 17 MR. TAYLOR: We don't have to. 18 MS. NETTLE: If they want to mark it - 19 THE WITNESS: There's no agreement on 20 marking exhibits. It was referred to in a deposition, 21 it's marked. 22 Q. You also have here an April 28th, 2000 letter 23 from DeHay and Elliston. It looks like a filing letter 24 for Elliott's discovery responses; is that correct? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (17 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 25 A. That's correct. 0025 1 Q. And then you have a document behind that 2 entitled defendant Elliott Turbo Machinery's objections 3 and responses to plaintiffs master interrogatories and 4 request for production; is that correct? 5 A. I believe that's correct. 6 Q. And that was filed April 28th, 2000, correct? 7 A. That I don't recall, but I'll take your word 8 for it. 9 MR. TAYLOR: Together -- the letter and 10 responses go together. Let's mark those as Exhibit 2. 11 Q. You have more documents that are printouts 12 from the Elliott website, correct? 13 A. Yes. 14 Q. Are these different from the documents in the 15 notebook? 16 A. I don't know. I think it's a second copy. 17 MR. TAYLOR: I can clarify, counsel, if 18 you want me to. I think those are links from the main 19 website. It links you to those related websites, and 20 those are the printouts of those. 21 MS. NETTLE: So is it your understanding 22 then these are different from the - 23 MR. TAYLOR: Yes. 24 MS. NETTLE: -- the printouts of the 25 website in the notebook? 0026 1 MR. TAYLOR: Yes. 2 Q. So all the rest of these documents here are 3 printouts from web pages, correct? 4 A. As far as I know. 5 Q. So there's not other documents in that stack 6 you pointed to other than web-page information and 7 Elliott's answers to interrogatories filed April of 8 2000, correct? 9 A. In that stack, but now we have the other 10 stuff. 11 MS. NETTLE: Object as nonresponsive. 12 MR. TAYLOR: Let's go ahead and mark the 13 link websites as Exhibit 3. 14 MS. NETTLE: And I'm going to object to 15 the extent they're characterized as that because I file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (18 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 16 don't know what they are, but they are printouts from 17 websites it appears. 18 THE WITNESS: Okay. Let me just make it 19 clear that the first questions were about documents 20 that were in -- have now been labeled Exhibit 1, and 21 they were in a black binder. And it starts with - 22 there are some tabs in here starting with "home" and 23 going to "contact." Those are the first pages of the 24 website pages. And then there's Exhibit 2, which 25 identified -- which I identified as a cover letter from 0027 1 David Crowe to Sandra Humphrey, 44th District Court 2 Clerk, with attached interrogatory responses. And then 3 we have Exhibit 3 which I identified as links from the 4 web pages to other web pages, all Elliott pages. 5 Q. When were these - 6 MS. NETTLE: And I'm going to object, 7 there was no question pending. 8 Q. When were these printouts from the web pages 9 printed out? 10 A. Yesterday. 11 Q. And who printed them out? 12 A. Some of them I did and some of them -- I don't 13 know who did, someone from the firm did. 14 Q. The Kaeske firm? 15 A. Yeah. 16 Q. Can you tell me which ones you did? 17 A. No. 18 Q. And can you tell me which ones the Kaeske firm 19 did? 20 A. No. 21 Q. Do you know when the ones the Kaeske firm 22 printed out were printed? 23 A. Same day. 24 Q. Are there any documents in there other than 25 Exhibit 2 that were printed earlier than yesterday? 0028 1 A. I don't think so. 2 Q. I'm sorry, what? 3 A. I do not think so. 4 Q. Other than the medical records of 5 Mr. Mitchell, the deposition of Mr. Mitchell, the 6 deposition of Lonnie Mitchell, are there any other file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (19 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 7 documents specifically referring to Mr. Mitchell that 8 you've reviewed in this case? 9 A. The interrogatories in the case. 10 Q. The plaintiff's responses to interrogatories? 11 A. Those and your responses to the plaintiff's 12 interrogatories. 13 Q. But you have reviewed plaintiff's responses to 14 interrogatories? 15 A. I think so. 16 Q. Have you reviewed any other of Elliott's 17 responses to interrogatories besides the ones in 18 Exhibit 2? 19 A. Yes, I think I've seen three or four different 20 versions with different answers. 21 Q. And do you have those with you? 22 A. Some of them. I think I've got at least two 23 or three versions. 24 Q. Can you provide those for me? 25 A. I've got the Brayton version from California. 0029 1 I think I've got another Texas version from Baron & 2 Budd, and I've got, I think, a version from the ship 3 case from the Great Lake Shipping. So why don't you - 4 let me have -- let me move the plant a little bit and 5 he'll see if he can find them. 6 MR. TAYLOR: These are additional Elliott 7 discovery responses that we had in the boxes that we 8 brought down. I believe there may be one additional 9 one from California that somehow got separated from 10 these, and I'll locate it. 11 THE WITNESS: Actually the California one 12 was a request for admissions. 13 MS. NETTLE: Can I see those, please? 14 THE WITNESS: Either request for 15 admissions or request for document production only. 16 Q. Okay. You have handed me different sets of 17 documents. One is defendant Elliott's first 18 supplemental responses filed In Re: Asbestos in Dallas 19 County, correct? 20 A. Can I see it? That is correct. 21 MS. NETTLE: I think the court reporter 22 needs to mark the exhibits. 23 THE WITNESS: Oh, she does, I know. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (20 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 24 MR. TAYLOR: If you'll hand me a sheet of 25 those, I'll... 0030 1 THE WITNESS: That's good. You must have 2 been watered today, actually doing some work. Go right 3 ahead. 4 MR. TAYLOR: If you talk to a plant, they 5 stay happy. 6 THE WITNESS: Go right ahead. 7 MS. NETTLE: Are you marking that as 8 what? 9 MR. TAYLOR: Exhibit 4. 10 Q. The next document is Elliott's second 11 supplemental responses and request for production filed 12 In Re: Asbestos in Dallas County, correct? 13 A. That's correct. Let's put a date on this. It 14 looks like the 26th day of April, 2001. Probably we 15 should put a date on the first one, that would be 16 Exhibit 4. The date on Exhibit 4 would be April 10th, 17 2001. 18 MS. NETTLE: And what have you marked? 19 MR. TAYLOR: We marked the last document 20 as Exhibit 5. 21 MS. NETTLE: Second supplemental? 22 MR. TAYLOR: Yes. 23 MS. NETTLE: And I'm going to object to 24 the nonresponsive statements. 25 Q. The next document I have is defendant 0031 1 Elliott's second supplemental response to plaintiff's 2 request for disclosure filed in the Malcolm Murphy case 3 in Dallas County; is that correct? 4 A. That's correct, dated the 20th day of March, 5 2001. 6 MR. TAYLOR: Let me mark that as Exhibit 7 6. 8 THE WITNESS: And I think that's going to 9 be marked as Exhibit 6. 10 Q. And then I have defendant Elliott's objections 11 and responses to plaintiff's second duces tecum 12 document requests filed in the Malcolm Murphy case in 13 Dallas County; is that correct? 14 A. That's correct. And the date on that is the file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (21 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 15 14th day of May, 2001. And that's going to be marked 16 Exhibit 7. 17 Q. Next document I have is defendant's Elliott's 18 objections and responses to plaintiffs duces tecum 19 document request also in the Malcolm Murphy case in 20 Dallas County; is that right? 21 A. That's right. And the date here is the 28th 22 day of April, 2000. And that will be marked Exhibit 8. 23 Q. And then I have Elliott's third supplemental 24 responses in, In Re: Dallas County Asbestos 25 Litigation; is that right? 0032 1 A. That's correct. And the date is March 4th, 2 2002, and that would be marked Exhibit 9. 3 Q. Now, all of these documents were filed in 4 Texas in re: or Texas cases, correct? The discovery 5 responses we've just gone through, were there any out 6 of state? 7 A. I don't know exactly whether these same were 8 filed in other states or not. I don't know where these 9 were retrieved from. At least one of them appears to 10 be from a particular case in Texas. 11 MS. NETTLE: I'm going to object to the 12 nonresponsive portion. 13 Q. Are any of these documents from out-of-state 14 cases? 15 A. I don't know where the documents were 16 obtained. I did not obtain the documents. 17 Q. Do any of these appear from the caption to 18 have been filed in out-of-state cases? 19 A. No. 20 Q. Now, you've mentioned something about 21 California responses to discovery, where are those? 22 A. They should be in the boxes here. 23 Q. Can you get those for me? 24 MR. TAYLOR: I didn't find them in the 25 boxes. I can go up and look for them in the room. 0033 1 THE WITNESS: Did you look on the floor 2 next to my... 3 MR. TAYLOR: No, there was that... I 4 thought it was complete. 5 MS. NETTLE: Do you want to take a break? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (22 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 6 MR. TAYLOR: No. 7 THE WITNESS: No. 8 MR. TAYLOR: Continue. 9 Q. You also mentioned something about Great Lake 10 Shipyard case; what state was that? 11 A. I don't remember the state. 12 Q. Where are those responses? 13 A. They would be upstairs. 14 MS. NETTLE: Are you going to get both of 15 those? 16 MR. TAYLOR: What was that? 17 MS. NETTLE: Something about Great Lake 18 Shipyard case. 19 THE WITNESS: That's on the floor next to 20 my chair. 21 MR. TAYLOR: Okay. 22 Q. Are there any other responses to discovery 23 other than these we've marked as exhibits and the 24 California case and the Great Lakes case that the 25 attorney is going to get that you have reviewed? 0034 1 A. No, but I have another set coming and so I 2 will review those. Those are from Pittsburg. 3 MS. NETTLE: I'm going to object as 4 nonresponsive. 5 Q. Are there any others that you have reviewed? 6 A. No. 7 Q. Who provided you these documents? 8 A. You mean the discovery responses? 9 Q. Yes. 10 A. Oh, I think someone from Mr. Kaeske's firm 11 probably provided some of them, some of them were 12 probably provided by the Kazen law firm in California. 13 Oh, and that reminds me. In answer to your previous 14 question about what all I brought, we're bringing some 15 more stuff. These are demonstrative exhibits to be 16 used at trial and that's what they're bringing in now. 17 MS. NETTLE: I'm going to object as 18 nonresponsive. 19 Q. Who -- okay, Kaeske provided you some of the 20 discovery responses. The Kazen law firm provided you 21 some of the discovery responses. Who else? 22 A. That's all I could think of. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (23 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 23 Q. Did you request - 24 A. Well, the Pittsburg ones are going to come 25 from Goldberg, Persky. If they can find them. 0035 1 Q. What firm is that? 2 A. Goldberg, Persky. 3 Q. Did you call either the Kazen firm or 4 Goldberg, Persky and request these responses? 5 A. Yes. 6 Q. When did you do that? 7 A. I don't know, last week or so. 8 Q. What prompted you to do that? 9 A. Your deposition notice. 10 Q. Did the Kaeske firm request that you do that? 11 A. No. 12 Q. Which documents did the Kaeske firm provide 13 you specifically, which of those interrogatory 14 responses? 15 A. The ones on the desk. 16 Q. The exhibits that have been marked? 17 A. Correct. 18 Q. All came from the Kaeske firm? 19 A. No, no, no, some came from Baron & Budd. 20 Q. Did you request those from Baron & Budd? 21 A. Yes. 22 Q. When did you do that? 23 A. Yesterday. 24 Q. When did you receive those? 25 A. Last night. 0036 1 Q. Were they hand delivered to the hotel? 2 A. I don't know how they were delivered. 3 Q. How did you get them? 4 A. They were at the hotel waiting for me when I 5 got here. 6 Q. Which of those on the -- which of the 7 interrogatory responses that we've marked came from the 8 Kaeske firm and which came from Baron & Budd? 9 A. I don't know. 10 Q. Do you have any way to determine that? 11 A. Yes. 12 Q. How is that? 13 A. I could call the Baron & Budd firm and ask file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (24 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 14 them what they sent. 15 Q. Did a cover letter come with the documents? 16 A. Not that I know of. 17 Q. Did you see a cover letter with them last 18 night? 19 A. No. 20 Q. Prior to -- well, when's the first time you 21 reviewed a document pertaining to Elliott? And just to 22 clarify - 23 A. Probably about eight years ago. 24 Q. All right. What document was that? 25 A. You mean directly associated to Elliott? 0037 1 Q. Uh-huh. 2 A. That's national council meeting papers from 3 1957 to 19 -- well -- and then up forward to that. 4 Q. When's the first time you reviewed a document 5 either prepared or filed in court by Elliott? 6 A. I have no idea. 7 Q. When is the first time you reviewed any 8 interrogatory responses of Elliott? 9 A. In the last week. 10 Q. When is the first time you reviewed any 11 documents produced in litigation by Elliott? 12 A. I have no idea. 13 Q. That you know of, when is the first time? 14 A. That I know of what? 15 Q. I'm not asking you what every document is 16 Elliott's produced. I'm asking you when is the first 17 time you looked at a document knowing it was a document 18 Elliott produced in litigation? 19 A. I don't know that to date, that any of the 20 documents were produced by Elliott in litigation. 21 Q. When we first started this - 22 A. Except for the interrogatories. 23 Q. When you first started this, you said some of 24 the documents you brought were documents Elliott had 25 produced in litigation. When you stated that, were you 0038 1 referring to these interrogatory responses? 2 A. Yes, and the -- and any documents that may 3 have been mentioned in the -- and attached to the 4 30-piece -- the six depositions. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (25 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 5 Q. So other than interrogatory responses or 6 documents attached to the depositions, are you 7 referring to depositions of Ross Hackel? 8 A. That's the only ones I've seen. 9 Q. Okay. 10 A. There may be others, those are the only ones 11 I've seen. 12 Q. Other than documents attached to the 13 depositions of Ross Hackel or these interrogatory 14 responses, are you aware of any other documents that 15 you've reviewed that Elliott has produced in 16 litigation? 17 A. Well, the other documents that I reviewed that 18 relate to Elliott, some of them may have been attached 19 to some of these interrogatories and may have been 20 produced. I didn't go through them and can't swear 21 that that's the case, so it's, I imagine, likely that 22 some of the other Elliott documents that I reviewed 23 were produced in litigation, but I can't be sure. 24 Q. What other Elliott documents have you reviewed 25 besides the Ross Hackel deposition, any attachments to 0039 1 those, and these responses to discovery? 2 A. Well, all the stuff that I have on the table 3 that's already been marked. 4 Q. You're referring to the web printout pages? 5 A. Well, let's do it specifically. Exhibits 1 6 through 9 at this deposition. 7 Q. Okay. 8 A. And then all of these documents back here - 9 THE WITNESS: They're in that stack. Oh, 10 here's the California interrogatories. Oh, actually 11 it's request for -- it was request for production, I 12 was right. Sorry. No, I think she wants that pile 13 down there. Have you got more? 14 MR. TAYLOR: No. 15 A. Do you want the answer to the other question? 16 It starts with these. We can start with these. And 17 let me get some more for you. 18 MS. NETTLE: I'll mark this as Exhibit 19 10. 20 Q. Is this the California responses to discovery 21 you were referring to? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (26 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 22 A. Yeah, but as I said, I misstated it first and 23 then corrected it. These are request for productions 24 of documents. 25 Q. But are those general responses to discovery 0040 1 from California that you were referring to? 2 A. I think that's a legal question I don't know 3 the answer to. I don't know whether requests for 4 production fall under that category or not. 5 Q. Is there any other discovery responses from 6 California you looked at besides those? 7 A. Not that I can recall. 8 THE WITNESS: So why don't we mark these 9 10? 10 Q. Any other Elliott document you've reviewed 11 besides Exhibits 1 through 10? 12 A. Yeah, this pile here. 13 Q. Are all these documents specifically 14 pertaining to Elliott? 15 A. As far as I can recall. 16 Q. Who provided you these documents? 17 A. Those exact ones in your hand? 18 Q. Yes. 19 A. I think they came from Baron & Budd. 20 Q. And when did you - 21 A. I'm not done with my answer, please. Similar 22 copies of those documents I had had from several 23 sources for at least 20 years, to many of those 24 documents. 25 Q. All right. The first document - 0041 1 A. I'm getting some more out, but go ahead. 2 Q. The first document's a June 1973 letter from 3 Elliott. Baron & Budd provided you this? 4 A. I think that pile came from -- I've got 5 several piles from different people. I think that's 6 the Baron & Budd pile. I think that's their pink 7 paper. 8 Q. Do you know what these documents in this stack 9 pertain to? 10 A. Yes. 11 Q. What? 12 A. In general, asbestos. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (27 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 13 Q. What's your understanding of why Baron & Budd 14 had these documents, if you know? 15 A. My understanding of why Baron & Budd has those 16 documents is because they represented individuals who 17 were dead or dying from asbestos-related disease, and 18 those individuals had not been told of the risks of 19 work from asbestos exposure. And that in some cases 20 those risks had been known to the employers, 21 contractors and product manufactures and that in order 22 to recover compensation for medical expenses, pain and 23 suffering, to provide money for their spouses and 24 surviving children, they filed a lawsuit. And as a 25 result of that lawsuit and their need to prove or 0042 1 attempt to prove those things, they obtained those 2 documents. And in particular, they obtained those 3 documents with respect to Elliott turbines because 4 those workers were exposed to Elliott turbines or to 5 asbestos products that Elliott Turbines had specified 6 should go on their materials. And that Elliott 7 Turbines had failed to inform those workers, 8 bystanders, purchasers of their products and others of 9 the risks of exposure to various small amounts of 10 asbestos that would be placed on their turbines and 11 used around their turbines and placed workers in the 12 vicinity of those turbines at risk of inhaling those 13 asbestos fibers. 14 Q. Are you done with your answer? 15 A. No. 16 Q. And Elliott Turbines knew that those risks 17 existed through their membership in various 18 organizations and were obligated to know what those 19 risks were under the law in this country, delineated in 20 the case Dartez, and failed to inform the worker in 21 that case of the unreasonable risk of exposure to 22 products that they either sold directly or specified to 23 appear on their turbines and other products. And that 24 they failed to adequately train the workers who would 25 work on those turbines and they failed on their 0043 1 information sheets to turbine repair facilities to 2 inform them of the risks associated with working with 3 asbestos on those turbines. And that Baron & Budd file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (28 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 4 sought those documents in an effort to prove those 5 facts. 6 MS. NETTLE: Objection, nonresponsive. 7 Q. Is it your understanding that all of these 8 documents pertain to the Malcolm Murphy case filed by 9 Baron & Budd in Dallas County? 10 A. No. 11 Q. All right. 12 MS. NETTLE: If you don't have an 13 objection, we can attach this whole stack as one 14 exhibit. 15 MR. TAYLOR: I have no objection. 16 Q. And Dr. Egilman, can I fairly state that it's 17 your understanding this stack of documents, which will 18 be Exhibit 11, are documents Baron & Budd provided to 19 you yesterday evening? 20 A. That's my best estimate of how I acquired 21 those documents. 22 MR. TAYLOR: I will offer a rubber band. 23 Q. Did you find the discovery responses for this 24 Great Lakes case you mentioned? 25 A. The answer would be we're looking. 0044 1 Q. So at this time you don't have them? 2 MR. TAYLOR: Did you look through that 3 stack? 4 MS. NETTLE: They're not in there. 5 MR. TAYLOR: Not in there? That's the 6 stuff that was by the chair. Let me look through the 7 rest of this one more time. 8 Q. Other than Exhibits 1 through 11 and these 9 Great Lakes responses, have you reviewed any other 10 Elliott documents? 11 A. I don't think so. 12 Q. When were you first retained in this case by 13 the Kaeske firm? 14 A. I don't know. 15 Q. Do you know if it was a year ago or a month 16 ago? 17 A. I don't know. 18 Q. Can you give me a -19 A. I have no recollection. I can't even 20 speculate. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (29 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 21 Q. When's the first time you did any work 22 specific to this case referring to those six hours you 23 mentioned earlier? 24 A. Since I got your deposition notice. 25 Q. All right. Now, I heard through the 0045 1 grapevine, is it fair to say that you weren't happy 2 about coming down to Dallas for this deposition? 3 A. You've been talking to grapes? 4 Q. Uh-huh. Is that a fair statement or is that 5 wrong? 6 A. Well, it depends at what point in time. 7 Q. What do you mean? 8 A. Well, I had to miss my kid's soccer game last 9 night and the Red Sox/Yankee's game. Okay. So I was 10 not happy about that. But I am having a wonderful time 11 now. 12 Q. Are you aware - 13 A. And it's making up for it, and my son really 14 enjoys reading these depositions, particularly when he 15 gets mentioned. 16 Q. Are you aware the Kaeske firm offered you for 17 deposition in Dallas today at 10:00 o'clock? 18 A. I am aware of that. 19 Q. And the notice was done according to the time 20 and place provided by the Kaeske firm that retained 21 you? 22 A. I'm aware of that. 23 Q. When was the first time - 24 A. I bear you no grudges, if that's the question. 25 MS. NETTLE: Object as nonresponsive. 0046 1 Q. When was the first time you had any 2 discussions with the Kaeske firm on this case? 3 A. I don't recall. 4 Q. What discussions do you recall having with the 5 Kaeske case -- Kaeske firm on this case? 6 A. Some scheduling questions about when I would 7 be available to -- for trial. That would be the first 8 that I could specifically recall. 9 Q. What other discussions have you had with the 10 Kaeske firm on this case? 11 A. What other discussions? We've discussed -- file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (30 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 12 Q. I want to know every discussion you've had 13 with the Kaeske firm pertaining to the Mitchell case? 14 A. I had some discussions with them about 15 scheduling this deposition. 16 Q. Yes, you mentioned that. What else? 17 A. I had discussions with them about providing me 18 materials. I had discussions with them about bringing 19 demonstrative exhibits. I had discussions with them 20 about breakfast and my inability to get bagels and lox. 21 I had discussions with them about being here on time, 22 and I had discussions with them about Mr. Taylor 23 leaving to go get the rest of the material that we 24 didn't bring at the beginning. I had discussions with 25 them about my interest in concluding this deposition as 0047 1 expeditiously as possible. That's all I can recall. 2 Q. Did you ever have any discussion about what 3 they were asking you to do in this case? 4 A. Yes. 5 Q. When was that? 6 A. It would have come up around the timeof the 7 scheduling of the trial testimony. 8 Q. And can you tell me when that was? 9 A. It would have been a couple of months ago, I 10 don't know, six, eight weeks. 11 Q. And what did they ask you to do in this case? 12 A. They asked me to be prepared, to be familiar 13 with Mr. Mitchell's medical records to determine what I 14 thought had caused his disease -- what I thought -- why 15 he died and what I thought the cause of his death was, 16 if any. What was known when about the general state of 17 the art with respect to hazards from exposure to 18 asbestos and asbestos-containing products. What was 19 known specifically by the Elliott Turbine company about 20 asbestos and asbestos-containing products, and that 21 means what was known, what should have been known, what 22 could have been known. What Elliott's response was to 23 that information. Whether or not Elliott Turbine acted 24 reasonably based on the knowledge it had or should have 25 had. Whether the products that Elliott Turbine made or 0048 1 specified to be made was specified to be placed on its 2 equipment were unreasonably dangerous. Whether or not file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (31 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 3 based on the Texas definition of conscious disregard 4 for the health of Mr. Mitchell in my opinion Elliott 5 had exhibited such by their failure to take any action 6 whatsoever to inform Mr. Mitchell or anybody else about 7 the known hazards of exposure to asbestos that was used 8 on, specified by or sold by Elliott to be used on its 9 turbines and/or provided or not provided to workers who 10 were designated to repair its turbines and boilers and 11 other products. Whether Elliott had truthfully 12 answered its interrogatory answers. Whether Elliott 13 had ever been convicted of a felony. That's it. 14 (Dr. Egilman and Mr. Taylor confer.) 15 MS. NETTLE: Object to the nonresponsive 16 portion. 17 Q. Is it your testimony that someone at the 18 Kaeske firm asked you to specifically form an opinion 19 on each of those topics you just mentioned? 20 A. Yes. 21 Q. Who at the Kaeske firm asked you to do that? 22 A. That would be Mr. Kaeske. 23 Q. When did you and Mr. Kaeske talk about those 24 issues? 25 A. Whenever we were scheduling the trial. 0049 1 Q. And that was six to eight weeks ago? 2 A. Yeah, as far as I can recall. 3 Q. Have you been asked to look at any other 4 documents specific to any other defendant in this case 5 by the Kaeske firm? 6 A. No. 7 Q. Are you prepared to render any -- offer any 8 opinions -- no, let me change that. Have you been 9 asked to offer any opinions about any other defendants 10 specifically in this case? 11 A. Was that -- how would you --asked to? 12 Q. Has the Kaeske firm requested that you form 13 any other opinions or look at these matters as to any 14 other defendant in this case? 15 A. Specifically asked? 16 Q. In the Mitchell case? 17 A. No, only specifically asked about Elliott. 18 Q. Okay. And is it your testimony that six to 19 eight weeks ago they asked you to render an opinion on file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (32 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 20 why Mr. Mitchell died and his cause of death? 21 A. As far as I can recall. 22 Q. Did you have any other discussions on the 23 opinions you'd be asked to render since that 24 conversation with Mr. Kaeske six to eight weeks ago? 25 A. Sure. 0050 1 Q. When was that? 2 A. Yesterday, today. 3 Q. Who did you talk to yesterday from the Kaeske 4 firm? 5 A. Mr. Kaeske. 6 Q. And what did you and he discuss? 7 A. The fact that he had viral meningitis and just 8 got out of the hospital. 9 Q. What else did you discuss pertaining to your 10 opinions in this case yesterday with Mr. Kaeske? 11 A. Well, that he couldn't discuss much of my 12 opinions based on his mental status at the time. 13 Q. What else? 14 A. That would be it. 15 Q. Did you talk to anybody else with the Kaeske 16 firm yesterday? 17 A. Yes. 18 Q. Who else? 19 A. Eric Manchin. 20 Q. And what did you and Eric Manchin discuss? 21 A. I told him to download all those pages from 22 the website and make sure they were here. And I told 23 him to go to the library and get these sections from 24 Moody's and make sure they were here. And I told him 25 to make sure that the Baron & Budd materials were here 0051 1 at the hotel and make sure that a copy of the medical 2 records was here at the hotel. 3 Q. So you didn't have -- or did you have the 4 copies of the medical records before you came here? 5 A. I did, but I didn't bring anything because I 6 was in a hurry. 