Document JJBG9m4OqXmG8Bj54a2r8zmM2

1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF TEXAS 3 4 MARIE B. SOIGNET, et al 5 Plaintiffs, 6 vs . 7 MONTELLO, INC., 8 Defendant. 9 ) ) ) CIVIL ACTION ) ) FILE NO. B-86-1193 ) ) ) ) 10 11 12 Deposition of DR. HILTON C. LEWINSOHN, taken 13 on behalf of the Plaintiffs, in accordance with the 14 Federal Rules of Civil Procedure, before Janet K. 15 Wilson, Certified Court Reporter and Notary Public, 16 at Marriott Airport Hotel, Room 922, Atlanta, 17 Georgia, on the 9th day of March 1989 , commencing at 18 the hour of 2:00 p.m. 19 ' DUPLICATE 20 FILE COPY 21 22 23 BROWN REPORTING, INC. 24 1100 SPRING STREET, SUITE 750 ATLANTA, GEORGIA 30309 25 (404) 876-8979 UCAREF00011433 1 2 INDEX TO EXAMINATIONS 3 Examination 4 Cross-Examination by Mr. Caruso Direct Examination by Mr. Guyton 5 Recross-Examination by Mr. Caruso 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 Page 4 61 62 UCAREF00011434 3 1 APPEARANCES OF COUNSEL: On behalf of the 2 Plaintiffs: DANIEL J. CARUSO, Esq. 3 On behalf of the Defendant: 4 HENRY G. GARRARD, III, Esq. JOSEPH GUYTON, Esq. 5 Also Present: Ms. Christina Berk 6 7 MR. CARUSO: This deposition is being 8 taken for all purposes allowed under the Federal 9 Rules of Civil Procedure. All objections except to 10 form of the question are reserved until the time of 11 trial. 12 Dr. Lewinsohn, you have a right to read 13 and sign this deposition or you can waive. What is 14 your pleasure with that regard? 15 THE WITNESS: I'd like to read it. 16 MR. CARUSO: Make a note that the doctor 17 would like to read the deposition. 18 May I ask to whom should the deposition 19 be sent for getting him to read it? 20 MR. GARRARD: Directly to him; and it's 2 1 agreeable with me if he signs it in front of any 22 notary. 23 DR. HILTON C. LEWINSOHN, 24 having been first duly sworn, was examined and 25 testified as follows: UCAREF00011435 4 1 CROSS-EXAMINATION 2 BY MR. CARUSO: 3 Q. Would you state your name for the 4 record, please. 5 A. Full name is Hilton Cecil Lewinsohn, 6 L-e-w-i-n-s-o-h-n. 7 Q. And by whom are you presently employed, 8 Dr. Lewinsohn? 9 A. By Union Carbide Corporation. 10 Q. And in what capacity? 11 A. I'm the medical director for the 12 Chemicals and Plastics Group. 13 Q. How long have you had the position of 14 medical director for the Chemicals and Plastics 15 Group at Union Carbide? 16 A. Since 1986, I believe. 17 Q. Did you hold another position with Union 18 Carbide before 1986? 19 A. Yes. I was then assistant corporate 20 medical director. 21 Q. How long did you hold that position? 22 A. I joined Union Carbide in July of 1982. 23 Q. So from July of '82 until '86 you were 24 the assistant corporate medical director, and now 25 you're the medical director? UCAREF00011436 5 1 A. Well, not exactly. 2 Q. What exactly? 3 A. I was assistant corporate medical 4 director; I'm now medical director of the Chemicals 5 and Plastics Group, which is a business group of 6 Union Carbide. 7 Q. And when you were assistantmedical 8 director, who was the corporate medical director? 9 A. Dr. Thomas Lincoln. 10 Q. And while you were assistant corporate 11 medical director, was there a medical director for 12 the Chemicals and Plastics Group? 13 A. We were differentlystructured inthose 14 days, and there was an assistant medical director - 15 assistant corporate medical director -- who had 16 responsibilities for the Chemicals and Plastics 17 Divisions; but there was no business group as such. 18 You know, it's all to do with the corporate 19 structure. 20 Q. Let's ju81 talk about that for a second. 21 You got to Union Carbide in 1986; correct? 22 A. 1982. 23 Q. Excuse me. And when you arrived at Union 24 Carbide, since you were the assistant corporate 25 medical director, I take it there was a Corporate UCAREF00011437 6 1 Medical Department? 2 A. That's right; and there were other 3 assistant corporate medical directors. I was not 4 the only one. 5 Q. As assistant corporate medical director 6 in 1982, were you responsible for any particular 7 division of Union Carbide? 8 A. Yes. I had responsibility for -- I'm 9 trying to think back -- Carbon Products Division, 10 for the Home and Automotive Division, Battery 11 Products Division, and Specialty Polymers and 12 Composites Division. 