Document DvQ74ODy6znNK3KyGgyaw39RB

1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS 2 BEAUMONT DIVISION * 3 niAUDE CIMTNO, et a 1 . , 4 Plaintiffs, 8 vs. CIVIL ACTION NO. B-86-0456-CA 6 RAYMARK INDUSTRIES, INC., et al . , 7 Defendants. 8 10 11 J2 13 14 15 16 17 18 19 20 21 22 23 24 25 * DEPOSITION OF: DATE : TIME : LOCATION: J. CHRISTOPHER WAGNER May 30, 1990 9:10 AM Stafford Hotel London, England TAKEN BY: Counsel for the Plaintiffs REPORTED BY: A. WILLIAM ROBERTS, JR., Registered Professional Reporter, CP, CM Computer-Aided Transcription By: A. WILLIAM ROBERTS, JR., & ASSOCIATES Charleston, SC (803) 722-8414 Columbia, SC (803) 731-5224 A. WILLIAM ROBERT? JR., & ASSOCIATES 1 APPEARANCES: o 3 4 5 6 7 8 9 10 33 12 13 34 38 36 17 3R 19 2n 23 o<- o4. 23 24 25 NESS, MOTLEY, LOADHOLT, RICHARDSON & POOJ,E BY: MTCHAEL J. BRIOKMAN 153 Meeting Street, Suite 600 P.0. Box 1337 Charleston, SC 29402 Attorneys for the Plaintiffs BLASINGAME, BURCH, GARRARD & BRYANT, P.0. BY: HENRY G. GARRARD, ITT 440 College Avenue North P. 0. Box 832 Athens, GA 30603 Attorneys for the Defendant Pittsburgh Corning Corp. A. WILLIAM ROBERTS, JR & ASSOCIATES 3 1 INDEX 2 3 Page 4 DIRECT EXAMINATION 5 By Mr. Bri ckaian 6 Signature of Deponent 7 Certificate of Reporter 5 2 60 26 1 8 9 1 0 ******** 11 1 2 REQUESTED INFORMATION INDEX 1 3 Page 1 4 German and French theses for 100 cases 1 6 of asbestos disease neeuring before 1900 18 1 6 Handwritten notes regarding the examinations 1 7 of stains 87 18 1 9 EXHIBITS 20 2 1 Page 2 2 Identified 2 3 PLAINTIFFS 1 24 1 Document entitled Medico-Legal Case. 2 5 Texas Series for Billy Harris 104 A. WILLIAM ROBERTS, JR., & ASSOCIATES 4 1o n Document; entitled Medico-Legal Case. Texas Series for Horace McBryde 33 Document entitled Medico-Legal Case. 4 54 Texas Series for Alvin Warrick Medical Report on Billy Harris 65 Handwritten notes on Billy Harris 76 Medical Report on Horace McBryde 87 Handwritten notes on Horace McBryde 98 Medical Report on Alvin Warrick 10 9 Handwritten Motes on Alvin Warrick 3 3 3 0 Handwritten Notes 32 13 34 35 36 37 38 30 20 23 22 23 24 25 1 04 1 04 21 3 23 1 21 1 21 3 2 11 21 1 23 1 A. WILLIAM ROBERTS, JR., & ASSOCIATES 5 DR. JOHN CHRISTOPHER WAGNER - DIRECT RY MR. RRTCKMAN 3 JOHN CHRISTOPHER WAGNER, being 2 first duly sworn, testified as follows: 3 DIRECT EXAMINATION 4 BY MR. BRICKMAN: 5 Q. Could you state your full name; for fi the record, sir? 7 A . John Christopher Wagner. 8 Q . And you pronounce it Wagner? s A . Wa g n e r . 1 0 Q Dr. Wagner, could you tell me where 1 3 you 1ive, sir? 3 2 A . At the present moment., I live in 1 3 Dorset in a pi ace called Wales. 3 4 Q And about how far is that from 1 6 London? 3 6 A . About 150 miles.. 1 7 Q. And did you take a train or a plane 1 8 in last night ? 3 9 A . I took a train from Cardiff. 20 0 . And are you presently married, sir? 2 1 A . I am . 2 2 Q . And are you presently employed? 23 A . Self-employed doing a certain 2 4 amount of cons u1ting work. 2 5 Q . Tell me what you mean by that, A. WILLIAM ROBERTS, JR., & ASSOCIATES 6 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 3 sir. 2 . A. Well, I am advising on tiwnors 3 associated with asbestos, asbestos diseases, and 4 also on some of the experimental work I did 6 earlier. 6 Q. I'm sorry, what experimental work? 7 A. Experimental work I have done 8 previously. *J Q. Are you employed or do you work for 1 0 any particular group or company or anything of 1 1 that nature? 3 2 A. Not directly employed, but 1 do do 3 3 work for certain people. 1 4 n. You are not employed by the English 1 5 government in any way at this time; is that 3 fi mrrect? 3 7 A. Only on a very small travel grant. 3 8 Q. I'm sorry; it must be my ears, on a 3 9 what? 20 A. They give me a small travel grant 2 3 to go vi p to Cardiff once a month to consult on the 2 2 experimental work that I started doing, and they 2 3 are continuing to do, the Health and Safety 2 4 Executive. 26 # Q. And you continue to monitor that A. WILLIAM ROBERTS, JR., & ASSOCIATES 7 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 3 work, and they don't pay you for it other than to 2 pay your travel expenses? * 3 A. That's correct. 4 Q. What sort of work is being done at 5 Cardiff that you are monitoring? 6 A. Mainly to find out the amount of 7 asbestos in various types of lungs of people with 8 mesotheliomas in whom there is no evidence of 9 asbestos exposure, comparing that with exposed 1 0 cases. And also going back into the experimental 1 3 animals to find out how the dose in the animals is * -o equivalent to what we are seeing in man. 1 3 Q. So apparently you are looking at 1 4 individuals who have no known exposure to asbestos 1 .9 arid counting the number of ashestOS fibers in 3 6 their lungs? 3 7 A. Well, typing the fibers and the 3 8 quantitation and typo of fibers, size of the 3 9 fiber. 20 n. And are these individuals who have 2 1 not been exposed who have any sort of disease? 2 2 A. These are mainly people with 2 3 mesotheliomas of the pleura and peritoneum. 2 4 Q. These people have mesothelioma, do 2 5 not have a known exposure history to asbestos, and A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER DIRECT BY MR. BRICKMAN you are counting, however, the number of asbestos fibers in their lungs? * A. And also getting people to check up to make quite certain that they haven't had exposure. q. Have you found any individuals who have absolutely no asbestos fibers in their lungs? A . No . Q. Okay. In those individuals who have mesothelioma, no history of exposure to asbestos or known history of exposure to asbestos, you have nevertheless found asbestos fibers in their lungs? A. Q. Yes. What kind of asbestos fibers have you found in general in these individuals? A. The three main types of asbestos and Tremolite. Chrysotile, Crocldolite, Amosite, Trento] 1 te . Q. So you find basically those asbestos fibers that are used commercially? A. Yes, all the ones that are used comme r daily. Q. You find them; is that correct? A. Yes. A. WILLIAM ROBERTS, JR., & ASSOCIATES 9 PR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 Q. Do you attribute in those cases the p mesotheliomas to the asbestos fibers intheir 3 3 ungs? 4 A. No. I think we are trying to find 5 the level between the ordinary people with urban 6 or country exposure, countryside exposure, against 7 the people who have had industrial exposure. 8 Q. You would agree with me that 9 asbestos can cause mesothelioma, wouldn't you? 1 0 A. Certainly the amphiboles cause 1 1 mesothelioma. 1 2 Q. Would you agree with me that large 1 3 amounts of Chrysotile may be able to cause 3 4 mesothelioma, in your opinion? 1 f> A. 1 think: this is fairly doubtful, 1 8 because Tremolite seems to occur in practically 3 7 all these cases. 3 R Q . Let me ask you this: Why is it 3 9 then that the asbestos that you are finding in 2 0 these people's 1 u"ngs isn't the cause of their 2 1 mesothelioma? A. I think one realizes that if it was 2 3 the cause of the mesothelioma, all of us would 24 have mesothelioma, which is far from the case. 2 5 Q. That doesn't make sense to me. A. WILLIAM ROBERTS, JR., & ASSOCIATES 10 . DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 1 sir. Not everybody that is exposed to asbestos 2 gets asbestosls, do they? 1- 3 A . No . 4 0 . Not everybody that i s exposed to 5 asbestos gets asbestos lung cancer. do they? 6 A . No. But the people with severe 7 exposure would 8 Q Everybody who has a severe exposure 0 to asbestos would get those disease s? 1 0 A . No, but is liable to get those 1 1 diseases. 1 2 Q Is liable to? 1 3 A . Yes. 1 4 Q So if somebody has a heavy exposure 1 5 to asbestos, it is more probable than not that 1 6 they would get an asbestos disease related to 1 7 that? 1 8 MR. GARRARD: Wait a minute. I 1 9 object to the form of your question . That is not 20 what he said. He didn't say heavy exposure, He 21 didn't say more likely than not they are going to 22 get the disease. 23 MR. BRICKMAN: I want to clarify. 24 That's exactly what I want to do. 25 BY MR. BRICKMAN: A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER DIRECT BY MR. BRICKMAN O . What type of exposure were you referring to? I thought you said heavy'exposure . A . Yes. Industrial exposure. o . Yes, industrial exposure. So, in your opinion, everybody who has an industrial exposure more likely than not will get one of those diseases MR. GARRARD: Object to the form of the question. That's not what he said. MR. BRICKMAN: That's what I'm asking him. THE WITNESS: No. Is more likely to get the disease than people who haven't had that exposure. BY MR. BRICKMAN: Q. Well, obviously. If you are not exposed to asbestos, you are not going to get asbestosis, are you? A. This is the problem. There must be a limit somewhere along the lines where the exposure is -- exposure is that of the general population who, as far as we know, none of these diseases occur. n. I'm not quite sure I understand that. Apparently we have some people in the A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 o 3 4 ft 6 7 ft 9 10 11 io 13 14 16 16 17 1 ft 19 20 21 22 23 24 2ft 32 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN general population who have minimal exposure to asbestos who have mesothelioma, don't w? A. The exposure, as far as we can see, the exposure they had was that of the general population of the area. No greater, no less. Q. Maybe even that minimal exposure can cause mesothelioma; have y'all considered that concept? A. We have taken it down -- still working the hypothesis. We have taken it down to certain limits such as if they got less than one million amphibole fibers of the correct size ratio; they probably won't get the disease. Q. But these people that you have looked at, they had less than 1 million amphibole fihers? A. Yes. Q. But they got the disease, didn't they? A. Oh, yes. The disease -- the other thing is the disease occurs from causes other than asbestos exposure, and we also collected nearly 100 cases which were occurring before 1900 which would suggest that was before asbestos exposure occurred. So it is a natural incidence of the A. WILLIAM ROBERTS, JR., & ASSOCIATES 13 OR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 disease. o Q. You have 100 cases of meSjothe! ioma . 3 you have collected and examined that occurred 4 before 1900? 5 A. This is going on as far as we can 6 see on the reported cases and on the evidence 7 supporting their claim. 8 Q. Wait a minute. Wait a minute. 9 Have you looked at tissue of people who died 1 0 before 1900? 3 1 A . No . 1 2 Q. What do you base that on? 3 3 A. This is based on the reports. 1 4 Q. On reports. And did they call it 1 S mesothelioma? 3 6 A. No, talking about endothelioma of 3 7 the pleura. 3 8 n. And so in every case they called it 1 9 endothelioma of the pleura, you took that to be 20 mesothelioma? 2 3 A. No. The cases are being reviewed, 2 2 and only the ones being reviewed are accepted. 23 Q. Who has looked at this tissue? 24 A. The group in Germany. A group in 2 5 France, a chap called Roberts at the Mayo Clinic. A. WILLIAM ROBERTS, JR., & ASSOCIATES 34 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 Q. And he has looked at people who 2 died in 1900 and said there are 300 cases? 3 A. He worked on the reports. The 4 people who have seen the actual tissue would be 6 the people in France, in Germany and Britain and 6 the States in the earlier days. 7 Q. Has anybody currently doing 6 research today looked at that tissue and said, 9 these are mesotheliomas? l o A. No, not as far as I know. 3 3 Q. You are simply basing it on reports 3 2 in the medical literature or old autopsy reports 3 3 where they said, endothelioma; is that correct? 1 4 A. Yes. And their grounds for giving 35 it. 1 6 Q. You are not basing it if they said 3 7 pleural carcinoma, are yovi? 1 8 A . No . 3 9 0 . Okay . And as far as you know, all 20 300 cases said endothelioma; is that correot? 2 1 A . Or pleural tumor. yes . 2 2 Q I f it said pleural tumor, are you 2 3 assuming it's a mesothelioma? 2 4 A . No . They give their des cription. 2 6 Q And what description did they give A. WILLIAM ROBERTS, JR., 6t ASSOCIATES 3 2 3 4 ft 6 7 8 9 10 11 12 13 14 1 ft 36 37 38 39 20 21 2 23 24 2 ft 15 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN for pleural tumor? A. These were descriptions of a tumor arising in the pleura, and they also had fairly good pictures in some of the cases showing the type of the tumor. ,, Q. Tell me who has looked at these from France and Germany, sir, or' which article you're referring to? A . No . There are two big theses. haven't got the actual reference. Q. Are they published? A . No . They were uni vers ity theses the two main ones . 0 . By medical students or by professors or what? A. By -- they were collected by people doing their theses for higher degrees, hut they were qualified. Q. So these are people who have medical degrees who are in graduate school, postgraduate school? A. Postgraduate school. But the list of the cases obviously are being done by the -- Q. And you have looked at pictures that they have put in their theses of these A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 fi 6 7 a 9 50 33 12 33 34 15 16 17 1 ft 39 20 .2 3 22 23 24 25 3 fi DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN people? A. I looked at some of the pictures and the articles. Q. Okay. And these articles were not articles hut thesis work, unpublished? A. They referred to -- this was a collection of the -- these chaps collected the papers and checked on the materials. Q. And they referred in their thesis or theses, they looked in their theses at other articles which you yourself examined? A. I have examined some of them. Not all of them. Q. Which ones have you examined? A . I exam Ined some of the early B r j t j sh ones . Q Just name one or two for me, sir? A . Offhand, I 'm afraid I can 1t. Q You can't name any? A . No. I'm trying to think of this one , but I'm afraid I can 't. It's still part of wo r k t o be done Q. How do you know these people w e r e n 1 t expos e d to asbestos? A . Because one assumes that by 1900 A. WILLIAM ROBERTS, JR., & ASSOCIATES 37 DR. JOHN CHRISTOPHER WARNER - DIRECT RY MR. BRTCKMAN 3 there were too few -- asbestos was right In its 2 infanny, and certainly there was practically no 3 asbestos being used in Europe and a small amount 4 in the states. 5 Q. Just so I know, why do you believe 6 asbestos wasn't being used in Europe prior to 7 3 900? 8 A. If it was used, it was used in 9 very, very small quantities. 1 0 Q. And how do you know whether these a i people were not e>cposed to it? 1 2 A. As far as one can tell, going 1 3 through the history that is available, the 1 4 occupation didn't suggest this. 3 5 n. So it even had their occupations 3 6 before their death? 3 7 A . Not all of them. 3 8 Q Some of them? 3 9 A . Some of them . 20 0 . Do you have this thesis at your 2 3 home? 22 A. Yes. 23 . Q. May I ask you to provide a copy to 24 Mr.Garrard -- 2 5 MR. BRICKMAN: bet me ask you this, A. WILLIAM ROBERTS, JR., ASSOCIATES DR. JOHN CHRISTOPHER WAGNER DIRECT BY MR. BRICKMAN Henry. If he is not going to voluntarily do it, let me know, and I'll get a subpoena. = MR. GARRARD: I haven't seen it. T don't know what it is. I don't know if you're entitled to it, so T am not going to agree, nor is he going to agree. MR. BRICKMAN: All right. (This page nontains information to be supplied by counsel and/or the deponent.) BY MR. BRICKMAN: Q. I -don't know how to issue a subpoena in England, but when you come to the States, we will have one for you, Doctor. MR. BRICKMAN: Just for the record, Henry, you will not agree for the doctor to produce it to me? MR. GARRARD: I don't know what it is, haven't seen it, and T am not going to voluntarily agree nor allow him to voluntarily agree to produce anything that I don't know what it is or haven't seen, nor do I know it has any relevance at all to what his testimony is about in these three cases. MR. BRICKMAN: Let me ask you this, Mr. Garrard, while we are on the record. I know A. WILLIAM ROBERTS, JR., & ASSOCIATES 39 OR. JOHN CHRISTOPHER WARNER - DIRECT BY MR. BRICKMAN 3 you are not the doctor's lawyer. What right do o you have to tell him not to produce It? ~ What can 3 it hurt you? 4 MR. GARRARD: I don't know what it 5 is. I'm not under oath. fi MR. BRICKMAN: Lawyers don't have 7 to he under oath to tell the truth; they are 8 expected to. 9 MR. GARRARD: I don't know what it 3 0 is, and I am not going to agree to something I 3 1 don't know what it is, nor would you. 3 2 BY MR. BRICKMAN: 3 3 Q. Doctor, tell me specifically what 3 4 it is you have. 1 5 MR. GARRARD: Excuse me, tell me -3 6 BY MR. BRICKMAN: 3 7 Q. This thesis. Tell me what it is. 1 0 A. A copy of a German thesis and a 3 9 French thesis. 