7 Q. Do you know whether or not the medical records 8 that he sent here are the same ones that you reviewed 9 prior to traveling here? 10 A. I didn't check them page by page, but I could file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (33 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 11 do that later. 12 Q. Do you have a list of the medical records you 13 reviewed in this case? 14 A. No, I have the medical records that I reviewed 15 that were brought here. 16 Q. You have the records Eric Manchin sent to you 17 at the hotel last night? 18 A. Right, they're here. 19 Q. But you don't have the specific ones you 20 reviewed in preparation for the case? 21 A. I reviewed those in preparation for the case. 22 Q. Did you review the ones that were sent to you 23 previously? 24 A. Yes. 25 Q. So you've reviewed the medical records twice? 0052 1 A. Yeah. I'm not sure if it's the same ones or 2 not. 3 Q. Okay. Any other -4 A. It's a big thick notebook. I didn't go 5 through it page by page. They're not numbered or Bates 6 numbered. 7 Q. Can I get a copy of that notebook? 8 A. Certainly. Let's mark it as an exhibit. That 9 would be Exhibit 12 that I just handed you which is the 10 medical records brought to the hotel by Mr. Manchin. 11 Q. And you can't tell me as you sit here today 12 whether or not the medical records that were sent to 13 you previously are the same or there's any additional 14 ones than what's in this notebook? 15 A. I believe that they're substantially similar. 16 Q. All right. I'm just getting at -- you can't 17 tell me any others that aren't in here that Eric left 18 out, right? You don't have any that you remember, oh, 19 I also looked at the records from so and so hospital 20 and they're not in the book? 21 A. Yeah, you know, what's not in the notebook is 22 the path report from Battifora. 23 THE REPORTER: The what? 24 THE WITNESS: Battifora's path report. 25 A. So I don't think I had that before. 0053 1 Q. All right. Other than that, are there any file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (34 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 2 others that stand out as being missing from the 3 notebook that you reviewed, medical records? 4 A. No, but I didn't check it page by page or even 5 close. 6 Q. I understand. I'm just asking if there's any 7 you remember? 8 A. I understand that you understand. But I want 9 to make sure that the record is clear. 10 Q. Anything you and Eric talked about other than 11 the documents he should get for you? 12 A. Yes. 13 Q. What else? 14 A. I told him to bring a printer to the hotel. 15 Q. Why? 16 A. So that I could print. 17 Q. Okay. Were you printing anything pertaining 18 to this case? 19 A. Yes. 20 Q. What were you printing? 21 A. Well, a lot of things. Let's show her some of 22 the printouts. 23 Q. I don't want to see them. I'm asking you what 24 you printed. 25 A. If you're asking what I printed and I have 0054 1 what I printed, it's easier to -- well, all right, you 2 don't want to - 3 Q. Can you list - 4 A. No, that's okay. You don't want to see them, 5 I'll tell you what I printed. No problem. I'll answer 6 that question. This document's titled, Knowledge of 7 Risks to Product Users, date 10/7/43. Author, 8 Lawrence, W.E. Description: The control of fumes in 9 shipyards. Transactions of 32nd National Safety 10 Congress. The use of water repellent asbestos 11 insulation has recently replaced some types of 12 materials formerly used in ship - 13 Q. I'm going to stop you. 14 A. -- formerly used in ship work - 15 Q. Sir, I don't want you to read - 16 A. -- for protection against - 17 Q. -- all these documents into the record. 18 THE REPORTER: I can only take one person file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (35 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 19 at a time. 20 A. -- possible asbestos from such material it is 21 recommended that both on ships and in shops or where 22 the material is prepared - 23 MS. NETTLE: Objection, nonresponsive. 24 A. -- it be dampened and that dust respirators 25 be worn. Also that special ventilation be provided. 0055 1Q. Sir, can you give me a list - 2 A. -- medical examination - 3 Q. -- of these - 4 A. -- of those exposed to such hazards - 5 Q. -- documents - 6 A. -- is also necessary. 7 Q. -- you've printed? 8 A. Document number two that I printed. Knowledge 9 of health hazards - 10 Q. Dr. Egilman - 11 A. -- date, 1949. 12 Q. -- are you going to read every document into 13 the record? 14 A. What the safety engineer should know about 15 industrial health hazards. National Safety Council. 16 Comments: These hazards might be found in the form of 17 dust as silica, asbestos, lead and other metals, 18 etcetera. In the form of vapors such as benzine - 19 MS. NETTLE: I'm going to object as 20 nonresponsive - 21 A. -- chlorinated hydrocarbon and the like. 22 Third document - 23 MS. NETTLE: -- and I'm going to object 24 as nonresponsive and I'm going to object that any time 25 is used against our time in this deposition. 0056 1 A. -- that I printed. Knowledge of health 2 hazards. Date, 19 - 3 THE REPORTER: Doctor, Doctor, just a 4 second. I'm sorry, I'm not writing. I can't write 5 both of you at the same time. 6 A. Excuse me. I'm the answerer of the question. 7 I can only answer one question at a time. 8 Q. You're not answering my question. I'd like a 9 list -- I don't want you to read the documents into file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (36 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 10 the record. 11 THE WITNESS: You can now object. 12 MR. TAYLOR: Object, don't interrupt the 13 witness. 14 Q. I want you to tell me the list of the 15 documents. I don't want you to read them into the 16 record. 17 MS. NETTLE: I'm going to object that all 18 this time is not used against us. 19 MR. TAYLOR: You asked him to describe - 20 THE REPORTER: I can only write one 21 person at a time. 22 THE WITNESS: You just make an objection 23 and shut up, and I'm going to finish answering the 24 question. Did you object? 25 MR. TAYLOR: Object, you're interrupting 0057 1 the witness. 2 THE WITNESS: Thank you. 3 A. Now I will continue. 4 Q. Sir, I - 5 A. -- knowledge of health - 6 Q. -- I have a different question on the table. 7 A. -- hazards. Date, 1957. 8 Q. Are you going to - 9 A. What did you say? 10 Q. -- refuse to answer my next question? 11 A. What did you do? I'm trying to answer your 12 last question. It's still on the table. 13 Q. You're not answering my last question. 14 A. Because you answered -- well, then the record 15 will decide that and some judge will decide that. 16 Q. I don't want you to read every document - 17 A. I don't care what you want. You asked the 18 question, I'm entitled to give an answer, ma'am. If 19 you don't want me to answer your questions, don't ask 20 them or withdraw them. The question on the table is 21 what did I print off? I offered to show them to you. 22 You said no, what did you print off, I want to know, 23 and I'm reading you what I printed off. That was the 24 question and that's what I'm answering. 25 Q. I want a list - 0058 file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (37 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 1 A. Ma'am, now that there's a record -- then you 2 withdraw the last question, please. 3 Q. I would like you to tell me a list of what you 4 did. 5 A. Thank you. Did you withdraw the last 6 question? 7 Q. I will withdraw the last question. 8 A. Fine, thank you. 9 Q. Can you give me a list of the documents you 10 printed out? 11 A. No, I do not have a list. 12 Q. All right. Now I would like to see the 13 documents that you printed out. Is this stack the 14 entire documents you printed out? Sir? 15 A. I'm looking. 16 MS. NETTLE: Can we go off the record 17 since the witness has left the room? 18 MR. TAYLOR: We can go off the record 19 briefly. 20 (A break was taken from 11:19 to 11:28.) 21 Q. (BY MS. NETTLE.) All right. These documents 22 that you printed, were they e-mailed to you from 23 somewhere or did you print them off some type of 24 database? What's the source of these documents? 25 A. They're in Word files on my computer. 0059 1 Q. Are these documents you created or your office 2 created? 3 A. I or my staff. 4 Q. And the first looks like an exhibit list. Is 5 that what it is? 6 A. No. 7 Q. What is it? 8 A. Can I see it? Okay. Why don't we mark it so 9 the record's clear. Okay. 10 MR. TAYLOR: Exhibit 13. 11 A. 13. Exhibit 13 is a list of a Word database. 12 It's cut off on the right; I'll be glad to get you a 13 nicer copy. But the cites are correct so I'm sure 14 they'd be in Elliott's file since they were a member of 15 the National Safety Council at the time. These are 16 quotes from articles relating to health and safety that 17 would have been mailed to Elliott as a -- when it was a file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (38 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 18 division of Carrier air-conditioning. And these are 19 quotes on health and safety during that time period, 20 1957 forward. The first one is earlier than Carrier 21 was a member. But the others are in the time period 22 which -- these would have been mailed to Elliott 23 Turbines. 24 MS. NETTLE: I'm going to object to the 25 nonresponsive portion. 0060 1 Q. Are these then a list of documents from the 2 National Safety Council? 3 A. No. 4 Q. All right. Are they a list of documents 5 from -- are all the documents listed on here from one 6 organization? 7 A. Yes. 8 Q. Whatorganization? 9 A. National Safety Council. 10 Q. Do you have any evidence that Elliott actually 11 received these documents? 12 A. Yes. 13 Q. What is that evidence? 14 A. Elliott was a division of Carrier 15 air-conditioning from 1957 on, Carrier air-conditioning 16 was a member of the National Safety Council. There's 17 depositions of -- first, I'm a member of the National 18 Safety Council so I'm generally familiar with the 19 practices of the National Safety Council. These were 20 presented at National Safety Council meetings, which 21 were held twice a year, and then transcribed and mailed 22 out in something called transactions of the National 23 Safety Council. And those would have been mailed to 24 all members of the National Safety Council, which means 25 those are excerpts from articles that would have been 0061 1 mailed to the Elliott Turbine company during that time 2 period. 3 MS. NETTLE: Objection, nonresponsive. 4 Q. Do you have any evidence that anyone at 5 Elliott actually received these documents? 6 A. No. 7 Q. Do you -- is it your testimony that Elliott 8 itself, not as a division of Carrier, was ever a member file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (39 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 9 of the National Safety Council? 10 A. Yes. 11 Q. When is it your belief that Elliott itself was 12 a member of the National Safety Council? 13 A. I don't know. At a minimum, 1974 onward, 14 but -- well, Elliott of itself -- first of all, Elliott 15 -- there was no Elliott in this 1957 time period. 16 There was only Cargill of which Elliott was a division. 17 MR. TAYLOR: Didn't you misspeak? 18 THE WITNESS: What? 19 MR. TAYLOR: Only what -- I think you 20 said Cargill. 21 A. I misspoke. Only Carrier. So from '57 on - 22 I got a corporate history. If you let me look at that 23 time line, I'll tell you -- give you exact years here. 24 MS. NETTLE: I'm going to object to 25 nonresponsive. 0062 1 A. Let me finish the answer before you object 2 nonresponsive. I might -- so that the judge has a 3 complete idea of what the answer is before he rules, if 4 you don't mind. 5 THE WITNESS: I think it's in the pile 6 she has in her hand. 7 Q. Before you look at any documents, I just want 8 to know - 9 MS. NETTLE: Can you repeat my question? 10 Read back my question? 11 (Requested portion was read.) 12 Q. And you started to answer from 1974 onward. 13 Is that your testimony? That's when Elliott itself, 14 not as - 15 A. Excuse me, excuse me, excuse me. You have now 16 reread the question, that's fine. Now, I get to finish 17 my answer. Thank you. 18 Elliott itself in its interrogatories 19 admits it was a member from 1974 onward. Elliott did 20 not exist except as a subdivision of Carrier 21 air-conditioning. And where you interrupted me was I 22 needed that time line to know the exact years to know 23 when they were a member. So if you could give me the 24 time line that I have there to know when they were 25 owned exactly by Carrier air-conditioning, I can tell file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (40 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 0063 1 you when Elliott itself was a member. 2 Q. Before we get to that, do you have an 3 objection that this whole stack is Exhibit 13? 4 A. I have an objection to doing anything but me 5 finishing my answer when I'm in the middle of an 6 answer. So could you please pass that document back to 7 me so I can finish my answer? 8 MS. NETTLE: Do you have an objection to 9 put this whole stack as Exhibit 13 rather than having 10 to - 11 THE WITNESS: I would like to finish my 12 answer before you interrupt with anything. 13 MR. TAYLOR: We can address that later. 14 A. Elliott became a member of the National Safety 15 Council in 1957 through the Carrier Corporation and 16 then continued as a member of the National Safety 17 Council when it became a subsidiary of the United 18 Technologies Corporation, which was a member of the 19 National Safety Council, and the ending -- I think the 20 interrogatories say that they were a member of the 21 National Safety Council even after they were purchased 22 by the Japanese company Ebara in the year 2000. 23 MS. NETTLE: Objection as nonresponsive. 24 MR. TAYLOR: I have no objection to mark 25 those all as one exhibit if you want to do that. 0064 1 MS. NETTLE: Do you want to put that back 2 with this so it's all together? 3 MR. TAYLOR: That's fine. 4 THE WITNESS: Excuse me. Let's just take 5 a quick break before your next question. 6 (A break was taken from 11:34 to 11:35.) 7 THE WITNESS: Thank you. 8 Q. (BY MS. NETTLE.) You have referred to a time 9 line in this Exhibit 13, and what did you use to create 10 this time line, what document specifically? 11 A. I think that comes from Moody's and Dow Jones. 12 Q. Any other document you used to create that 13 besides Moody's and Dow Jones? 14 A. I don't think so. 15 Q. You've - 16 A. And I didn't create it. My staff created it. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (41 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 17 Q. When was it created? 18 A. Last couple of days. 19 Q. You've referred to Moody's a couple of times. 20 Do you have that printout you relied on - 21 A. No. 22 Q. -- or your staff relied on? 23 A. I have some of them, I don't have all of them. 24 I have the ones that I asked Mr. Manchin -- I asked him 25 to get them all. He only managed to get these three 0065 1 years or four years. 2 Q. All right. And - 3 A. My staff relied on a more complete analysis of 4 Moody's available in the library. 5 Q. Do you know what years your staff relied on 6 for Moody's? 7 A. Some time beginning in the early '20s or '30s 8 I think. 9 Q. Did they check every year? 10 A. I don't know. I think they checked enough so 11 they could get the corporate history that you see in 12 that sheet. 13 Q. But you don't know -- you can't tell me which 14 years they looked at, which years they didn't? 15 A. Correct. 16 MS. NETTLE: I want to attach these 17 Moody's printouts that Eric Manchin provided to you as 18 the next exhibit, 14. 19 Q. Do you have the Dow Jones material you believe 20 your staff relied on in creating the time line? 21 A. No. 22 Q. Also in Exhibit 13 is a sideways chart. Can 23 you give me a one-sentence description of what this is? 24 A. No. 25 Q. All right. Are all these documents - 0066 1 A. Not without being misleading. 2 Q. Are all these documents referred to on this 3 chart from the National Safety Council? 4 A. I don't know. I'm not looking at the chart. 5 You have the chart in your hands. 6 THE WITNESS: Can we mark this so it's 7 clear, please? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (42 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 8 MR. TAYLOR: That's part of Exhibit 13. 9 THE WITNESS: It doesn't matter. I'm 10 separately identifying it, it needs to be separately 11 marked. 12 MR. TAYLOR: Let's mark it as -- mark it 13 as Exhibit 15 and separate this from the original. 14 MS. NETTLE: That's fine. And it's 15 understood that this was pulled out from 13 which are 16 the documents that you printed at the hotel. 17 A. Okay. This stack of documents I labeled 15 A 18 through J. And what's the question you have? 19 Q. Can you give me a brief deposition of what it 20 is? 21 A. A brief and incomplete description of what it 22 is would be misleading. 23 Q. So now you are not able to tell me what that 24 document is in a brief form? 25 A. No, I can do that but it might be misleading. 0067 1 Q. Why don't you give it a shot? 2 A. Sure. This is a list of excerpts from 3 articles from the National Safety Council publications 4 that were mailed to members of the National Safety 5 Council with -- that referred to hazards of asbestos 6 and other dusts, ways of preventing those dusts from 7 causing disease in human beings and the obligations of 8 employers and product suppliers to take precautions so 9 that workers would not be injured. 10 Q. And do you have copies of the articles those 11 quotes came from? 12 A. Sure. 13 Q. The rest of the documents in Exhibit 13 appear 14 to be overheads or displays. Are these documents 15 things you use at trial for demonstrative purposes? 16 A. There were three questions there. Would you 17 like me to answer them one at a time? 18 Q. There was only one question. 19 A. Well, you have a long predicate that I can't 20 remember or agree with. 21 Q. I'll ask it again without the predicate. Are 22 these documents overheads or exhibits that you use at 23 trial? 24 A. And other places, yes. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (43 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 25 Q. Have you written a report in this case? 0068 1 A. No. 2 Q. Did you have discussions with anyone at the 3 Kaeske firm today? 4 A. Yes. 5 Q. In preparation for this deposition? 6 A. Yes. 7 Q. Who did you meet with? 8 A. Mr. Taylor. 9 Q. How long did you meet with Mr. Taylor 10 approximately? 11 A. 25 minutes. Part of that time I was taking a 12 shower. He was not in the shower. 13 MR. TAYLOR: I was not present. 14 MS. NETTLE: I don't know if I want to 15 know about that. 16 MR. BALDO: Let the record reflect... 17 Q. Okay. What were the nature of your 18 discussions with Mr. Taylor this morning? 19 A. We talked about breakfast, couldn't get bagels 20 and lox. We talked about the Red Sox, how I - 21 although I did miss the game, they at least did win. 22 Talked about moving the boxes. I think that's it. 23 MR. TAYLOR: My tip. 24 A. Oh, we talked about the size of his tip at 25 breakfast. It was a large tip. 0069 1 MR. TAYLOR: I wanted that on the record. 2 Q. Did you discuss anything specific to the Marty 3 Mitchell case? 4 A. Yes. 5 Q. What did you discuss? 6 A. Moving the boxes. 7 Q. Other than what you've told me about already, 8 did you discuss anything specific to the Marty Mitchell 9 case? 10 A. I don't think so. 11 Q. Do you plan to attend trial in this case and 12 testify? 13 A. Depends when the trial is. 14 Q. The trial, I'll represent to you, is currently 15 scheduled for June 16th. Do you plan to attend and file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (44 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 16 testify? 17 A. I have no current plans to attend. I think I 18 will be back in the country at that time and be able to 19 attend. 20 Q. Did you bring with you a current copy of your 21 CV? 22 A. No, but I can go print one off or we could 23 send Mr. Taylor upstairs and he can try to print one 24 off. 25 Q. What's the most recent update of your CV, if 0070 1 you know? 2 A. The most recent update of my CV is probably 3 this week or last week. 4 Q. I'd ask that either at a break or after the 5 deposition you provide me an updated copy of the - 6 your CV. 7 MS. NETTLE: Mr. Taylor, can you agree to 8 provide that, get that and provide that? Mr. Taylor? 9 MR. TAYLOR: I'll agree. 10 THE WITNESS: Excuse me, I don't -- she 11 asked you. 12 MR. TAYLOR: I'll agree to do that. 13 MS. NETTLE: Thank you. 14 Q. I have what is likely an old CV, which I'll 15 let you look at. Is that current or is that old? 16 A. That's old. 17 Q. Can you tell from it what date it was from? 18 A. No. 19 Q. Okay. 20 A. It's got nice Bates numbers on it though. 21 Q. It appears from your CV that you 22 professionally do a number of things. You're a medical 23 doctor, correct? 24 A. Correct. 25 Q. You're a professor? 0071 1 A. Clinical associate professor. 2 Q. You do, as you testified earlier, consulting 3 in asbestos litigation? 4 A. Correct. 5 Q. And do you do consulting in other types of 6 litigation, such as drug litigation or other areas? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (45 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 7 A. Yes. 8 Q. What percent of your professional time do you 9 spend doing medical practice? 10 A. 75. 11 Q. And what percent do you spend teaching? 12 A. I consider teaching to be part of what you do 13 as a physician. 14 Q. All right.My question wasn't clear then. 15 Let me see if you can divide it up this way. 16 A. Particularly when I'm a professor at a medical 17 school. 18 Q. If I were to ask you to divide your time up 19 percentagewise, and I understand it would be an 20 estimate, between practicing medicine in your practice, 21 between teaching and between litigation consulting, 22 would you do that for me? 23 A. No. 24 Q. Why not? 25 A. Because what you mean by practicing and what I 0072 1 mean by practicing may be two different things. I 2 think are likely to be two different things. 3 Q. Are you able to - 4 A. So I can do it if you want me to define 5 things. 6 Q. Are you able to divide the time you spend 7 teaching from all the other medical time you spend? 8 A. Yeah, but I think that would be misleading to 9 you. If you'd like, I'd be glad to help you out and 10 give you the answer to the question that you want or 11 I'd be glad to ask the question and give you the 12 answer. 13 Q. What percent of your professional time do you 14 spend teaching or in activities, you know, such as 15 grading papers or anything like that directly related 16 to your courses that you teach? 17 A. Well, two of my teaching activities are not 18 courses so there's difficulty in answering the question 19 for that reason at least. 20 Q. What percentage of your professional career do 21 you -- in an average year, say, what percentage of your 22 time is spent in teaching and teaching-related 23 activities? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (46 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 24 A. 25. 25 Q. In an average year, what percent -0073 1 A. Wait, wait, let me make that 50. 2 Q. In an average year, what percent of your time 3 is spent on litigation-related activities? 4 A. 20 to 25. 5 Q. And what is the remainder of that time spent 6 on? 7 A. The administering of activities, fund-raising. 8 I consider doing research part of my teaching, but if 9 you wanted to split that off, research. 10 Q. Was research included in the 50 percent of the 11 teaching? 12 A. Yes. 13 Q. Okay. 14 A. Consulting. 15 Q. What type of consulting? 16 A. Consulting for companies on occupational 17 environmental health issues, consulting for countries 18 and medical schools and WHO. And I think that's it. 19 Q. And that makes up the remaining 25 percent? 20 A. Probably so. 21 Q. Do you still have a medical practice where you 22 treat and see patients? 23 A. I treat and see patients as part of my faculty 24 position in -- at Brown when I supervise residents in 25 the family practice residency program. 0074 1 Q. All right. Do you have your own practice 2 where you treat and see patients? Do you have a 3 private practice where patients come to you and say Dr. 4 Egilman is my doctor, he treats me; that kind of 5 practice? 6 A. No. 7 Q. So you're -- your doctor/patient contact comes 8 as a part of your teaching; is that correct? 9 A. Or consulting because I will occasionally see 10 patients when I'm consulting internationally. 11 Q. Now, when you're supervising residents, do you 12 do the actual treatment of the patients or are you 13 supervising the residents who do the treating of the 14 patients? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (47 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 15 A. I don't think I understand the question. 16 Q. You mentioned that your medical practice comes 17 in as a part of your training of residents; is that 18 correct? In the medical school? 19 A. Part of it, right. 20 Q. All right. Of that time when you are 21 supervising the residents, do you do hands-on treatment 22 of patients? 23 A. You mean do I examine the patients? 24 Q. Yes, and treat them and diagnose them? 25 A. Yes, with the residents or medical students. 0075 1 Q. And what percent of your teaching time is 2 spent doing that sort of thing? 3 A. Five percent. 4 Q. The rest of that teaching time, is part of 5 that consumed by teaching a class? I'll rephrase it. 6 I'm trying to figure out what makes up the rest of the 7 time you spend in teaching-related activities? 8 A. I offered to help you by answering - 9 answering a question or giving you an explanation. So 10 go right ahead and try. Your question. 11 Q. Of the rest of the time you spend in teaching 12 and teaching-related activities, does part of that 13 include teaching a course or courses? 14 A. Yes. 15 Q. And part of that you mentioned is research. 16 What else is -- what else do you do as part of 17 teaching? 18 A. Look, you just made a statement, a predicate. 19 You didn't give me a chance to answer the question and 20 then you ran off into another question. Do you want to 21 ask that first question and wait for an answer or - 22 I'm not going to answer any more questions. I can only 23 answer one at a time. 24 Q. Is it correct or incorrect that you just a few 25 moments ago testified that you consider your research 0076 1 part of your teaching time? 2 A. It's part of -- yes. 3 Q. All right. Other than your research and other 4 than the time you spend with patients, what else do you 5 do in your teaching-related activities? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (48 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 6 A. I teach a medical school course called an 7 affinity group. 8 Q. All right. What else do you do? 9 A. I give lectures in occupational and 10 environmental medicine in the department of family 11 medicine. 12 Q. All right. Any other general - 13 A. I give - 14 Q. Go ahead. 15 A. I sponsor lectures on campus. I participate 16 as a faculty member on the curriculum committee in the 17 department of bio-community health. I advise 18 students -- I have several students who I advise on 19 honors or senior theses. 20 Q. Okay. Are you - 21 A. I'm not done with my answer. I participate in 22 faculty -- other faculty administered proceedings in 23 the department of bio-community health. I assist in 24 counseling students in general, but specifically with 25 respect to the Brown Toogaloo programs. 0077 1 Q. Okay. 2 A. I'm not done yet. Let me think. 3 Q. You've given me a cross section of what you 4 do. 5 A. Excuse me. 6 Q. I apologize if my question was unclear. I 7 don't need a list of everything you do for your 8 teaching. 9 MR. TAYLOR: Objection, please don't 10 interrupt his answer. 11 Q. I'm going to move on to another question. Do 12 you have any board - 13 A. Excuse me, I'm not done with the last answer. 14 If you would like to withdraw the question, that's 15 fine. If the question is what do I do -- what else do 16 I do, which is what the question was, I think I have 17 the right to answer that question completely. Not only 18 do I have the right, I swore at the beginning of this 19 deposition to tell the whole truth, not the part that 20 you thought you wanted to hear as I recall. I don't 21 recall that as being part of what I swore in. Now, if 22 you want to change the oath at the beginning to I will file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (49 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 23 limit my answers to the answers that the attorney 24 asking them wants to hear or thinks he or she asked 25 about, I'll be glad to change all of my answers and 0078 1 stop answering that question. But as long as I took an 2 oath telling me that I was swearing that I was going to 3 tell the truth, the whole truth and nothing but the 4 truth, I would like the right to answer questions. And 5 if you, as in this case, think you misasked a question, 6 feel free to withdraw it. 7 MS. NETTLE: I'm going to object to the 8 sidebar and the nonresponsive statements. 