13 Q. Did any of those divisions you just 14 mentioned have anything to do with the asbestos 15 products of Union Carbide? 16 A. No. 17 Q. Who was it that had that responsibility 18 when you got there? 19 A. That was Dr. Fortney, F-o-r-t-n-e-y. 20 Q. Is that Guy Fortney? 21 A. That's the one. 22 Q. Does he still work for Union Carbide? 23 A. He does, yes. 24 Q. What is his position? 25 A. He's corporate medical director. UCAREF00011438 7 1 Q. And you held the position of assistant 2 corporate medical director from 1982 until 1986?. 3 A. Right. 4 Q. And then in 1986 you became a medical 5 director for the Chemicals and Plastics Group? 6 A. That's correct. 7 Q. And Dr. Fortney, somewhere along the way, 8 became the corporate medical director? 9 A. About the same time. 10 Q. What happened to Dr. Lincoln? 11 A. He retired. 12 Q. Does that mean in the overall chain of 13 command here you somehow report to Dr. Fortney or - 14 A. No, I don't report to Dr. Fortney. He is 15 at the corporate level; I'm in a business group. 16 I report to the director of Occupational 17 Health, Product Safety and Liability in the Chemical 18 Plastics Group. 19 Q. Does Union Carbide still make any 20 products or sell any products that have an asbestos 21 component, to your knowledge? 22 A. Not as far as I'm aware. 23 Q. So between 1982 and 1986, it would have 24 been Dr. Guy Fortney -- if I'm right about this - 25 who was involved with the asbestos products? UCAREF00011439 8 1 A. Yes; it was his division. 2 Q. What division was that? 3 A. I think it was Metals Division in those 4 days . 5 Q. You do have some experience with 6 asbestos; do you not? 7 A. Yes, I do. 8 Q. And it goes back, as I understand it, to 9 the 1960s * 10 A. It does. 11 Q. -- when you were a member of the 12 Pneumoconiosis Medical Panel in England? 13 A. In Manchester, England. 14 Q. Can you tell us what that panel was all 15 about? What did it do? 16 A. Well, the panel was part of the ministry 17 of pensions and national insurance, as it was known 18 in those days, and its functions were twofold, 19 basically. 20 One was to review claims made by workers 21 in different industries for -- I'm trying to think 22 of the word -- for what the benefit was called -- 23 industrial insurance injuries benefits. 24 Q. Like a Workers' Compensation? 25 A. Like a Workers' Compensation. They made UCAREF00011440 9 1 the claims. The lay administration then decided if 2 they had to be reviewed or not by members of the 3 panel; and then the members of the panel would 4 examine the claimants, review their cases, and make 5 a diagnosis upon which the lay administration then 6 determined what amount of compensation should be 7 paid. 8 The second function of the panel was to 9 carry out initial and periodic medical examinations 10 under the provisions of the Industrial Insurance 11 Injuries Act. So we went to asbestos factories, we 12 went to quarries, potteries, and examined newly 13 hired employees and active employees periodically to 14 determine, first of all, in the case of newly hired 15 employees, whether there was any reason why they 16 should not do that particular job because of any 17 medical or physical reason; and in the case of 18 active employees, to determine whether they were 19 suffering from any work-related effects which would 20 entitle them either to compensation or prompt us to 21 suspend them from that aspect, because we had that 22 priority. 23 Q. Since the title of this panel was the 24 Pneumoconiosis Panel, I take it one of the things 25 you were looking for was asbestosis in the workers? UCAREF00011441 10 1 A. in the asbestos workers, we were looking 2 for two things. 3 In the initial examination, we were 4 looking to see that people newly hired in the 5 industry didn't have any medical contraindications 6 if they were potentially exposed; and examining the 7 workers to see if they weren't suffering from any 8 ill effects. 9 Q. One of which would have been asbestosis? 10 A. Yes. 11 Q. And what years are we talking about? 12 13 A. 1963 to 1966. 14 Q. What was it about a person that would 15 disqualify them from working in an asbestos 16 environment under the guidelines of the 17 Pneumoconiosis Panel? 