20 Q. And do you know the title of these? 2 1 A. I'm afraid not offhand. 22 Q. Do you know the names of any author 23 2 4 A. I wo VI 3d have to look this up. 2 6 n. Do you have an English translation A. WILLIAM ROBERTS, JR., & ASSOCIATES 20 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 or just the German and French version? 2 A. The German and French version. 3 Q. Is there an abstract with it of 4 some sort in English? 5 A. No, there isn't. I got the 6 occupations of the German cases translated. 7 Q. Do you speak German? ft A . No . 9 Q. Who interpreted it for you? 1 0 A. This was interpreted by -- as far 1 1 as it has been interpreted, by a woman who teaches 1 2 German. 1 3 Q. Did she write out the 1 4 interpretation for you? 1 5 A. Wrote out the occupations, yes. : 6 But most of these -- most of these cases occurred 1 7 also in Roberts' article from the Mayo Clinic. 1 8 MR. GARRARD; I do know which one 1 9 that is, Mr. Brinkman. 20 MR. BRICKMAN: I'm glad to hear 2 1 that, Mr. Garrard. 2 2 BY MR. BRICKMAN: 2 3 Q. So you haven't read the German 24 thesis,then? 2 ft A. No. I checked the names against A. WILLIAM ROBERTS, JR., & ASSOCIATES 2I DR. JOHN CHRISTOPHER WARNER - DIRECT BY MR. BRICKMAN 1 the other two. 2 Q. But you have it in your possession? 3 A. Yeah. 4 Q. What university did it come from? 5 A. Now that's got me. 6 Q. How about the French thesis, have 7 you read that one? 8 A. Yes. That's from Paris. 9 Q. Okay, from Paris. And do you ID remember the name of any doctor on that thesis? 11 A. No. 12 Q. And you understand French well 13 enough to read it yourself? 14 A. Yes . 15 Q. Now, have you ever come across any 16 case of mesothelioma. Doctor, where you did not 17 find asbestos fibers upon proper examination? 18 A. Personally, no. 19 Q. And do you know whether there was 20 any examination of these hundred cases that you 21 referred to before 1900? 22 A. No,there was none. 23 Q. No examination of the lungs to see 24 if there were asbestos fibers? 25 A. No. A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1ft 19 20 21 22 23 24 25 22 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN Q. The 100 cases you have referred to, did they come from different parts of the world, or were they limited to certain countries? A. They were reported, as far as 1 remember, mainly from France and Germany and Britain. A few from the States. Q. And is it your opinion that France, Germany and Britain weren't using asbestos prior to 1900 at all, and in the United States just a little bit was being used? Is that correct? A. I'll put it the other way around. As far as I know, Chrysotile was being used in the States, but the amounts of material coming into Europe by 1900 wouldn't be sufficient time for the tumors to develop if they were associated with asbestos. Q. All right. Just want to clarify if. So you are now saying there was ashestos in Europe before 1900, but not sufficiently enough time prior to 1900 for a proper latency, in your opinion; is that correct or incorrect? A. Very small amounts were coming in, yes. Q. So let's clarify. There was asbestos in Europe prior to 1900? A. WILLIAM ROBERTS, JR., & ASSOCIATES 23 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN (' '1 A. As far as I know, 1890. o Q. 1890 is the cutoff date? - 3 A. Yes. 4 Q. Was there any asbestos here prior f> to 3890, in your opinion? 6 A. Not that I know of. 7 Q. How about the United States? ft A. I think slightly. A very small - 9 we know about minimal amounts being used in the 3 0 middle ages, but minimal, really. 3 1 Q. Dootor, in your opinion, are there I 2 known causes of mesothelioma other than asbestos? 3 3 A. Claimed. I think the only one that 1 4 really comes out clearly is radiation. 1 5 Q. So the only -- I don't mean to cut 1 6 you off. Let me just clear it up, and you can add 3 7 on whatever you want. 3 8 So the only other thing that you 3 9 know of or you believe to a reasonable degree of 2 0 medical certainty that can cause mesothelioma 2 3 other than asbestos is radiation? 22 MR. GARRARD: Wait a minute. 2 3 MR. BRICKMAN: Just object to the 2 4 form. Object to the form, Henry, and give me a 25 break. * A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 33 14 1S 16 17 ]8 19 20 21 22 23 24 25 24 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN MR. GARRARD: I object to the form, because he said the only one that has come out c1 ear 1y. MR. BRICKMAN: I'm trying to c 1 a r 1 fy . MR. GARRARD: But you are taking and restating things in a positive fashion that he hasn't said. MR. BRICKMAN: Tha t's why I'm asking i t again. I want to clarify that, Mr. Garrard. MR. GARRARD: 1 know, but I wish you would clarify it within the parameters that he said as opposed to something that serves your purposes more beneficially than what he said, and T ohjsnt to the form. MR. BRICKMAN: I,et's do this. Mr . Garrard. Why don't you object to the form of the quest ion , and I agree you can add the grounds later, so you don't have any problem telling the witness what to say. MR. GARRARD: I am not telling the witness what to say. I am trying to, as best I can in my meek way, to keep you from making statements that say, so what you just said. Doctor A. WILLIAM ROBERTS, JR., & ASSOCIATES 25 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 Is, when that is not what I understood the doctor 2 to say. If you simply would reask your -quest ions 3 in a fashion that fit what his answer was, then I 4 wouldn't have to object. 5 BY MR. BRICKMAN: 6 n. Doctor, to a reasonable degree 7 medical certainty, what other known causes of 8 mesothelioma are there besides asbestos exposure? 9 A. Well, there is exposure to Erionite 10 fiher. Radiation treatment seems to be the other 1 1 one that is fairly clear. Obviously, like any 1 2 other -- there must be a lot of causes we don't 1 3 know. 1 4 Q. For all we know invaders from space 1 5 are coming down and zapping us with ray guns. Tt 1 6 could be anything; is that correct? 1 7 A , No. There area lot of cause 1 8 which we have gotten out of the course. 1 9 Q But the only finer- you would 20 attribute mesotheliomas to would be asbestos 2 1 exposure , Erionite and radiation; is that c. orre 22 A. That's correct. 2 3 Q. What kind of radiation are you 24 referring to? 2 6 A. Mainly on previous radiotherapy. A WILLIAM ROBERTS, JR. & ASSOCIATES 26 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN Q. So if somebody has some .sort of disease you're referring to, and they get some sort of radiation treatment for it, that's what you're referring to? A. Yes. Q. You are not referring to somebody who goes in and gets chest x-rays or x-rays of a broken leg? A. No. No. 3 0 Q, Okay. And about how many cases of 3 3 radiation mesotheliomas are you aware of? 3 2 A. I think about -- a recent article 3 3 has been written on this. I think he refers to 1 4 about five other cases, about six cases. 3 5 Q. Six cases. And which article are 1 6 you referring to, sir? 3 7 A. This is an article which is about 1 8 to appear in Thorax. 3 0 Q. About to appear? 2 0 A. Yeah. 2 1 Q. And whose article is it? 2 2 A. It's been written from Israel. 23 Q. Okay. And who is the author of 24 this soon-to-appear 2 6 A. I don't know. A. WILLIAM ROBERTS, JR., & ASSOCIATES 3 2 3 4 5 6 7 e 9 1 0 13 32 33 14 3S 16 17 38 39 20 21 22 23 24 25 27 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN Q. How do you know about the article? A. I was asked to referee it. Q. To referee it. That means to see if it makes sense? A. Yes. Q. And who asked you to referee it? A . The j ourna1. Q Who specifically on the journal? A . I think it was Dr. Allen Gibbs who is one of the editors. Q. So Dr. Allen Gibbs is somebody who you have done some work with in the past? A. Yes. Q. And he, in fact, is a witness in these cases for Mr. Garrard, isn't he? A. Yes. Q. And he asked you to review this article from Thorax? A. For Thorax. Q. Did he say anything about the article? A . No . Q. Just said I want you to referee it. nothing else? A. Nothing else. A. WILLIAM ROBERTS, JR. & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN Q. And this article said there were six cases of radiation therapy mesotheliomas? A. Described it. Q. And they had no asbestos exposure? A. No asbestos exposure. Q . Were any of them men? A ,. The main case was a woman, I think. , One was a woman? A ., T think there were some men in it. The ones he mentioned, I think there were some men among those Q. You say there is a main case. Do they mostly talk about one case in that article? A . No, the article is mainly on the one case, but he quotes the other s from the literature. Q. So apparently he discusses in that article, the author we're referring to, one case in particular; and he says he has found in the literature four or five other cases? A . Pour or five other cases. Q Have you seen those four or five other cases in the literature? A . No . 0 . Dr. Wagner, let me ask you to A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 fi 7 8 .8 10 33 12 13 14 16 16 17 38 19 20 21 22 23 24 25 29 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN assume somebody has a mesothelioma, and they had an occupational exposure to asbestos. Would you then state that the most likely cause of that mesothelioma was the asbestos exposure? A. I think it would depend upon the severity of the exposure. Also the estimation of the amount of asbestos in the lungs, if it can be done . Q. Well - -- A . If the tissue is ava liable. Q I f the person had an occupational exposvire to asbestos for two or more years, let's say, and you couldn't do a study to see how many fibers there were, but you had a mesothelioma, would you then say that the most likely cause of that mesothelioma was asbestos exposure? MR. GARRARD: Object to your hypothetical, because I do not believe when you say, quote, occupational exposure for two or more years, that you give him factual parameters with which to answer that question in anything more than a speculative fashion. Object to the form. BY MR. BRICKMAN: Q. Go ahead. Doctor. A. It would depend upon the intensity A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 i5 i6 17 28 19 20 21 22 23 24 25 30 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN of the exposure and also on the type of fiber to which he was exposed. Q. Well, assume the intensity was sufficient for your purposes. What do you mean by the type o f fiber he was exposed to, then? A . It would have to be amphibole fiber. Q would you at If he had amphibole fiber, then .bute the mesothelioma to his araphibole as bes;tos exposure? A . We're saying a fairly intense exposure, yes . wouId? Q So the answer would be yes, you A . One would consider it, yes. n . No, not one would consider it. WouId it not be the most likely cause? A . Well, the timing afterwards would have to fit. Q Latency you're referring to? A . Yes . Q. And if the latency fit, would you then say i t was most likely due to asbestos? Ye A . Intense exposure to amphibole asbes t os for a two-year period, and he developed 0 A. WILLIAM ROBERTS, JR., & ASSOCIATES 31 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 tumor more than 20 years later, one would consider 2 i t , yes . 3 Q. No , no, not one would consider i t . 4 MR . GARRARD: Wait a minute. 5 BY MR. BRICKMAN: 6 Q I ' m asking you if it is the mos t 7 likely cause. 8 MR . GARRARD: Wait a minute, 9 Mr . Brickman, the doctor is entitled to answer the 10 question in whatever fashion he wants to. When he 11 says onewould consider it, that seems to he the 12 terminology he is using. That doesn't entitle you 13 to try to force him to use your terminology, and I 14 object to that. 15 BY MR. BRICKMAN: 16 Q. Is it the most likely cause, 17 Doctor? 18 A. Tt would be, yes. 19 (Whereupon, an off-the-record 20 conference transpired.) 21 (Whereupon, the Court Reporter read 22 the question commencing on page 31 line 17 and the 23 answer concluding on page 31 line 19.) 24 BY MR. BRICKMAN: 25 Q. Now, let's talk about latency for a A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 a 4 5 6 7 8 9 1D 11 12 ]a 14 19 16 17 18 39 20 21 22 23 24 25 32 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN minute. Doctor. You just said if it were a 20-year latency period. Now you are aware that shorter latency periods cause mesotheliomas. aren't you? A . They have been claimed after 15 years, ye s. that? Q Haven't you seen them shorter than A . No . n . N ever ? A . No . n . so the shortest latency period you have ever heard of was IS years? MR. GARRARD: No, you asked him if he had ever seen them. BY MR. BRICKMAN: Q. Okay, heard of or ever seen. Doctor? A. Obviously there have been shorter ones claimed. Leave out the childhood mesotheliomas which seem to be not associated with asbestos and different causes of the tumor. The tumor would be unknown. Q. So the shortest latency.period you have seen in the literature or seen yourself is 15 A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 o 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN years? A . Yes. Q. Doctor, let me give you a hypothetical, sir. Let me ask you to assume that somebody has an exposure to amphibole asbestos of a sufficient intensity to satisfy your criteria but that the latency period was less than is years. Would you then be of the opinion to a reasonable degree of medical certainty that that asbestos exposure was not the cause of the mesothelioma ? MR. GARRARD: Wait a minute. Just a minute. I object to your hypothetical, because you are not giving the doctor enough information about which to make a reasonable conclusion, number one, and you are trying to set up some general question, perhaps, because you have some other case in mind. I don't know. But that has nothing whatsoever to do with these three cases about which he is here to testify. And I object to that, further. But to jxist ask the hypo the t i ca 1 s you have asked is not giving him enough parameters to come to any reasonable conclusion. BY MR. BRICKMAN: A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 ft 9 30 13 32 33 34 15 36 37 38 39 20 21 22 23 .2 4 25 34 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN Q. Go ahead. Doctor; you can answer. please. MR. GARRARD: Doctor, If you have sufficient information with which to answer the question, you can answer it. THE WITNESS: I don't know sufficient information. BY MR. BRICKMAN: Q. What are you missing? A. Missing the latency or elapsed period which one feels essential to developing the tumor. Q. That's what I'm trying to get at. Your opinion would be that no matter what the exposure was, even if it was sufficient to cause a mesothelioma, you would not attribute that mesothelioma to asbestos because it was shorter, the latency period was shorter, than 15 years? A. Well, I think this is a hypothetical question. Q. Yes, sir. Is that correct? MR. GARRARD: I again object, because that is not what he said, number one. And numher two, he doesn't have enough information with which to answer such a hypothetical. A. WILLIAM ROBERTS, JR., & ASSOCIATES 35 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 BY MR. BRICKMAN: 2 Q. Well, doctor if you don't have 3 enough information -- is that what you're saying, 4 you don't have enough information? 5 A. What I'm saying is that as far as I s know, the latest period that has been accepted is 7 15 years. This becomes a never ending question. 8 If you accept 35, would you accept 13, would you 9 accept 34? 1 0 Q . That's what I 1m asking; would you 1 1 accept 14? 