9 Q. Doctor -10 A. Now, can I finish my answer? 11 Q. I will withdraw the question as I stated it -12 A. Thank you. 13 Q. -- and you don't need to continue answering. 14 A. Thank you. 15 Q. Do you hold any board certifications? Are you 16 board certified in any areas? 17 A. Yes. 18 Q. What area or areas? 19 A. Internal medicine and preventative 20 occupational medicine. 21 Q. Are you a radiologist? 22 A. I'm not a board certified radiologist, but I 23 do read X rays or have read X rays both in my clinical 24 practice and in my teaching in family medicine. 25 Q. Are you a board certified pulmonologist? 0079 1 A. I am not a board certified pulmonologist. 2 Q. Are you a board certified pathologist? 3 A. I am not a board certified pathologist. 4 Q. Are you an oncologist? 5 A. I am not a board certified oncologist. But I 6 have treated patients with cancer and continue to do so 7 as I supervise residents in the family medicine program 8 and do teach about cancer treatment in the medical 9 school. 10 Q. Have you specialized in any of your training 11 in oncology? Was any of your medical training and 12 education to specialize in oncology? Do you hold 13 yourself -- I'll withdraw that question. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (50 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 14 Do you hold yourself out to the public as 15 an oncologist? 16 A. Not in general, but certainly in certain 17 specified areas, yes. 18 Q. But as you stated, you're not board certified 19 in oncology? 20 A. That's correct. 21 Q. Have you ever been the primary physician or 22 treater for a patient with mesothelioma? 23 A. Yes. 24 Q. How many times? 25 A. Probably four. 0080 1 Q. When were those times? 2 A. First time was in 1984 and 1985. 3 Q. And did this -- how did you come in contact 4 with this person? Was this someone you were treating 5 at the hospital or did they come to a private practice 6 you had? 7 A. Which question would you like me to answer? 8 There's two questions pending on the floor, how did you 9 do it and then you followed up with a specific question 10 that gave me two alternatives. 11 Q. I was trying to give you an example - 12 A. Which one of those two questions would you 13 like me to answer first? 14 Q. I was trying to give you an example of what I 15 was getting at, but I will ask you to answer the 16 question, how did you come in contact with the first 17 patient that had mesothelioma that you were the primary 18 treater for? 19 A. He made an appointment at my office. 20 Q. Did you diagnose his mesothelioma? 21 A. No. 22 Q. Had he already been diagnosed with 23 mesothelioma at that time? 24 A. I don't recall. 25 Q. Did you refer him to any specialists for 0081 1 treatment? 2 A. For what? 3 Q. For treatment. 4 A. No. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (51 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 5 Q. Did you refer him to any specialist for 6 diagnosis? 7 A. I don't recall whether he had been diagnosed; 8 therefore, I do not recall whether I referred him for a 9 diagnostic testing. 10 Q. Of the four patients you have been the primary 11 treater for with mesothelioma, is it your general 12 practice to refer them to a specialist such as an 13 oncologist or other type for treatment? 14 A. No. 15 Q. Do you do the primary treatment such as 16 ordering any chemotherapy or radiation treatments for 17 those patients? 18 A. It assumes a predicate that's incorrect. I 19 cannot adopt the predicate so I can't answer the 20 question without being misleading. 21 Q. Do you order any chemotherapy or radiation 22 treatment for the -- did you, for any of the four 23 patients that had meso that you treated? 24 A. I think for one. 25 Q. Were you working with any other doctors to 0082 1 treat these patients? 2 A. Yes. 3 Q. What type of doctors? 4 A. Radiation oncologist, chemo -- an oncologist 5 who does chemotherapy, an acupuncturist who is not a 6 physician and a priest who was, I believe, a doctor but 7 a Ph.D. 8 Q. Have you ever diagnosed a patient with 9 mesothelioma? 10 A. Yes. 11 Q. How many times? 12 A. Many times. 13 Q. And do you have -- I know you said you're not 14 board certified in pathology. Do you have any training 15 in pathology specifically that you believe allows you 16 to diagnose mesothelioma? 17 A. Yes. 18 Q. What is that? 19 A. I was trained in medical school in pathology, 20 I did rotations in pathology in my residency. I would, 21 with my own patients, frequently review pathologic file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (52 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 22 slides. I've spent a lot of time reading and 23 discussing the interpretation of pathology with respect 24 to mesothelioma with pathologists -- practicing 25 pathologists and others. 0083 1 Q. In those cases where you diagnosed 2 mesothelioma, did you actually look at the slides to 3 make the diagnosis, or the tissue? 4 A. No. 5 Q. How did you make your diagnosis? 6 A. Took a history. If the patient was alive, I 7 did a physical exam. I reviewed the medical records. 8 I reviewed the workplace records, coworker records, 9 coworker depositions, conversations with spouses and 10 children. I evaluated the possible alternative 11 diagnoses and other exposures that may have caused or 12 cause mesothelioma. Did a differential diagnosis 13 either explicitly or implicitly. Reviewed the medical 14 literature on general causation related to the types of 15 exposures and reviewed the medical literature on 16 specific causation that applied to that individual. In 17 some cases, discussed the analysis of the pathologic 18 material with the pathologist who had either prepared 19 the material or done the previous readings or -- and/or 20 discussed it with other pathologists who hadn't seen 21 the material. That's basically what I would do. 22 Q. Were all of your diagnoses done in connection 23 with asbestos-related litigation? 24 A. No. 25 Q. Have you ever made any diagnosis of 0084 1 mesothelioma that was not in connection with an 2 asbestos-related legal consultation? 3 A. Before or after? If I diagnosed the 4 mesothelioma, there was generally litigation after. I 5 presume your question means before I diagnosed 6 mesothelioma; is that correct? 7 Q. I'm asking you if you've ever diagnosed 8 mesothelioma in a situation where you had not been 9 retained in asbestos-related litigation pertaining to 10 that patient? 11 A. Yes. 12 Q. How many times? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (53 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 13 A. Those are the three or four cases that I 14 mentioned before. 15 Q. I believe earlier - 16 A. But I was retained in those cases after the 17 diagnosis was made. 18 Q. So in each of the three of four cases where 19 you treated the patient, you also diagnosed the 20 patient? 21 A. No, not necessarily, some of them may have 22 come to me with a diagnosis already, but I would 23 reevaluate the diagnosis and come to my own conclusion. 24 So the answer would be both. 25 Q. And in the three or four times that you've 0085 1 mentioned, did you follow the methodology you just 2 described at length in making your diagnosis? 3 A. To the extent it was possible or necessary. 4 Q. Have you ever treated Marty Mitchell? 5 A. No. 6 Q. Have you ever met Marty Mitchell? 7 A. No. 8 Q. Have you ever spoken to him? 9 A. No. 10 Q. Are you a certified industrial hygienist? 11 A. No. 12 Q. You are not a toxicologist, correct? 13 A. Not a board certified toxicologist, but I do 14 do things that board certified toxicologists would do. 15 Q. You don't have a degree in toxicology? 16 A. Correct. 17 Q. Do you consider yourself an epidemiologist? 18 A. Yes. 19 Q. Is there such a thing as board certified in 20 epidemiology? 21 A. Not that I'm aware of. 22 Q. Have you reviewed your designation in this 23 case as to what you will testify regarding? 24 A. Not specifically, but I've reviewed other 25 designations from the Kaeske firm and generally request 0086 1 that they send me any changes if they made any. 2 Q. So you have not reviewed the specific one in 3 this case? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (54 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 4 A. Correct, but I'm assuming -- it could be a 5 false assumption -- that it hasn't changed from the 6 previous designation which I did review. 7 Q. Are you aware that there's no mention of 8 Elliott in the designation of what you will testify to? 9 A. There wasn't in the one that I reviewed prior 10 to this case, so that wouldn't surprise me. 11 Q. Are you aware the only defendant specifically 12 referenced in your designation is Owens Corning 13 Corporation? 14 A. No, but that wouldn't surprise me since 15 they're bankrupt and obviously not part of the case. 16 That would be par for the quality of work I would 17 expect from this firm. 18 Q. Is it generally your practice not to give 19 testimony about companies that have gone bankrupt at 20 trial? 21 A. No, generally I give a lot of testimony about 22 companies that are bankrupt at trial. 23 Q. Have you tried -- have you done - 24 A. But generally the plaintiffs don't list them 25 as the sole defendant in the pleading. 0087 1 Q. Have you done anything in this case to 2 estimate the fiber release Marty Mitchell received from 3 any particular product? 4 A. Sure. 5 Q. What have you done? 6 A. I've reviewed literature on exposures to 7 asbestos products and fiber release from those 8 products. I reviewed Dr. Langer's report saying that 9 working around Elliott turbines was innocuous. I found 10 that quite illuminating. 11 Q. And - 12 A. And I've reviewed, for example, the studies of 13 Balzer conducted for Pittsburgh Corning Corporation 14 that specifically evaluated exposures around particular 15 pipe coverings. I've reviewed Johns-Manville secret 16 studies on the same. I've reviewed the Peele studies 17 on the same. I've reviewed the Bonsib studies on the 18 same. I've reviewed the Fleischer Drinker study on the 19 same. I've reviewed a variety of reports conducted by 20 Bill Longo and others on exposures around a variety of file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (55 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 21 products that were kept on turbines. I reviewed the 22 studies from the Dreessen report on exposures around 23 these products. I've reviewed Navy studies published 24 and unpublished on exposures around the products used 25 on the Elliott turbines. But I haven't reviewed any 0088 1 Elliott studies on exposure of asbestos from their use 2 of their turbines. I must have missed those. 3 MS. NETTLE: Objection, nonresponsive. 4 Q. Do you have any estimates of fiber release to 5 Marty Mitchell specifically for any product in this 6 case? 7 A. Sure. 8 Q. All right. Which product or products? 9 A. Why don't you just pass me back that pile and 10 we'll go through them? Would you pass me that pile? 11 Q. I don't want to go through this pile. I want 12 you to name for me the product or products you have 13 done an estimate of fiber release that Marty Mitchell 14 claims he was exposed from. 15 A. I need that pile to answer this question. And 16 that pile is my pile of documents, and I think I get to 17 keep them. So could you pass those over here - 18 Q. I'll withdraw the question as it's worded, and 19 I'll ask a different question. 20 What products does Marty Mitchell claim 21 he was exposed to asbestos from? 22 A. Oh, with respect to Elliott? 23 Q. No. What products does Marty Mitchell claim 24 he was exposed to asbestos from? 25 A. I'd have to look at his deposition to remember 0089 1 them all. 2 Q. You don't know any products that Marty 3 Mitchell claims he was exposed to asbestos from? 4 A. Well, he claims he worked around Elliott 5 turbines. When he worked around Elliott turbines, he 6 worked around the products that Elliott specified go on 7 their turbines, which are in that stack, including 8 thermobestos, marinite board, asbestos cement board, a 9 variety of other pipe coverings and cements. 10 MS. NETTLE: Objection, nonresponsive. 11 Q. Can you name for me any other product that file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (56 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 12 Marty Mitchell alleges he worked around other than 13 Elliott turbines? 14 A. Yes. 15 Q. What? 16 A. I need to look at his deposition. I wouldn't 17 want to make a mistake. 18 Q. I'm asking from your memory, as you sit here 19 today, what do you recall that he worked around other 20 than Elliott turbines? 21 A. Well, last time I looked at the rules, I was 22 allowed to refer to notes. And it was not like an MCAT 23 test where you've got to, like, do it without notes, so 24 I think I want to refer to the notes so I don't make a 25 mistake. 0090 1 Q. Doctor, when I can read the deposition myself, 2 I don't want you to go through the deposition and read 3 every product. I'm entitled to know what your 4 knowledge is as you sit here today. And I'd like to 5 know what you recall of the products that Marty 6 Mitchell was exposed to other than Elliott turbines. 7 Can you answer that question? 8 A. Sure. 9 Q. What is your answer? 10 THE WITNESS: Let me see the deposition. 11 Q. I'd like you to answer without looking at the 12 deposition. 13 THE WITNESS: Get the deposition. 14 Q. Can you not answer my question without looking 15 at the deposition? 16 A. No, I can answer your question without looking 17 at the deposition. 18 Q. All right. Then do so. 19 A. I'm not gonna because it wouldn't be the best 20 answer. 21 Q. Are you refusing - 22 A. It would not comport with the oath that I 23 took - 24 Q. Are you refusing to answer the question? 25 A. -- at the beginning -- Can I finish my answer, 0091 1 please? Will you stop interrupting my answers, please? 2 It would not comport with the oath that I file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (57 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 3 took at the beginning of this deposition. 4 MS. NETTLE: I'm going to object to the 5 nonresponsive portion and the sidebar. 6 Q. Are you refusing to answer my question as to 7 your knowledge, without looking at the deposition, as 8 to what products you recall Mr. Mitchell was exposed to 9 other than Elliott turbines? Are you refusing to 10 answer that question? 11 (Dr. Egilman and Mr. Taylor confer.) 12 Q. Sir, you're looking through the deposition at 13 the moment. Are you refusing to answer my question 14 without looking at the deposition? 15 MR. TAYLOR: Objection, you're 16 interrupting his answer. He's attempting to answer the 17 question that's been - 18 MS. NETTLE: He hasn't answered my 19 question. 20 MR. TAYLOR: That's a different question 21 than the one that he's attempting to answer. 22 MS. NETTLE: Let the record reflect that 23 the witness is paging through the deposition of Marty 24 Mitchell before answering my question. 25 Q. Dr. Egilman? 0092 1 MS. NETTLE: I want the record to reflect 2 that the witness is refusing to answer my question. 3 Q. All right. I will withdraw the last question 4 on the record, whatever that may be. And I want to ask 5 you, Dr. Egilman, can you tell me what products Marty 6 Mitchell was exposed to other than Elliott turbines 7 without looking at his deposition? Yes or no? 8 A. I can't answer that question yes or no without 9 being misleading. 10 Q. I want you to name for me the products you 11 recall that he was exposed to without looking at the 12 deposition; will you do that? Dr. Egilman? 13 Okay. Are you going to continue to 14 refuse to answer my questions? Because if you're going 15 to do so, we're going to have to call this deposition, 16 and I'm going to move to strike you as a witness. So 17 are you going to continue to refuse to answer my 18 questions? Yes or no? 19 A. I haven't refused to answer any questions. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (58 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 20 Q. Sir, answer my question then. 21 THE WITNESS: Will you read the last 22 question, please? 23 (Requested portion was read.) 24 Q. Dr. Egilman, I'll ask you one more time. 25 You're continuing to go through this deposition. And I 0093 1 want to know from your recollection do you know of any 2 other products Marty Mitchell was exposed to other than 3 Elliott turbines? 4 A. Yes. 5 Q. What are they? 6 A. Drywall and roofing. 7 Q. And you're getting that from looking at the 8 deposition, correct? Did you just read those products 9 in the deposition? 10 A. Excuse me, you interrupted my answer again. 11 That's not the only product. Can I finish my answer? 12 Q. You're not answering my question, you're 13 continuing to look at the deposition. And my question 14 specifically states I want your knowledge as you sit 15 here today - 16 A. Excuse me. 17 Q. -- without looking at the deposition. 18 THE WITNESS: Can we get the judge on the 19 phone, please? 20 MR. TAYLOR: Sure. 21 THE WITNESS: Let's certify the last 22 question and interruption and get the judge on the 23 phone. 24 MS. NETTLE: I'm going to object to the 25 sidebar statements. 0094 1 MR. TAYLOR: Let's take a break. 2 (A break was taken from 12:22 to 12:31.) 3 Q. (BY MS. NETTLE.) Before I ask you a 4 question - 5 MS. NETTLE: What do you want to do about 6 lunch, Mr. Taylor? 7 THE WITNESS: There isn't any lunch. 8 MS. NETTLE: We have a pregnant court 9 reporter - 10 THE WITNESS: It's not up to Mr. Taylor. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (59 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 11 MS. NETTLE: -- and I'm asking Mr. 12 Taylor. 13 THE WITNESS: Then get another court 14 reporter because I have to leave at 4:00 and you have a 15 six-hour time limit. 16 MS. NETTLE: Mr. Taylor, what's your 17 preference on lunch? 18 MR. TAYLOR: My preference would be to go 19 through lunch. 20 MS. NETTLE: In about 15 minutes, I want 21 to take kind of a 15-minute break just to get a snack 22 but then that's fine. 23 THE WITNESS: That's not fine if it comes 24 out of my time. If it comes out of your time, that's 25 fine. I'm prepared to go forward. And I'm prepared to 0095 1 take a break for the court reporter to get relief, if 2 that's what's necessary. 3 Can you do that? Okay, so why don't we 4 take a break and let the court reporter call for 5 relief - 6 THE REPORTER: I'm sorry, I was confused 7 about what you meant by relief. 8 THE WITNESS: Can the court reporter call 9 someone to -- to relieve you? 10 MS. NETTLE: I'm going to object to the 11 sidebar. There's no question pending. 12 THE WITNESS: Well, you can object all 13 you want. I'm concerned about the court reporter 14 having been informed about a possible health problem 15 for her, and I want to make sure that that doesn't 16 interfere with her health or this deposition. 17 MS. NETTLE: Yes. Which is why I asked 18 about a lunch break. 19 THE WITNESS: And I said because of the 20 time -- because you refused to start earlier and you 21 have six hours, I have my own time concerns. In order 22 to make it a win/win for everybody, I would like to 23 take a break and see if the court reporter can get a 24 replacement court reporter in so that we can go forward 25 and you can get your time and she can have her health. 0096 1 MS. NETTLE: Sir, we're not taking a file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (60 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 2 break for that, I don't agree to have another court 3 reporter come in - 4 THE WITNESS: Okay. 5 Q. -- and I will now ask my questions. Can you 6 testify - 7 A. Excuse me. I'm not going to allow that. That 8 is -- to put the court reporter's health in jeopardy is 9 not something I'm going to allow to happen. So I want 10 the judge called about that if you're not going to 11 allow a break so the court reporter can have a 12 substitute court reporter come in. 13 MS. NETTLE: I'm going to object to the 14 sidebar. I think it's clear I was asking for a lunch 15 break. So Mr. Taylor, is it your preference to have a 16 lunch break or not have a lunch break? That's all I'm 17 going to ask. I'm not getting into all the other - 18 MR. TAYLOR: We don't want a lunch break. 19 MS. NETTLE: Okay. 20 MR. TAYLOR: But Dr. Egilman has concerns 21 that I think have been raised and they should be 22 addressed and I think we should take a break. 23 MR. SCUDDER: Let's take a lunch break. 24 MR. TAYLOR: Not a lunch break. A break 25 to call and see if we can get another reporter in here. 0097 1 MS. NETTLE: I don't agree to have 2 another court reporter. I will agree to a lunch break 3 if one is needed. If the court reporter doesn't want a 4 lunch break, that's fine too. 5 THE WITNESS: Then get her to agree to 6 waive her time. 7 MR. TAYLOR: If we can come to an 8 agreement on the ending time of the deposition, we can 9 take whatever breaks you want. 10 MS. NETTLE: I'm not going to agree that 11 lunch time for everyone counts against our time to 12 depose Dr. Egilman. 13 MR. TAYLOR: Well, then I don't see how 14 we have an option and we can -- let's go off the 15 record. 16 (A break was taken from 12:34 to 12:43.) 17 MS. NETTLE: Over the break we've 18 established -- and I would like the court reporter to file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (61 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 19 confirm -- are you comfortable going forward at this 20 point? 21 THE REPORTER: Yes. 22 MS. NETTLE: And will you let us know at 23 any time if you feel like you need a break? 24 THE REPORTER: Yes. 25 MS. NETTLE: Thank you. 0098 1 THE REPORTER: Thank you. 2 Q. (BY MS. NETTLE.) Dr. Egilman, can you 3 testify -- can you tell me without looking at the 4 deposition of Marty Mitchell any product he worked 5 around other than Elliott turbines? 6 A. Yes. 7 Q. What are those products? 8 A. Turbines by other manufactures,cements, 9 refractories, drywall. That's an incomplete list 10 without looking at my notes and the deposition. 11 Q. And since the first time I asked that 12 question, you began paging through the deposition, is 13 that correct, and starting to review it? 14 A. That's correct. 15 Q. Have you done any testing on Elliott turbines? 16 A. No. 17 Q. Have you reviewed any testing done on Elliott 18 turbines? 19 A. Yes. 20 Q. Give me the name of each test you've reviewed 21 that was done on an Elliott turbine. 22 A. They're all in front of you in that stack or 23 in that stack. 24 MS. NETTLE: Objection, nonresponsive. 25 Q. Give me the name of each test that you 0099 1 reviewed that was done specifically on an Elliott 2 turbine. 3 A. Well, then pass me the stack, please. 4 Q. And the stack I'm handing you is Exhibit 11 5 which was provided to you by Baron & Budd. 6 MS. NETTLE: Mr. Taylor, will you agree 7 to go off the record while Dr. Egilman - 8 MR. TAYLOR: No, we will not. No. 9 Q. Dr. Egilman, is it your intention to go file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (62 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 10 through every page of that stack? 11 A. I have no intention at the present time. I'm 12 intending to answer your question one at a time. 13 MS. NETTLE: Objection, nonresponsive. 14 Will you note the time he started 15 reviewing the documents? 16 THE REPORTER: Okay. 17 (Dr. Egilman and Mr. Taylor confer.) 18 A. There is a test report on exposures to 19 gaskets, and I'm looking for that one, amongst others. 20 THE WITNESS: Pass that to Ivan, please. 21 (Dr. Egilman and Mr. Taylor confer.) 22 A. This is the test report on temperatures and 23 pressures on turbines. 24 Q. What -- can you hand me that document? 25 A. (Witness complies.) 0100 1 Q. And Dr. Egilman, while you're still looking, 2 would you agree the document you identified is Bates 3 stamped ET 373 from the stack Baron & Budd gave you, 4 down at the bottom? 5 A. No. 6 Q. Down here? 7 A. I said no. 8 Q. Okay. What is it Bates stamped? 9 A. There are two Bates stamps on this -- well, 10 there's one exhibit stamp and one Bates stamp. The 11 Bates stamp is ET-00373; the exhibit sticker -- one 12 exhibit sticker says ET 57 and the other one says 24. 13 Q. And that's the document you're referring to as 14 a report on temperatures and pressures on turbines? 15 A. Testing for, correct. This is the gasket 16 testing report to Elliott company. 17 Q. Did this document come from the same stack 18 from Baron & Budd? I don't have the exhibit number in 19 front of me. 20 A. I don't know what stack it came from. 21 Q. I believe you split that pile and gave some to 22 him, so... 23 A. It came from Exhibit 11. 24 Q. And it's not Bates numbered, so I just want to 25 ask you so we can identify the document. Is it a 0101 file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (63 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 1 January 22nd, 1974 letter to Elliott from Industrial 2 Gasket and Shim Company? 3 A. I can't see it from here. 4 Q. There you go. 5 A. Do you want me to identify this document? 6 Q. I asked if it was a January 22nd letter from 7 Industrial Gasket and Shim to Elliott. 8 A. It is. It has Bates numbers at the bottom 9 that are cut off. 10 MS. NETTLE: Mr. Taylor, do you have any 11 objection to pulling these out and labeling them 12 separate exhibits and put the statement on the record 13 that they originally came from Exhibit 11? 14 MR. TAYLOR: That's fine. 15 MS. NETTLE: We'll mark the Bates number 16 ET 373 as the next exhibit which is 16. And the letter 17 that Dr. Egilman referred to will be Exhibit 17. 18 Q. You've handed me another sheet of paper. Is 19 this another test that you're referring to, 20 Dr. Egilman? 21 A. Correct. 22 Q. Is this Bates stamped ET 000110 for 23 clarification down at the bottom? 24 A. It's ET 000110. 25 If you're not going to mark them, will 0102 1 you put them back in the pile that I'm putting up here 2 to answer the question, please? 3 Q. I'm going to mark them. I was just waiting 4 until you were done. I thought it might go quicker 5 that way. 6 (Dr. Egilman and Mr. Taylor confer.) 7 Q. Doctor, you pulled this -- did you intend to 8 pull that as well as the next after the pink sheet, 9 just for clarification? 10 A. I can't see - 11 Q. I didn't know if you intended to pull both or 12 just the Johns-Manville document. 13 A. This is a report on tests. This is tests. 14 Okay. I think that's it. 15 (Dr. Egilman and Mr. Taylor confer.) 16 THE WITNESS: I'm sure it talks about 17 tests. We can start with the others until you read file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (64 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 18 that. 19 A. Just to be clear, this -- which we should 20 probably mark separately -- did not come out of that 21 stack. It came out of a different stack with different 22 types of Bates numbers. 23 THE WITNESS: So do you want to mark this 24 separately or do you want to mark the whole stack? 25 MR. TAYLOR: I think we should -- you 0103 1 might want to mark that separately, and then if she 2 wants to mark this additional stack... Based on my 3 review of that -- I thought this was a duplicate of 4 what was in there, but I believe this part is not 5 duplicated, and this is additional documents. 6 MS. NETTLE: Do you know where that came 7 from? 8 MR. TAYLOR: I think the same part of the 9 Baron & Budd documents. 10 MS. NETTLE: Because it's got different 11 colored paper. I didn't know if that was - 12 MR. TAYLOR: And I thought that was a 13 second set of the same thing that had the pink sheets, 14 but I don't see -- in flipping through those, I didn't 15 see anything that was fold-out drawings like these. 16 THE WITNESS: This is completely 17 different. 18 MR. TAYLOR: So I believe this is a 19 completely different set. 20 A. Let's do the last test document first. This 21 comes from documents that have not previously been 22 marked at the deposition. It's titled Woodward 23 Bulletin, Bellows Direct Type Speed Setting Mechanism 24 and it goes from Bates numbers -- it's a different set 25 of Bates numbers -- 36610 C. That's it. There's no 0104 1 Bates numbering after that. It's a - 2 MR. TAYLOR: Bulletin number. 3 A. Yeah, it's a bulletin number, but that's also 4 a Bates number. And it's got 12 pages. 5 Q. All right. This will be marked as 18, the 6 document that you've described, and it came from a 7 stack which I would like to mark as 19, the entire 8 stack if we have another rubber band. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (65 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 9 And that will be Exhibit 19. Where did 10 Exhibit 19 come from? 11 A. From that box. 12 Q. Who provided the documents in Exhibit 19 to 13 you? 14 A. Mr. Taylor. 15 Q. Are all those documents provided to you by 16 Mr. Taylor? 17 A. As far as I know. 18 Q. All right. And Exhibit 18 came out of exhibit 19 19, just so we're clear? 20 A. Correct. 21 Q. Let's see, you have pulled a number of other 22 documents from Exhibit 11, and I just want to clarify 23 them. Exhibit 16 appears to be -- the title is cut 24 off, but it looks like it says "order record" and the 25 user says Oklahoma A&M College; is that correct? 