18 A. Any preexisting chest disease that might 19 have made them more susceptible or less able to cope 20 in a dusty job or a job where there was potential 21 for dusty exposure. 22 Q. Such as -- 23 A. Such as tuberculosis, active 24 tuberculosis, or severe chronic bronchitis, severe 25 heart disease in which the lungs were likely to be UCAREF00011442 11 1 comprised and not able to function effectively 2 because of a heart problem; things like that. 3 Q. So you did not want a person whose either 4 lung function or heart function was already 5 comprised to be working in an asbestos environment? 6 A. Correct; or somebody who already had 7 worked previously in an environment of that kind, 8 coal mines or any other dusty job which could also 9 have comprised them. 10 Q. So a person, for example, coming from, 11 say, a coal mine in Kales into an asbestos factory 12 in Manchester - 13 A. -- would be carefully looked at. 14 Q. Would he have to exhibit some type of 15 dust-related disease before you would have 16 disqualified him, or would the history alone 17 disqualify him? 18 A. No, the history alone would not 19 disqualify him. He had to have some evidence of 20 being impaired in some way. 21 Q. Is it fair to say that, to your 22 knowledge, in a period of time 1963 to 1966 that 23 asbestosis was a recognized disease associated with 24 asbestos ? 25 A. Yes . UCAREF00011443 12 1 Q. Was there at that time, in 1963 to 1966, 2 a recognized association -- by that I mean one which 3 would be recognized by people with your expertise - 4 between asbestos exposure and lung cancer? 5 MR. GARRARD: I'm going to object to your 6 question. Dr. Lewinsohn is not here as a state of 7 the art witness, was not employed by Union Carbide 8 at that time, and that is a question that is outside 9 any relevance of his testimony whatsoever. 10 Q. You can answer the question. 11 A. Can you just repeat it please? 12 Q. My question inartfully stated was -- if I 13 can try to recall it -- was that in this period, 14 from 1963 to 1966, did experts in the occupational 15 disease area such as yourself at the time recognize 16 an association between asbestos exposure and lung 17 cancer? 18 MR. GARRARD: Same objection. 19 Q. And I mean bronchiogenic carcinoma. 20 MR. GUYTON: I'll further object. This 21 witness has not been listed as an expert witness in 22 this case. 23 A. I'm going to make a comment. At that 24 time I would have hardly had been an expert in that 25 area; but to answer your question, I believe that UCAREF00011444 13 1 in -- by that time the association between asbestos 2 exposure and the development of lung cancer had been 3 recognized, although perhaps not universally 4 accepted. 5 Q. Was there a time in the late sixties or 6 early seventies -- we keep going back in time, 7 okay -- but when there was an acceptance of the 8 association between lung cancers and exposure to 9 asbestos? 10 MR. GARRARD: I object to your question 11 again, because he is not here as an expert on state 12 of the art matters. I think that's what you were 13 inquiring into. And I'm going to direct the doctor 14 not to answer the question. 15 MR. CARUSO: Well, the question goes to 16 what everybody knew about asbestos at a particular 17 time, which in turn relates to what each individual 18 company's obligation is to warn; and secondly, to 19 the question of whether or not thi3 product under 20 the law is unreasonably dangerous for its intended 21 use. Where he was is of no consequence. 22 MR. GARRARD: He was not an employee of 23 Union Carbide at the time. What he may or may not 24 have thought at that time is not relevant as to 25 Union Carbide. UCAREF00011445 14 1 MR. CARUSO: Well, I'm not asking him 2 what he thought; I'm asking him - 3 MR. GARRARD: He is also not put forward 4 as an expert on state of the art matters by Union 5 Carbide, has not been listed as an expert, and I 6 think it's outside the field of inquiry permissible 7 as to this witness. 8 MR. CARUSO: I'm going to reserve my 9 right to go back to that and possibly call the 10 Judge. 11 Q. Doctor, over the years you have studied 12 and kept up, I take it, with information dealing 13 with asbestos and its association with various lung 14 diseases ? 