1 2 A . I still feel T would like to have 1 3 15 yea rs. 3 4 Q. But would you accept 34? 3 5 A . Th1e wouId be a unique experience. 1 6 Q But you would accept it? 1 7 MR. GARRARD: He didn't say he 3 8 would accept it . 3 9 MR. BRICKMAN: He said a unique 20 experience. That means a unique experience he 2 1 would accept 22 MR. GARRARD: He didn't say that. 2 3 THE WITNESS: No. Wha t I was 24 saying, this is a situation which as far as I know 2 5 has not aris en. There have been a few cases A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER DIRECT BY MR. BRICKMAN claimed less than 15. Mostly they have been shown not to be mesotheliomas. Q. Would you accept a 14-year latency period? A. If there was sufficient asbestos in the lungs and there was the right type, yes, I am afraid I. would. Q. And would you accept even lower years for a latency if there was sufficient asbestos fibers in the lung and the right fiber type? - MR. GARRARI) : Doctor - Mr. Brickman, I object. MR. BRICKMAN: Glad you're talking to me instead of him. MR. GARRARD: I object to your continuing hypothetical, because I do not believe the doctor has enough information with which to go on down the road with you to a never ending thing. I think that's an unfair question to the doctor to continue that. I also think it has nothing whatsoever to do with the cases that we are here about today. I have no desire to prolong this deposition to the depths to which one might take A. WILLIAM ROBERTS, JR., S ASSOCIATES 37 DR. JOHN CHRISTOPHF.R WAGNER - DIRECT BY MR. BRICKMAN 1 it into the North Sea if we're going to continue 2 along this type of track and would ask you to 3 please give that some consideration. 4 But I do object to continuing this, 5 because I think you are, perhaps not purposely, 6 but you are placing the doctor in a position 7 without adequate information that is not a fair 8 position. 9 MR. BRICKMAN: T want to be fair to 1 0 the doctor. I want to give him adequate 1 1 information. And all I want to know is what's the 1 2 shortest he would go for latency period if there 1 3 was sufficient exposure and sufficient number of 1 4 fibers, what's the lowest you would go for latency 3 5 period. Doctor? 1 6 MR. GARRARD: Doctor, if you can 1 7 answer the question, answer the question, but I do 1 8 ask you not to speculate. 1 9 THE WITNESS: When I say 15, that's 20 the latest that has been accepted by the courts in 2 1 this country. 22 BY MR. BRICKMAN: 2 3 q . Courts in this country? 24 A. And 1 have got no evidence of cases 2 8 occurring with a less latent period that genuinely A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 23 22 23 24 25 38 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN turned out to be a mesothelioma. Q. I am not concerned about the courts in this country, not to be disrespectful. If I were to give you examples in the United States of latency periods in the United States where the courts have accepted that, would that change your opinion? MR. GARRARD: I sure hope not, Doctor. THE WITNESS: No. BY MR. BRICKMAN: Q. What difference does it make with the courts? MR. GARRARD: He didn't say the courts. He said that he had seen, cither. BY MR. BRICKMAN: Q. Well, he tossed out the courts of England, that that had some significance? A. No. The latest, where a person put forth the statement that the mesothelioma was due to asbestos after a 15-year latency period. Q. You heard this from who? MR. GARRARD: I think he is talking not an individual; I think he is talking the lowest he has heard of in general. A. WILLIAM ROBERTS, JR., & ASSOCIATES 39 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 BY MR. BRICKMAN: 2 Q. Is your interpreter correct? 3 A. Yes. 4 Q. And that's the lowest you have seen 5 in the medical literature; is that correct? 6 A. Yes. That's the lowest I have 7 accepted. 8 Q. You have accepted, okay. Have you 9 seen in the medical literature reports of less 1 0 than 15 years? 1 1 A. Yes. There was a terrific argument 3 2 ahout a case with less than one year's exposure. 1 3 Q. And did you not accept that? 14 A. No. 3 5 Q. Why not? 1 6 A. Because the tumor turned out not to 1 7 be a mesothelioma. 1 8 q. Have you heard or seen any other 1 9 reports in the medical literature of less than 15 20 years other than the one you just referred me to? 2 1 A. I have seen claims, yes, but I 22 don't know if they are authentic. 23 Q. Do you have any reason to dispute 2 4 their authenticity? 25 A. Well, one would like to see the A. WILLIAM ROBERTS, JR. & ASSOCIATES 40 DR. -70HN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 tissue of the background and find out more about 2 the exposure. 3 Q. But do you have any reason to 4 dispute their authenticity other than the fact 5 that you haven't seen it yourself? 6 A. No. But as I said, these cases 7 lack the statement of the amount of exposure. 8 Q. How much exposure do they have to 9 have for you to be satisfied? ' 10 A. I would say that as far as we go, 11 this is purely -- the work that we are doing would 12 be 1 million amphibole fibers of the specific 13 size -- in the specific size range of a diameter 14 of less than 0.25 microns and a length of greater 15 than 5 microns. 16 Q. In any of the cases you have 7 examined for Mr. Garrard out of the Texas group 18 that you have seen, did you count the number of 19 asbestos fibers? 20 A. No. The tissue wasn't available 21 for doing this. 22 Q. Are you In any way disputing any of 23 those cases on the basis that there wasn't 24 sufficient exposure? Let me clarify that 2 5 quest ion. A. WILLIAM ROBERTS, JR., fit ASSOCIATES 41 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 Are you disputing the diagnosis of 2 mesothelioma in any of the three cases on the 3 grounds that there wasn't sufficient exposure? 4 MR. GARRARD: The diagnosis 5 itself? 6 BY MR. BRICKMAN: 7 Q The diagnosis Itself? 8 A . No . The diagnosis was on the 9 histology and the information received from the 1 0 United States 1 1 Q. So in those cases, you have seen 1 2 from Texas, you are assuming that there was 1 3 sufficient exposure to cause a mesothelioma. 1 4 MR . GARRARD: Tha t's not what he 1 5 said. 1 6 MR . BRICKMAN: I want to ask him 1 7 that. 18 MR . GARRARD: I know, but you are 19 making the grand s tatements, Mr. Brickman, that he 20 hasn't said. He simply said in response to your 2 1 question that exposure was not the basis for 22 disputing the diagnosis -- 23 THE WITNESS: These were 24 histological. These were the diagnoses, were they 2 5 mesotheliomas or not. Three of the cases they A. WILLIAM ROBERTS. JR., & ASSOCIATES 3 2 3 4 5 6 7 fl 9 10 33 32 33 34 35 36 37 16 39 20 23 22 23 24 25 42 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN were definitely mesotheliomas. BY MR. BRICKMAN: Q. Do you know anything about the exposures in these three individuals? A . V e-r y little. Q. Excuse me. I didn't mean to interrupt you. Doctor. Go ahead and finish. MR. GARRARD: Wait a minute. He is confused. He is confused, because he is not aware that what you are talking about right now is Harris, McBryde and Warrick. That's all we're talking about, Doctor, is Harris, McBryde and Warrick. That's what he is asking you about is just those three coses. BY MR. BRICKMAN: Q. Let me then clarify. Have you looked at other cases for Mr. Garrard other than those three out of Texas? A. I have looked at another three cases, but purely on histological grounds. Q. You have looked apparently at six cases for Mr. Garrard? A. Yes . Q. Out of which only three are you A. WILLIAM ROBERTS, JR. St ASSOCIATES 3 2 3 4 5 6 7 8 9 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 24 26 43 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN going to be testifying in? A. Yeah. MR. GARRARD: Well, while we are talking about that, I have told you before we came over here that he has looked at the Gray case, and that there is more material going to him about the Gray case. And he will not be deposed about that case today, because I don't know what he is going to do in that case until he has gotten everything. And as you recall, we agreed that we will do a telephone deposition at some point. So I don't want to go into that case because he is not through, and he is not being offered in the other cases. MR. BRICKMAN: Can I ask him which cases? MR. GARRARD: No. bet's get to these cases, Mr. Brickman, instead of wasting time. (Whereupon, an off-the-reeord conference transpired.) MR. GARRARD: Doctor, let me say this to you. At any time you need to take a break, you feel free, because this is not an A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN endurance process. BY MR. BRICKMAN: Q. Absolutely, Doctor. And I'm sorry I didn't tell you that. Whenever you want to stand up, go to the bathroom, get something to drink, take a lunch hreak, you tell us. MR. GARRARD: We are going to get through by lunch I feel sure. (Whereupon, an off-the-record conference transpired.) BY MR. BRICKMAN: Q. With regard to the three oases we're looking at today, Mr. Harris, Mr. McBryde and Mr. Warrick, are you in any way disputing the diagnoses of mesothelioma on the basis of lack of sufficient exposure? A. Not at all. Not on the basis of that. Q. Well, when you say not now... MR. BRICKMAN: Mr. Garrard, let me ask you this -- and you may or may not answer it -- to determine what questions I have to ask. Do you intend, Mr. Garrard, to pose a hypothetical to the doctor as to the exposure in any of those three cases so as to bolster his opinion that A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER DIRECT BY MR. BRICKMAN those are not mesothe]iomas? MR. GARRARD: His diagnosis, as I understand it, is not formed on the basis of what the exposure was in relation to mesothelioma, so I do not intend to pose a hypothetical to him that says, Doctor, assuming X exposure, does that have a bearing on your opinion as to whether or not it's a mesothelioma. MR. BRICKMAN: You will not ask that question? MR. GARRARD: That's correct. Not in relation to whether or not it is a mesothelioma. His opinions in relation to that, as I understand them to be, come from his examination of the materials in the case, not as to what the exposure was as far as whether or not it's a mesothelioma. MR. BRICKMAN: But just so I'm clear that you are not going to come to trial and say, now. Doctor, in support of that, if his exposure was only so-and-so, does that support your opinion or the diagnosis of some other doctor that says it's mesothelioma, you are not going to in that? . MR. GARRARD: I don't understand A. WILLIAM ROBERTS, JR. & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER DIRECT BY MR. BRICKMAN what you are asking me, Michael. I have tried to he clear as to what I have said. BY MR. BRICKMAN: Q, Doctor, do you know what the exposures are in these three individuals? A. As far as I gather from the notes, I know what the exposures are. Q. What notes are you referring to? A. The hospital notes and further information from Mr. Garrard. Q. You have in front of you some papers; is that correct, Doctor? A. Yes. Q. Could I take a look at those, please? A. This is going back to what we went through before. (Whereupon, a recess transpired.) BY MR. BRICKMAN: Q. Doctor, you have given me some handwritten notes as well as what appears to be the initial draft of your typed report? A. Yes. Q. Is that correct? Could you tell me when the handwritten notes were done in these A. WILLIAM ROBERTS, JR. & ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 fi 16 17 1R 19 20 "2 1 22 23 24 25 47 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN cases? A. The handwritten notes were done over the last few weeks. Q. And is that the case for all of the handwritten notes? A. Yes. Q. None of them were done last night or today? A. No. One or two minor additions. that's all. Q. One or two additions were made last night nr today when you met with Mr. Garrard? A. Yes. Q. Could you just look through there and tell me which ones were additions made while you spoke to Mr. Garrard? - A. On the Billy Harris, there was a discussion whether the thing was a biopsy or a bloody tap on the 9th of the 12th, *87. Q. You are identifying the handwritten notes of Billy Harris. You were looking at the back page, top line date, and it is a date 9-12-87, and I can't read what's written thereafter, but that was information yovi added on last night? A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 ft S 10 11 32 1 ft 14 1 ft 16 37 18 19 20 -2 3 22 23 24 25 46 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN A. Yes, just the fact that it was a hlondy tap of a pleural effusion. I mentioned it was a blood clot containing occasional cells, groups of cells which were suspicious of malignancy. 0. repo rts, sir? Anything else added to any of those A . Just the fact that the -- o . Before you tell me what i t is, tell me which report you're referring to. A . Horace McBryde. McBryde? Q- The handwritten report of Horace A . And it was on t he -- Q . The hottom of the first page? A . Yes. Confirmation that the left lung seemed to be clear on the 1st of the 6th, '88 and 3 st of the 10th, 'ftft. Q Anything else, Doctor? A . No . 0 There are some other pages that are on a pad that are not separated as some of the other reports are. A . No. Were those added? As far as I know. t h os e are old. A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 8 9 30 11 12 33 34 15 16 37 38 39 20 -2 3 22 23 24 25 49 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN Q. Would you look at all of them just to be sure, sir? . A. Yes, there was. Q . Wait a minute. Could I just see what you are looking at, Doctor? You apparently have some other handwritten notes. A. This just says that -- McBryde, bronchoscopies on the 8th of the 22nd, '87 and 7th of the 20th, '87 showed no abnormality. Q. And that was added last night? A. That was added last night. Q. Is tha t it? A. That's it, yes. Q. One page slipped out, just so you keep them all together, the typed page. MR. GARRARD: Right there. (Whereupon, an off-the-record conference transpired.) BY MR. BRICKMAN: Q. Doctor, I notice at the bottom of some of your typed reports', you have some penned in comments? A. Yes -- Q. Let me just ask my question. please. Just so it flows correctly on the A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN transcript. When were those handwritten comments made, because they are not on my typed reports? A. No. This was put on as an aid to memory about a week ago, so I knew I could remember these two tests. Q. Were those two tests run on the tissue that you had? A. They were. Yes, they were. Q. And which two tests were those? A. The R human chorionic -- that's why I put them down; I always forget it -- gonadotropin, and the carcinoembryonlc antigen. always forget which the CEA is. I Q. I notice in your reports where you refer to the CEA, but I don't notice where you referred to the other. A. That came in the notes in later work to be done. MR. GARRARD: The first one, Michael, so you won't be confused is a test that was done in the normal course of treating the individual as opposed to a test that was run by laboratories over here. A. WILLIAM ROBERTS, JR. & ASSOCIATES 61 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 BY MR. BRICKMAN: 2 Q You did not run other than the 3 CEA -- we 11 , strike that. I'll ask as we get to 4 it . 6 Doctor, do you believe that 6 asbestos can cause lung cancer in humans? 7 A . If there is sufficient heavy S exposure, yes . Sufficient exposure to cause 9 asbestos is. 1 0 Q And what do you refer to as a 1 1 sufficient exposure, just the ability to cause 1 2 asbestosis? 1 3 A . Yes . 1 4 Q And why do you require asbestosis 1 5 in order to attribute a lung cancer to asbestos 1 6 exposure? 17 A. In all the investigations we have 1 ft done. 1 9 Q. And who is we, while you're 20 explaining? -2 1 oo 23 A . The team I worked with. Q Go ahead. Just tell me the team and then carry on with your answer? 