0105 1 A. That's correct. 2 Q. And what part of that document is a test of an 3 Elliott Turbine? 4 A. This temperature marking where it says super 5 heat parts with 600 degrees is checked where it says 6 hand speed changer, yes, plus or minus five percent. 7 Where it says mount purchase is half coupling and it 8 says no. Insulation and lagging says yes. 9 Q. What type of - 10 A. HV setting it says closed for 43 horsepower. 11 Q. What type of test was done that's reflected in 12 that document? 13 A. Super heat parts is a temperature check. Hand 14 speed changer was to check the speed of the changer, 15 whether it was a correct speed. The couplings issue 16 was whether the couplings were present, they tested to 17 see whether they were present or not. They also 18 checked to see whether the sole plate was present or 19 not. They checked to see what kind of a steamed 20 strainer was present, it was a standard not specified. 21 And they checked the -- the HV setting and determined 22 that it was closed for 43 horsepower. 23 Q. Is there any testing reflected in that 24 document about whether there's asbestos on the turbine 25 that was tested? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (66 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 0106 1 A. Yes. 2 Q. What is that? 3 A. It says insulationand lagging, yes. 4 Q. Does it state whether or not that insulation 5 and lagging had asbestos? 6 A. Specifically, no, not on this document; that's 7 on other documents that relate to this document. 8 Q. So is it your testimony then that the 9 insulation on this turbine reflected in here had 10 asbestos in it? 11 A. Right. 12 Q. Do you know if Marty Mitchell ever worked at 13 Oklahoma A&M College in Stillwater Oklahoma? 14 A. I don't recall. 15 Q. Is there any testing on here that reflects 16 what the fiber release, if any, would be from this 17 specific turbine? 18 A. Oh, no, Elliott didn't do any test like that. 19 MS. NETTLE: Object to the nonresponsive 20 portion. 21 Q. Is there anything in here that reflects what 22 the fiber release was from this particular turbine? 23 A. On that document? 24 Q. Uh-huh. 25 A. No. Just to speed it up, Elliott never did 0107 1 any tests like that on any of its asbestos. 2 MS. NETTLE: Object to nonresponsive 3 portion. 4 Q. The next document that we've marked as Exhibit 5 17, it's a letter that we talked about from Industrial 6 Gasket; is there anything in this document that 7 indicates what the fiber release would be from an 8 Elliott turbine? 9 A. Yes. 10 Q. What is that? 11 A. Well, at least from this part of a fiber 12 release. 13 Q. What in there are you relying on to state that 14 there may have been fiber release from an Elliott 15 turbine? 16 A. Nothing. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (67 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 17 Q. Okay. 18 A. Well, that's not correct. Thedescription of 19 the product. 20 Q. So there's no test results in there pertaining 21 to fiber release? 22 A. That's correct. 23 Q. And you haven't done any teststo determine 24 what the fiber release may have been from an Elliott 25 Turbine, correct? 0108 I A. On an Elliott turbine, no. I've done - 2 that's correct. 3 Q. This next set of documents is ET 110 through 4 111 A; and I think there's a duplicate of 111 A that 5 was in the stack twice. And they all appear to be a 6 turbine service report from Oklahoma A&M College; is 7 that correct? 8 A. That's correct. 9 Q. Is there any test result in that document - 10 which by the way I want to mark as the next exhibit, I II think it's 20. 12 Are there any test results in that 13 document that indicate what the fiber release may have 14 been from that Elliott turbine? 15 A. Why don't I wait until the court reporter 16 marks it; she can't mark and type at the same time. 17 Q. That's fine. 18 A. And I'm just going to write on this exhibit ID 19 number five pages so it's clear it goes 110 -- it looks 20 like there's two copies of 111 A. 21 Q. Would you like the - 22 A. Four pages actually, four pages. 23 Q. Would you like the court reporter to read back 24 my question? 25 A. No. No. 0109 1 Q. The next document is ET 312, it's entitled 2 Elliott Company Engineering Department Record 3 Descriptive Specifications for turbines. Is there any 4 test results on there pertaining to asbestos? 5 A. No. 6 Q. I would like to mark that as Exhibit 21. 7 The next document is ET 327 entitled file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (68 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 8 Material Specification. I would like to mark that as 9 the next exhibit, 22. 10 A. Oh, this is a mistake, this is just 11 specifications, no testing on this. 12 Q. All right. Would you -- well, that's fine. 13 Is it your testimony there's no test results on this 14 document? 15 A. That's correct. 16 Q. The next document is ET 329, the top is cut 17 off on this copy, but it appears to be a sheet about 18 Garlock Sheet Gasketing. And we can mark it as Exhibit 19 23. 20 Are there any test results on there 21 pertaining to asbestos? 22 A. Yes. 23 Q. And what tests were done -- the results 24 reflect -- reflected in that document? 25 A. Tensile strength, weight, thickness. 0110 1 Q. Anything else? 2 A. That's it. 3 Q. No testing about fiber release in this 4 document? 5 A. Correct. 6 Q. Do you know whether the turbines that 7 Mr. Mitchell claims he worked around had any Garlock 8 sheet gasketing? 9 A. Nope. 10 Q. Next document Exhibit 24, is a material 11 specification sheet, are there any test results 12 concerning asbestos in that document? 13 A. Test results? 14 Q. Uh-huh. 15 A. No. 16 Q. All right. The next document -- the top says 17 J.C. Style 2150 Compressed Asbestos Sheet Packing, I'll 18 mark it as Exhibit 25. Are there any test results in 19 that document concerning asbestos? 20 A. Yes. 21 Q. What test results? 22 A. It has been tested at temperatures up to 700 23 degrees Fahrenheit and at pressures up to 400 psi. 24 Q. And what has been tested? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (69 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 25 A. Style 2150 is composed of approximately 80 0111 1 percent chrysotile asbestos fibers, 12 and a half 2 percent G.R.S. synthetic rubber and special curing 3 compounds. 4 Q. Do you know whatproduct specifically that's 5 referring to? 6 A. Yes. 7 Q. What? 8 A. J.C. Style 2510 Compressed Asbestos Sheet 9 Packing. 10 Q. Do you know who made that product, can you 11 tell from the document? 12 A. No. 13 Q. Do you know if that product was used on any of 14 the turbines Mr. Mitchell claims to have worked around? 15 A. No. 16 Q. Is there any test in that document or referred 17 to in that document concerning fiber release? 18 A. No. 19 Q. Can I have that back, please. 20 The next document is a third copy of ET 21 111 A, do you have an objection to not marking it? 22 A. Yeah, if you're going to refer to a document, 23 I think it should be marked. 24 MS. NETTLE: Okay, next exhibit. 25 Q. Is this a third copy of Exhibit 111 A or Bates 0112 1 stamp number 111 A? 2 A. I don't know how many copies there are. 3 Q. Is it an additionalcopy of the document we've 4 already talked about? 5 A. I don't know. 6 Q. Exhibit 20. Is that a duplicate copy of a 7 page in Exhibit 20? 8 A. It appears to be. 9 Q. The next document we'll mark as Exhibit 27. 10 This is Bates labeled ET 32 to ET 105; is that correct? 11 A. No. 12 Q. How is that incorrect? 13 A. Some of the pages have no Bates numbers on 14 them. 15 Q. All right. Did I correctly describe the first file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (70 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 16 and last Bates stamp pages, just for purposes of 17 identification? 18 A. I don't know why you did it, but the first and 19 last Bates stamp pages are the ones that you mentioned. 20 Q. All right. What is that document generally, 21 if you know? 22 A. It's titled Johns-Manville Insulation Product 23 Information. 24 Q. Do you know whether the turbines Mr. Mitchell 25 claims to have worked around had any Johns-Manville 0113 1 insulation on them? 2 A. No. 3 Q. Is there any test result or testing discussed 4 in that document pertaining to asbestos? 5 A. Yes. 6 Q. Where? 7 A. Refers to quality control tests done on page 1 8 of the document ET 000034. It refers to strength, 9 weight, chemical, water, applicability, conductivity 10 tests on pages 2 and 3 of the same document. Those are 11 the document numbers not the Bates numbers. It talks 12 about sizes and measurements on page 4. It talks about 13 temperature tests, page 5. It talks about comparative 14 financial costs on page 6. It talks about the same 15 tests that I mentioned before on page 6 just for a 16 different product. It talks about composition of the 17 tests -- tests on the composition of the final product 18 of autoclaved pipe covering. It talks about all the 19 tests that I mentioned before again on page 10, plus 20 shrinkage tests and cracking tests. 21 Q. All right. I'll withdraw - 22 A. It talks about - 23 Q. -- the question as I had worded it, and I'll 24 ask you a more specific question. Are there any tests 25 in there that were done on turbines specifically or do 0114 1 all the tests in there pertain to the Johns-Manville 2 products? 3 A. Well, the Johns-Manville products were 4 specified for use on turbines. I consider a turbine to 5 be, as it functions, the metal and included insulation, 6 if that's how they were sold. So it would be file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (71 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 7 misleading for me to answer that there were tests 8 only -- there were tests on parts of the turbine in 9 here, those parts of the turbine are those supplied by 10 Johns-Manville, that's the way I can answer the 11 question. 12 MS. NETTLE: And I'm going to object as 13 nonresponsive. 14 Q. Are there any tests in there specifically 15 pertaining to turbines? 16 A. You mean is the word turbine in here anywhere? 17 Q. Right. 18 A. I have to check. 19 Q. Do you recall seeing the word turbine in there 20 without looking? 21 A. Yes. But I'm not sure. 22 Q. Can you describe for me any of the testing - 23 well, can you tell me whether any of the testing 24 pertained directly to turbines. 25 A. Yes. 0115 1 Q. Which test in there -- let me rephrase. Are 2 there any tests in there that pertain to the fiber 3 release, if any, from a turbine, an Elliott turbine? 4 A. I would have to check. I think there may be 5 one, it depends what year it's from. 6 I answered the question. Do you have 7 another question? 8 Q. Yes. Please tell me the test that you're 9 referring to. 10 (Dr. Egilman and Mr. Taylor confer.) 11 THE REPORTER: Can we take a quick 12 restroom break? 13 THE WITNESS: Sure. 14 MS. NETTLE: Do you agree to go off the 15 record during the restroom break? 16 MR. TAYLOR: For what? 17 MS. NETTLE: For a restroom break. 18 MR. TAYLOR: That's fine. 19 (A break was taken from 1:34 to 1:52.) 20 Q. Sir, before the break you were looking for a 21 test that you thought you recalled pertaining to 22 turbines, did you find that test in the document? 23 A. I don't think that was the question. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (72 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 24 Q. Did you find the test you were searching for? 25 A. I found one test of fiber release but not the 0116 1 one I was searching for. I have an unredacted one of 2 these documents and I'm having those pages faxed here. 3 Q. Is it your testimony this document is 4 redacted? 5 A. Maybe or maybe substituted or maybe a 6 different document. 7 Q. Do you have any evidence it's been redacted? 8 A. I haven't gone through it yet. It's different 9 from another document similar to it that I've seen in 10 the past. 11 Q. So no, you don't have any evidence this has 12 been redacted? 13 A. Well, I have some evidence because I have 14 another copy of a similar document that has health 15 information in it. 16 Q. Do you know if that document -- you say 17 similar, you don't know whether it's the same one or 18 not? 19 A. That's right, I need to compare them. 20 Q. All right. You have put a sticky note on a 21 page that's ET 000089, J-M Blazecrete Hydraulic Setting 22 Refractory Cement, what on this page pertains to fiber 23 release? 24 A. It's a spray product. 25 MS. NETTLE: Objection, nonresponsive. 0117 1 Q. What on that page refers to fiber release? 2 A. It's a sprayed asbestos product. 3 MS. NETTLE: Objection, nonresponsive. 4 Q. Can you cite to me anything on that page that 5 refers to fiber release? 6 A. Mixed with water at the gun nozzle they are 7 pneumatically projected with great force resulting in a 8 dense homogeneous lining. 9 Q. So based on the fact that it's sprayed you're 10 -- that's the link to fiber release that you're 11 claiming? 12 A. Yes. 13 Q. Are there any test results in this -- on this 14 page pertaining to fiber release? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (73 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 15 A. I'm not sure I understand the question. Do 16 you mean they measure how much fiber was released when 17 they sprayed it pneumatically at high force? 18 Q. I'm asking - 19 A. Against the wall? 20 Q. I'm - 21 A. The exact number of fibers, is that what 22 you're asking? 23 MS. NETTLE: Objection, nonresponsive. 24 A. I'm just asking for clarification of the 25 question. 0118 1 Q. Is there any place in this document that 2 refers to testing of fiber release of this product, 3 test results, a discussion of testing, anything 4 pertaining to testing - 5 A. It does not use the word test on that page. 6 MS. NETTLE: Objection, nonresponsive. 7 Q. Is there anything pertaining to or referring 8 to testing of fiber release on this page? 9 A. Yes. 10 Q. What? 11 A. What I read before. 12 Q. And how did what you read before pertain to 13 testing? 14 A. Because they tested how fast and how much was 15 sprayed. 16 Q. Who tested? 17 A. Manville, that's what they're describing 18 there. 19 Q. And where are they describing the tests? 20 A. Well, they describe -- they say, "these four 21 refractories are especially adaptable for gun 22 application in building new refractory linings and 23 repairing old ones." I interpret that as a summary of 24 tests that that's based on. Next, "they adhere readily 25 with a minimum of loss when 'shot' in place" -- shot's 0119 1 in quotes -- that also refers to a summary of tests 2 that were done. "Mixed with water at the gun nozzle 3 they are pneumatically projected with great force." 4 Great force is a summary of a test of the amount of 5 force that was measured at some gun nozzle at some file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (74 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 6 point in time, that's the report of the test results. 7 "Resulting in a dense homogeneous lining," that refers 8 to tests of the density and homogeneity of the lining. 9 Next paragraph. They also say that they tested for 10 effectiveness, okay. And that's referred to in the 11 next test result. 12 Q. Have you seen any of the tests you believe are 13 referred to or summarized in this document? 14 A. Sure. 15 Q. Have you -- do you know if this J-M Blazecrete 16 was used on any of Elliott's products? 17 A. I think it was specified to be used, yes. 18 Q. Which product? 19 A. I don't recall, the spec sheets are all here 20 though. 21 Q. But you can't tell me what type of product 22 this J-M Blazecrete -- what type of Elliott product you 23 believe it was used on? 24 A. No. 25 Q. Do you believe it was used on a turbine of 0120 1 some sort? 2 A. I can't recall if it's a turbine or a boiler. 3 Q. Is it your testimony Elliott manufactured 4 boilers? 5 A. Yeah. Started as a boiler company. 6 Cleaning -- actually cleaning company is a boiler 7 company. It started with some patents Mr. Elliott 8 wrote for how to clean boilers. 9 Q. Do you have the tests that you believe are 10 referred to in this document number 89, ET 89 of 11 Exhibit 27? 12 A. In my possession? 13 Q. Yes. 14 A. I may. 15 Q. You don't know one way or the other? 16 A. Well, I don't know for sure one way or the 17 other. I've seen a lot of spray tests. I was a 18 consultant for Manville and Turner & Newall, both 19 manufactures of spray equipment and spray asbestos, and 20 I've seen a lot of tests of spraying. I can't be sure 21 what year that document is, so I can't be sure - 22 there's no date on that document as far as I know, so I file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (75 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 23 can't be sure exactly, because I didn't memorize the 24 documents by year yet, what date that came in therefore 25 what tests might have been referred to in that 0121 1 document. But I might be able to figure it out. 2 Q. Did you go back and review any of the test 3 results you believe are referred to in this document in 4 preparation for your opinions in this case or 5 preparation for this deposition? 6 A. Sure, I've reviewed those in the past. 7 MS. NETTLE: Objection, nonresponsive. 8 Q. Did you go back and review any of the test 9 results you believe are referred to on this page in 10 preparation for this deposition or in preparation for 11 forming your opinions in this case? 12 A. I don't separate my life by those categories. 13 I've reviewed those test results in the past for a 14 variety of purposes, for consulting for those 15 companies, for testifying at the request of companies 16 and at the request of plaintiffs in litigations, for 17 publishing papers. I don't recall under which of those 18 categories my review of those tests occurred nor do I 19 recall when it occurred. 20 Q. In the past couple of weeks since you started 21 looking at Elliott documents, did you go back and 22 review any of those tests? 23 A. Yes. 24 Q. Which ones? 25 A. Spray tests of Turner & Newall products. 0122 1 Q. Do you have those tests with you today? 2 A. No. 3 Q. Why did you go back and look at those in 4 past two weeks? 5 A. I beg your pardon? 6 Q. Why did you look at those in the past two 7 weeks? 8 A. Because sprays are frequently used on 9 turbines. Because I saw Dr. Langer's report saying 10 working around your turbines were innocuous, and I was 11 incredulous at that. 12 Q. Do you know - 13 A. Because -- I'm not done, you asked a why file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (76 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 14 question. And because I thought that there was a gross 15 misrepresentation of the truth of the matter. So I 16 wanted to make sure I had the evidence that would be 17 able to rebut any such misrepresentation. Now, I'm 18 done. 19 Q. Dr. Langer didn't prepare a report in this 20 case, did he? 21 A. I have no idea. 22 Q. Do you know what the report Dr. Langer 23 prepared pertained to, what case? 24 A. It's on the letter that he wrote. I didn't 25 memorize that either, but the letter is here. 0123 1 Q. Is it your recollection that report did not 2 pertain to Mr. Mitchell's case? 3 A. Correct. 4 Q. Do you know whether any T&N spray products 5 were used on Elliott turbines? 6 A. I think so. 7 Q. And what do you base that opinion on? 8 A. Some AC&S documents. 9 Q. What AC&S document leads you to believe that 10 T&N products were used on Elliott turbines? 11 A. AC&S has a list of customers and boilers 12 sprayed, or many such lists. I've reviewed such lists 13 and I think Elliott's on one of them, but I'm not 14 positive. 15 Q. Can you produce that document for me? 16 A. I can try. 17 Q. Do you have it with you? 18 A. Not right in front of me. You've got 19 everything I brought. 20 Q. And it's not in the documents you've brought 21 that have been marked as exhibits? 22 A. Right. 23 Q. And you can't say one way or the other whether 24 Elliott's on that document, the AC&S document? 25 A. I can't be sure. I think I recall seeing 0124 1 them, I could be wrong, but I'll check. 2 Q. What's the name of that document? 3 A. It doesn't have a name, it's got a list of 4 jobs that AC&S did. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (77 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 5 Q. Do you have any evidence - 6 A. You have some retired AC&S lawyers, I'll 7 consult with them during the break. 8 Q. Do you have any evidence that AC&S ever 9 installed or sold to Elliott? Ever installed an 10 Elliott turbine or sold to Elliott? 11 A. Not beyond what I just said already. 12 Q. And you don't have, as you sit here today, any 13 fiber release results from the testing you believe is 14 referred to on page 89, correct? 15 A. You mean the documents? 16 Q. The actual testing and the results? 17 A. I don't have the documents, the results I can 18 give you. 19 Q. You don't have any documents reflecting the 20 testing or results? 21 A. Right. 22 Q. This next document, I believe, is either a 23 duplicate or similar to the previous one. I'll mark it 24 as the next exhibit, 28. I'm going to let you compare 25 27 and 28, you don't have to do it in detail, but do 0125 1 they appear from the Bates stamps to be a duplicate of 2 the same document? 3 A. It looks like it. 4 Q. The next document is a group of pages I'll 5 mark as Exhibit 29. This is a Johns-Manville document. 6 The second page says Development of Axial-Flow 7 Supercharger; did I correctly identify that? 8 A. Yep. 9 Q. Are there any test results in that document 10 pertaining to asbestos? 11 MR. TAYLOR: For the record, you gave him 12 all this as one document with this page. 13 MS. NETTLE: Oh, is that not part of the 14 same? 15 MR. TAYLOR: I think that went with the 16 previous Johns-Manville. 17 MS. NETTLE: Oh, the pink page is 18 missing. 19 MR. TAYLOR: That's the back page to it. 20 MS. NETTLE: Can we move then 29 to the 21 other document? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (78 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 22 THE WITNESS: It's okay with me. 23 A. Yeah, this is a published paper what you gave 24 me. This is not a Manville document; 29 is not a 25 Manville document. 0126 1 Q. All right. 2 A. 29 is a published paper by three people who 3 work for Elliott in Powerfax, winter of 1957. 4 Q. It was incorrectly grouped with a 5 Johns-Manville page, so we've cleared that up. 6 A. Not only that, it was incorrectly researched 7 by my staff. 8 MS. NETTLE: Objection, nonresponsive. 9 No question pending. 10 Q. Can I -- I'll repeat my question - 11 (Dr. Egilman and Mr. Taylor confer.) 12 Q. Is there any testing concerning asbestos in 13 that document? 14 A. Oh, it's an Elliott document, I'm sure there 15 isn't. 16 MS. NETTLE: Objection, nonresponsive. 17 Q. Do you see any testing concerning asbestos in 18 that document? 19 A. No. 20 Q. Exhibit 30 is a document, the top of which 21 says S.O. 7402. Can you tell me what that document is? 22 A. Some repair and testing document on turbine - 23 on a turbine -- or a generator, turbine generator. 24 It's an Elliott document. 25 Q. Is it testing of a specific generator? 0127 1 A. Yes. 2 Q. And do you know if that generator was any 3 machine that Mr. Mitchell worked around? 4 A. No. 5 Q. Is there any testing in there concerning 6 asbestos? 7 A. No. 8 Q. And the last document you presented to me 9 was -- it's already been marked as Exhibit 18, it was 10 taken from a different stack. It's from Woodward 11 Governor Company. 12 A. Yeah. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (79 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 13 Q. Is there any testing in there concerning 14 asbestos? 15 A. No. 16 Q. Have we now talked about all the documents you 17 have pulled regarding testing on turbines that you 18 reviewed -- testing on Elliott turbines that you 19 reviewed? 20 A. Except for the web site documents. 21 Q. All right. Please show me in the web site 22 documents what refers to testing done on Elliott 23 turbines -- and actually let me clarify. Is there 24 anything in the web site documents that refers to 25 testing done on Elliott turbines pertaining to 0128 1 asbestos? 2 A. No. 3 Q. Okay. Other than the web site documents and 4 this stack Exhibit 16 through 30, are there any other 5 testing -- is there any other document reflecting 6 testing of Elliott turbines that you've reviewed? 7 A. No. 8 Q. So you haven't reviewed anytest concerning 9 fiber release on an Elliott turbine, correct? 10 A. No. 11 Q. How is that incorrect -- well, let me withdraw 12 that question. Do any of these documents, the web site 13 pages or this stack, provide information on testing of 14 Elliott turbines and any fibers that may have been 15 released from an Elliott turbine? 16 A. Yes. 17 Q. Which ones? 18 A. The ones that talk about asbestos insulation 19 being used. The ones that talk about spraying asbestos 20 insulation. The ones that describe what asbestos 21 insulation consist of. 22 MS. NETTLE: I'm going to object as 23 nonresponsive. 24 Q. We've gone through each of these and you could 25 not point to me any test results pertaining to fiber 0129 1 release with the exception of this description of the 2 Blazecrete. Is there any other test you can point to 3 concerning fiber release from an Elliott turbine? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (80 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 4 A. Sure. 5 Q. What? 6 A. Those products are all used on Elliott 7 turbines and thereare tests of the use of those 8 products on turbines and in other uses that exist in 9 the literature on other turbines that are substantially 10 similar to Elliott, if not identical to Elliott 11 turbines, on other parts that are substantially similar 12 to using those products on -- or identical to using 13 those products on Elliott turbines, etcetera. 14 MS. NETTLE: Object as nonresponsive. 15 Q. Can you name for me any test you have reviewed 16 that specifically looked at the fiber release from an 17 Elliott Turbine? 18 A. No, I already said Elliott never tested for 19 fiber release from its turbines. 20 MS. NETTLE: Object to the nonresponsive 21 portion. 22 Q. Yes or no, did you review any tests that 23 specifically looked at fiber release from an Elliott 24 turbine? 25 A. No, Elliott never tested its turbines. 0130 1 However, tests of products specified and used on 2 Elliott turbines have been tested during such use and 3 those specify exposure levels and fiber release. 4 MS. NETTLE: Objection, nonresponsive. 5 Q. Have you done any estimate of the fiber 6 release, if any, from any product Mr. Mitchell alleges 7 he worked around? 8 A. Yes. 9 Q. Where are those results or those estimates? 10 A. In a body of literature that I've reviewed in 11 the past. 12 MS. NETTLE: Objection, nonresponsive. 13 Q. Have you personally done any estimates in this 14 case specific to Marty Mitchell and his exposure 15 estimating what fiber release, if any, there was from 16 any of the particular products Marty Mitchell worked 17 with or around? 18 A. Yes. 19 Q. Are those estimates written down anywhere? 20 A. Yes. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (81 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 21 Q. Where? 22 A. In the documents that review fiber release 23 from the products that were used in and around Elliott 24 turbines when Mr. Mitchell was in and around those 25 turbines. 0131 1 MS. NETTLE: Objection, nonresponsive. 2 Q. What -- you understand that fiber release can 3 be measured in number of fibers per cubic centimeter? 4 A. Are you talking about asbestos fibers? 5 Q. Yes. 6 A. That's a common way that measurements are 7 derived, but it's really meaningless and confusing 8 unless you specify the method of measurement. 9 Q. Have you done any estimates of the fibers per 10 cubic centimeters that Mr. Mitchell was exposed to from 11 any particular product? 12 A. Yes. 13 Q. What are they? How many fibers per cubic 14 centimeter was he exposed to? 15 A. Billions, quadrillions. 16 Q. And what testing did you do to come up with 17 those numbers? 18 A. I reviewed test results from exposures to the 19 products used on Elliott turbines. I reviewed the 20 deposition testimony of Mr. Mitchell and the coworkers 21 to determine if he was sufficiently close to the use of 22 those products while he was working on Elliott turbines 23 and determined that he was, and therefore calculated 24 that he was exposed to that level of fiber release. 25 Q. So it's your testimony then -- well, let me 0132 1 ask you this: did Mr. Mitchell work on an Elliott 2 turbine? 3 A. He worked around Elliott turbines. 4 Q. And is it your testimony then that 5 Mr. Mitchell from working around Elliott turbines was 6 exposed to billions of asbestos fibers? 7 A. More. 8 Q. And what scientific methodology did you use to 9 come up with this number? 