24 A. Myself. Dr. Pooley and the people 26 who referred specialists to us in the various A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 o<_ 3 4 5 6 7 8 9 10 11 a2 13 ]4 1 ft 16 17 1B 19 20 21 22 23 24 25 52 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN parts of.Britain. Q . Who? _ A. Mainly came from the pneumoconiosis panels . n. Wh.o ? A. We were working down in Davenport. Q. I need names. Doctor. A. Dr. J. P. Lownes [phonetic] was mainly responsible for seeing we got the tissue. Q. Anybody else in that proverbial we that you're referring to? A. No. The basis of the technical stuff and the basis of the question was receiving lungs from people who had mesotheliomas, and these came in from various parts of Britain, but mainly from the dockyards down in Davenport. Q. Again, I don't want to interrupt you, but I think we are on two different wavelengths. I'm talking about lung cancers. A. Lung cancers. MR. GARRARD: Why don't you reask your question, so he will know what you're asking, Mr. Brickman. ' BY MR. BRICKMAN: Q. You are telling me. Doctor, that in A. WILLIAM ROBERTS, JR. & ASSOCIATES . * 3 , oC- 3 4 5 6 7 8 9 10 11 12 13 ]4 15 16 17 18 39 20 ~21 22 23 24 25 < 53 DR. JOHN CHRISTOPHER WAGNER - DIRECT RY MR. BRICKMAN order for you to attribute a lung cancer to asbestos, you required asbestosis? ~ A. Yes. Q. However, you didn't say you, you said we. You didn't say I require. You said we require asbestosis. What I first want to ask you. who is we? By name, who is we, and then tell me why you require asbestosis. A. This Is -- Q. First of all who is we? A. This is mainly Dr. Pooley and myself and the technical staff who assisted on this matter. Q. Who is the technical staff? Are they medical doctors? A . No . Q. Then we've got we. Now, why do you require asbestosis? A. And the work that we did with Dr. Newhouse, Dr. Rossiter and Pooley and myself on cases from London. All these cases showed that when you have the carcinoma in these cases, these were asbestos cases, the carcinomas had a very high presence of fibers in the lungs. And this came out with heavy dosage. A. WILLIAM ROBERTS, JR., & ASSOCIATES 54 . DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN l 1 Q. Okay. But why did you have to have 2 asbestosis as opposed to just a lot of fibers? 3 A. Well, this is fitted in from the 4 oases that Sir Richard Doll reported onwards, that 5 the people having the heavy exposures developed 6 the tumors. 7 Q. But not everybody who has a heavy 8 exposure gets asbestosis, correct, or do they? 9 A . No , not everyone. 1 0 Q But isn't it possible for them to 1 1 have a heavy exposvire, not get asbes tosis, but get 1 2 an asbes tos lung a a n c e r ? 1 3 A . No . 1 4 Q Why not? 15 A. Because -- this has just come out 16 of all the epidemiological studies and the reports 17 and the practical stuff we did. People 18 rad1o1ogica11y, clinical asbestosis, who were 19 heavy smokers who developed carcinomas. 20 Q. Yes, sir, but they also found in -21 these studies that they had people who didn't have 22 asbestosis who did have lung cancer,didn't they? 23 MR. GARRARD: Excuse me. Object to 24 that because he hasn't said that. 25 MR. BRICKMAN: Well, I'm asking him A. WILLIAM ROBERTS, JR., & ASSOCIATES 3 2 3 4 5 6 7 8 9 10 33 32 33 34 15 16 37 38 39 20 21 22 23 24 25 55 PR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN t ha t . MR . GARRARD : No , you 1 re .not . You're telling him that. BY MR. BRICKMAN: Q. Doctor, did they .find cases of lung cancer without ashestosis in the ones you have just referred to? A. The ones I just referred to, the cases that they found with lung cancer without asbestos were people who had very minimal exposure, and one assumed the lung cancer was associated with the cigarette smoking rather than the asbestos. Q. It was assumed, but you had people who had lung cancer who had asbestos exposure who did not have asbestosis, correct? - A. Well, I think if you put the fact that we all have a certain amount of asbestos exposure. These are people with the absolute minimum amount of fiber in their lungs, Q. Are there not also people who have intense exposure to asbestos who do not have asbestosis but who also developed lung cancer? A. I think as far as I know, the figvires in this country of people who smoke who A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 6 9 10 11 12 13 14 15 16 17 18 ,1 9 20 -2 1 22 23 24 25 56 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN have asbestosis and are diagnosed by the pneumoconiosis panels is about 70 percent develop lung cancer or mesothelioma. Q. So that if you have asbestosis, 70 percent of those have developed lunij . ... or mesothelioma? A. Yes. Q. Okay. A. See, and cigarette smoking is the major factor. Q. But the 70 percent that you referred to, you attributed part of the cancer to asbestos exposure? A. Part of the cancer to asbestos exposure. Q. Now, let's go off a bit. Let's get away from that for a second. Mesothelioma. To attribute a mesothelioma to asbestos exposure, you don't require asbestosis, do you? A. No. You require evidence of ashestos exposure and a certain number of amphibole fibers in the lungs. Q. That's your criteria? A. Yeah. Q. But you do not require the dosage A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN suf ficient to have caused asbestosis? A . No . - Q. Now, mesothelioma' is a type of cancer, isn't it? A . A type of cancer, yeah. Q. Yes? A . Yes . Q. Explain to me. Doctor, why you require asbestosis for a lung cancer to be attributed to asbestos exposure, but you don't require it for mesothelioma? A. I think this is one of the problems which hasn't been solved. Mesotheliomas do occur with less asbestos in the lungs than you need for lung cancer. Q. But we also develop lung cancer with lower levels of exposure, but you just don't attribute them to asbestos. How do you know it's not that lower level of exposure? A. All the surveys, as far as I know, that have been done have all taken these to be a higher level of exposure. Q. Now, Doctor, surely you have read of studies in the medical literature that said that asbestos can cause lung cancer without there A. WILLIAM ROBERTS, JR.. & ASSOCIATES 56 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 being concurrent asbestonis, haven't you? 2 A. I have seen some. I wondered about 3 the basis of those. But certainly in our 4 experience, this doesn't occur. 5 Q. You've seen only one? ft A. No, I have seen several. 7 Q. Oh, several, okay. Which ones have 8 you seen? 9 A. There have been several from 3 0 Selikoff's laboratory. 3 3 Q. Would you agree with me that Dr. 3 2 Selikoff is an authority in asbestos-related .3 3 diseases? 3 4 A. Yes. 3 5 Q. And is there any reason to dispute 3 6 his work in that area? 37 MR. GARRARD: Excuse me. 3 8 BY MR. BRICKMAN: 3 9 Q. And if so, tell me why. 20 (Whereupon, an off-the-record 2 3 conference transpired.) 2 2 MR. GARRARD: Dr. Wagner has not 2 3 said that Dr. Selikoff in his judgment takes the 2 4 position that one need not have asbestosls. 2 5 MR. BRICKMAN: Well, I will clarify A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER - DIRECT RY MR. BRICKMAN tha t, then. MR. GARRARD: In fact. Dr. Selikoff's latest data would seem to Indicate things contrary to that, Mr. Brickman. (Whereupon, an off-the-record conference transpired.) BY MR. BRICKMAN: Q. Doctor, let me just clarify something. When you referred Jo Selikoff's group, were you also referring to Dr. Selikoff? A. T thought he had suggested this did happen. T know Nicholson has. Q. Bill Nicholson is an authority in the field of epidemiology and asbestos-related diseases? A. He has done considerable work. Q. You don't consider him authoritative? I'm not saying you agree with everything he says. But do you consider him one of the authorities in the area, even though you may not agree with everything he says? A. I consider him one of the persons who has done a considerable amount of work in the area. Q. I guess that's close enough. I A. WILLIAM ROBERTS, JR., & ASSOCIATES 60 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 guess that's probably as close as I'm going to 2 get. _ 3 Let me ask you toassume, Doctor, 4 you have an individual who has an occupational ft exposure to asbestos over a long period of time, 6 and he develops lung cancer, and he is a cigarette 7 smoker, but he does not develop asbestosis. Would r you be of the opinion that asbestos played no role 9 in causing that cancer7 1 0 MR. GARRARD: If he didn't have 11 asbestosis? 1 2 BY MR. BRICKMAN: 1 3 0 . He did not have asbestosis? 1 4 A . I would attribute the disease to I 6 cigarette smoking. 1 6 Q 100 percent to cigarette smoking? 1 7 A . Well, the -- 1 8 Q Did asbestos play- any part in it, 1 9 even a sma11 role? 20 A . We know that cigarette.smoking 2 1 played a very much greater part. 22 Q - But did asbestos play some role or 23 even a smal1 role in that cancer in that 24 particular c a se? 2 5 MR. GARRARD: I object to your % A. WILLIAM ROBERTS, JR. & ASSOCIATES 63 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 question, your hypothetical at this point, because *> you are now asking him to speculate, and he has 3 told you that he would attribute cancer to 4 cigarette smoking. And to take it any further 5 Without further facts is to aslt him to speculate. 6 BY MR. BRICKMAN: 7 Q. Go ahead, Doctor. Would you 8 attribute some small part of that cancer to that 9 man's asbestos exposure? 1 0 A. I think this is speculation. But 1 1 basically -- if he had the lung sufficiently -- 1 2 heavy exposure, one would be in a difficult 1 3 position to say this played no part. 1 4 Q. Okay. All right. How would you 1 6 know, though, that cigarette smoking played the 1 fi greater part? 1 7 A. This has come out clearly in the 1 8 investigations both of Selikoff and Doll and 1 9 Jeffery Berry; the major carcinogen of the two is 2 0 the cigarette smoking. 2 1 Q. But how do you know in that 2 2 particular case cigarette smoking itself played 2 3 any role? 2 4 A. If he has been a heavy smoker for 2 5 the periods you mentioned and he developed a A. WILLIAM ROBERTS, JR., & ASSOCIATES 62 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 carcinoma, one would assume that cigarette smoking 2 is the - - - 3 Q Why? 4 A . This has come out on all the 5 s t u d i e s that they have done on the association 6 between cigarette smoking and lung cancer. 7 Q Well , there have been tests showing 8 that ciga r e 11 e smoking can cause cancer, correct? 9 A . Can cause lung cancer, yes. 1 0 Q And there have been tests that have 1 1 shown that as hestos can cause lung cancer, haven't J 2 there? 1 3 A . But to a much lower degree. 1 4 Q But you would agree with me that 1 ft ashes(os can cause lung cancer, can't it? 1 6 A . If it causes asbestosis, yes. 1 7 Q It can cause lung cancer, though? 1 8 A . Yes . 1 9 Q . All right. That cigarette smoking 20 example, is there something specific about the 21 tumor that shows it's a cigarette smoking cancer 22 as opposed to an asbestos cancer? 23 MR. GARRARD: Wait a minute, 24 Doctor . 25 MR. BRICKMAN: That's a pretty A. WILLIAM ROBERTS, JR., & ASSOCIATES 63 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. RRICKMAN 1 simple question, now, Henry. 2 MR. GARRARD: But I don't remember 3 now what your hypothetical was, about.which I 4 presume you are now still trying to ask 5 questions. 6 MR. BRICKMAN; I have given him all 7 the facts. 8 MR. GARRARD: I don't know that you 9 have given him all the facts, and I object to, 3 0 quote, that cigarette smoking example or whatever 1 1 it was you just said, because I don't remember 1 2 what your hypothetical was. 1 3 MR. BRICKMAN: Based on the fact 3 4 you don't remember, you have an objection, and you 1 5 can think of it later. You can find it out later 1 6 and go back in the record and object as well. 1 7 MR. GARRARD: No, I don't want to 3 8 do that. I guess I'm asking you, would you 3 9 restate your hypothetical, because if I have 2 0 forgotten it, the doctor may have forgotten what 2 3 it vi as, and I don't want something stated here 2 2 that is not appropriate. 2 3 MR. BRICKMAN: Be happy to. 2 4 BY MR. BRICKMAN: 2ft Q. Doctor, in the case that I gave you A. WILLIAM ROBERTS, JR., & ASSOCIATES 64 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 3 where a person had a long exposure to asbestos of 2 an occupational nature, and he was a cigarette 3 smoker, and he developed lung cancer, but not 4 asbestosis, why do you attribute it to the 5 cigarette smoking and not to the asbestos? Was P there something specific about a tumor that you 7 can attribute it to cigarette smoking as opposed e to some other cause? 9 A. The point -- I think -- the chap, 1 0 if he has got no primary fibrosis due to exposure 1 3 to asbestos, it is very unlikely to be a factor in 1 2 causing the disease. 1 3 Q. Well, why -- sorry. 1 4 A. The original -- there are so few 3 5 noncigarette smoking asbc3tos workers who develop 3 6 the tumor, that the original tumor, as far as I 1 7 know, was peripheral adenocarcinoma, and now all 3 8 types of carcinoma occur with the exposure to 3 9 asbestos -- sorry, with exposure to asbestos and 20 cigarette smoking. 2 3 Q. But is there something, though, 2 2 specific about a tumor that you can look at and 23 say that's a cigarette tumor as opposed to an 24 asbestos tumor? 2 5 A . No . A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER DIRECT BY MR. BRICKMAN Q. Do you require some evidence of other damage to the lungs from cigarette smoking such as emphysema so that you know that's a cigarette tumor? A . No , not necessarily. Q . Why not if you require other exposure -- other disease from asbestos? Why don't you require other disease from cigarette smoking? Do you understand my question? A. I understand your question, yes. This comes out. This is the epidemiological association between cigarette smoking and development of lung cancer. Q. But doesn't.the epidemiology also say that asbestos can cause lung cancer? A. If there is evidence of asbestos damage to the lung. Q. But there is sort of a circular logic, isn't there. Doctor? As long as you require asbestosis to attribute a lung cancer to asbestos exposure, you automatically exclude all those lung cancers where there was asbestos exposure but no asbestosis. MR. GARRARD: Wait a minute. Is that a question? That's a statement. A. WILLIAM ROBERTS, JR., & ASSOCIATES 66 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR, BRICKMAN 1 MR. BRICKMAN: I'm asking him, 2 isn't that the logic he is working under? 3 MR. GARRARD: Excuse me. Object to 4 that because he has told you that epidemiologic 5 evidence is different for the two diseases and the 6 two substances. 7 BY MR. BRICKMAN: 8 Q. Do you understand my confusion, 9 Doctor? 10 MR. GARRARD: I don't. 13 THE WITNESS: T don't. 32 BY MR. BRICKMAN: in n . Surely, Doctor, you have come ,14 across cases -- 15 MR. GARRARD: Wait a minute. Did 16 you finish your answer? 17 THE WITNESS: I was saying that in 18 my belief, one needs evidence of asbestosis before 19 one can associate the asbestos exposure with 20 development of the lung cancer. 21 Q. But you don't need it - 22 A. Whereas the cigarette smoking, 23 heavy cigarette smoking, you may find signs of 24 excessive mucous production and emphysema, but 25 these aren't essential. A. WILLIAM ROBERTS, JR., 6 ASSOCIATES 67 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 Q. That's my confusion. Why aren't 2 they essential if you require some other damage to 3 the lungs from asbestosls? 4 A. This is the nature of the disease. 6 I can't answer it. 6 Q. In any of your studies that you 7 have done, have you ever come across asbestos 6 workers who got lung cancer who did not have 9 asbestosls? 10 A. In my opinion, no. 11 Q. You have never seen a case of a 1 2 lung cancer in an asbestos worker who did not have 1 3 asbestosls; is that correct? 1 4 A. Yes, I have seen it, but I have not 1 5 attributed it to the -- 1 6 Q. Why didn't you attribute it? 1 7 MR. GARRARD: Wait a minute. Did 1 8 you finish your answer? Did you finish your 1 9 answer? 20 THE WITNESS: Yes. 2 1 BY MR. BRICKMAN: ` 2 2 Q. Why didn't you attribute it to the 23 asbestos exposure? 2 4 A. Because I firmly believe that you 2 5 need evidence of primary fibrosis due to asbestos A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 a 4 5 6 7 8 9 10 11 12 13 14 1 ft 16 17 18 19 20 21 22 23 24 25 68 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN before you do it. Q. Is there a scientific reason for that that you've got to have some scarring In the lung? Is it the scarring that causes the asbestos lung cancer? I really have never understood why you have to have asbestosis first. I'm not trying to trick you, Doctor. I know there are cases of lung cancer in asbestos workers. Why couldn't that asbestos have caused that lung cancer without causing asbestosis? A. I would just say.that my belief is that you would need lung damage, primary fibrosis. Q. Why? Is there some mechanical process? A. Possibly a means of attaining the asbestos in the lungs in cases where there is fibrosis. Q. You mean you're just giving possibilities? You don't have any theory as to why you require the asbestosis? A. I think the material has got to remain in the lung tissue for a long time to cause the disease. It's retention. Q. But you can have asbestos fibers in A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 ft 9 10 11 12 13 14 16 16 17 18 19 20 21 22 23 24 25 69 PR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. RRTOKMAN your lung all your life and not get asbestosis, A . Yes, I agree with that. o . Why isn't that retention sufficient to cause lung cancer? A . I 'think we're going into the field of speculation as to why it happens. I don't he!ieve there is any proof for the reason why it happens. Q. But it does happen. We know they get lung cancer. We know they have asbestos in their lungs. They just don't have asbestosis. What T want to know is what scientific basis is there to say that you have to have the fibrosis as opposed to just the fibers? MR. GARRARD: I object to the repetitive nature of your questions. He has already told you that he is basing it in part on his own work and in part on the epidemiology. MR. BRTCKMAN: I want to know specifically what he is basing it on, Henry. Maybe I'm wrong. I don't think the doctor knows for sure. I want to know the answer. MR. GARRARD: This is not so mysterious to you. You have heard many other A. WILLIAM ROBERTS, JR., & ASSOCIATES 70 DR. JOHN CHRISTOPHER WAGNER - DIRECT RY MR. BRICKMAN 1 doctors express the same opinion, so don't act so o shocked . - ' 3 MR. BRICKMAN: I have never 4 understood it for those doctors who hold that, 5 opinion why they hold that opinion. 6 BY MR. BRICKMAN: 7 Q. Go ahead, Doctor. ft A. The reason is on the cases we have 9 done, that you find a large number of fibers, 1 0 whereas mesothelioma occurs among people with 1 1 slight, low retention of fibers. The lung cancers 1 2 and the asbestosis occur both among people with 1 3 the large number of fibers in their lungs. And 1 4 the large number of fibers that are associated in 1 5 these cases with the fibrosis. 1 6 Q. But haven't you seen cases of 1 7 retention of large amounts of fibers without 1 ft asbestosis? 1 9 A. Rarely in our work. 20 Q, I'm sorry? 2 1 MR. GARRARD: l'n our work rarely. 2 2 BY MR. BRICKMAN: . 2 3 Q. But you can have? You can have - 2 4 strike that. At what point do you have a high 2 5 retention of fibers? What number are you A. WILLIAM ROBERTS, JR. & ASSOCIATES 73 OR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 referring to. Doctor? 2 A. I'm referring to something like 100 3 million. 4 Q. Have you seen cases where you have 5 had 100 million -6 A. 300 million fibers per gram dry 7 weight of lung. 8 Q. Have you ever seen cases where you 0 found that number, and they didn't have 1 0 asbestosis? .1 1 A. Amphibole fibers and, to the best 12 of my recollection, they have all had fibrosis, 3 3 but T may be wrong on this. 1 4 Q. Let me just ask you to assume, 1 8 since we don't know for sure, that some of them 1 6 didn't- hLbrosis, okay? They obviously had a 1 7 lot of exposure, but if we assume there was some 3 8 cases where there was no fibrosis, would you then 3 9 be in a position Jo say that in those cases that 20 that retention was sufficient to cause lung cancer 2 3 even without the fibrosis? 22 A. I think one would- have to consider 2 3 it, but I am not sure. 24 . Q. It might be able to cause it 2 5 without the fibrosis under those circumstances; is f fi UTr.r.T AM ROBERTS, JR., & ASSOCIATES 72 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 that correct? o A. Well, I think one would have to 3 consider It, yes. 4 Q. You wouldn't rule it out under 5 those circumstances? 6 A. No, I would want more proof. 7 Q. You would want more proof of what? 8 A. Of the people with this very high 9 count not having any fibrosis at all. 1 0 Q. Okay, that's fair enough. As long 3 1 as we have that, you would consider it then? 1 2 A. Yes. 1 3 Q. You would not rule out asbestos as 1 4 a cause under those circumstances? 1 5 A. The chap is not a cigarette smoker? 1 6 Q. He may or may not be. What I'm 3 7 asking you is, if you have that retention that you 1 8 require,' whatever that number was, would you 1 9 attribute the asbestos exposure -- or the lung 20 cancer, I'm sorry -- would you attribute the lung 2 1 cancer in part to the asbestos exposure, given 2 2 that high retention? 23 2 4 smoking? 25 MR. GARRARD: In the absence of MR. BRICKMAN: I didn't say in the A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WARNER DIRECT BY MR. BRICKMAN absence of smoking. I'm saying it doesn't make a difference whether he smoked or not. I'm asking. THE WITNESS: If he was smoking, put it much more towards the smoking. BY MR. BRICKMAN: Q. But would you put part of it t o the asbestos? A. Would consider it, yes. Q , And when you say you would consider it, what would give you the impetus to say, yes, asbestos played a part? What more would you need? MR. GARRARD: If you know, Doctor. BY MR. BRICKMAN: Q. If you know. A. I have always considered that there must be some fibrosis in the lung before one accepts this. Q. But the reason you say you have got to have fibrosis is because you want to be able to say there has been sufficient retention of specific fibers? A. Holding the fibers in a specific place, specific parts of the lung. Q. Well, now, you're not saying the A. WILLIAM ROBERTS, JR., & ASSOCIATES 74 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 cancer arises from the site of the fibrosis, are 2 you? . 3 A . No . ' 4 Q. You're just saying it has to be 5 sufficient fiber retention in the lungs; is that 6 correct? 7 A. Yes. 8 Q. If you have sufficient fiher 9 retention in the lungs without asbestosis, you 1 0 still meet your criteria, don't you? 1 1 A. If you have -- 3 2 Q. Sufficient fibers in the lungs for 1 3 sufficient periods of time, you still meet the 1 4 criteria for attributing a lung cancer at least in 3 f> part to asbestos exposure; is that correct? 1 6 A. Is it a true or hypothetical 1 7 situation? 1 8 Q. It's a hypothetical. We don't have 3 9 a specific situation. As a hypothetical, you 20 would then have it, wouldn't you? 2 3 A. Well, as a hypothetical situation, 22 one would have to consider it, yes. 2 3 Q. And not only -- you keep using the 24 phrase consider it, Doctor. You might.also 2 5 consider these space invaders zapping somebody? A. WILLIAM ROBERTS, JR., & ASSOCIATES 75 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN ] A . No . 2 Q. Would you then be of the -opinion 3 that more likely than not that asbestos played 4 some role in that cancer? 5 MR. GARRARD: Doctor, Mr. Brickman 6 is asking you again a hypothetical on fairly 7 scanty infcrmatinYi, and I ask you not to 8 speculate. If you give him an opinion based upon 9 your knowledge of science and literature and your 1 O experience at this point, that's fine; but T ask 1 1 you not to speculate. 1 2 BY MR. BRICKMAN: 3 3 Q. Go ahead. Doctor. Would you then 1 4 be of the opinion that asbestos played some role 1 6 since we had sufficient retention for sufficient 1 8 period of time? 1 7 MR. GARRARD: In a nonsmoker? 1 8 MR. BRICKMAN: Smoker or 1 9 nonsmoker. It doesn't make a difference. 2 0 THE WITNESS: I'm not sure of that .2 1 amount of fiber in your lung without causing a 22 react ion. 2 3 BY MR. BRICKMAN: 2 4 Q. Your theory, as I understand it, 2 ft would be satisfied so that you would attribute at a WTT.T.TAM ROBERTS, JR., & ASSOCIATES 76 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 3 least part of the lung cancer to asbestos; Is that o correct? . - 3 MR. GARRARD: No. 4 THE WITNESS: I'm saying I would be 5 surprised to see a chap with so much asbestos in 6 his lung and no reaction. 7 BY MR. BRICKMAN: 8 Q. Okay. But if you did, if you 9 did -- it's a hypothetical. Doctor. Give me the 1 0 hypotheticaJ. If you did find that person, would 3 1 you then attribute the lung cancer in part to the 1 2 asbestos? 3 3 A. I need more evidence than one 3 4 case. This is a sort of change in the crux to the 3 S whole problem. 3 8 Q. How many cases would you need? 3 7 A. This is getting - 3 8 MR. GARRARD: This is getting into 3 9 real speculation, and I would ask you not to 20 speculate. And I would object to any further 2 3 questions at this point. 22 BY MR. BRICKMAN: 2 3 Q. Doctor, how many cases have you 24 seen of lung cancer in individuals who had 2 5 asbestos exposure but not asbestosis? A. WILLIAM ROBERTS, JR., & ASSOCIATES 77 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 2 smokers? MR. GARRARD: Who were not 3 MR. BRICKMAN: Doesn't make a 4 difference. ft MR. GARRARD: Sure it does. ft BY MR. BRICKMAN: 7 Q. I am asking how many individuals he 8 has seen who were asbestos workers who did not 9 have ashestosis who had lung cancer. How many l n have you seen? i i A. The cases that I can remember that 1 2 T have seen with lung cancer and heavy asbestos 3 3 exposure have all had fibrosis. 1 4 MR. BRICKMAN: Let me take a couple 3 ft minute break if you don't mind to go to the 3 6 bathroom. Is that okay. Doctor? 1 7 THE WITNESS: Okay. 1 8 (Whereupon, a recess transpired.) 3 9 BY MR. BRICKMAN: 2 0 0 . Doctor, do you smoke ? 2 3 A . No . 22 Q Did you us ed to smoke? 2 3 A . Yes . 2 4 0 Okay. You just recently 2 ft A . No. 1969. A. WILLIAM ROBERTS, JR., & ASSOCIATES 78 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 Q. 1969 you quit, okay. And how long 2 did you smoke for? _ 3 A. I suppose about 20 years. I think 4 from '51 to `69. 5 q . But from 1 969 on, you have not 6 smoked any cigarettes? 7 A . No . 8 (Whereupon, an off-the-record 9 conference transpired.) 1 0 BY MR. BRICKMAN: 1 1 Q. Doctor, other than the research you 1 2 mentioned earlier, are you doing any other 1 3 research? 1 4 A. We're involved in -- 1 5 Q. And who is we? When you say we, 1 6 I've got to ask you. 1 7 A. The group, Dr. Pooley, Pr. Gibbs 1 8 has taken over most of my stuff, and myself. We 1 9 are trying to find out the incidence of tumors 20 related to Amosites in this country and South 2 1 Africa. . 22 Q. Okay. And have y'all found cases 2 3 of tumors caused by Amosite? 2 4 A. At the present moment, with very 4o. Oi; heavy dosage -- we haven't sort of completed the * * A. WILLIAM ROBERTS, JR., & ASSOCIATES 79 DR. JOHN CHRISTOPHER WARNER - DIRECT BY MR. BRICKMAN 1 work, and we haven't gotten material precisely we o wish to .have. Very initial stuff, mainly, and 3 trying to get the material. 4 Q. Do you have the opinion that 5 Amosite can't cause tumors? 6 A. I -think very high dosage, if you 7 get enough of the fine fibers, it probably can. 8 Not much less than the -- the blue fiber. 9 Q. Can Chrysotile cause tumors, in 1 0 your opinion? 1 1 A. Excessive exposures to Chrysotile 1 2 will cause asbestosis. 1 3 Q. And if you have asbestosis, can you 1 4 then have the tumors? 1 5 A. Then you can have the tumors. 1 6 Q. So Chrysotile can cause the tumors 1 7 if you have the asbestosis? 1 8 A. Yes. These mesotheliomas, we still 1 9 feel that Chrysotile itself does not cause 20 mesothelioma. 2 1 Q. But Chrysotile can cause lung 2 2 cancer, cancers, and so can the Amosite, and so 2 3 can the Crocidolite? 2 4 A. Gan cause, yes, lung tumors. And 2S Tremolite, yes. A. WILLIAM ROBERTS, JR., & ASSOCIATES 80 OR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 Q. And Amosite can cause mesothelioma? 2 A. This is a matter that is-still 3 tinder investigation. Probably with very heavy 4 dosage. b Q. Probably can cause mesothelioma; is 6 that correct? 7 A. Yes. 8 Q. Other than you and Dr. Gibbs, do 9 you know anybody who is of the opinion that 1 0 Amosite cannot cause mesothelioma? 1 1 A. Certainly in South Africa, I think 1 2 they are going at the most, four or five 1 3 mesotheliomas associated with Amosite compared to 1 4 thousands associated with the Crocidolite. 1 6 o. No, you missed my question. Other 1 6 than you and Dr. Gibbs, do you know anybody who is 1 7 of the opinion that Amosite cannot cause 1 8 mesothelioma? Strike that. Do you knot/ anybody 1 9 who says Amosite cannot cause mesothelioma other 2 0 than perhaps Mr. Garrard's client? 2 1 A. If it does -- 22 Q. No, no. 2 3 MR. GARRARD: Wait a minute. 24 BY MR. BRICKMAN: 2 5 Q. Do you know of anybody? A. WILLIAM ROBERTS, JR. & ASSOCIATES 81 OR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 MR. GARRARD: Hold It. 2 THE WITNESS: It was my view for a 3 long time, and the cases are still coming through. 4 BY MR. BRICKMAN: 6 Q. Doctor, can you name for me any 6 person who believes Amosite cannot cause 7 mesothelioma ? ft MR. GARRARD: Do you understand his 9 quest 3 on? 3 0 THE WITNESS: Yes. I think it 1 3 depends -- it appears to have caused a few. 3 2 BY MR. BRICKMAN: 3 3 Q. You're not understanding my 3 4 question, Doctor. Name me names; name people - 3 S> give me the names of anybody who in your opinion 3 6 believes Amosite cannot cause mesothelioma? Who 3 7 believes t ha t ? 3 8 A. I think at the present moment this 3 9 is why it's being investigated. 20 MR. GARRARD: I don't know what 2 1 your confusion is, Mr. Brickman. He hasn't told o 2 you that, number one, on present evidence he knows 2 3 it doesn't; and number two, he hasn't told you 2 4 that he is knowledgeable of people talcing that 2 5 position. A. WILLIAM ROBERTS, JR., & ASSOCIATES 82 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 MR. BRICKMAN: Well then all he has 2 got to say is he doesn't know of anybody. 3 BY MR. BRICKMAN: 4 Q. Do you know anybody - 5 MR. GARRARD: Don't shout, please. 6 BY MR. BRICKMAN: 7 Q. -- who believes Amosite can't cause 8 mesothelioma? Do you know anybody like that? Yes 9 or no. 1 0 A . At the present moment, no. 1 1 Q Do you know anybo.dy who says 1 2 Amosite can't cause lung cancer? 1 .3 A . No. If it causes fibrosis, it will 1 4 cause lung cancer. 1 5 Q. Do you talk to Dr. Gibbs on a 1 6 regular basis? 1 7 A. Yes, I do. 1 8 Q. And did you talk to Dr. Gibbs about 1 9 these three cases that you reviewed for Mr. 20 Garrard? 2] A. After we reviewed them, yes, we did 2 2 have a discussion, because he is taking over most 2 3 of my staff and all the histochemistry that is 24 done there. 2 6 Q. Okay. So the person that did your A. WILLIAM ROBERTS, JR. & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER DIRECT BY MR. BRICKMAN histochemistry is the same person that did Dr Gibbs' histochemistry? * A . Yes . Q . You yourself did not do the histochemist ry ? A . I do not have the facilities. Q Did you oversee whatever, the staining ami whatever else is done, for the histochemist ry and the immunohistoehemistry? Did you oversee it in some fashion? A . No". I saw the results. Q And the results you aw were the si ides thems elves, or did you see the report of the technioi an ? A . No, the slides themselves. Q You saw the slides, and you said. either it's stained positive or negative? A . Yes . Q Okay. At the time you saw the slides and it ade your report of whatever the staining she wed, had you discussed with Dr. Gibbs what he had found? A . No. We looked independently and then we came around to discuss the his to chemistry n . Did he do separate stain.ings from A . ^ ILLIAM ROBERTS, JR., ft ASSOCIATES 84 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 yours? 2 A . No . - 3 MR. GARRARD: The stains were done 4 a t the same laboratory, Mr. Brickman. 5 BY MR. BRICKMAN: f; Q . Okay, that's what I'm asking. 