10 A. Well, there are specific tests of exposures to 11 the products that Mr. Mitchell worked around on Elliott file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (82 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 12 turbines. Those tests indicate that working around 13 those products causes billions of fibers to be released 14 and inhaled and air breathed within, in some cases, 15 several 100 feet of those turbines. He was around 16 those products within several 100 feet of those 17 turbines while that work was going on and he was 18 breathing. Therefore, since the fibers were in the air 19 and he was breathing, I estimated that he inhaled at 20 least that level of fibers based on the known exposures 21 and known fiber releases from those products that were 22 used on Elliott turbines, his respiratory rate and the 23 time he spent in the vicinity of the turbines. 24 Q. How much time did he spend in the vicinity of 25 the turbines? 0133 1 A. I have to go back and look at his deposition. 2 Q. You don't know off the top of your head? 3 A. That's another thing I don't know off the top 4 of my head. 5 Q. And what type of turbines, Elliott turbines 6 did Mr. Mitchell work around? Do you know any further 7 description? Do you know any manufactures designation? 8 Can you describe them any more than saying it was an 9 Elliott turbine? 10 A. Not without looking at the specs from the 11 turbines - 12 Q. And have you ever - 13 A. -- which haven't been -- which I have asked 14 for and haven't been produced in this case. 15 Q. So you haven't -- you didn't review the specs 16 of the turbines that may have been at issue in this 17 case before forming your opinions? 18 A. That's right because they haven't been 19 produced, and I asked for them. 20 MS. NETTLE: I'm going to object to the 21 nonresponsive portion. 22 Q. The Kaeske firm hasn't provided those to you? 23 A. They don't have them. 24 MS. NETTLE: Objection, nonresponsive. 25 A. The Elliott Turbine Corporation has not 0134 1 provided them to the Kaeske firm. 2 MS. NETTLE: Object to the nonresponsive file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (83 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 3 portion. 4 Q. Okay. 5 A. I'll be glad to take them from you now if you 6 would like. I would be glad to take them at any time. 7 MS. NETTLE: Object to the sidebar. 8 Q. Do you know what products were used on the 9 turbines Mr. Mitchell claims he worked around? 10 A. Yes. 11 Q. What? 12 A. Products specified tobe used in these 13 specification sheets that you see in front of you. 14 MS. NETTLE: I'm going to object as 15 nonresponsive. 16 Q. What products do you believe were used on the 17 turbines that Mr. Mitchell claimed he worked around? 18 A. The products specified to beused on those 19 turbines and shipped with those turbines, which the 20 only documents that I have related to that are in front 21 of you. If you want me to go through each of the 22 documents again and point them out, I would be glad to 23 do that. 24 Q. You don't have any documents that indicate the 25 products used on the specific turbines Mr. Mitchell 0135 1 claimed he worked around? 2 A. Beyond the general specification sheets for 3 what goes on turbines normally, no. 4 Q. Do you know if the turbines he worked around 5 had insulation? 6 A. Yes. 7 Q. Was your -- were your opinions -- well, do you 8 believe that insulation had asbestos in it? 9 A. During at least part of the time that he was 10 working around them, yeah. 11 Q. So it's your testimony that the Elliott 12 turbines Mr. Mitchell worked around, at least part of 13 the time he worked around them, had asbestos containing 14 insulation? 15 A. Correct. 16 Q. And was that assumption an integral part of 17 your opinions in this case? 18 A. It wasn't an assumption, it was based on his 19 deposition and the Elliott -- it was based on the file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (84 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 20 facts. 21 Q. Was your belief that those turbines had 22 asbestos containing insulation on them during part of 23 the time Mr. Mitchell worked around them an integral 24 part of your -- forming your opinions in this case? 25 A. It wasn't a belief, those are the facts that 0136 1 I've been presented. If someone presents me with other 2 facts showing that there wasn't asbestos insulation 3 contrary to the facts that I relied on, I'll change my 4 opinion. 5 Q. Whether it's -- in forming your opinions in 6 this case, did you rely on the information that was 7 provided to you that you conclude states that there was 8 asbestos containing insulation on the Elliott turbines 9 that Mr. Mitchell claims to have worked around? 10 A. Yes. 11 Q. And did your reliance on that affect your 12 estimation of the fiber release in this case? 13 A. Yes. 14 Q. What did the turbines Mr. Mitchell worked 15 around look like? How big were they, the Elliott 16 turbines? 17 A. I don't recall, I would have to go look at the 18 deposition. 19 Q. Have you ever seen an Elliott turbine? 20 A. Sure. 21 Q. When? 22 A. In all these pictures on the web site, we've 23 got them right here. 24 Q. Let me be more specific. 25 A. I've got all these spec sheets right here. 0137 1 Q. Have you ever seen an Elliott turbine in 2 person? 3 A. I never shook hands with an Elliott turbine. 4 But I never met an Elliott turbine I didn't like. 5 Q. Have you ever talked to any Elliott employees 6 directly that you know of? 7 A. Not that I know of. 8 Q. So you can't give me any description of what 9 the Elliott turbines Mr. Mitchell claims to have worked 10 around? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (85 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 11 A. Beyond what's in the deposition testimony, I 12 cannot describe them. I never saw them. 13 Q. Okay. Have you done any tests in this case to 14 determine Mr. Mitchell's overall exposure to asbestos 15 fibers? 16 A. I did an estimate, yes, I did an estimate. 17 Q. And what is your estimate -- is your estimate 18 in any document, is it reflected in any document? 19 A. Sure. 20 Q. Your specific estimate is written down 21 somewhere in a document? 22 A. No. 23 Q. All right. 24 A. You mean as a number, no. 25 Q. What -- is your method of calculating the 0138 1 total exposure of Mr. Mitchell the same as you 2 described for calculating the exposure for Elliott 3 turbines specifically? 4 A. No, there's no valid scientific method for 5 calculating fiber dose based on post hoc 6 reconstructions of someone who was never monitored 7 concurrently. There -- all such reconstructions are 8 performed merely for litigation purposes and have no 9 scientific basis whatever. The main method for 10 determining whether or not he had the sufficient 11 exposure to asbestos insulation from Elliott turbines 12 is the fact that he was exposed to a sufficient amount 13 of fiber from Elliott turbines to cause his malignant 14 mesothelioma which was caused by his asbestos exposure. 15 And that amount is -- can be a very low amount of 16 fibers, perhaps even one fiber, and therefore he had 17 sufficient exposure to asbestos while working around 18 Elliott turbines to cause his mesothelioma, and that's 19 the method. 20 MS. NETTLE: Objection, nonresponsive. 21 Q. Can you describe for me any scientific method 22 you used to calculate the fiber release or the number 23 of fibers Mr. Mitchell was exposed to either overall or 24 from an Elliott turbine? 25 A. There's no valid scientific method to assign 0139 1 specific fiber release to historical fiber exposures in file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (86 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 2 any case like this. There are gross litigation driven 3 methods for estimating exposures that are not valid, 4 not scientific and not reliable. Those methods are 5 similar to the method that I described before. 6 MS. NETTLE: Objection, nonresponsive. 7 Q. Can you state for me any scientific method you 8 personally used in forming your opinions about the 9 number of fibers Mr. Mitchell was exposed to? 10 A. There is no valid scientific method for 11 estimating dose retrospectively in a case like this 12 from exposures to product when the exposures were not 13 measured concurrently. The method of doing so is as 14 described before. You estimate based on previous tests 15 of similar products and similar uses what exposure 16 levels are. Usually with respect to asbestos with most 17 of those products, the exposures are so high, even from 18 a day of exposure, that it's a sufficient exposure to 19 cause the disease. Everything after that exposure is 20 piling on, not necessary to have caused the disease. 21 If you want to estimate the relative 22 exposures from different products you merely take the 23 exposure estimates mentioned before in this answer 24 which are usually wrong by factors as much as a million 25 or two million and then average them by equally wrong 0140 1 estimates with equal error bars of the amount of time 2 someone spent doing different jobs and do a 3 multiplication of the time of exposure versus the 4 estimated exposure during that time during any 5 particular job. 6 But since all workers like Mr. Mitchell 7 are working in the vicinity of asbestos use with a 8 variety of asbestos products in a variety of forms, it 9 is absolutely impossible to estimate with any degree of 10 reliability what the total fiber count was. Not to 11 mention the fact that the variability just from 12 clean-up methods of fibers, which there's never any 13 evidence of in any consistent pattern, is enough to put 14 your dose estimates off by factors of thousands, if not 15 millions. 16 MS. NETTLE: Objection, nonresponsive. 17 Q. Have you done any estimates of fiber release 18 from any product other than Elliott turbines that file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (87 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 19 Mr. Mitchell claims to have worked around? 20 A. No. 21 Q. Did the Kaeske firm ask you to do that? 22 A. No. 23 Q. Do youknow any of the job sites at issue in 24 this case? 25 A. What do you mean by that? 0141 1 Q. Do you know any of the places Mr. Mitchell 2 worked? 3 A. Besides what he said about them? You mean, 4 have I been there myself? 5 Q. My question is, can you name for me, as you 6 sit here today without looking at the deposition, any 7 of the job sites he worked at? 8 A. No, without looking I can't name the job 9 sites. I didn't memorize that either. 10 Q. Can you tell me the length of time he worked 11 around Elliott turbines? 12 A. Without looking I can't tell you. 13 Q. Even with looking can you tell me? 14 A. With looking I can give you the best estimate 15 that he and I and his coworker have. 16 Q. Did you come up with some sort of estimate of 17 the amount of time he worked around Elliott turbines in 18 forming your opinions about fiber release from those 19 turbines? 20 A. Yes. 21 Q. And what was your estimate of the amount of 22 time he worked around Elliott turbines? 23 A. It was sufficient to have killed him. 24 MS. NETTLE: Objection, nonresponsive. 25 Q. What is the amount of time that you concluded 0142 1 or you calculated Mr. Mitchell worked around Elliott 2 turbines? 3 A. Sufficient to have killed him, which means at 4 a minimum or let's -- we don't have to go to the low 5 estimate, days, weeks or months. A single day would 6 certainly be more than sufficient to have killed him. 7 MS. NETTLE: Objection, nonresponsive. 8 Q. Is it your testimony then that because 9 Mr. Mitchell contracted mesothelioma, he must have been file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (88 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 10 around an Elliott turbine sufficient time to cause that 11 disease? 12 A. Absolutely not. 13 Q. All right. Can you tell me then how much time 14 you estimated in days, weeks, months, years that 15 Mr. Mitchell worked around an Elliott turbine? 16 A. He worked around Elliott turbines a sufficient 17 amount of time to have gotten enough exposure to have 18 killed him. It's in the months. 19 MS. NETTLE: Objection, nonresponsive. 20 Q. Is it your testimony that Mr. Mitchell worked 21 around Elliott turbines for a number of months? 22 A. That's my general recollection, but I need to 23 look at the depositions to be sure. 24 Q. Do you recall how many months you believe he 25 worked around Elliott turbines? 0143 1 A. No, I don't think he did either. 2 Q. How did you come to the conclusion then that 3 he worked around Elliott turbines for a number of 4 months? 5 A. Reading the depositions of him and his 6 coworkers. 7 Q. Nothing else you relied on to make that 8 determination? 9 A. Correct. 10 Q. How many -- how much time did he spend around 11 other turbines not manufactured by Elliott? 12 A. I don't recall. 13 Q. Did you do that calculation? 14 A. No. 15 Q. How much time did he spend around other 16 products containing asbestos? 17 A. Don't recall. 18 Q. What products did he work with directly, 19 hands-on with that contained asbestos? 20 A. I would have to look at the deposition. 21 Q. You can't name any as you sit here today? 22 A. I could name some but I don't want to make a 23 mistake and slander anybody unnecessary. 24 Q. What are the ones you recall that he worked 25 with directly that contained asbestos? 0144 file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (89 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 1 A. Drywall products. 2 Q. Did you doany estimate of the amount of time 3 he worked with drywall products? 4 A. No. 5 Q. Did you do any estimate of the fiber release 6 from drywall products? 7 A. No. 8 Q. Did you do any estimate of the fiber release 9 from any other products besides Elliott turbines? 10 A. No. 11 Q. Do you know how close Mr. Mitchell worked 12 around the turbines, how close was he? 13 A. As close as six feet. 14 Q. And when you say that, that makes me think 15 you're thinking of a range, is there a range of how 16 close he was? 17 A. Yes, he was walking around while the turbine 18 was there. 19 Q. All right - 20 A. So he would walk into the building and then 21 walk to his workplace which was near the turbine when 22 he was doing rebuilds. So there's a whole range of 23 distances, an infinite number of distances between the 24 time he would enter a workplace there was an Elliott 25 turbine and when he would end up working. And when he 0145 1 ended up working, he didn't stay in one place with 2 respect to the Elliott turbine, so there's another 3 probably infinite number of distances between him and 4 the Elliott turbine. 5 Q. Do you know how often or how much time he 6 spent six feet from the turbine? 7 A. No. 8 Q. Is it your understanding Mr. Mitchell never 9 repaired or installed an Elliott turbine? 10 A. No, I don't have that understanding. 11 Q. Do you believe he did repair or install an 12 Elliott turbine? 13 A. No, I don't have any understanding on that 14 issue. 15 Q. You don't know one way or the other? 16 A. Not without looking. If you want me to look, 17 I'll be glad to check my notes, but I didn't memorize file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (90 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 18 that part. 19 Q. Other than the insulation you mentioned, do 20 you believe the turbines Mr. Mitchell worked around - 21 any other portion of the turbines Mr. Mitchell worked 22 around contained asbestos? 23 A. Sure. 24 Q. What portions? 25 A. Gaskets, packings. 0146 1 Q. Anything else? 2 A. That's all I can recall. 3 Q. Is it your belief that the gaskets and packing 4 on the Elliott turbines Mr. Mitchell claims to have 5 worked around contained asbestos? 6 A. Yes. 7 Q. On what do you base that? 8 A. The spec sheets, some of which I just read to 9 you. 10 Q. And you've never seen the spec sheets for the 11 specific turbines Mr. Mitchell claims to have worked 12 around? 13 A. No, those haven't been produced by Elliott in 14 this case. 15 MS. NETTLE: Objection to the 16 nonresponsive portion. 17 Q. So you don't have any document that you can 18 point to that shows for certain there was asbestos 19 containing insulation, gaskets or packing on the 20 specific turbines Mr. Mitchell claims he worked around; 21 is that correct? 22 A. Not true. 23 Q. All right. Show me a document that shows the 24 specific turbines Mr. Mitchell worked around contained 25 either asbestos containing insulation, asbestos 0147 1 containing gaskets or asbestos containing packing? 2 A. Your specification sheets are for all your 3 turbines. There's no nonasbestos use in any of your 4 turbines until 1989 according to your own documents. 5 Every turbine that went out of your place, every 6 turbine that was in place used asbestos products on it 7 until 1989 when the customer started to refuse to use 8 asbestos products on their own. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (91 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 9 MS. NETTLE: I'm going to object to the 10 nonresponsive portion. 11 Q. Is it your testimony then that Elliott never 12 used nonasbestos gaskets or packing on its turbines? 13 A. No. 14 Q. Is it your testimony that prior to '89 Elliott 15 never used nonasbestos containing gaskets or packing on 16 its turbines? 17 A. I don't recall a cut off year. '89's the year 18 I can remember memos saying that we have to stop using 19 asbestos because the customers don't want us to use it 20 anymore. 21 MS. NETTLE: Object to the - 22 A. I can't remember whether that document 23 referred specifically to gaskets or not, but the 24 document is here, so if you want to take a second I'll 25 look and see if I can find that document. 0148 1 MS. NETTLE: Object to the nonresponsive 2 portion. 3 A. Do you want me to take a minute and look for 4 that document or not? 5 Q. Do you have any document - 6 A. Okay. Well, then let's look for the document 7 so I can answer the question. 8 Q. Sir, I've moved on to my next question. 9 A. I'm not done with my answer. I got a chance 10 to look at the documents. 11 Q. What document are you looking for? 12 A. A 1989 document that refers to removing 13 asbestos from the product specs because the customers 14 don't want asbestos on their products. 15 Q. All right. You've identified the document 16 you're going to look for, I don't need to see it. And 17 I'm going to move on to my next question. 18 MR. TAYLOR: Objection, please don't 19 interrupt his answer. 20 MS. NETTLE: Can you read my original 21 question? 22 (Requested portion was read.) 23 Q. All right. Is that your testimony? 24 A. No, my testimony includes being able to refer 25 to the documents. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (92 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 0149 1 Q. If you can place your hands on that document 2 quickly, go ahead. 3 A. It's not a -- I can't place my hands on that 4 document within any guarantee of knowing how fast I can 5 find that document. 6 Q. All right. 7 A. So you want the record to be incomplete, it's 8 your record, go right ahead. Next question. There may 9 be other documents that also talk about asbestos 10 gaskets and when they were speced - 11 MS. NETTLE: Objection, nonresponsive. 12 A. -- that I need to look through, but I've made 13 the record, you made your record. Go to your next 14 question. 15 Q. Do you have any document that shows Elliott 16 never used nonasbestos containing gaskets or packing 17 during the years that Mr. Mitchell claimed he worked 18 around asbestos -- around Elliott turbines? 19 A. No. 20 Q. You've never done any air sampling around 21 Elliott turbines? 22 A. Correct. 23 Q. Have you reviewed any air sampling done 24 specifically around Elliott turbines? 25 A. No. Elliott never tested the air exposures 0150 1 from its turbines. 2 MS. NETTLE: Object to the nonresponsive 3 portion. 4 Q. In forming your opinion that Mr. Mitchell was 5 exposed to fibers from an Elliott turbine, did you do 6 any tests or mathematical formulation that can be 7 replicated by another person? 8 A. I gave you the way I did the dose estimate. I 9 already told you it's a nonreplicable, nonscientific 10 process to do that kind of a dose recalculation, and so 11 it can't be reproduced similarly by anybody, that's 12 part of the reason it's not a scientific process. 13 Q. Can you cite to me any epidemiological study 14 that finds working around turbines doubles the risk of 15 contracting mesothelioma? 16 A. I haven't looked, but I'll find one for you. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (93 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 17 MS. NETTLE: Objection, nonresponsive. 18 Q. Can you cite tome any epidemiological study 19 that states that working around turbines doubles the 20 risk of contracting mesothelioma, yes or no? 21 A. Yes. 22 Q. What is the cite to those epidemiological 23 studies? 24 A. This case. 25 MS. NETTLE: Objection, nonresponsive. 0151 1 Q. What's your understanding of what an 2 epidemiological study is? 3 A. Epidemiologic study is a study that describes 4 the distribution of determinants in a population. It 5 may consist of -- in human beings, population of human 6 beings. It may consist of as few as one individual or 7 many individuals. On average most epidemiologic 8 studies that are conducted have about 30 individuals in 9 the exposed group or in a case control study in the 10 exposure group of interest. 11 Q. Is it your testimony that this case 12 constitutes an epidemiological study? 13 A. Of a form, yes. 14 Q. And - 15 A. And of more than doubling of the risk. 16 MS. NETTLE: Objection, nonresponsive. 17 Q. Other than -- I want you to exclude from your 18 consideration for a moment this case. Can you cite to 19 me any epidemiological study that holds that working 20 around a turbine doubles the risk of contracting 21 mesothelioma? 22 A. Yes. 23 Q. What is it? 24 A. Well, there are lists of epidemiologic studies 25 that indicate that there is more than a doubling of the 0152 1 risk of mesothelioma from doing the work as described 2 in this case by Mr. Mitchell. 3 MS. NETTLE: Objection, nonresponsive. 4 Q. I want you to name for me every 5 epidemiological test of workers working around turbines 6 that finds that it doubles the risk of contracting 7 mesothelioma; I want the cite, I want who performed the file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (94 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 8 epidemiological study; can you do that? 9 A. You want turbines in the study. Con Ed. 10 Q. What is that? 11 A. Con Ed, that's a power company in New York. 12 Q. And is this an epidemiological study? 13 A. Sure. 14 Q. Who performed it? 15 A. Con Ed's medical department. 16 Q. When was it performed? 17 A. '70s and '80s. 18 Q. And was it a study of all the workers in the 19 power company? 20 A. I don't know. 21 Q. Who made up the population that was studied, 22 what types of workers? 23 A. Workers working in the power plant around 24 turbines. 25 Q. Are there things other than turbines that 0153 1 exist in a power plant? 2 A. Sure, there's water coolers, there's 3 bathrooms, there's kitchens. 4 Q. Is there pipe covering? 5 A. On the turbines. 6 MS. NETTLE: Objection, nonresponsive. 7 Q. Is there pipe covering in power plants? 8 A. Yes, on the turbines. 9 Q. Is there pipe covering anywhere else in a 10 power plant? 11 A. Sure on -- attached to the pipes attached to 12 the turbines. 13 Q. Is it your testimony that in power plants 14 there's no asbestos containing product other than what 15 you've just stated? 16 A. I don't think so. 17 Q. What types of trades did the populations that 18 were studied by Con Ed, what did they do? 19 A. They worked around turbines. 20 Q. What was their job title? 21 A. Maintenance worker. 22 Q. How many people were in the study? 23 A. Don't recall. 24 Q. Do you know the names of any -- file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (95 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 25 A. Never met any of the people who worked there, 0154 1 no. Don't know any of the names of any of the dead 2 people. 3 MS. NETTLE: Objection, nonresponsive. 4 Q. I would ask you to let me finish my question. 5 A. I'm sorry, I thought you were done. 6 Q. Do you know the names of any of the people who 7 performed the studies? 8 A. I can't recall. 9 Q. Do you know the rate of error for any of the 10 studies? 11 A. No. 12 Q. Do you know the confidence level of any of the 13 studies? 14 A. What do you mean by "rate of error" and what 15 do you mean by "confidence level"? Since neither one 16 has a -- you pronounced -- I don't know what a 17 confidence level is, okay. And so I assume we have a 18 different definition of the first term you used as 19 well. 20 Q. I want you to assume confidence level means if 21 the study were repeated a number of times, the 22 confidence interval would indicate the range of 23 relative risk values would result 95 percent of the 24 time. You would get the same results 95 percent of the 25 time if you kept repeating the study, that's an example 0155 1 of a confidence level. Do you know the confidence 2 level for that Con Ed test? 3 A. Okay. You're making up your own word, I just 4 want to make clear. That's not a standard word or a 5 standard definition for that, but that's fine, I'm 6 willing to work with that definition which I don't 7 understand. And I don't know any study that meets that 8 standard ever published in the history of medicine or 9 science. 10 Q. Do you know if there is a confidence level for 11 those tests that you've cited? 12 A. I've never seen a "confidence level" published 13 in any study that I've read on anything. 14 Q. So you don't know it then for that study? 15 A. I don't know it for anything. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (96 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 16 Q. Do you have copies of these epidemiological 17 studies that you claim show that working around 18 turbines doubled the risk of contracting mesothelioma? 19 A. Not with me. 20 Q. How many -- you don't know how many people 21 were studied in that epidemiological study? 22 A. Correct. 23 Q. Then you can't tell me, I assume, how many of 24 them contractedmesothelioma? 25 A. Correct. 0156 1 Q. Can you tell me if any of them contracted 2 mesothelioma? 3 A. Sure, one makes more than a doubling of the 4 risk unless there were a half a million in the study 5 and there weren't. 6 Q. Do you know if any of them had contracted 7 mesothelioma? 8 A. Yes. One makes for a more than doubling of 9 the risk unless there were more than a half a million 10 people in the study and there were not. 11 MS. NETTLE: Object to nonresponsive. 12 Q. Do you know if the people in the study, if 13 their jobs were similar to Mr. Mitchell's? 14 A. Yes. 15 Q In what way? 16 A They worked in and around turbines. 17 Q Did Mr. Mitchell ever work in a power plant? 18 A I think so. 19 Q Did the -- did the people in the study that 20 you've described work anywhere else besides power 21 plants? 22 A. I don't recall. 23 Q. Do you have a copy of the study? 24 A. I don't recall. 25 Q. Can you give me a cite of this study? 0157 1 A No. 2 Q Has it ever been published? 3 A I don't recall. 4 Q Has it ever been peer reviewed in any way? 5 A I don't recall. 6 Q So you can't give me anything that could let file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (97 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 7 me go find this study that you claim shows that working 8 around turbines doubles the risk of contracting 9 mesothelioma? 10 A. Right, but I'll find that one and some more. 11 I will get them to you. 12 MS. NETTLE: I'm going to object as 13 nonresponsive. 14 Q. This is my chance to question you. And I'm 15 asking you as you sit here today, can you give me any 16 information that lets me go find that -- that study? 17 A. No. 18 Q. Any other study that you believe shows working 19 around turbines doubles the risk of contracting 20 mesothelioma, and I want to say epidemiological 21 studies, not just studies in general? 22 A. And you want to say also not by analogy, you 23 want to say with the word turbine in the study, right? 24 Q. I want to know of epidemiological studies of 25 turbine workers, have there been any of those? 0158 1 A. Only turbine workers, people who worked their 2 whole life only working on turbines; is that what you 3 mean? 4 Q. Are there any epidemiological studies out 5 there of people that worked on or around turbines, 6 focusing on the word "on or around turbines"? 7 A. I want to understand the question. You mean 8 that they only worked on turbines, they never did 9 anything else? They only worked in and around 10 turbines; is that the question? 11 Q. My question is: do you know of any 12 epidemiological studies that looked at the risk of 13 contracting mesothelioma for turbine workers, people 14 that worked on or around turbines in general? 15 A. Define turbine worker. 16 Q. People that worked in their career on or 17 around turbines. 18 A. At any point in their career? 19 Q. Do you know of any such studies? 20 A. Well, are you accepting -- are you answering 21 my question on the question? Do you mean at any time 22 around turbines? 23 Q. My question is focusing -- file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (98 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 24 A. Or all the time around turbines or 50 percent 25 of the time? I need to understand the question. 0159 1 Q. I'm not asking all the time, I'm not saying 2 one time in their career. My understanding is 3 epidemiological studies can focus on things like power 4 plant workers, they may not have worked in power plants 5 their whole life, but it focused on power plant workers 6 just like the one you discussed. I want to know if you 7 know of any epidemiological studies focusing on people 8 that worked on or around turbines? 9 A. Susan Daum, power plant worker study, I 10 believe. 11 THE REPORTER: Susan? 12 THE WITNESS: D-A-U-M. 13 Q. Is she the person that performed the 14 epidemiological study? 15 A. I believe she's one of the authors on the 16 epidemiological study. 17 Q. When was that study done? 18 A. I don't recall. 19 Q. Where was it published? 20 A. I don't recall. Probably American Journal of 21 Industrial Medicine. 22 Q. Do you know if that study was peer reviewed in 23 any way? 24 A. Yes. 25 Q. How do you know that? 0160 1 A. Because unlike most journals, the American 2 Journal of Industrial Medicine actually has a 3 peer-review process that I've participated in and been 4 subject to. 5 Q. Well, I believe you stated it probably was 6 published there, meaning you didn't know for sure one 7 way or the other. Are you now stating that it was 8 published in that publication? 9 A. No, I haven't changed my position on the 10 original where it was published. 11 Q. So you don't know for certain if it was 12 published there? 13 A. That's correct. 14 Q. All right. Is it your testimony then that if file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (99 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 15 it was published there it was peer reviewed? 16 A. Correct. 17 Q. But other than that, you don't know whether or 18 not it was peer reviewed? 19 A. No, wherever it was published, in my opinion, 20 it was probably peer reviewed. 21 Q. But you don't know one way or the other? 22 A. Don't know what one way or the other? 23 Q. Whether it was peer reviewed. You're saying 24 probably. 25 A. Well, probably is different from not knowing 0161 1 one way or the other as I understand those two phrases 2 or that phrase and that word. 3 Q. Can you tell me how many people were studied 4 in this study? 5 A. No. 6 Q. Did they all work in power plants? 7 A. That's my recollection. At one point or 8 another. 9 Q. Do you know if any of the people studied 10 contracted mesothelioma? 11 A. Yes. 12 Q. Do you know how many? 13 A. You know what, let me do one we can both agree 14 on. Let's go back to the Selikoff studies. Sometimes 15 the most obvious are the hardest to find. Let's look 16 at all of the Selikoff union studies. All those 17 workers in that study worked for one time or another in 18 power plants. They had a 10 percent incidence of 19 mesothelioma. They had a 25 or 30 percent incidence of 20 lung cancer. They were 17,000, I think, 875 workers in 21 the study. There was statistically significant 22 increase in mesothelioma. In fact, it was about a 23 million fold increase in mesothelioma. The P value was 24 less than .00000001 for mesothelioma. And I think 25 that's all I can remember about that one. 0162 1 MS. NETTLE: Objection, non - 2 A. And that was published initially in JAMA in 3 April of 1964, it was presented in October at the 4 meetings in New York at the Waldorf Astoria, and then 5 it was published December 31st, 1965 in the annals of file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (100 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 6 the New York Academy of Sciences. And then it was 7 republished by me jointly with the annals of the New 8 York Academy of Sciences about four years ago. It was 9 again republished in 1968. And then it was published 10 again, the follow up on that series of 1978 and then 11 the final follow up that I'm aware of of that series 12 was published in the Third Wave book in the New York 13 Academy of Sciences in 1991. 14 Q. Are you done with your answer? I don't want 15 to interrupt you. 16 A. Yeah. 17 MS. NETTLE: Objection, nonresponsive. 18 Q. My question was, do you know how many people 19 in the Daum study contracted mesothelioma? 20 A. Daum was a coauthor of part of the study I 21 just gave you. 22 MS. NETTLE: Objection, nonresponsive. 23 A. How many mesos, it was about 10 percent mesos. 24 There were 17,800 or so people in the study, so 25 whatever 10 percent of 17,000 is how many mesos there 0163 1 were. 2 MS. NETTLE: Objection, nonresponsive. 3 Q. Before you started talking about Selikoff 4 studies - 5 A. About 17 hundred mesos. 6 MS. NETTLE: Objection, nonresponsive. 7 Q. Before you started talking about Selikoff 8 studies, you were talking about a study specifically by 9 Susan Daum of power plant workers. 10 A. Right, that's another study, but Susan also 11 was a coauthor with Selikoff on these studies. 12 MS. NETTLE: Objection, nonresponsive. 13 Q. I haven't asked my question yet. The first 14 study by Susan Daum that you were referring to, do you 15 know how many of those studied contracted mesothelioma? 16 A. No. 17 Q. Do you know what year that study was done or 18 approximate year? 19 A. Early '80s. Maybe late '70s. 20 Q. Do you have copies of either the Con Ed -- is 21 it Con Ed or Con Ad? 22 A. Con Ed. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (101 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 23 Q. Do you have copies of either the Con Ed study 24 or the Susan Daum studies that you've described? 25 A. Susan Daum studies I probably have, I think 0164 1 they're in a 1991 Third Wave book. 2 Q. And I'm asking about the first Susan Daum 3 study that you mentioned regarding power plants, do you 4 have a copy of - 5 A. Correct, yeah, that's the one I'm talking 6 about it. It was published more than once, that is, 7 there was continuing follow up... 8 THE REPORTER: If you turn this way I can 9 hear you better. 10 THE WITNESS: Okay. 11 THE REPORTER: I'm talking about what was 12 published... 13 THE WITNESS: Once,more than once. 14 Q. Have you - 15 THE WITNESS: Why don't we take a 16 two-minute break, not even, and I'll get you some of 17 these studies. 18 MS. NETTLE: Go off the record? Yes? 19 MR. TAYLOR: Yes. 20 (A break was taken from 2:57 to 3:13.) 21 A. Okay. I just want to correct an answer or 22 extend an answer. With respect to the scientific 23 method in terms of fiber measurements, the analogy is 24 that if someone is found drowned and you find water in 25 their lungs, you don't need to know how much water 0165 1 there is in the Atlantic Ocean in which they were found 2 to know that there was a sufficient amount of water in 3 which to drown them. And in fact, it is impossible to 4 calculate at any particular point in time the amount of 5 water in the Atlantic Ocean. But it is an irrelevant 6 question when you find someone whose lungs are full of 7 water who you've dragged out of the ocean. Thanks, 8 that goes to one of the last fiber type calculation 9 scientific methodology answers. 10 MS. NETTLE: I'm going to object that 11 there was no question pending. And that's 12 nonresponsive to my earlier question. 13 (Dr. Egilman and Mr. Taylor confer.) file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (102 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 14 Q. Can you cite to me any peer-reviewed 15 literature or epidemiological study to support your 16 statement that Mr. Mitchell was exposed to billions of 17 fibers from working around an Elliott turbine? 18 A. Sure, the Balzer studies of 1968. 19 Q. Which studies? 20 A. Fleischer Drinker. There were two Balzer 21 studies. I think one was published in the journal of 22 negative results -- oh, I'm sorry, Journal of 23 Occupational Medicine and the other was published in, I 24 think, the American Industrial Hygiene Association 25 Journal. The - 0166 I Q. Just so we don't have to go back - 2 A. I'm just going though the list, you asked for 3 a list of studies, I'm trying to give you a list of 4 studies. How about if you let me finish the list of 5 studies and then go back and ask specific questions. 6 Otherwise, god forbid, someone reading the record -- I 7 may forget one and not everybody knows all these 8 studies who's going to read this record, and I want to 9 make sure, you know, that they can find them. So do 10 you mind if I finish my answer? II Q. Just to make things a little speedier, if you 12 know the date as you're going through the list, would 13 you please give me the date of the study as well, 14 that's all I ask. 15 A. I tell you what, I'll give you as complete a 16 citation as I can. And then if you want to take a 17 break and not count it against my time, I'll go 18 upstairs and print them off for you, a table of these 19 studies all done before 1964. But let's just go back 20 to -- let's start with -- let's start with Merewether 21 who in 1930 described exposures to the mattresses 22 similar or identical to the mattresses used on Elliott 23 turbines and the exposures from those mattresses. And 24 then the -- and he described those as the dustiest of 25 all the processes in his study, so there's a 0167 1 qualitative assessment of exposure to turbine asbestos. 2 And then let's go to Turner & Newall 3 studies of exposures when spraying on turbines, those 4 are unpublished studies but available through -- file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (103 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 5 actually some are published now in Tweedale's book. 6 THE REPORTER: Now in what book? 7 THE WITNESS: Tweedale's book, Tweedale. 8 Geoffrey Tweedale with a G, T-W-E-E-D-A-L-E. 9 A. And that was published in 1999 or 2000, I 10 believe. And he published those studies. 11 Some of the -- oh, and then there's the 12 studies of the spraying of asbestos in the British 13 underground. There's a 1932 study published in Lancet. 14 Did I get the year right, Ivan, is it 15 '32? 16 MR. GUSTAFSON: I don't remember. 17 A. Sorry. Ivan usually knows these things. I 18 think it's '32. 19 Then we move to Dreessen who studied 20 exposures around a variety of asbestos products 21 particularly -- and manufacturing, and some of the 22 turbine blankets or mattresses of course were 23 manufactured at the site so they could be form fitted, 24 so that was a similar process to the process of form 25 fitting a turbine with a mattress on site. That was of 0168 1 course what was described in Fleischer Drinker, 2 specifically where they talked about sewing mattresses 3 and gave exposure estimates in Fleischer Drinker. 4 Fleischer Drinker also gave exposure 5 estimates when using asbestos cement on pipes and 6 joints similar to those. In some cases, actually on 7 turbines. Those would be the ship turbines like the 8 ones that Elliott sold to ships, to be put on ships in 9 the Great Lakes and they sold to the Great Lake 10 Shipping Lines. And -- so the exposures to Elliott 11 turbines in ships would have been measured during 12 Fleischer Drinker and they reported those exposures. 13 The exposures to cement were about as high as, I think, 14 260 million particles per cubic foot as I recall, but 15 general air exposures in and around turbines were up to 16 140 million particles per cubic foot in some of the 17 shipyards there was a range of exposures in Fleischer 18 Drinker, 1946. 19 The next exposure studies were done and 20 not published by Turner & Newall also in the '50s. The 21 next set of exposure levels were by -- in the early file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (104 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 22 '60's there's a study by Marr which shows exposures 23 over 5 million particles per cubic foot on board ships 24 working in and around turbines. And boilers there's a 25 study by Leathart, L-E-A-T-H-A-R-T, I think that's in 0169 1 '64. There are -- Selikoff did no exposure studies 2 until Nicholson published some beginning, I think, in 3 '68 and '69. There were the Pittsburg Corning 4 sponsored exposure studies of pipe coverings; those 5 were done in -- between '67 and '69, and some of the 6 results, but not naming the particular products, were 7 presented by Balzer in Helsinki in 1970 in the 8 proceedings of a meeting. Sorry to skip around. There 9 were -- then there's Peele; Peele studies were not 10 published, done in '62 on a variety of exposures from 11 cutting and trimming pipe coverings. And there was a 12 comparison of different pipe coverings. The ones that 13 were specified by Elliott had the highest exposures 14 associated with them, that would be thermobestos, and 15 those levels were three to five times above the 16 threshold limit value even with ventilation at that 17 time period. 18 Then Nicholson published a series of 19 studies that were published in proceedings on shipyard 20 repair, some of which were presented in a meeting in 21 Danzig, I believe, in 1968. 22 Is that right, Ivan, or did I get the 23 year wrong on that one? I can't remember. 24 The whole meeting on shipbuilding and 25 shipyard repair most of the studies revolved around 0170 1 exposures around turbines and boilers. 2 Then we come to some other studies done 3 by Pittsburg Corning of comparing their product to 4 other products in the early '70s. There were studies 5 by Owens Corning certainly about exposures to pipe 6 covering and cutting on pipe covering unpublished in 7 the '50s. That's all I can remember off the top of my 8 head up to '72. 9 Q. Is that the end of your answer? 10 A. Well, no, I can get some more, I've got a 11 chart of those. I'll be glad to either supplement the 12 record or if you want to take a break now that I'm file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (105 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 13 going to miss my flight I can go upstairs and print 14 that off and maybe some of those other citations. 15 By the way, during the break -- we took a 16 break so I could call my staff and they could send a 17 list of the turbine and power plant epidemiologic 18 studies, and they should be coming by fax so that 19 you'll have amble opportunity to look at those. 20 MS. NETTLE: Objection, nonresponsive. 21 Q. Are all the studies that you just testified 22 about peer review; is that your testimony? 23 A. No, the ones that were secret and unpublished 24 were not peer reviewed. Or the ones that overlapped 25 like Balzers, Balzers' studies that he presented to 0171 1 Pittsburg Corning were not peer reviewed but then they 2 were published so they were peer reviewed after they 3 were published. So some of them are yes and no. 4 MS. NETTLE: I'm going to object - 5 A. Fleischer Drinker was maybe peer reviewed, I'm 6 not sure. 7 MS. NETTLE: Object as nonresponsive. 8 Q. Which peer-reviewed studies do you rely on to 9 support your testimony that Mr. Mitchell was exposed to 10 billions of fibers from an Elliott turbine? And I'm 11 asking specifically about peer-reviewed studies that 12 support that conclusion. 13 A. Why don't you define peer review then. 14 Q. What is your understanding of what peer 15 reviewed is? 16 A. Historically peer review has meant that if the 17 editor of the journal knew or was familiar with the 18 publisher -- the person who was submitting the paper, 19 it would be published in some cases without even review 20 by the editor. And that was true of the Journal of 21 Occupational Medicine until at least 1992. And that 22 historically until the mid '90s most journals at best 23 had just the editor read the paper and if he or she was 24 familiar with the material or the author personally 25 then it was published. If the person was not -- by the 0172 1 way, that's still the method with the Journal of 2 Occupational Medicine. That is, the current method for 3 that journal is if the editor reads it, decides it file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (106 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 4 should be published, it's published, and if he's not 5 sure and he sends it out to one or more people, that's 6 the peer-review process. 7 (Phone ringing.) 8 THE WITNESS: Excuse me, this is the 9 faxes, I believe. 10 (A break was taken from 3:26 to 3:28.) 11 Q. Okay. For purposes of my question, I want you 12 to assume by peer reviewed that I mean the article was 13 reviewed by other scientists or experts in the field 14 that was the subject of the article. 15 A. Okay. Well, there's very -- that almost 16 doesn't exist except for as -- there's no way to tell 17 for the major journals whether that's occurred. No 18 journal implemented that process except for the New 19 England Journal of Medicine in the 1990s regularly. 20 And for other journals they may or may not have -- some 21 parts of that, but there's no way to know based on the 22 article whether it went through that kind of review or 23 whether it went through the review that I described 24 that still exists. So except for articles in New 25 England Journal of Medicine after 1990, Annals of 0173 1 Internal Medicine, Lancet after 1995 and I think the 2 American Industrial Hygiene Association in the late 3 '90s, that process -- you can't know because an article 4 is published whether it went through that process or 5 not. So it's impossible for me to know by journal 6 whether it went through the process that you described 7 except for the journals that I just mentioned, during 8 the time periods I just mentioned. So I mean, the 9 American Journal of Industrial Medicine is a different 10 example, theirs are reviewed. 11 MS. NETTLE: I'm going to object to the 12 nonresponsive portion. 13 Q. I just want to know, assuming that definition 14 that I gave you, were any of the articles you listed 15 peer reviewed based on that definition I gave you, if 16 you know? 17 A. They're in journals that engaged in that 18 process. 19 Q. Which ones? 20 A. All of them. But I -- all of the ones that file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (107 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 21 were published. But I can't know whether those 22 articles in those journals actually went through the 23 process or whether they were good ole boy articles as 24 it were. I can't tell on the face of the article 25 whether it went through a real process, which some of 0174 1 the articles in those journals did during some of that 2 time period, or whether they were good ole boy 3 articles; that is, the editor knew the person and they 4 just were published. Or in some cases for example with 5 respect to Beryllium studies, Brush Wellman called the 6 editor of the Journal of Occupational Medicine up and 7 said, we have an article we want to publish on 8 Beryllium and he reserved space for that publication 9 without even seeing it. So I mean, that's -- and 10 that's the same journal that has a peer-review process 11 during the same time for some of the articles. 12 So you know, it's -- I just had an 13 article or a letter rejected by the Journal of 14 Occupational Medicine and it didn't go through any 15 review, and so -- except for the editor, and it wasn't 16 reviewed based on quality. 17 So there is no -- there's no standard 18 peer-review process not withstanding the Supreme 19 Court's ruling about that, it doesn't exist. It's a 20 fabric -- it's a figment of the fabric of the 21 imagination of the guy who wrote Galileo's Revenge 22 which was cited twice in Daughbeir, but it doesn't 23 exist. 24 MS. NETTLE: I'm going to object as 25 nonresponsive. 0175 1 Q. Just assuming the definition I gave you, can 2 you state whether any of the published articles you 3 mentioned went through the process I described, yes or 4 no? 5 A. With the caveat I just gave, all of the ones 6 that were published did. 7 Q. All of the ones that were published went 8 through a peer-review process of being peer reviewed by 9 other scientists and experts in that field, in the 10 relevant fields, yes or no? 11 A. They're all in journals where some of the file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (108 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 12 articles that were published went through that process. 13 Q. And can you tell me which ones did and which 14 ones didn't of the articles you listed? 15 A. No. 16 Q. Thank you. 17 THE WITNESS: Let's take a break while we 18 wait for the faxes. 19 (A break was taken from 3:32 to 3:41.) 20 Q. Before the break we were talking about a list 21 of studies that you cited to support your opinion 22 regarding Mr. Mitchell, do you have copies of all those 23 studies you referred to or articles? And I don't 24 necessarily mean with you, I just mean in your 25 possession generally. 0176 1 A. I think so but I'm not sure. 2 Q. All right. You've provided a two-page 3 document I've marked as Exhibit 31. It looks like the 4 results of a Medline search; is that what it is? 5 A. Yeah. 6 Q. And when was this search done? 7 A. This afternoon. 8 Q. By someone in your office? 9 A. Correct. 10 Q. And they faxed it to you? 11 A. Correct. 12 Q. What is this -- well, it lists three findings; 13 is that correct? 14 A. Wrong. 15 Q. All right. How many does it list? 16 A. There's a fourth I handwrote down. 17 Q. But the printed material is three findings? 18 A. Correct. 19 Q. What did you write at the bottom? I can't 20 read it. 21 A. Huncharek. 22 Q. How do you spell that? 23 A. H-U-N-C-H-R-E-K. 24 Q. And what's the rest of it say? 25 A. British Journal of Industrial Medicine, 1988. 0177 1 Q. Okay. Are these -- all four of these 2 epidemiological studies? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (109 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 3 A. Yes. 4 Q. And is it your testimony that all four of 5 these have to do with turbines? 6 A. Yes. 7 Q. And do any of these studies find that working 8 around turbines doubles the risk of contracting 9 mesothelioma? 10 A. Yes. 11 Q. Which ones? 12 A. All of them. 13 Q. Do you have copies of all four of these 14 articles? 15 A. I have them or I have access to them. 16 Q. But you don't have them with you today? 17 A. No, but I can get them for you today. 18 Q. Okay. If you can get them that would be 19 great. 20 A. Do you want to take a break on your time? 21 Q. We can just do it on the next break. I don't 22 need them before the end of the depo, I would just like 23 to have copies. 24 A. Let's see... 25 Q. Are you going to testify in this case 0178 1 regarding the diagnosis of Marty Mitchell of 2 mesothelioma? 3 A. I'm prepared to testify on that. 4 Q. And what are your opinions pertaining to - 5 well, let me narrow that down. Are you prepared to 6 testify that you confirm or dispute the diagnosis of 7 Marty Mitchell's mesothelioma? 8 A. Yes. 9 Q. Which one? I assume that you're going to 10 confirm that he had mesothelioma; is that right? 11 A. Yeah, in my opinion he had mesothelioma. I 12 don't think there's any dispute about that in anything 13 I saw. 14 Q. And are you basing that on Dr. Battifora's 15 report? 16 A. And there's I think another expert's case and 17 report, and the medical records. 18 Q. And did you look at any - 19 A. And his history of exposure around Elliott file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (110 of 144)6/25/2003 4:07:14 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 20 turbines. 21 Q. Do you believe his exposure to asbestos from 22 any product other than Elliott turbines caused his 23 mesothelioma? 24 A. May have. 25 Q. Did you look at any pathology slides or tissue 0179 1 in this case? 2 A. No. 3 Q. Have you looked at any company specific 4 documents in this case other than - 5 A. Let me just change that may have to probably 6 did - 7 Q. Okay. 8 A. -- contribute to. 9 Q. Have you looked at company specific documents 10 for any other defendant in this case in preparing your 11 opinions in this case? 12 A. For this case, no -- oh, yes, Johns-Manville. 13 Right here, I got these other documents from 14 Johns-Manville. These are the ones I promised you 15 before that were different from the Manville document 16 that you have that are from the same kind of a document 17 of fiber release. 18 Q. We can get to that in a minute. 19 A. Okay, just didn't want you to forget. 20 Q. Have you been asked by the Kaeske firm to 21 testify about any specific company other than Elliott 22 in this case? 23 A. No. 24 Q. Were you asked to testify about Owens Corning 25 in this case? 0180 1 A. No. 2 Q. Is your opinion in this case solely for the 3 purpose of litigation? 4 A. No. 5 Q. For what purpose did you form your opinions in 6 this case other than for the litigation involving Marty 7 Mitchell? 8 A. To use the response of Elliott Turbine 9 Incorporated or lack thereof, to the knowledge 10 available to a manufacture who sold asbestos products file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (111 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 11 as an example of how bad it can be for a company to 12 ignore 100 years of medical literature and still expose 13 people to hazardous products without any warning. And 14 where I'll put that in is in the book chapter that I'm 15 writing on the history of warnings. The editor of that 16 book is Wogalter and it's called Warnings and Risk 17 Communication. And this seems to me to be a relatively 18 classical case that will fit nicely in the article that 19 I've submitted as a slight addendum. 20 MS. NETTLE: Objection, nonresponsive. 21 Q. Was your review of Elliott documents prompted 22 by a request by the Kaeske firm in this Mitchell case? 23 A. No, it was prompted by your deposition notice. 24 Q. Noticed in Marty Mitchell's case, correct? 25 A. Right. 0181 1 Q. You generally offer testimony about the 2 articles that were available in the medical and 3 scientific literature, and you've listed some of those 4 earlier today. Is part of the basis for your opinions 5 that Elliott should have been aware of these articles 6 that they could have gone to the library and found 7 them? 8 A. That's part of the basis of my opinion. 9 Q. Were those same articles available to the 10 government, the U.S. Government? 11 A. The publishedarticles were. 12 Q. Any articles that you contend Elliott had 13 access to that you contend the government did not have 14 access to? 15 A. Yes. 16 Q. Which ones? 17 A. Well, not published articles but secret 18 articles. 19 Q. And using your term "secret articles," what 20 secret articles do you contend Elliott had access to 21 that the government did not have access to? 22 A. Well, one we've already shown, the document 23 from the gasket company indicating what the material in 24 the gasket was, what they estimated fiber releases to 25 be and what the hazards were. The other materials that 0182 1 the government didn't have access to were the specific file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (112 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 2 specifications of asbestos on the Elliott products, how 3 they were applied and used. How exposures could occur 4 on Elliott products. All of that was information that 5 was kept from the government by Elliott. 6 MS. NETTLE: Objection, nonresponsive. 7 Q. Are there any - 8 A. For example -- I'm not done with my answer - 9 EPA has a requirement that asbestos product 10 manufactures report products that they manufactured and 11 sold. And Elliott has failed to report to the EPA that 12 it sold turbines specified to use and sent them out to 13 duel with asbestos products in them and on them. 14 Q. What specific articles do you contend Elliott 15 hid from the government? 16 A. I don't contend they hid articles, they hid 17 their specs. They didn't report their specifications, 18 nor have they responded appropriately to the EPA 19 requirement to tell the EPA all the asbestos products 20 that you sold, that's been hidden. 21 MS. NETTLE: Objection, nonresponsive. 22 A. That's not a study. 23 Q. Are there any articles you contend Elliott hid 24 from the government? 25 A. No, Elliott didn't do any studies of the 0183 1 possible hazards from the use of asbestos on its 2 products. 3 MS. NETTLE: Objection, nonresponsive. 4 A. As far as I know. 5 Q. Are there any articles that you contend 6 Elliott hid from the government? 7 A. No, not studies of asbestos exposures. 8 MS. NETTLE: Objection, nonresponsive. 9 Q. Are there any articles at all that you contend 10 Elliott hid from the government? 11 A. Medical articles you mean? 12 Q. Any -13 A. Maybe there's a communication problem about 14 articles. 15 Q. Evidently. 16 A. Okay, well -17 Q. I asked you -18 A. Why don't you explain what you mean by file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (113 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 19 articles. 