7 A . They were the same. 8 0 , So the same stain you saw, he saw? ' 9 A . Yes. 1 0 Q And did he provide you with any ] 1 j n forma tion -- this is Dr. Gibbs -- that you did 3 2 not have yourself? 1 3 A . Well, he had the -- 1 4 0 . Other than the stainings that were 3 5 done? 3 6 A . No . 1 7 Q What did y'all discuss? 1 8 A . We discussed the positivity or 1 9 negative nature of the staining. 20 Q . Did you take any notes? 2 1 A . The notes are here. 2 2 o . Did you take any other notes from 2 3 that meeting 9 24 A I wrote them on a paper. it's not 2 5 here. A. WILLIAM ROBERTS, JR., & ASSOCIATES 85 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 2 sir? a Q Where do you have them? . Where, - A . I can't remember. I just wrote 4 down pos itive or negative as the stuff may be, 5 Q When you wrote down positive or fi negati ve -- 7 A . What one found from looking at the 8 sect ions 9 Q - Did you look at them at the same 1 0 time t ha t Dr. Gibbs looked at them? 1 1 A . No, we looked at them separately, 3 2 and then we looked at them together. 1 3 0 Were you up in -- where is his lab? 1 4 A . In Pernarth. 1 S Q . How do you spell that? 16 A . PERNARTH. 1 7 Q Okay, Pernarth. When you looked at 3 6 them in Pernarth, did you look at them on the same 3 9 day that Dr. Gibbs looked at them? 20 A . No, he had looked at them earlier. 2 1 o . He looked at them before you? 22 A . Yes. We did have a combined look 23 after. 24 n . Did the combined look change your 25 opinion in any way as to whether the staining was A. WILLIAM ROBERTS, JR., & ASSOCIATES 86 PR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 more positive or less positive? 2 A . No . 3 Q. Do you have any handwritten notes 4 as to what you found on examining the stains? 5 A. Not retained, no. fi Q. You threw them out? 7 A. Uh-huh. 8 Q. Is the answer yes? 9 A. The answer is, as far as I know. 1 0 yes . 1 1 Q. You just mentioned a few minutes 1 2 earlier that you had some handwritten notes that 1 3 you thought you had that you may have kept? 1 4 MR. GARRARD; He said he made 1 5 some. He never said he kepi them. 1 6 BY MR. BRICKMAN: 1 7 Q. You made some other notes? Did you 1 8 throw away all of your other notes? 1 9 A. I think I have still got some. 20 Q. Which ones do you have? 2 1 A. Just the write-up on the positivity 22 of the tests. 2 3 Q. Okay. Do you have a problem with 2 4 providing those to Mr. Garrard and giving them to 25 me? A. WILLIAM ROBERTS, JR., & ASSOCIATES 87 PR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN ( 1 MR. BRICKMAN: And, Mr. Garrard, do 2 you have a prcjj..,. .j ih.it,. nr do I need to 3 subpoena those as well? 4 MR. GARRARD: I haven't seen the 5 notes, Mr. Brickman, so I don't know. 6 BY MR, BRICKMAN: 7 Q. Doctor, let me ask you not to throw P. those nut, okay? And these are your handwritten 9 notes on the staining; is that correct? TO A. Yes. I don't know If I have got IT them. I've got some handwritten notes roughly on 12 it. 13 (This page contains information to 14 be supplied by counsel and/or the deponent.) 15 Q. Do you have any material here at 16 the hotel other than what's in front of you, 17 Doctor? 18 A. A few notes, yes. 19 Q. Let's take a break and let me ask 20 you t n go get those , Doctor. 2 1 MR . GARRARD: No . 2 2 MR . BRICKMAN: No, Mr. Garrard * ,2 3 don ' t play games with me. If he has notes, I want 2 4 to s ee them . It's upset ting with me. 2 5 MR - GARRARD: Don't get upset. I A. WILLIAM ROBERTS, JR. , . & ASSOCIATES R8 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 don't know what he has got. I don't know if 2 you're entitled to anything. He is not "u nder .3 subpoena, so the truth is you are not entitled to 4 them . ,5 MR. BRICKMAN: I'm going to ask him 6 to produce them. If not, I am going to call 7 Texas. 8 MR. GARRARD: I would like you to 9 call Judge Parker. I think he would like getting 1 O up at 5:00 AM in the morning. I don't know what 1 1 the notes are . 1 2 MR. BRICKMAN: They are here in the 1 3 hotel . 1 4 MR. GARRARD: Don't shout. This is 1 5 not; a Charleston or Barnwell hot e1 . 1 6 MR. BRICKMAN: You're playing games 1 7 with me. 18 MR. GARRARD: Nobody is playing 1 9 games. T don't know what the notes are. Nobody 20 is playing games. If anybody is playing games - 2 1 we have been here for two hours. 22 MR. RR1CKMAN: This doctor is 2 3 telling me he threw away notes, and he knows he 24 . has them in the hotel room. 2 6 MR. GARRARD: He hasn't said that. A. WILLIAM ROBERTS, JR. & ASSOCIATES 89 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 Let's not get into that situation. 2 MR. BRICKMAN: Let's get*'down to 3 the nitty-gritty. I would like to see the notes. 4 Are you going to produce them and if so -- ft MR. GARRARD: Are we going to get 6 through at lunchtime? 7 MR. BRICKMAN: We are obviously not 8 going to get through at lunchtime. 9 MR. GARRARD: Why are we wasting 1 0 time when we haven't talked about any of these 1 1 cases? 12 MR. BRICKMAN: You may refer to it 1 3 as wasting time. Perhaps you are wiser than me. 1 4 This is the way I fumble through depositions. I 15 do the best I can. I try to get to the points I 1 6 am making, but at this point in the deposition, I 1 7 would ask you to produce those notes, whatever 1 8 notes he has. Whatever he has got on those cases, 1 9 let me see it. 20 MR. GARRARD: I don't know what the 2 1 notes are. 2 2 MR. BRICKMAN: Let's go look at 2 3 them, Henry. 24 MR. GARRARD: Why don't we go on 2 5 until lunchtime. A. WTLLIAM ROBERTS, JR., & ASSOCIATES 90 I)R. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 MR. BRICKMAN: Now is a good time. 2 We are right on point. They're in the fiotel. It 3 can't be more than five minutes. You'll say yea 4 or nay, Michael. ' 5 MR. GARRARD: But you are not 6 entitled to them, Mr. Brickman. 7 MR. BRICKMAN: I'm asking you to 8 produce them. 9 MR. GARRARD: When I look at them. 1 0 I'll see. 1 1 MR. BRICKMAN: Because now is the 1 2 time I am discussing it. Now is the time I'm 1 3 talking about what his handwritten notes will 1 4 show. Now is the appropriate time. Will you 1 5 please do it now, Mr. Garrard? ] 6 MR. GARRARD: See, it sets a bad 1 7 precedent, Mr. Brickman, when there is no subpoena 1 8 if I voluntarily let you look at these notes 1 9 without any quarrel. 20 MR. BRICKMAN: Mr. Garrard, are you 2 1 going to produce them or not? 2 2 MR . GARRARD: I don't know. 2 3 MR . BRICKMAN: Would you go look 2 4 and tell me what you are going to do? 2 5 MR . GARRARD: I don't have them. A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 _4 5 6 7 8 9 ?0 ]1 12 18 14 15 16 17 18 19 20 -2 1 -2 2 23 24 25 91 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN MR. BRICKMAN: Wei], go get them, please. Are you going to do it or not? . MR. GARRARD: I'm thinking about it. (Whereupon, a recess transpired.) BY MR. BRICKMAN: Q. You have now handed me, Doctor, some additional notes that you had up in your room; is that correct? A. Yes. Q. And these are on Mr. McBryde, Mr. Warrick, and Mr. Harris; is that correct? A. Correct. Q. And they have at the top, medica1-1egaI case, Texas series? A. Those are Dr, Gibbs'. Q. Are these all Dr. Gibbs' notes? A. Yes. Q. Do you have any notes of your own? A. Well, the writing on there is mine. MR. GARRARD: There is some writing on there which is his, Mr. Brickman. BY MR. BRICKMAN: Q. Let me ask this question -- A. WILLIAM ROBERTS, JR., 6t ASSOCIATES 1 2 3 -4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 .2 1 22 23 24 25 92 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN A. I just took the thingdown roughly and compared the results. Q. Other thanyour handwritten notes that are on these documents, do you have any other papers with regard to these cases? A. No. MR. GARRARD: He has already shown ynu some. BY MR. BRICKMAN: Q. Other than the ones you have showed me this morning, do you have any other notes, typed, handwritten, anything on these cases? A . No . Q. Do you have anything at home? A . No . All I have you have there. I've got the other cases at home, yes. Q The other cases at home. But everything on these three cases or general notes you have produced to me and you have nothing els a t home ? A . No . MR . GARRARD: He has got the m e d i c a 1 records we sent him. THE WITNESS: I've got the BY MR. BRICKMAN: A. WILLIAM ROBERTS, JR.. & ASSOCIATES 1 2 3 -4 5 e> 7 8 0 10 31 12 33 34 15 3 fi 37 38 39 20 -2 1 "2 2 23 24 25 93 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN Q. Did you bring the medical records withyoutothehotel? _ A . No . Q . Why not? A. Because 1 have been through them, and I thought that Mr. Garrard would have his share, and they are pretty bulky to carry around. Q. Now, let me take a look at these for a second. Doctor. Bear with me. Do you know whose forms these are that you have given me that have medical-legal case, Texas series? A. Those are Dr. Gibbs'. He gave them to me afterwards, because I saw a limited amount of material, just to show me what the other material wa s. Q. Are the notes that are in pen that are not copied, those are your notes? A. Those are my notes, yes. Q. And when were those notes made? A. These were made the first time I went through the histories. Q. The first time you went through the histories? A. Yes . A. WILLIAM ROBERTS, JR., & ASSOCIATES 94 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 Q. Is that correct? o A. My notes. * 3 Q. The notes that I am referring to 4 that I am showing you that now you just gave me, ft they are typed on there, medica1-1ega1 case, Texas 6 series and on the back of the last page I see some 7 notes. Those are yours? 6 A. Yes. 9 Q. Those were made when, when you 3 0 reviewed the histories? 1 3 A. First reviewed the histories, yes. 3 2 Q. And did you revlew the history up 3 3 at Pernarth? Is that when you looked at the 1 4 medical records? 1 6 A. The medical records T had down in 3 6 Weymou th. 1 7 Q. In Weymouth? 1 8 A. Yes. 1 9 Q. And you looked at the medical 20 histories before you looked at the stains? 2 3 A. No. Because the medical histories oo <_ arrived after I had seen the stains. 23 Q. So you saw the stains and then you 2 4 got the medical histories? 26 A. Yes. A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 '4 5 6 7 ft 9 3n 31 12 33 14 15 36 37 38 39 20 '2 1 22 23 24 25 95 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN Q. When did you get Dr. Gibbs' notes? A. After we had been through the cases. The first time I went through the cases. I had seen everything, and then Mr. Garrard had to get the material back. So I made sufficient notes on the first time through on the histochemistry. I hadn't been through the detail of ail the slides. o. I apologize, would you tell me that one more time? Go through the chronology of when you got materials and when you took notes. A. I went up and saw the cases. Q. When you say the cases, the slides? A. The slides, yes. Q. You saw the elides at Pernarth? A. Pernarth. Q. That's the first thing you ever saw? A. First thing I ever saw. Q. And you saw the slides before you talked to Dr. Gibbs? A . Yes . Q. Did you tell Dr. Gibbs which stains to use or anything like that? A. No. The ones that had been done. A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 '4 5 6 7 '8 9 10 11 22 13 14 25 16 17 18 19 20 21 22 23 24 25 96 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN He had the -- the cases were there, because he had the only opportunity of seeing the cases. Q So before you talked to him at all about it. you saw the slides? A . Yes . Q Is that correct? A . Yes . Q And after seeing the slides, you talked to him about the cases? A . Yeah . Q And at that time, did he give you these items marked medical-legal, Texas scries? A. They were xeroxed. They came down later. These I got on my second visit. There were four visits up there. Q. You went four times to Pernarth? A. Yes. Q. The first time you went to Pernarth, did you look at all three of these cases, Harris, Warrick and McBryde? A. Seven cases -- nine cases. Q. Did you look at all nine cases the first time you went up to Pernarth? A. No. I looked at eight. One was added later. A. WILLIAM ROBERTS, JR. a ASSOCIATES 97 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 3 Q. Is that the Gray case? Is that the 2 Gray case that was added later? ^ 3 A . No . -4 Q. So you looked at eight or nine 5 cases. And as far as you know, of those eight, 6 MnBryde, Warrick and Harris were three of the 7 eight or nine? 8 A. Yeah. 9 Q. What did you go up the second time 1 0 for? 11 A. The second time, I went up to 1 2 receive these notes and see what was left of the 1 3 histo]ogy. 1 4 Q. Okay. What do you mean what was 3 5 left of the histology? 1 ft A. Because what happened was I had a 1 7 look through the cases as far as I could do in a 1 8 limited time, because they had to go back. And 3 9 then Dr. Gibbs had done some extra study on the 20 cases he had left, and I came up and saw those. --2 1 Q. So you saw the initial stains. 2 2 They had to be shipped back to Mr. Garrard? 2 3 A. Yeah. 2 4 Q. Then you came back a second time. 25 and Mr. Garrard shipped them back to you again? + V A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 _4 5 6 7 '8 9 10 al 12 13 14 15 16 17 18 19 20 _2 1 22 23 24 25 98 DR. JOHN CHRISTOPHPZR WAGNER - DIRECT BY MR. BRICKMAN A. No. There had been a certain number of blocks. I never saw the total. There were a certain number of blocks, and on those, Dr. Gibbs had taken slides. Q. And the second time up you saw the slides you hadn't seen the first time around; is that correct? A . I saw them in more detail, yes. n . What do you mean more detail? A . The first time I looked at them, we hadn't a written report. The second time I prepared the report. Q . All right. The first time you just looked at them and didn't make any report? A . No. Q Just your notes? A . Notes, yes . Q- The second time you went up there. you dictated a report or you typed up a report? A. The reports that are here, yes. Q. Before you did the second report, did you have Dr. Gibbs' reports? MR. GARRARD: You mean his notes? BY MR. BRICKMAN: Q. His notes? A. WILLIAM ROBERTS, JR., & ASSOCIATES 99 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 A. Yes. 2 Q. Did you also have his typed report? 3 A. T haven't seen his typed report. ~ 4 Q. You haven't seen his typed report. 5 And before you did your typed report, had you 6 already discussed the case to some extent with Dr. 7 G i hbs ? 8 A. Yes. 9 Q. What- did yo\i go xj p there the third 1 0 time for? 1 1 A. The third time -- the third time 1 2 was to get the reports typed up because I had the 1 3 secretary up there. I had another look at some of 1 4 the cases. And the fourth time I went up there 1 5 for a final look at all the cases. 1 6 Q. Each time you went up there, did 1 7 you discuss them with Dr. Gibbs? 1 8 A. Yes. 1 9 Q. Okay. 2 0 A. At various stages. 2 1 Q. Did you and he disagree about 22 anything in these cases that you recollect? 2 3 A. Not -- not on these -- we disagreed 24 on one of these cases. 