20 Q. Are there any articles you contend Elliott hid 21 from the government? And you said, no. And then you 22 qualified it to certain types of studies. I'm asking 23 broadly, are there any articles, be it medical, be it 24 scientific, be it some other type of article that you 25 contend Elliott hid from the government? 0184 1 A. By article, do you mean study? 2 Q. I mean article, I mean study. 3 A. Okay. Well, all of the studies that we went 4 through before as far as I know none of those have been 5 reported to the government. 6 Q. And do you have any evidence to show Elliott 7 had actual knowledge of those studies? 8 A. They are Elliott studies, the ones that we 9 talked about. 10 Q. Which studies? 11 A. All the ones we talked about before when you 12 asked me about studies. 13 Q. I want to know specifically which studies you 14 contend Elliott hid from the government? 15 A. All of the studies that I talked about before 16 have never been produced to the government. The 17 temperature studies, the flow studies, none of those 18 have been produced to the government as far as I know. 19 Q. And you're talking only about studies that 20 Elliott performed? 21 A. Right. 22 Q. All right. 23 A. On Elliott turbines. Heat, temperature 24 studies, specification studies, all those studies. 25 Q. Is it your contention they had a duty to 0185 1 report those to the government? 2 A. I don't know. I don't know if they had 3 government contracts or not. 4 Q. What EPA regulation are you referring to that 5 you contend required Elliott to report certain 6 information? 7 A. There's an EPA regulation that requires 8 companies that manufactured asbestos products to report 9 to the EPA and the nature of the products they sold and file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (114 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 10 I believe the approximate amounts distribution. 11 Q. What is that regulation? 12 A. I don't know the code. 13 Q. When was it enacted? 14 A. I think the early '90s. Maybe late '80s. 15 Q. Do you have any actual knowledge that Elliott 16 has complied or failed to comply with this regulation? 17 A. Yes, I checked the list and I didn't see any 18 indication that -- I've checked the list in the past 19 and I have never seen any indications that Elliott ever 20 reported that it sold asbestos products on its 21 turbines, with its turbines, etcetera. 22 Q. What list are you referring to? 23 A. EPA has a list of companies that have reported 24 what asbestos products that they made and you can 25 Fourier them for that or sometimes if they're nice, ask 0186 1 them for it. 2 Q. Do you have a copy of this list? 3 A. Maybe. 4 Q. Do you know if you have a copy? 5 A. Don't know. 6 Q. What's the title of that document, if you 7 know? 8 A. I have no idea. 9 Q. Do you know if Elliott had a duty to report 10 any of its products to the government pursuant to that 11 EPA regulation? 12 A. On the face of the regulation they did. 13 Q. What do you mean by "on the face of the 14 regulation"? 15 A. The regulation, as I recall reading it, says, 16 if you manufactured or sold an asbestos containing 17 product you have to tell the government that you did 18 that and you have to report that to the EPA. And 19 that's historically, not just going forward from the 20 date of the statute. 21 Kaeske's ex-wife used to work for the 22 EPA, speaking of ex-wives. 23 Q. Going back to the articles that you mentioned, 24 did union representatives have access to the articles 25 you contend were in the general medical and scientific 0187 file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (115 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 1 literature? 2 A. I have no idea. What union? Who? Most of 3 the union people I've met, with all do respect, don't 4 read medical literature on a regular basis. Now, there 5 is an exception, my mother-in-law's boyfriend who's a 6 union pipe fitter in New York would read that stuff. 7 He's the only one that I've ever met who's read that 8 stuff. 9 Q. Is it your contention, though, that had they 10 gone and looked, they would have had access to the same 11 articles? 12 A. Depends where they were. Not most of them 13 because not all medical libraries would have it. Now, 14 Elliott was located near Pittsburg and of course they 15 had the Industrial Hygiene Foundation and the Pittsburg 16 libraries and I know it was all within -- well, first 17 they were in Pittsburg but then they moved out of 18 Pittsburg, but they were always close to Pittsburg. So 19 I know the libraries in Pittsburg had this material. 20 But if you're asking me if the library in Brazoria had 21 the material, I'm sure it didn't. Been there, done 22 that, they don't have this material. Other parts of 23 Texas, remote, small towns -- I've been to Paris, 24 Texas. Paris, Texas they don't have this material. 25 Okay. Major cities, major hospital libraries, some 0188 1 medical school libraries will have some but not all of 2 this material. New York Public Library has almost all 3 of this material as does the library of congress. 4 MS. NETTLE: Objection, nonresponsive. 5 Q. Would Mr. Mitchell's employers have had access 6 to the same articles that you've mentioned? 7 A. I don't know. 8 Q. Do you believe that employers of workers have 9 an obligation to research medical and scientific 10 journals? 11 A. Depends. 12 Q. On what? 13 A. If they manufacture a product that -- let's 14 say -- let's try to be relevant with this answer 15 despite the question. If they manufactured a product 16 that contained asbestos then they're required to be 17 held to the standard of an expert in the field and file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (116 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 18 would be required to research that information. If 19 they're an employer who merely uses products, it's 20 reasonable for them to rely on the product supplier in 21 most cases, unless there's a reason for them to know 22 beyond what the product supplier tells them through 23 their own training or experience or reasonable inquiry 24 that might drive them to -- they would need a reason to 25 know, that's kind of the -- actually the statute in 0189 1 Virginia in terms of general duty. But for an 2 employer, I think that generally applies. 3 Now, in some cases, with respect to some 4 uses of asbestos, employers had a reason to know and 5 should have known at least the sum of what was 6 available in the literature whether or not they had 7 possession of every last piece of evidence about that, 8 the health effects of asbestos. 9 MS. NETTLE: Objection to the 10 nonresponsive portion. 11 Q. You worked for the U.S. Public Health Service, 12 correct? 13 A. I did. 14 Q. Did the U.S. Public Health Service have access 15 to these same articles that you've discussed? 16 A. Some. The published ones. 17 Q. And tell us generally, does the U.S. Public 18 Health Service -- it's a branch of the military; is 19 that right? 20 A. Well, it's a uniformed service. I have made 21 that error in the past. I thought it was a military 22 service but it is a special classification of -- called 23 a uniform service. You have ranks that are the same as 24 the military and you're on call the same as the 25 military and you get veterans benefits and get a green 0190 1 card the same as the military, but it's not technically 2 a part of the military which is limited to the Army, 3 Navy and Air Force. 4 MR. TAYLOR: Marines. 5 THE WITNESS: No, Marines are part of the 6 Navy, as I recall. 7 Are the marines not part of the Navy? 8 MR. MCGOWAN: Yes, it is. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (117 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 9 THE WITNESS: Thank you very much. 10 Mr. Taylor, you can go back to sleep now. 11 Q. (BY MS. NETTLE.) Does the U.S. Public Health 12 Service staff, for example, the Center for Disease 13 Control, CDC? 14 A. Some of the people there are public health 15 service people, some of them are civilian in the -- now 16 the physicians in the civilian service there are in a 17 special category of senior executive service usually, 18 called senior executive service. 19 Q. Do they staff VA hospitals? 20 A. Most of the physicians at VA hospitals are not 21 public health service employees. 22 Q. Does the U.S. Public Health Service study 23 potentially dangerous substances in the workplace? 24 A. At the current time? 25 Q. At any time. 0191 1 A. Have they at times, yes, they have at times. 2 Some parts of the -- some small parts of the U.S. 3 Public Health Service have studied work-related 4 diseases and injuries. 5 Q. When did the U.S. Public Health Service first 6 issue any warnings about asbestos? 7 A. Any warnings, probably 1938. 8 Q. And what warnings were those? 9 A. That was the document that indicated that half 10 of the people who were exposed to the threshold limit 11 value for 20 years got asbestosis, called Dreessen, 12 Public Health Reports 241. 13 MS. NETTLE: All right. I'm going to 14 object to the nonresponsive portion. 15 Q. I'm not asking about articles. I'm just 16 asking when, if ever, did the U.S. Public Health 17 Service issue any warnings to the general public about 18 the dangers of asbestos? 19 A. It's not a function of the U.S. Public Health 20 Service to issue warnings under any circumstances. 21 Q. Have they never done that then? 22 A. The U.S. Public Health Service has never done 23 that. NIOSH has done that and the EPA has done that 24 and Public Health Service personnel stationed with 25 NIOSH and the EPA have participated in that. And the file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (118 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 0192 1 public health service in Dreessen did that. 2 Q. Now, in forming - 3 A. But Dreessen -- excuse me, Dreessen was not 4 issued by the Public Health Service per se, except as 5 it was at that time a -- it was really an issuance of 6 the department of treasury. So it was the treasury 7 department issuance for -- published by the Public 8 Health Service under the aegis of the treasury 9 department. I can't believe I know all these things. 10 What a cluttered mind. 11 Q. In forming your opinions on state of the art 12 and what companies knew or should have known, I would 13 assume part of the basis for those opinions are the 14 research you've done in locating these number of 15 articles and ascertaining when they were published and 16 where they were published; is that a fair statement? 17 A. I don't know. 18 Q. Is that part of the basis of your opinions on 19 what companies knew or should have known? 20 A. You're assumption about what I would do is - 21 your assumption about what I would do is not part of 22 the basis of anything that I've given as an opinion now 23 or ever before. 24 Q. I'm not asking about my assumption. 25 A. Well, that was what you said in the question. 0193 1 You said you assumed blah, blah, blah, and then you 2 referred to that question. 3 Q. I'm asking you one way or another in forming 4 your opinions on what companies knew or should have 5 known, is part of the basis of those opinions the fact 6 that you have done this research locating articles and 7 ascertaining where they were published and when? 8 A. Yes. 9 Q. What, in your educational training, if 10 anything, do you feel qualifies you to then draw 11 conclusions from those publications and the dates of 12 thier publications about what companies knew or should 13 have known? 14 A. Could you repeat that question? 15 (Requested portion was read.) 16 Q. And I think to clarify that was -- there was file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (119 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 17 an of that should be a from in there. Conclusions from 18 those publications. Draw conclusions from those 19 publications about. 20 A. Why don't you read it again as amended. 21 (Requested portion was read.) 22 A. About what? 23 Q. About the dangers of asbestos. 24 (Dr. Egilman and Mr. Taylor confer.) 25 MR. TAYLOR: Objection, compound. 0194 1 A. And now I'll answer it. Okay. This is a long 2 answer, you understand that? I would like to be able 3 to complete it although you feel free to withdraw it at 4 any time. I'll break this down into several parts. 5 And let me list those parts. First, will be 6 educational training that qualifies me to determine 7 what publications existed and when they existed. 8 Then -- so that's part one -- are you 9 writing that down in case I forget? 10 MR. TAYLOR: Uh-huh. 11 A. And part two will be what in my educational 12 training qualifies me to determine what was in those 13 publications that could have been known about the 14 dangers of asbestos. 15 And the third part of the answer will be 16 what in my educational training qualifies me to 17 determine that companies should have known what I've 18 established they could have known in question -- in 19 sub-part two. 20 Q. And just to preface that - 21 A. I didn't even start my answer, that's just my 22 outline and you're already interrupting me. 23 Q. I know, I know. 24 A. Can I just -- I just did the outline of the 25 answer, you're already interrupting me. Can you please 0195 1 let me answer the question? 2 Q. I'm going to let you answer, I just want to - 3 A. I said you could withdraw the question any 4 time you want but without withdrawing the question I 5 would just please appreciate it if you would let me 6 answer it. And as soon as you don't like the answer, 7 feel free to withdraw the question. But short of that, file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (120 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 8 I would like to be able to answer the question. 9 Q. I'm going to allow you to answer the question. 10 A. Without interruption, comment, commentary, 11 refinement, correction, interjection, expansion, 12 etcetera. 13 Q. In order to answer this I just ask that you 14 answer the question asked and not 10 other questions 15 that I didn't ask. But if you want to go on I will be 16 willing to sit here all night. But I ask that you 17 limit your response to the question that was asked. 18 MR. TAYLOR: Objection, please don't 19 interrupt the witness. 20 Q. And I would also ask that you refrain from 21 yelling at me. I've given you that courtesy all day. 22 A. I did not yell at you. 23 Q. You've yelled at me repeatedly. I would ask 24 that you refrain from doing that? 25 A. I did not yell at you. And you've interrupted 0196 1 me repeatedly all day long. And you've made insulting 2 comments all day long. 3 MS. NETTLE: Objection, nonresponsive and 4 to sidebar comments. 5 A. Exactly, started by you in the middle of my 6 answer. 7 Q. Go ahead. 8 A. Okay. The training that qualified me to 9 determine what publications existed and when. I was 10 taught how to use libraries in junior high school and 11 high school, in history courses and science courses. 12 In college I was taught how to use indexes like 13 chemical abstracts, Medline, Index Medicus, mechanical 14 engineering indexes, computerized databases. In 15 medical school I was taught how to research particular 16 medical questions of cause and effect and the 17 relationship between them, in addition to studying the 18 specifics of those issues in many courses. But just 19 with respect to the research methodology, that was the 20 part of many individual courses, including the course 21 in pathology, course in biochemistry. The biochemistry 22 course included, in addition to locating articles -- I 23 had three or four courses as an undergraduate that 24 specifically were on reading and interpreting medical file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (121 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 25 literature and researching medical literature. 0197 1 There was a course in biochemistry by 2 Rothman, another course in molecular biology by Arthur 3 Landy, there were -- there's a physical chemistry 4 course, chemistry 13 at the time where we learned about 5 researching chemical abstracts and other chemical 6 formulas. I don't remember who taught that course but 7 I did get an A -- oh, and that I guess is relevant to 8 this. I got A's in all of these courses except the 9 biochemistry, I got a B plus in that biochemistry 10 course. But otherwise, I got A's in all these courses 11 except that one biochemistry course and a physics 12 course which I got a B in which is not relevant to this 13 answer. So the fact that I did well in those courses I 14 think is also -- indicates that I learned properly how 15 to do this research. 16 In medical school we would have to, when 17 we almost -- we would have to deal with cases as they 18 were presented and we would have to do research around 19 cases. For example, there was something called the 20 Clinical Pathologic Conference which was not just used 21 in pathology because Brown had a systems method for 22 teaching organ systems. So in each system, which we 23 took during the second year of medical school, we would 24 have cases and we would be responsible for going to the 25 library independently, with the assistance of faculty 0198 1 or residents sometimes and researching the medical 2 literature to determine a differential diagnosis and to 3 apply the material in the medical literature to that 4 differential diagnosis, so that overlaps, as I've 5 defined it, sub-parts one and two of my answer. 6 Okay. Then in the third year of medical 7 school, which is a clinical year, in every rotation all 8 I would do day after day was see patients, go read 9 literature about those patients, present that 10 literature to either my resident or faculty member at 11 daily and weekly rounds. In addition, I would attend 12 week -- weekly conferences, grand rounds and others in 13 the hospital where I would watch other people present 14 and learn about sources of information and ways of 15 interpreting medical information to deal with file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (122 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 16 cause/effect relationships and evaluations of treatment 17 and examinations. 18 Basically the same methodology was 19 applied in my internal medicine residency because when 20 we saw patients we were required to look up literature. 21 There were lectures on a -- every morning we would 22 present cases and I would attend case presentations. 23 And at the case presentations people would discuss 24 medical literature, how they found medical literature, 25 what they found and how to interpret medical 0199 1 literature. So that's a conflation of parts one and 2 two of my answer. 3 Some time during my residency, I think in 4 the second year, I began to develop a more serious 5 interest in research and occupational health issues 6 particularly. And as part of my residency I developed 7 a -- the beginnings of a research project, so I 8 researched everything that was available on isocyanates 9 and disease using all of the methods that I've 10 explained before, reviewing those methods with faculty 11 members as I developed that research protocol which I 12 brought -- well, no, skipping. 13 Skipping to Harvard which is after my 14 residency. At Harvard we did the same thing again. I 15 took courses in epidemiology, statistics, medicine, 16 industrial hygiene and the law. The law school courses 17 were -- overlapsed with the Harvard School of Law that 18 dealt with all legal issues with respect to 19 occupational and environmental health issues, and 20 that's the first training thing that relates to the 21 should have known question. Since issues that relate 22 to the should have known from a legal and regulatory 23 perspective were discussed and taught specifically in 24 two courses in the School of Public Health and two 25 courses that I took that were overlapsed between the 0200 1 School of Public Health and the law school at Harvard 2 and the Sloan School of Management. Those two courses 3 were taught by Nick Ashford, A-S-H-F-O-R-D, the author 4 of Crisis in the Workplace, 1974, funded by the Ford 5 Foundation. That book was used, with updates, as the 6 textbook in that course and so -- and that book went file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (123 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 7 through many of the issues about availability of 8 information, interpreting information, as did that 9 course. Both in terms of how knowledge was acquired, 10 etcetera. 11 It was first at Harvard in an 12 occupational medicine course by Monson that I started 13 to get specific training in epistemology. Now, we're 14 moving really to question number two. Epistemology 15 being the philosophy of science of how we know what we 16 know. Which I, by the way, have taught at Brown, a 17 course in, since about 1991. And during that course 18 Monson stimulated my interest in that exact topic. And 19 then I began to read, in part on my own and in part for 20 my work at NIOSH, philosophers of science beginning 21 with Canguilhem and Bachelard, Foucault, Feyerabund, 22 Kuhn, Popper. Popper was specifically taught by 23 Rothman. There's a course at Harvard by Rothman, 24 another by Miettenen, both of which were -- covered 25 specific topics in epistemology. Particularly 0201 1 Miettenen's text where we looked at frequentist 2 bayesian statistics, rationalism and inductive 3 reasoning, all of that was incorporated into the 4 courses that Rothman and Miettenen taught at Harvard. 5 And while they only covered small parts of Kuhn and 6 Popper and Bayes' theorem in their courses, I was 7 particularly interested in the topic and did extra 8 work, and that's the genesis of the course that I teach 9 now. 10 Then I -- this is -- I guess educational 11 training doesn't have to be formal. So I've had many 12 discussions with these -- on these topics over the 13 years with Rothman, Sandra Greenland, Charlie Pool, 14 Jamie Robins at Harvard who is really the premier 15 theoretical epidemiologist in the world. And all about 16 this issue of how we know what we know. How physicians 17 and scientists make decisions, and in the philosophy of 18 both science and epidemiology, and that would include 19 both the philosophy of epidemiology and the 20 mathematical modeling and technical -- statistical 21 issues that relate to interpreting epidemiologic 22 studies and data. 23 So we're in public health school now? I file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (124 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 24 can give you more details if you want on the duty to 25 know what specifically we covered, but we certainly 0202 1 covered the history of the development of OSHA and the 2 EPA, the history of torts, the history of regulations 3 by states, corporate influence on regulations and 4 standard setting. The whole issue of standard setting 5 from the EPA TSCA AE we discussed specifically and 6 studied specifically in the Ashford course. There was 7 one course on OSHA which I took another course which 8 was on other aspects of occupation and environmental 9 health from Ashford that I audited that was the course 10 that covered EPA and related subjects. 11 With respect to warnings and the history 12 of warnings, those were parts of the occupational 13 health course at Harvard and also there was a specific 14 course on warnings and risk communication that I took 15 separate and apart from occupational health which 16 included the history of warnings and also the duty to 17 warn and the nature of warnings and risk communication. 18 With respect to interpreting industrial 19 hygiene data and availability of industrial hygiene 20 data, I took two industrial hygiene courses both taught 21 by Burgess who was the author of a textbook on 22 industrial hygiene and evaluation. And in addition, 23 those courses brought us -- we had a -- we specifically 24 had a methodology that we learned in terms of 25 evaluating workplace hazards, that was part of that 0203 1 course that included interpretation of medical 2 industrial hygiene data in the context of evaluating 3 worker exposures. 4 Oh, for epidemiology reading, 5 particularly the Monson course but also the -- the 6 Monson course was kind of designed around reading and 7 interrupting literature. That is, each week we were 8 given two to five articles to read. And he actually 9 had a form that you would fill out that would go 10 through all of the -- you would have to evaluate the 11 article for bias, what kind of bias. How do you 12 evaluate the system of testing? How do you combine 13 data? So each week -- and most of that was in 14 occupational examples, there were some environmental file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (125 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 15 examples -- each week the course would be centered 16 around reading literature in the occupational and 17 environmental health field, interrupting that 18 literature and evaluating the literature and also 19 looking at access to literature and information. 20 Because he particularly talked about unpublished 21 information since he had done consulting for some 22 companies and talked about the information that he'd 23 come across that was not generally available and he 24 intermixed that in his course. That was probably one 25 of the first times that I became familiar in a formal 0204 1 since with the unequal distribution of information, 2 vis-a-vis product manufactures and others in the 3 medical and scientific community the weight of 4 information generally being heavier, that is more 5 information with companies than the medical and 6 scientific community -- medical and scientific 7 community. 8 Then at NIOSH I took that isocyanate 9 study, did more research and turned that into an 10 epidemiologic study. And so we had people come into 11 NIOSH, interestingly enough many times historical - 12 people with historical perspective who would talk about 13 what was known when. And I should have said this in 14 medical school, every lecture in medical school -- and 15 Ivan remembers this, I believe, when he asked this 16 question once before. I hope he remembers this 17 answer -- almost every lecture in medical school on 18 every topic starts with a historical perspective, it's 19 quite interesting. Because they'll say this is -- for 20 example, a lecture on diabetes will start with the 21 discovery of insulin. How that was discovered, when it 22 was discovered. Whether the discovery reached medical 23 acceptance or not, and where it was published or what 24 happened to the information. And so essentially every 25 medical school lecture on any topic was a lecture on 0205 1 the history of the development of knowledge of that 2 particular topic. That's what he remembers. 3 MR. MCGOWAN: And then he withdrew the 4 question at that point. 5 THE WITNESS: He did withdraw the file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (126 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 6 question. 7 MR. MCGOWAN: At 17 pages. 8 A. Okay. But I'm older now than then so I have 9 more. I'm trying to limit to formal education. So - 10 then I did a third residency in preventive medicine. 11 And the preventive medicine really focused more than 12 the others on the history development and knowledge 13 about warnings. How to measure the effectiveness of 14 warnings and that gives me some training and education 15 in drawing conclusions about what companies should have 16 known about warnings and risk communication 17 historically. 18 Then in the history courses -- let me go 19 back to -- I learned about using other indexes. Those 20 indexes would be indexes of -- for example, I learned 21 how to use Lexis-Nexis, I don't remember when that was, 22 which allows you to access general publications. And 23 then I learned that there were indexes of -- I can't 24 remember the specific course -- of general publications 25 like Scientific American, Newsweek, those have separate 0206 1 indexes. And so I learned about those indexes and how 2 you access those indexes. I can't remember what course 3 that occurred in. 4 Okay. Now, the should have known has two 5 parts, the first part would be the -- the regulatory 6 and legal piece that I learned in the courses that I 7 took at the -- law school courses and the -- in my 8 service at NIOSH and in my consulting as a consultant 9 to companies on these issues. 10 The second part really is simpler and 11 really comes from experience, but since I now teach 12 about these materials I'm going to lump it in here. 13 And that is since there were other similarly situated 14 companies who knew of the medical literature and who 15 warned during the -- at different points in time, and 16 since I've researched that and published on that I can 17 compare what other companies did with what, say, 18 Elliott did with respect to the information that was 19 available. And so for example, the railroads who had 20 steam boilers similar to Elliott were warning in 1937 21 and had a whole program for protecting workers and 22 bystanders from those exposures. Owens Corning file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (127 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 23 Fiberglass had a whole pamphlet on warning about 24 certain information hazards in 1941. 25 So my training in the kinds of 0207 1 information that was -- the document I brought here, 2 that we haven't talked about yet, the Manville document 3 indicates that Manville was telling customers to reduce 4 the dust and use respirators and ventilation with 5 marinite in the 1950s. So my independent research, 6 which I now teach about and have published about, is 7 also part of what qualifies me to draw conclusions 8 about what other companies should have done comparing 9 them to what other companies actually did who were 10 similarly situated. That's a short answer but it's 11 probably long -- if you would like more, I can give you 12 some more. 13 What I omitted, specifically, is my 14 experience consulting for companies and reviewing 15 corporate documents and advising companies about 16 warnings historically and what they should have done or 17 should do at a particular point in time, and all of the 18 things that I've published on these particular issues 19 in peer-reviewed medical literature and all the papers 20 that I've presented on these issues at meetings where 21 my submissions had to be approved by the panels that 22 were there before I was allowed to present information. 23 That's the end of that answer in brief form. 24 MS. NETTLE: Objection, nonresponsive. 25 Do you need to take a break you said? 0208 1 THE REPORTER: Yes. 2 (A break was taken from 4:35 to 4:46.) 3 Q. Sir, have you ever taken an academic course 4 specifically that taught you how to draw conclusions 5 about what companies should have known, yes or no? 6 A. Yes. 7 Q. And if I ask you what those courses are, will 8 I get an answer as lengthy as your previous answer 9 before the break? 10 A. I don't think so. 11 Q. How many courses did you take specific to - 12 that specifically taught you how to draw conclusions 13 about what companies should have known? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (128 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 14 A. Probably four, five. 15 Q. Will you name those courses for me? 16 A. Sure, the two Ashford courses, the two courses 17 by Les Boden at the Harvard School of Public Health, 18 the course I teach and the course on warnings at the 19 Harvard School of Public Health. 20 Q. Without giving me the entire syllabus for the 21 whole semester, will you tell me generally the name of 22 those courses or the title of the course? 23 A. I don't remember the titles of the courses. 24 Q. Can you give me the general subject matter in 25 brief format? 0209 1 A. The warnings was on warnings, when you're 2 supposed to warn based on what information, who's 3 responsible for warning, how do you design a warning. 4 The two law school course were on corporate duty to 5 inform, interpretation of medical literature, 6 interpretation of medical literature and the context - 7 it's really right on point, right on everything I 8 testify about, both of Ashford courses were. And then 9 the Les Boden course was about -- probably half of that 10 dealt with these same issues in that format. 11 My course deals with about half. Half of 12 my course deals about the philosophy of how you know 13 what you know and the other half deals with specific 14 case examples about corporations who did or did not 15 conform to the standards of the time. 16 Q. Do you use any scientific method to draw your 17 conclusions about what companies should have known, yes 18 or no? 19 A. Yes. 20 Q. And can you describe that -- well, is that 21 scientific method something that can be replicated by 22 another person looking at the same data? 23 A. Yes. 24 Q.Can you briefly describe that scientific 25 method for me? 0210 1 A. Okay. I've described it in several places. 2 It's a long answer. It's a 30-page affidavit. Do you 3 want me to supplement this with the affidavit? Or do 4 you want me to try to get it faxed here? Do you want file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (129 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 5 me to read the affidavit? It's -- it's longer than 6 that because the affidavit doesn't go through the - 7 some of the material I just covered. How would you 8 like that answer? 9 Q. I would like to know briefly in 50 words or 10 less if you can give me an overview of the scientific 11 method you use in drawing your conclusions about what 12 companies should have known? 13 A. I can't do that without being misleading. 14 Q. Does the scientific method you use have a 15 name? 16 A. Epistemology, medical epistemology. 17 Q. Do you have a degree in epistemology? 18 A. I don't think anybody gives a degree -- I 19 think the Sorbonne may give a degree in epistemology. 20 Otherwise, I don't think that there's a degree in 21 epistemology given by any U.S. universities. 22 Q. So no, you don't? 23 A. Well, I'm not sure it exists, but if it exists 24 it's at the Sorbonne and I don't have it. 25 Q. Did you review any air sampling done of the 0211 1 plaintiff's job sites? 2 A. I didn't review anything that's not here, and 3 there's no air sampling here that I -- unless I missed 4 it. 5 Q. So no, you haven't reviewed any air sampling 6 from the plaintiff's job sites? 7 A. Correct. 8 Q. I want to ask you a hypothetical. 9 A. Okay. Just before you continue, I have all 10 those things that you wanted. These are some of the 11 dust studies on exposures to pipe covering. These are 12 unpublished so we got them faxed in. I hate to deprive 13 the record of these, so maybe if we just want to take a 14 second and mark this, unfortunately titled OCF 15 Knowledge of Risk to Users, but generally applicable 16 since under Dartez it would be known to everybody. So 17 can we just mark this since you asked for it before and 18 I got it. 19 MS. NETTLE: We can mark it as the next 20 exhibit, 32. 21 THE WITNESS: Thanks. 32. And then the file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (130 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 22 same thing with the Johns-Manville inserts. 23 MS. NETTLE: Exhibit 33. 24 THE WITNESS: Why don't we just take a 25 second and make sure those get marked and put in the 0212 1 record. Very few people know about some of these 2 things. 3 Q. (BY MS. NETTLE.) I want to ask you a 4 hypothetical question. Assume Mr. Mitchell had the 5 exact same exposures that he testified to in his 6 deposition with the exception of he never worked around 7 an Elliott turbine. Can you tell me that had that been 8 the case, Mr. Mitchell would not have contracted 9 mesothelioma? 10 A. No. 11 Q. You can't testify to that? 12 A. Correct. 13 Q. So you can't say then that but for the 14 exposure to Elliott turbines or his work around Elliott 15 turbines, he would not have gotten mesothelioma? 16 A. Correct, I can only say that the exposure to 17 Elliott turbines was sufficient to cause his 18 mesothelioma and was a significant contributing factor 19 in the cause of his mesothelioma. 20 MS. NETTLE: Object to the nonresponsive 21 portion. 22 Q. You've talkedearlier about some documents 23 regarding fiber release of components used in Elliott 24 turbines; do you recall that? 25 A. Yes. 0213 I Q. Can you name for me - 2 A. Well, the turbine itself doesn't -- the 3 turbine itself -- it's only the parts of the turbine 4 that are -- asbestos parts that release. I don't think 5 you could say that the -- like the turbines consist of 6 parts, the whole thing is a turbine. 7 Q. Can you name for me any peer-reviewed studies 8 or epidemiological studies that you're relying on to 9 testify that components of Elliott turbines release 10 asbestos fibers? II A. Sure, that's what you just marked there as 12 exhibit -- what exhibit is that one? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (131 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 13 Q. 32. 14 A. 32. Some of those are unpublished but then 15 were published, and then there's all those other 16 studies that I talked to you about before. Marr, 17 Fleischer Drinker, Dreessen, Merewether, Nicholson, 18 Balzer, Balzer and Cooper. 19 MS. NETTLE: All right. I'm going to 20 object to the nonresponsive portion. 21 Q. I'm specifically asking about peer reviewed or 22 epidemiological studies, not unpublished studies, not 23 nonpeer-reviewed studies. I want to know what 24 peer-reviewed literature or epidemiological studies 25 you've relied on in your testimony that components of 0214 1 Elliott products released asbestos fibers and what, if 2 any, amount of fibers were released. 3 MR. TAYLOR: Objection, compound. 4 A. Merewether 1930, Dreessen 1938 public health 5 reports 241, Fleischer Drinker 1946, Marr 1963, 6 Leathart 1964, Balzer, Balzer and Cooper 1967 and '68. 7 The Third Wave book New York Academy of Sciences 1991, 8 the shipbuilding proceedings Nicholson. Several 9 studies by Nicholson I don't remember all the years and 10 publication dates, between '68 and '74. That's all I 11 can think of. I'm kind of cutting it off at '74. 12 Q. You've already testified that you can't state 13 which of those are peer reviewed and which aren't, 14 correct? 15 A. No, as far as I know they're all peer reviewed 16 from peer-reviewed journals. I said that I can't tell 17 you whether they were actually peer reviewed or not. 18 On the face of them they're all peer reviewed. They 19 all come from journals that claim they're peer-reviewed 20 journals. In other words, if there was such a thing as 21 a peer-reviewed journal they were in them. 22 Q. Can you state for me any peer reviewed or 23 epidemiological study you've relied on about -- to 24 determine or estimate the fiber release from gaskets 25 that may have been used in Elliott turbines, 0215 1 specifically as to gaskets? 2 A. Sure, Longo studies and Millit studies and Lee 3 studies. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (132 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 4 Q. What study specifically have you relied on? 5 A. There's published studies by Longo, Millit and 6 Lee. 7 Q. Can you name for me the studies? 8 A. I can't recall the specific citations. 9 Q. Can you name for me any peer-reviewed studies 10 about fiber release from packing that may have been on 11 Elliott turbines that you have relied on in forming 12 your opinions? 13 A. I think there's a Longo study that's published 14 and peer reviewed but I'm not positive. 15 Q. Can you give me the cite for that? 16 A. No. 17 (Dr. Egilman and Mr. Taylor confer.) 18 Q. I want you to describe for me the scientific 19 method you used in drawing your conclusions about what 20 companies in general should have known without an 21 extensive narrative. I want a brief summary of your 22 scientific method. 23 MR. TAYLOR: Object to the form of the 24 question. I think it's unfair to try to place those 25 restrictions on his answer. 0216 1 A. Why don't you repeat the question, let me 2 write that down. You can skip the brief part. 3 (Requested portion was read.) 4 A. I don't think I have a brief version. 5 Q. I want you to try and take a stab at it. 6 A. I don't want to do that. I want to answer 7 according to my oath, completely or not at all. 8 Q. Is the scientific method that you used 9 published in any peer reviewed or -- peer-reviewed 10 literature? 11 A. Well, you know, there are several processes, 12 all of which are published in peer-reviewed literature. 13 MS. NETTLE: Objection, nonresponsive. 14 Q. Is the scientific method you used in drawing 15 your conclusions about what companies should have known 16 in any peer-reviewed literature? 17 A. Yes. 18 Q. Which ones? 19 A. There's library science literature on how to 20 do library research, there's all of the literature that file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (133 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 21 I described about determining cause and effect 22 determinations, probably the most famous of which is 23 Hills Considerations in 1965. There's my paper 24 recently accepted on Daughbeir to be coming out in Food 25 and Commercial Law. 0217 1 There's the textbook, Modern Epidemiology 2 by Sandra Greenland and Rothman. There's the textbook 3 occupational medicine -- Occupational Epidemiology by 4 Monson. There's a paper in the American Journal of 5 Epidemiology called Causes by Rothman. There's a 6 series of papers by Miettenen. That's Olie, O-L-I-E 7 M-I-E-T-T-I-N-E-N. There's Popper's publications and 8 books. There's books by Feyerabund and articles by 9 Feyerabund, and by Canguilhem, Bachelard -- those are 10 two different people, French philosophers of science. 11 There's books by Sandra Harding and articles by Sandra 12 Harding. There are articles by Anne Fausto-Sterling. 13 There are articles by Jamie Robins in the American 14 Journal of Industrial Medicine. Numerous articles by 15 Sandra Greenland. The Seminal article probably is in 16 the American Journal of Public Health in 1998 dealing 17 specifically with issues that relate to cause/effect 18 determination and when it would be established that 19 that would be known. 20 There are my articles published in the 21 American Journal of Industrial Medicine and the cites 22 for them are on my CV and others. Particularly one 23 called Epistemology and Public Health which is a 24 commentary in the American Journal of Industrial 25 Medicine. That's the brief answer. 0218 1 Q. Okay. I want to know what the scientific 2 method was that you used for drawing your conclusion - 3 conclusions about what companies should have known 4 about the hazards of asbestos. However, I do not need 5 to know any scientific methods you used for researching 6 articles, for reading the articles, for understanding 7 the articles. I simply want to know how you made - 8 what scientific method you made to make the leap from 9 these articles and their existence and the dates they 10 were published to what companies should have known 11 about those articles; do you understand my question? file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (134 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 12 A. No, it makes no sense whatsoever to me. 13 Q. All right. I'm limiting my question. I'm not 14 asking about scientific method you used in finding 15 these articles; do you understand that? 16 A. Yes. 17 Q. Okay. And I'm notasking about any science or 18 scientific method you may have used to read the 19 articles or understand the articles; do you understand 20 that? 21 A. Yes. 22 Q.What scientific method do you contend that you 23 used to look at these articles and their dates of 24 publication and then conclude what companies should 25 have known about the hazards of asbestos, what is the 0219 1 scientific method? 2 A. You've told me not to use the scientific 3 method and then tell you the scientific method, I don't 4 know how to do that. I'm sorry, it's beyond me. You 5 mean there's 18 scientific methods that I relied on, 6 you don't want me to talk about any of those. You want 7 me to come up with a new one, I don't really understand 8 how I can do that. 9 Do you want to know how companies find 10 things out, I can talk about that. Generally the 11 question I answer in court is, could you compare the 12 information available to the medical and scientific 13 community with that available to companies? And then I 14 talk about basically the distribution of information, 15 and that's a library science method; plus it's based on 16 my experience and training with respect to consulting 17 for corporations and reviewing documents of 18 corporations. So that's the method to the extent 19 that -- that does overlap the other methods that you 20 didn't want me to talk about in how you limited the 21 question. 22 Truly I've had a lot of experience in 23 depositions I must admit that and I don't know how to 24 answer a question where you tell me that I can't use 25 the answer that I would normally use, you want a 0220 1 different answer to answer the question. I just don't 2 know how to do that. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (135 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 3 MS. NETTLE: I'm going to - 4 A. I did the best I could. 5 MS. NETTLE: -- object to the 6 nonresponsive portion. 7 Q. I'm giving you every opportunity to answer my 8 question in a brief format without going on for 30 9 minutes like you did previously. And so I'm trying - 10 I'm not trying to ask you about every scientific method 11 you've ever used. I'm asking you, describe the 12 scientific method you used for this one part of the 13 conclusion, which is looking at these documents and 14 their publication and then concluding from that what 15 companies should have known. Is there some scientific 16 formula you can describe for me in making that 17 conclusion from that information? 18 MR. TAYLOR: Object to the form of the 19 question. Object to the sidebar, to asked and 20 answered. Let's move on. 21 Q. Can you describe that scientific method? 22 A. Yes. 23 Q. All right. Please describe the scientific 24 method used for that one conclusion, not for every 25 other conclusion that - 0221 1 A. That's a different question. I didn't say I 2 could do that. That's a different question. I don't 3 think I can do that. In order for me to say somebody 4 should have known something, I got to explain why it 5 should be knowable, okay. 6 I've got to explain what people at 7 different points in time relied on to determine 8 cause/effect relationships and the methodology, not now 9 but then about cause/effect relationships. And how 10 people did or did not except cause/effect relationships 11 then, not now, okay. And then I got to be able to 12 answer, from a library science perspective or from my 13 general training experience, how information got 14 transferred from place to place. And if you're going 15 to tell me I can't do either of those two, I cannot 16 answer the question. 17 MS. NETTLE: Objection, nonresponsive. 18 A. Well, good, it wasn't an answer. I was just 19 explaining why I couldn't answer the question. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (136 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 20 Q. All right. So your statement is you can't 21 provide for me the scientific methodology you used to 22 draw that conclusion from the publication and the dates 23 of publication? 24 A. Not true. 25 MR. TAYLOR: Object to the question. 0222 1 A. I didn't say that at all. I've given you a 2 long answer, 27 minutes worth, according to the 3 gentleman on my left, about my methodology, okay, in 4 terms of determining in general my -- not even - 5 pardon me, it wasn't my methodology, it was my 6 training, the things that qualified me to know how to 7 do things. It wasn't even to talk about what the 8 methodology was. Okay. But without talking about 9 that, I can't talk in some vacuum about what was 10 available in the literature. 11 The question I generally answer at trial 12 is, what information was available in the medical and 13 scientific community to determine whether asbestos was 14 a hazard and could you compare that information to 15 information available to some company? But I mean, in 16 this case -- I mean, the easiest answer is the law, 17 okay. There's OSHA which went into effect in 1971 and 18 that covers the whole time period of this gentleman's 19 exposure, and companies should have known the law. 20 MS. NETTLE: Objection, nonresponsive. 21 Q. Is there a rate of error for your scientific 22 method? 23 A. Which part? There are different parts that 24 we've discussed. 25 Q. Any part for your scientific method in 0223 1 concluding what companies knew -- excuse me, including 2 what companies should have known. Can you identify a 3 rate of error for the scientific method you claim that 4 you used to draw those conclusions? 5 A. Explain what you mean by "rate of error," 6 that's not the question I answer in court. You've 7 asked a different question. Explain what you mean by 8 rate of error. 9 Q. What is your understanding of what the term 10 rate of error is? Is that a scientifically recognized file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (137 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 11 term? 12 A. For frequentist studies only. Not for either 13 metaanalysis or combinations of different types of data 14 or conclusions about general cause and effect 15 relationships. There is no such thing as a rate of 16 error for any of those things. 17 Q. So is it true then that there's no rate of 18 error for the method you use to draw your conclusions? 19 A. No, there are different parts of the method 20 that I use of which there are rates of error. There 21 are rates of error in different parts of what I 22 described or what I didn't describe but what I use. 23 Q. What are the rates of error for the method you 24 use in determining what Elliott should have known? 25 A. There's no overall rate of error for that. 0224 1 That's not the question that I answer in court. What I 2 answer is, compare the information available to Elliott 3 with the information available to the general medical 4 and scientific community. 5 In this particular case the error rate is 6 whatever the rate is of companies -- there is no error 7 rate. The law was in 1971 that companies had certain 8 responsibilities to place warnings on products they 9 made that contained asbestos products. And the 10 warnings were specified, the recommendations about 11 monitoring were specified, that's a lot of the basis of 12 my opinion in this case. 13 MS. NETTLE: Object - 14 A. It's not a error rate phenomenon except to the 15 extent that the law's got an error rate associated with 16 who knows about it. I've never heard of such thing. 17 MS. NETTLE: Object to the nonresponsive 18 portion. 19 Q. Are there any other specific opinions you plan 20 to testify to at trial pertaining specifically to Marty 21 Mitchell and Marty Mitchell's case that we have not 22 discussed so far? 23 MR. TAYLOR: Object to the form of the 24 question. 25 A. I don't have any plans to testify about 0225 1 anything at trial. I'm prepared to testify about all file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (138 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 2 these things. And whatever questions come out, if I 3 have an answer based on my review of the materials, I 4 give the answer, if I don't, I'll say I don't know. 5 Q. And my question - 6 A. I don't have a specific program. I haven't 7 met with Mr. Kaeske to discuss my testimony. I told 8 you before what he asked me to testify about or be 9 prepared to testify about, that's what I'm prepared to 10 testify about then and now. What I'm going to testify 11 about within that subset I have no idea. 12 Q. Are there any other areas you've been asked to 13 testify to specific to Mr. Mitchell that you have not 14 told me about? 15 MR. TAYLOR: Object to the form. 16 A. Not that I can recall. 17 Q. All right. I'm going to give these other 18 attorneys a chance to ask some questions. I may have 19 some more. 20 THE WITNESS: I think we're done. We're 21 done, right? 22 MR. TAYLOR: First, how much time? Is 23 there even any time left? 24 THE REPORTER: Five hours and forty-five 25 minutes is what we - 0226 1 THE WITNESS: We're all done, right? 2 Thank you, folks. It's been a pleasure. 3 MS. NETTLE: Does anyone else have any 4 questions? 5 Okay. 6 THE WITNESS: No, it's not a ship of 7 fools. 8 (Deposition concluded at 5:15.) 9 10 11 12 13 14 15 16 17 18 file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (139 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 19 20 21 22 23 24 25 0227 1 CHANGES AND SIGNATURE 2 PAGE LINE CHANGE REASON 3______ 4______ 5______ 6______ 7______ 8______ 9______ 10 _____ 11 12 13 _____ 14 _____ 15 _____ 16 _____ 17 _____ 18 _____ 19 _____ 20 _____ 21 22 23 _____ 24 _____ 25 _____ 0228 1 I, DR. DAVID EGILMAN, have read the foregoing 2 deposition and hereby affix my signature that same is 3 true and correct, except as noted above. 4 5 6 DR. DAVID EGILMAN 7 8 THE STATE OF) file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (140 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 9 COUNTY OF) 10 Before me,, on 11 this day personally appeared DR. DAVID EGILMAN, known 12 to me (or proved to me under oath or through 13) (description of identity 14 card or other document) to be the person whose name is 15 subscribed to the foregoing instrument and acknowledged 16 to me that they executed the same for the purposes and 17 consideration therein expressed. 18 Given under my hand and seal of office this 19day of, 20 21 22 NOTARY PUBLIC IN AND FOR 23 THE STATE OF 24 25 0229 1 CAUSE NO. 02-09281 2 MARTY MITCHELL, ) IN THE DISTRICT COURT PLAINTIFF, ) 3) VS. ) 134TH JUDICIAL DISTRICT 4) AMETEK, INC., et al., ) 5 DEFENDANTS. ) DALLAS COUNTY, TEXAS 6 REPORTER'S CERTIFICATION DEPOSITION OF DR. DAVID EGILMAN 7 MAY 21, 2003 8 I, Jennifer Hoodenpyle, Certified Shorthand 9 Reporter in and for the State of Texas, hereby certify 10 to the following: 11 That the witness, DR. DAVID EGILMAN, was duly sworn 12 by the officer and that the transcript of the oral 13 deposition is a true record of the testimony given by 14 the witness; 15 That the deposition transcript was submitted on May 16 28, 2003 to the witness or to the attorney for the 17 witness for examination, signature and return to me by 18 June 20, 2003; 19 That the amount of time used by each party at the 20 deposition is as follows: file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (141 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 21 MS. NETTLE.... 05 HOURS 45 MINUTES 22 That pursuant to information given to the 23 deposition officer at the time said testimony was 24 taken, the following includes counsel for all parties 25 of record: 0230 1 Attorney for the Plaintiff, Mr. Mark Taylor; 2 Attorney for the Defendants, Beazer East, Inc. and Elliott Turbomachinery Co., Ms. Amy E. Nettle; 3 Attorney for the Defendant, American Standard, 4 Inc., Mr. Stephen K. Guidry; 5 Attorneys for the Defendant, General Electric Company, Mr. Timothy McGowan and Ms. Kay Andrews; 6 Attorney for the Defendants, Viacom & Foster 7 Wheeler Energy Corporation, Mr. Ivan A. Gustafson; 8 Attorney for the Defendant, Tuthill Corporation, Ms. Joanne Early; 9 Attorney for the Defendant, Mallinckrodt, Inc., 10 Mr. Michael L. Blakeney; 11 Attorney for the Defendants, Industrial Holdings Corporation f/k/a the Carborundum Company, 12 Mr. Kurt W. Greve; 13 Attorney for the Defendants, Quigley Company & Pfizer, Inc., Mr. Larry W. Thorpe; 14 Attorney for the Defendant, Monsanto Company, 15 Mr. Lawrence E. Goldenthal; 16 Attorney for the Defendants, Certainteed Corporation, Foseco, Mr. Todd J. Suddleson; 17 Attorney for the Defendant, Corhart Refractories 18 Corning, Inc., Mr. Mark S. Scudder; 19 Attorney for the Defendant, Oakfabco, Inc., Mr. Nicholas S. Baldo. 20 21 I further certify that I am neither counsel for, 22 related to, nor employed by any of the parties or 23 attorneys in the action in which this proceeding was 24 taken, and further that I am not financially or 25 otherwise interested in the outcome of the action. file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (142 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 0231 1 Further certification requirements pursuant to Rule 2 203 of TRCP will be certified to after they have 3 occurred. 4 Certified to by me this 28th day of May, 2003. 5 6 7 __________________________________________ Jennifer Hoodenpyle, CSR, RPR 8 Certificate No. 7071 Expiration Date: 12/31/04 9 600 North Pearl Street, Suite 640 Dallas, Texas 75201 10 (214) 220-2449 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0232 1 FURTHER CERTIFICATION UNDER RULE 203 TRCP 2 3 The original deposition was/was not returned to the 4 deposition officer on; 5 If returned, the attached Changes and Signature 6 page contains any changes and the reasons therefor; 7 If returned, the original deposition was delivered 8 to Ms. Amy Nettle, Custodial Attorney; 9 That $is the deposition officer's 10 charges to the Defendant, Beazer East, Inc. and Elliott 11 Turbomachinery Co., Inc. for preparing the original 12 deposition transcript and any copies of exhibits; 13 That the deposition was delivered in accordance file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (143 of 144)6/25/2003 4:07:15 PM file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt 14 with Rule 203.3, and that a copy of this certificate 15 was served on all parties shown herein on and filed 16 with the Clerk. 17 Certified to by me thisday of 18 2003. 19 20 21 Jennifer Hoodenpyle, CSR, RPR Certificate No. 7071 22 Expiration Date: 12/31/04 600 North Pearl Street, Suite 640 23 Dallas, Texas 75201 (214) 220-2449 24 25 file:///C|/Documents%20and%20Settings/degilman.EGILMAN/Desktop/MITCHELL-Dr.%20Egilman%205.21.03.txt (144 of 144)6/25/2003 4:07:15 PM