2 5 Q. Do you recall what that is? A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 8 9 1 0 11 12 13 14 35 16 17 18 19 20 -2 1 22 23 24 25 100 PR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN A. That was on the final diagnosis on -- not Harris. On Alvin Warrick. Q. And in that case? A. He thought it was a teratoma, and I thought it was an earlier germ cell tumor. And then he showed me further histochemistry that showed he was probably right on the case. Q. Now, Doctor, you mentioned earlier that you had yourself some handwritten notes on the stains themselves? A . Yeah. Q . Where are those? A . Those I didn't keep. Q . You have thrown them all out? A . I have thrown them all out. Q . None at home? A . None at home. Q . None here at the hotel? A . None at the hotel. Q. knowledge? None that exists anywhere to your A . No. Very brief notes, plus, minus. plus, whic h appear in the document. Q . And as of this point in time, there exist no other notes that were written by you or A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 "4 5 fi 7 8 9 10 11 32 13 14 15 16 37 18 39 20 21 22 `2 3 24 25 10 1 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRTCKMAN typed by you on these three cases? A. No. Because -- -- Q. And if they are in your trash can in your hot el, I -- A. They are not in the trash can in the hotel. MR. GARRARD: Mr. Brickman, T don't appreciate that. We do not engage -- MR. BRICKMAN: If we had started out the beginning of the deposition without playing games -- games. MR. GARRARD: Nobody is playing MR. BRICKMAN: Bull. MR. GARRARD: Nor was there any subpoena in regard to this case, Mr. Brickman, that required us to produce anything. MR. BRICKMAN: The doctor didn't remember where his notes are? THE WITNESS: Once the thing was typed, I destroyed the handwritten notes. Possibly now that you mention it, I should have kept them. BY MR. BRICKMAN: Q. It's fine to do whatever you do A. WILLIAM ROBERTS, JR.,'& ASSOCIATES 1 2 3 "4 fi H 7 8 9 30 31 32 13 34 15 3 fi 37 38 39 20 "2 3 22 23 24 25 102 DR . JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN with them, Doctor. We just need to know, the confusion of where the notes were. " MR . GARRARD; There is no confusion. THE WITNESS: Do you need those? MR . BRICKMAN: I'm going to ask for a copy of those. Doctor. Ts there a problem? MR . GARRARD: There may be with me . MR . BRICKMAN: I have got them in my hands; I'm not going to give them back. Can we have a copy for the record? MR . GARRARD: may be a problem. I don't know. There MR . BRICKMAN: If you have a problem, I tv ill have the doctor read them into the record. MR . GARRARD: I haven't said whether I have or 3` don't. MR . BRICKMAN: I want to know if I can attach them to the deposition. MR . GARRARD: I don't know. MR . BRICKMAN: Let's mark them then as exhibits to the deposition ' THE WITNESS : Let's haul in Dr. V A. WILLIAM ROBERTS, JR., & ASSOCIATES 3 n ft '4 ft f> 7 ft 9 10 11 12 33 34 J ft 36 37 3H 39 20 21 22 2 ft 24 25 103 DR. JOHN CHRISTOPHER WARNER - DIRECT BY MR. BRICKMAN 01bbs. MR. BRICKMAN: Let's mark this first one as Exhibit A. It is captioned medical-legal case, Texas series with the name Billy Harris on it. MR. GARRARD: I don't know if I can agree to that. I don't want them marked. MR. BRICKMAN: I am asking to have them marked. MR. GARRARD: We are not going to mark them at this point. I don't know where that puis Mr. Roberts in that situation. T am saying 3 have not agreed to copy them. If I do, then you can mark them. Why don't you get on with the d e p o sition? MR. BRICKMAN: Because we have to identify them. MR. GARRARD: Can you identify them by the name? MR, BRICKMAN: The proper way is to mark them as exhibits. I'm asking that they be marked. MR. GARRARD: I'm saying don't mark them. MR. BRICKMAN: The first one as A. WILLIAM ROBERTS, JR. & ASSOCIATES 104 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 number 1. The second one Is also captioned o medical-legal case, Texas series with the name 3 Horace McBryde on It. That will be number 2. -4 6 MR. GARRARD: so self-righteous. If you wouldn't act 6 MR. BRICKMAN: I think 1 have every 7 righ t to be. 8 MR. GARRARD: You don't even have 9 any right to have them. 3 0 MR. BRICKMAN: If you want to play 1 1 games. The doctor is telling me he has these 1 2 notes. They are at home. 1 3 MR. GARRARD: You're trying to 3 4 imply things that don't even exist. 1 ft MR. BRICKMAN: You're playing 1 6 games, and the doctor is playing games. 1 7 MR. GARRARD: The doctor is not ] 8 playing games. . 39 MR. BRICKMAN: Yes, he is. Number 2 0 3 is entitled medical-legal case, Texas series, - 2 3 Alvin Warrick. -22 (Whereupon, the reports were marked 2 3 as Plaintiffs' Exhibits 1, 2, and 3 for 2 4 identification.) 2ft BY MR. BRICKMAN: * A. WILLIAM ROBERTS, JR., & ASSOCIATES ( V * 1 o 3 ~4 5 6 7 a 9 10 11 12 13 14 15 35 17 3 ft 19 .2 0 "21 22 23 24 25 105 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRTCKMAN Q. Doctor, what are you charging Mr. Garrard an hour nowadays? ~ A. $300. Q. And what do you charge him when you, for instance, fly to Texas for your air time? A. I "have only flown to Texas once. and I didn't charge anything. Q. And you didn't charge anything for your flight? A. Mr. Garrard paid for the flight, yes . Q. You didn't charge him anything for the time you spent flying? A . No . Q. And how many times have you flown to the United States to meet Mr. Garrard? THE WITNESS: About five? Ask Mr. Garrard. BY MR. BRTCKMAN: Q. Your best recollection. Mr. Garrard is going to play coy with me and not answer. MR. GARRARD: Mr. Garrard doesn't have to answer, Mr. Brickman. Somehow we have forgotten what the federal rules are all about. A. WILLIAM ROBERTS, JR., & ASSOCIATES 106 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 MR. BRICKMAN: The doctor was o looking to you for the answer. - 3 THE WITNESS: Can I come off the -4 record for a moment? 5 BY MR. BRICKMAN: 6 Q. Yes, sir, of cour.se, you can. 7 MR. BRICKMAN: Off the record. 8 (Whereupon, an off-the-record 9 conference transpired.) 1 0 BY MR. BRICKMAN: 1 1 Q. Back on. Have you read the 1 2 transcripts of any of your prior depositions. 1 3 Doctor? 1 4 A . Yes. 1 5 Q. Did you read any of them .in 1 6 preparation for today's deposition? 1 7 A. Regretably, no. 1 8 Q. You have been to the United States 1 9 approximately five times to see Mr. Garrard. Have 2 0 any of those visits been in the last year? -2 1 -22 A . No . Q. And I believe you have told me 2 3 previously that in those five visits, you have 2 4 also met with Mr. Jim Crosby and Mr. Bruce Shaw 2 S who represent other defendants in the litigation * * A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN In the United States? A. That's correct. ^ Q. Have you met with them on any occasions when Mr. Garrard was not present in the United States? A. In October, I went over to a meeting. There was a meeting on cancer research in New York by the General Motors Cancer Research Association. And Mr. Bruce Shaw came up, and I had a chat there. Q. Did you talk about matters dealing with asbestos at that time with Mr. Shaw? A. We talked, yes, about the identification of mesotheliomas in man and animals not associated with exposure to asbestos. Q. And this was in October of '83? A. As far as I remember, yes. Q. In the last year, have you met with Mr. Garrard here in England other than last night and today? A. I don't think so. Q. He won't help you. MR. GARRARD: I think I may have seen you once in the past year in England. BY MR. RRTCKMAN: A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 ft 6 7 8 9 10 11 12 13 14 1 ft 16 37 38 19 20 ~2 j "22 23 24 2 ft 108 DR. JOHN CHRISTOPHER WARNER - DIRECT BY MR. BRICKMAN Q. One time perhaps? THE COURT REPORTER: Your response? think. THE WITNESS: I'm just trying to I can't remember. Maybe. I don't remember the occasion. BY MR. BRICKMAN: Q. I saw you approximately one year ago almost to the day, within a couple of days. A. I have seen Mr. Garrard since then. Q . All right, you did see him. And at that time, what did y'all discuss? MR . GARRARD: I'm going to object to that . I don't think you 're entitled to know what I discussed. MR . BRICKMAN : Wait a minute. What are you talking about? Why not? What are your grounds tor objecting. MR . GARRARD: Privilege. MR . BRICKMAN : What privilege? MR'. GARRARD: I don't know. I don't know that you are entitled to that. MR . BRTCKMAN : I sure am. MR . GARRARD: No, you are not. MR . BRICKMAN : You make an A. WILLIAM ROBERTS, JR., A ASSOCIATES 109 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 object!on . 2 MR. GARRARD: I object to that:. 3 BY MR. BRICKMAN: 4 Q. What did you discuss, Doctor? 5 MR. BRICKMAN: I want to hear this 6 privilege later when you think of it. 7 THE WITNESS: The general problems ft of mesotheliomas and asbestos and fibers. 9 BY MR. BRICKMAN: 10 Q. Okay. Did you discuss any specific 11 c a s e s, to your recollection? 1 2 A . Not to my recollection. We did 1 3 discuss the case we were working on. 1 4 Q That was the Greer case? 3 5 A . That was the Greer case . 1 6 Q There were a lot of other things 1 7 that came up at the time? 1 8 A . More genera 1 talk on the pnsitinn 19 of the different fibers and the interpretation of 20 various experiments. And once again the question --2 1 of showing whether they were mesotheliomas in man 22 and animals that occurred spontaneously that were 23 related to asbestos. 24 Q. When you meet with Mr. Garrard, 1 25 assume you charge him your normal hourly fee, A. WILLIAM ROBERTS, JR., & ASSOCIATES I 2 3 -4 5 6 7 8 9 30 11 12 13 34 35 36 37 38 39 20 ---2 1 22 23 24 28 110 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN $300? A . On the time we're working, yes. Q And do you know approximately how much money you derived in 1989 from Mr. Garrard, Mr . Shaw, Mr. Croshy? A . No. The accounting year goes from April to April . I have handed everything over to my accountant. Q So you just handed the material over to your accountant last month? A . Yes . 0 . And you don't recollect how much it was? A . No . Q Do you know how much time you spent on these Texas cases? A . It's been about 12 hours. Q . That's all on all three cases? That includes your first visits to Pernarth? A . No, it doesn't. Going on to about 20 hours. ro o Q How many? A. Q And that includes your four visits to Pernarth, your meeting with Mr. Garrard last A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 o 3 4 h 6 7 8 y 10 31 32 33 14 35 36 37 38 ,3 9 20 ~2 3 22 23 24 26 111 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN night, 20 hours? A . No. Comes to about -- I' h a d n ' t thought about tha t . Q. Ball park. Just a ball park estimate. About "20 to 24 hours? A . 20 to 24 hours. No, it1 s more than that. I haven't assessed it up. o . More than 24, though, now? A . Yes . 0 . Where do you keep those records of how much time you spend? A . In my diary. O . When you say your diary. do yo\i keep a diary where you write notes of what happened during the day, or do you mean in the diary, your calendar? A . Calendar. n . You don't keep a diary s aying T met. Joe Blow today? A . No . Q. But in your calendar, you keep how much time you spend on a case? A . Usual 1y, yes. Q Do you have your calendar with you today? A. WILLIAM ROBERTS, JR., & ASSOCIATES 112 DR. JOHN CHRISTOPHER WAGNER DIRECT BY MR. BRICKMAN 1 A . No . . n Q. And you don't have it in the hotel. 3 either? 4 A . No . ft Q. Okay. Do you still give reports to 6 Mr. Garrard, Mr. Shaw, and Mr. Crosby on a monthly 7 basis on the medical literature that you review? a A. If anything new or interesting 9 comes out. 1 0 Q. And you talk to them approximately 11 once a month still? 1 2 A. One of them once a month. 1 3 Q. And when you talk to one of them 1 4 once a month, who do you send your bill to for 1 ft that work? 1 6 A. Usually the chap I talk to. 1 7 Q. How do you know who to call for 1 8 your monthly report or whatever it is? 1 9 A. This is the person whose work I 20 think I have been doing. . -21 Q. We're talking about two different '22 things. At the last deposition, Doctor, you 2 3 advised me that part of your work for Mr. Garrard, 2 4 Mr. Shaw and Mr. Crosby was to keep up with the 2 5 literature and advise them of current V A. WILLIAM ROBERTS, JR.. & ASSOCIATES 113 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 developments? 2 A. Yes . - 3 Q. Is that still the case? 4 A . Yes. 5 Q. And that you would give them 6 telephone reports approximately once a month? 7 A. On various parts. 8 Q. Yes, sir. And do you still do 9 that, sir? ] 0 A. Unfortunately, this year would be 1 1 more occasional than last year. 1 2 Q. How do you decide who to call, 3 3 whether to call Mr. Shaw, Mr. Garrard or 1 4 Mr. Crosby? 3 r> A Mr. Crosby was especially l fi interested i n the stuff we were doing in South 3 7 Africa, as was Mr. Shaw. 1 6 Q How would you decide whether to 1 9 call Crosby or Shaw, or would you call them both? 20 ~~7. 3 22 23 A No. One or the other. n But you would alternate? A Well, it would just depend where we were on the -- it's not really done on a regular 2 4 basis, as I explained last time. 25 * Q When is the last time you talked to A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 '4 S 6 7 8 9 10 11 12 13 14 15 1 fi 17 18 19 20 2 1 22 23 24 25 114 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN Mr. Shaw and Mr. Crosby, then, by telephone? A. J spoke to Mr. Shaw about two months ago. Q. And that's the mast recent you have talked to Bruce, Mr. Shaw, or Mr. Crosby? A. Yeah. Q. Approximately how much of your time is spent reviewing materials or keeping abreast of the literature for these companies such that Mr. Garrard, Mr . Shaw and Mr. Crosby represent. A . Well, a total comes to about between 20 and 30 hours a week, really -- sorry, a month. o . I'm sorry, what's that, a month? A ,, A month, Q ,. And this includes looking at cases 1ike these? A ., Yes . Q , And the literature searches, you spend about 20 or' 30 hours a month for them? A . Yeah . Q And about how much of your time is spen t doing your research at Pernarth? How often do you go up there? A. Officially, once a month A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 o 3 ~4 5 6 7 8 q 30 33 32 13 14 15 36 37 '3 8 19 20 ~2 3 22 23 24 25 115 DR. JOHN CHRISTOPHER WAGNER DIRECT BY MR. BRICKMAN O . And is that for a day? A . Usually a day or usually ` overnight Q . And the rest of your time in a month, do you do any other particular work for anybody els e? A . There .is a thing called the Harvard -- I'm trying to get the initials. There is a group reporting to Congress, HEI. Something the environmental institute. 0 . EPA? A . No, something environmental institute. Q . NEIH? A . Huh-uh. I'm trying to think. q . Go through all the letters of the alphabet. A . It's -- HEI . o . Is that a private institute? A . It's an institute that's part of the Harvard campus. Q . You think it's part of Harvard University? A ., The people there are associated with it. Q , Okay. A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 fi 9 10 11 12 13 14 15 16 17 1R 39 20 -2 1 "22 23 24 26 116 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN A. I'm afraid I can't think. It's the Health Environmental Institute. Q. Health Environmental Institute and it's associated somehow with Harvard University? A. Yes. They're going through the thing with EPA and advising on a literature search which I wasn't involved in. Q And who else are you dealing with at HEX, or who are you dealing with there, sir? A I don't remember the chap's name. Dr . Powers. A chap called Archibald Cox is the oha i rman . 0 A Q committee? Archibald Cox? He is a lawyer? He is, yes . Are there any other doctors on this . A A chap called Powers. A chap called -- can't rememher the names. I've been associated with Powers and Archibald . And there was one -- .a chap called Preston is actually the chairman of the committee. O Okay . A Environmental chap. Q Is it dealing with as b e s t o ? A As far as I know, it' s a literature A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN research on asbestos in buildings. Q. Have y'all issued any re p o r t ? A. Mn. Q. Have you issued any written report t o t hem ? ' A. No, T have just becomeinvolved with it. Q. All right. Are you doing any other work during the month other than with the HEI and the 20 to 30 hours a week -- MR. GARRARD: Excuse me. He said a month. MR. BRICKMAN: A month. What did T say? MR. GARRARD: Week. BY MR. BRICKMAN: Q. -- 20 or 30 hours a month with Mr. Garrard's group and the once a month visits to Pernarth? A. Pernarth. We are doing research into the fact when asbestos was first used in the States. That's part of the thing we're doing for Mr. Shaw and Mr. Garrard. Q. What is that now you are doing for them? A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 i *> . 14 l8 36 37 18 39 20 _2 1 22 23 24 25 lie DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN A . Getting the history of the firs use of blue asbestos in the States. Q Who is doing that, you yourse1f somebody else doing it with you? A . A chap called Tlgrin. Q Ilgrin? A . Ilgrin. Q. best you can? How do you spell that. just the A . F. [sic] L G R I N . 0 . Mr. Garrard, Mr. Shaw ;and Mr. Crosby have asked the two of y'all to find out when Crocidolite was first being used in the United States? A . We are interested in finding i t out . Q Are they paying you the $300 a n hour for your work trying to find that out, too? A . No . 0 . What are they paying you for that? A . We are putting it forward. Nothing has appeared yet. Q Let me make sure we have a language understanding. You ore going to give them a report on that issue? A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 o 3 '4 5 6 7 fi 9 10 31 12 33 14 3S 16 37 1A 39 20 "2 3 22 23 24 25 3 39 PFt . JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN A . If they want it, yes. O . Have you asked them yet? ' A . We have sent a copy of the preliminary work. Q . Okay. Who did you send it to? A . Mr . Garrard. Q And when did you send it to him? A . A couple of months ago. Q . And did you send him a bill with i t? A . No . n . Are you going to? A . If he wants the work to continue. O . Did you send him any bill for the work you already did? A . No . O . Okay. Do you have an opinion as to when Crocj dol ite was first used in the United State s ? A . It seems to me 3907, which we are still working on . Q. 1907 you think? A . Yes . Q And you are waiting for Mr. Garrard to tell you whether he wants you to proceed A. WILLIAM ROBERTS, JR., & ASSOCIATES 120 OR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 further? o A. To a certain extent, yes. 3 Q. Have you done any study to see when 4 Amosite was first used in the United States? 5 A. Well, that comes into it partly. I 6 would be much more interested o 3>v iously in 7 Crocidolite. 8 Q. Do you know which type of asbestos 9 Mr. Garrard's client used in this case, in these 3 0 cases? 3 3 A . No . 3 2 Q. You don't? 3 3 A. No. In these cases, I have purely 1 4 been asked to look at the tumors. 1 b Q. Doing anything else. Doctor, with 3 6 your time other than those items you have just 3 7 mentioned to me, any other work? 3 8 A . No . 3 9 Q. Okay. Not doing any other work for 20 any other companies or any other lawyers? 2 1 A. No, no other lawyers. I have been 2 2 doing a certain amount of advising to the 2 3 pathologists for TIMA. 24 Q. What is TIMA? 2 5 A. I knew that you were going to ask A. WILLIAM ROBERTS, JR.. & ASSOCIATES 1 2 3 4 ft 6 7 8 0 10 11 12 13 14 1 ft 16 17 18 19 20 -2 1 22 23 24 2ft 121 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN that . Q. T I M A, Thermal Insulation Manufacturers' Association? A. Y ejs . Q. And who do you deal with on TIMA? A. Mainly with doctor J. McCall urn. We are going through the animal experiments again. Q. And the animal experiments you are going through, are those the ones with asbestos or fiberglass? A . Neither. With refractory fibers Q . Factory fibers? A . Refractory. MR. GARRARD: Refractory. BY MR. BRICKMAN: Q . Oh, okay. Any other work you're doing other than what you have now gone through A . No, that's a fair amount. Q . When you do your work for TIMA, ' you charge them $300 an hour, also? , A . No, I am paid a per diem. Q . What do you get? ' A . $2,000 a day, depending on the actual work we do . Q . Have yoti met with any attorneys A. WILLIAM ROBERTS, JR., & ASSOCIATES 12 2 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 3 representing asbestos companies or asbestos o manufacturing associations other than Mr. Garrard, 3 Mr. Shaw, and Mr. Crosby? . 4 MR. GARRARD: During what time? t> BY MR. BRICKMAN: 6 Q. In the last year, let's say? 7 A. No. I met someone in 8 Philadelphia. It was purely social. 9 Q. Who was that? 1 0 A. I'm trying to think.. I can't 1 1 remember this chap's name. It was a very brief 1 2 meeting. I gave a talk, sort of general talk. 1 3 Q. You gave a talk in Philadelphia? 1 4 A. In Philadelphia. 3 5 Q. What did yovi speak on, sir? 3 6 A. It was at the -- what is the 1 7 women's college in Philadelphia? 3 fi Q. I don't know. What did you speak 3 9 about? My father-in-law normally says five 2 0 minutes. _2 3 A. The background of the asbestos 2 2 story and how it developed. I was asked to speak 2 3 at the university there. This chap happened to be 24 there. 25 <* Q . Oh . A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 fi 6 7 A 9 10 11 12 13 14 1 fi 16 17 1R 19 20 -2 1 22 23 24 25 12 3 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN A. It's a women's university. Q. Have you been in the United States in the last year for any other visits other than the Philadelphia visit and the New York visit? A. The Philadelphia and New York visits were the same visit. Q. Same visit. Have you been to the United States any other times? MR. GARRARD: In the last year? BY MR. BRICKMAN: Q. In the last year, yes, sir. A . Not as far as I can recollect. Q Have you done any work in the last year for any asbestos company ? A . None at all. Q . None at all. Do you correspond regularly or irregularly with any doctor that works for an asbestos company? A . Nn . Q Have you ever done work directly and not through any attorney for the (Iwens-Cnrning Fiberglass Company? A . No . Q Sir? A . I think that's correct. I don't WILLIAM ROBERTS, JR., & ASSOCIATES DP. JOHN CHRISTOPHER WAGNER DIRECT BY MR. BRICKMAN think. They may be on the refractory fiber, TIMA, may be part of the work for TIMA. Q. Other than the written reports you have issued in these cases and the report you gave to Mr. Garrard on Crocidolite in the United States, have you done any other written reports that dealt with asbestos this year, in the past year? A . No . Q. Other than the reports you have provided me or Mr. Garrard provided me this morning and the other draft reports that you have in front of you today, have you done any other draft reports on these three cases? A. No. This is all I have done on them. Q. You did not do any other draft copies that were changed in some fashion for whatever reason? MR. GARRARD: I don't know where you are getting draft from. I don't think this is a d ra f t . MR. BRICKMAN: The only reason I say it's a draft, Mr. Garrard, this one has something stamped on it or extra. A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 fi 7 fi 9 10 i1 i2 13 14 1 ft 16 17 18 19 20 '2 1 22 23 24 25 1 25 DR. JOHN CHRISTOPHER WAGNF.R - DIRECT RY MR. RRTCKMAN THE WITNESS: That's just the letterhead which didn't come out. It didn't come out on the xerox copy. MR. GARRARD: 1 think it's just one report, Mr. Brickman, that was copied. When it woo copied, I think this top stuff just didn't come out. I don't believe that these are drafts versus final reports. THE WITNESS: They were all done at the same time. MR. GARRARD: It's just the fact - MR. BRICKMAN: They may be draft because one is signed, and one is not. MR. GARRARD: I think the problem is as they were xeroxed -- THE WITNESS: Too long to get the top in. MR. BRICKMAN: One Is signed, and one is not. BY MR. BRICKMAN: Q. Be that as it may, were there any other drafts made? ' A . A handwrit ten draft. o. Where is that handwrit ten draft? A . That was destroyed once I got hoid A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER DIRECT BY MR. BRICKMAN of this. Q. Have you ever met, sir, with any attorney such as Mr. Garrard, Mr. Shaw, and Mr. Crosby when Dr. Gibbs was also present? MR. GARRARD: I think I may have had a drink in the bar on one occasion when both were there, but I could be wrong. But I don't think we ever had a meeting. THE WITNESS: We never did have a meeting, but we did have a drink together on one or two occasions. BY MR. BRICKMAN: Q. Other than that, y'all haven't had a meeting when you sat down and discussed cases or theories of mesothelioma or anything like that? A . No . Q, And Dr. Gibbs apparently replaced you at Pernarth? A. No. Not exactly, because he is working for the National Health Service mainly, and 1 was for the Medical Research Council. But he has taken over most of the work. . Q. You mentioned earlier that you were doing some work on Amosite and some tumors out of South Africa. A. WILLIAM ROBERTS, JR., & ASSOCIATES 3 o 3 4 5 6 7 8 0 30 33 12 33 14 18 3 f> 17 38 39 20 23 oo 23 24 28 3 27 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN A. Yes. Q. Have you visited South Africa in the last year or two? A. Yes, to see what I could find. Q. Did you go with Dr. Gibbs or by yourself? A. By myself. Q. A n d have you been there on more 13i a n one occasion in the last year? A. No. I went to see my family but also to inquire about the Amosite situation. Amosite and t It e Transvaal Crocidolite. The Q. And was your trip paid for by any company or Mr. Garrard's group or anybody like that? A. There was a contribution from M r. Shaw. Q. Mr. Shaw paid for it? A . Yes. Q. Has Mr. Shaw paid for any other trips for you to do research or whatever you did or anything similar like that? A. Not recently, no. Q. He has in the past? A. Let's see. I don't think he has. A. WILLIAM ROBERTS, JR., & ASSOCIATES 12 8 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 1 couldn't guarantee this. o Q. You have not gone to do work 3 anywhere else where he has paid for the trip in 4 the last year, to your recol1ection? ft A. No, not in the last year. fi Q. And you just don't recollect prior 7 to that time whether he may have paid for some 8 trips somewhere? 9 A . No . 1 0 Q. No, he didn't or, no, you just 11 1 2 A. He came over here., and we went up 3 3 to Scotland. He paid for that. 1 4 Q. Was there something in particular 1 ft in Scotland that y'all were doing work on, or was 1 6 this just a social visit to Scotland? 1 7 A. No, this was to discuss work with 3 8 the occupational medical group in Edinburgh. 3 9 Q. Which group is the occupational 20 medical group in Edinburgh? There is a particular 2 3 group of doctors? 2 2 A. Anthony Seaton is in charge. It's 23 with the IRA, occupational medicine set up -- 2 4 mainly set up as a coal research unit. 2 ft Q. Mr. Shaw wasn't paying for that A. WILLIAM ROBERTS, JR., & ASSOCIATES DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN research group to do anything? A . No . ' Q. He was paying for you to he there to meet with them? A. Yeah. Q. Okay. Have you written or drafted any papers in the last year, Doctor, other than the reports you already mentioned to me, that you hope to have published? A. I have done the one thing with Dr. Tlgrin on the spontaneous tumors. Q. Has that been published? A. No, it is being submitted for pnb.l ination, Q. Who have you submitted it to. sir? A . I don ' t remember the name of the journal. Dr . Ilgrin found it. A journal in the States. I can 't remember the name of it. Q Do you know if he is dealing with any particular doc to r over there or anybody -- A . No . Q -- who he is trying to get it published through? A. No, I don't think so. He didn't mention the names. A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 8 9 10 .1 1 12 A3 14 15 16 17 18 19 20 "2 1 22 23 24 25 3 30 DR . JOHN CHRISTOPH F. R WAGNER - DIRECT BY MR. BRICKMAN Q. In your work on spontaneous tumors, hove you found that a certain percentage of mesotheliomas in your opinion are spontaneous? A. Yes. Q. What percentage is that? A. It comes toabout 20 percent. Q. 20 percent. And in those 20 percent of spontaneous tumors, did you also find asbestos fibers in the lungs? A . This was mainly a literature search. n . Oh, I ;;ee. You did not look o t the tissue in those cases? A . No, just looking at the tissue on this other group of cases. Q by anybody? Was that research funded in any way A . Not as far as I know. Q You have not received any money for any time spent on that by Mr. Shaw, Garrard o r Mr. Crosby? A . No . No. Q It has not been accepted yet for publication, to your knowledge? A . No. A few amendments. A few A. WILLIAM ROBERTS, JR., & ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 lfi 17 18 19 20 "2 1 22 23 24 26 13 1 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN changes . Q. You submitted.it; it came back tn you from whoever looked at It and reviewed it, and they said if you make these changes, we will publish it? A. Yes. Dr. Ilgrin was dealing with that side. Q. Any other papers you have published nr hope to publish at the present time that you have written in the last year? A. No. I'm writing an introduction to a Dutch book on asbestos and tumors. Q. Who is the editor of that book, sir? A. Dutch Cancer Association. Q. Are you dealing with anybody in particular? A. I can't -- I didn't take serious notice -- I've got to do it by the end of the year. I can't remember the exact name of the fellow I've got to write to. Q. Other than going to Philadelphia to give that lecture -- A. BRYNMAWR, BrynM aw r. o. Other than that lecture, sir, have A. WILLIAM ROBERTS, JR., & ASSOCIATES 132 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 you given any lectures in the last year? 2 A. I have given lectures to *a course 3 in Pcrnarth. 4 Q. What's that course, sir? 8 A. This was the course on DCTD. fi Q . E C T D ? 7 A. No. Just a second. DCTD, 8 diseases -- tuberculosis diseases of the chest. I 9 gave them about three lectures a year. 1 gave a 1 0 lecture in South Africa on the general situation, 1 1 and 1 think that's all. 1 2 Q Okay. The lecture in South Africa, 1 3 did it deal at all with asbestos? 1 4 A . It was all about asbestos. 1 5 Q Is there a typed copy of it or a 1 6 published copy of it? 1 7 A. No. I gave it just on the slides I 1 8 used . 1 9 Q. On the slides? 20 A. Pictures of variousthings, 2 1 Q. For a second I had thought you said 2 2 on the siy? 23 A. No, not that. 24 Q. Doctor, are you onany medication 2 6 today? A. WILLIAM ROBERTS, JR. 6 ASSOCIATES 1 2 3 4 5 8 7 8 9 1n 11 12 1 .3 14 38 36 37 38 39 20 23 22 23 24 , 25 3 33 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN A, Today, no. Q. Are you normally on medication? A. Yes. I'm on a drug for my heart. Q. Your heart? A. Yes. Q. Ts there a reason you're not on it t oday? A. Yes, sir. The only reason 1 am not, I didn't take any this morning. I should have . Q. Should have. Do you have it here? 3 don't want to h-o ve any problems. Do you have it here? Will you take it at lunchtime? A. Fine, I'll take it at lunchtime. Q. That's the only medication you're on? A. Yes. Q. Doctor, have you been hospitalized in the last year? A. Only for ten hours, to have a conversion done on the beating of my heart. Q. Is your heart all right now, as far as you know? A. As far as I know, yes. Much better than . ...tt. his time last year, anyway. A. WILLIAM ROBERTS, JR., & ASSOCIATES 134 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 Q. Were you having a problem last year o with your heart? 3 A . Yes. 4 Q . Okay. And that is being treated 5 and under medication and no problems with it today 6 as long as you are on the medication? 7 A . Yeah . R Q- Okay. And that's the only thing . 9 yo\i have been hospitalized for in the last year? 1 0 A . Yes . 1 1 Q Okay. Have you been under the care 3 2 of any doctor for any other problem in the last 1 3 year other than your heart? 1 4 A . No . 1 6 Q Other than for your heart, have you 1 6 seen any other doctor in the last year for any 1 7 reason? 1 8 A . No, T don't think so. 1 9 Q No? 20 A . No . 2 1 Q Other than the medication you're on 22 for your heart. have you been on any other 2 3 medication in the last year? 2 4 A . I can't think of any, no. 2 5 Q I'm sorry, the answer is no? A. WILLIAM ROBERTS, JR., & ASSOCIATES 135 DR. JOHN CHRISTOPHER WAGNER - DIRECT BY MR. BRICKMAN 1 A. The answer is no. 2 Q. No other medicine for the last 3 year? 4 A. Well, no. Last year when I was 5 sort of working around with you, and the heart 6 disease, T got a bit depressed. J was on some 7 drugs then. 8 Q. Tell me what drugs you were on and 9 whether you are on any of those today. 1 O A . No . 1 1 Q. The answer is no, you are not on 1 2 any of them today? 1 0 A. Not today. 1 4 MR. GARRARD: Doctor, it's up to 1 5 you as to whether you want to talk further about 1 6 medications you may be on or not. I'm not sure 1 7 that that is anything that is of any business of 3 8 Mr. Brickman or relevant to anything in this 1 9 case . 20 I'm not telling you don't tell him, 21 hut I'm telling you I'm not so sure that is 22 anything other than a personal matter of yours, 23 and I don't think that you have to tell him that, 2 4-. but that's up to you. 25 BY MR. BRICKMAN: WTr.r.T AM ROBERTS, JR. , & ASSOCIATES