15 A. Up to a point in time. 16 Q. Would it be fair to say, then, in the 17 late 1960s and early 1970s this was a subject that 18 you were keeping abreast of, the relationship 19 between asbestos and asbestos-related diseases? 20 A. Yes, that's fair enough. 21 Q. And it is true, is it not. Doctor, that 22 in that period of time between the late 1960s - 23 we'll talk about, say, 1965 up until about 1975 - 24 articles were published by various individuals and 25 groups demonstrating the association of asbestos UCAREF00011446 15 1 with certain illnesses? 2 A. Yes, there was literature containing such 3 articles. 4 Q. And there were articles that were 5 published at that time that linked asbestos with 6 asbestosis; is that correct? 7 A. Yes . 8 Q. And there were articles that were 9 published that linked asbestos with lung cancer? 10 A. Yes 11 Q. And there were publications that came out 12 as early as 19 60 by Dr. Wagner linking asbestos 13 exposure with a disease process known as 14 mesothelioma; is that correct? 15 A. Ip refer the use of the word "associated" 16 rather than "1 inking"; yes. 17 MR. GARRARD: Excuse me. Did you say 18 chrysotile asbestos? 19 MR. CARUSO: No; I said asbestos. 20 Q. In the articles associating asbestos with 21 mesothelioma which appeared in the sixties -- the 22 early sixties, did those articles draw a distinction 23 between crocidolite and chrysotile as a cause of 24 mesothelioma, if you can recall? 25 MR. GARRARD: I'm going to object to your UCAREF00011447 16 1 question unless you tell him what articles you are 2 talking about. There is a lot of literature in the 3 time frame that you are mentioning. Also, I further 4 object that he is not listed as an expert, and you 5 are at this point in time doing nothing but a state 6 of the art examination of this witness. 7 He is not a state of the art expert in 8 this case. He also was not an employee of Union 9 Carbide at that time. 10 Q. I don't even know what that means, okay; 11 but I'll do it this way. 12 After you left the Pneumoconiosis Panel 13 in 1965 or -'6 - 14 A. '66. 15 Q. -- you went to work for an outfit called 16 Turner Brothers? 17 A. Turner Brothers Asbestos Company, 18 Limited. 19 Q. And where is Turner Brothers Asbestos 20 Company, Limited, located? 21 A. In Rochdale, Lancashire, England. 22 Q. And what was your job with Turner 23 Brothers Asbestos Company, Limited? 24 A. When 1 went there I went as a medical 25 officer. UCAREF00011448 17 1 Q. And what were your job duties as a 2 medical officer? 3 A. To do initial and periodic examinations 4 of employees working with asbestos and -- also to 5 see any other workers that needed my advice and 6 counsel. 7 Q. You were what we call the company doctor? 8 A. That's right; I ran the medical 9 department. 10 Q. There was a doctor there also named Knox? 11 A. Dr. Knox retired in 1965. 12 Q. And did you, in essence, take his 13 position when you went there? 14 A. Yes -- not fully. I took the title of 15 medical officer; Dr. Knox had had the title of chief 16 medical officer. 17 He remained on as a consultant even after 18 retirement, so there was still another notch on the 19 ladder. 20 Q. You said Turner Brothers Asbestos 21 Company. What was the business of Turner Brothers 22 Asbestos Company? Did it make asbestos products? 23 A. Turner Brothers Asbestos Company in 24 Rochdale, plant in Rochdale, manufactured asbestos 25 textiles . UCAREF00011449 18 1 Q. So it was a textile manufacturing plant? 2 A. In Rochdale, yes. 3 Q. Now, was there another Turner Brothers 4 plant that wasn't in Rochdale that did something 5 else? 6 A. There was another one in Hindley Green, 7 also in Lancashire, which made asbestos textiles; 8 also made -- they made -- there was glass fiber 9 there; it was a glass fiber plant. And there was a 10 plant in Dungannon, which is in Northern Ireland, 11 which made glass fiber. 12 And there was a plant in the south of 13 England in, S-l-o-u-g-h, I think it was in Slough, 14 that also made glass fiber. 15 Q. Now, were you the medical officer for all 16 these plants? 17 A. Well, I was the medical officer for 18 Turner Brothers Asbestos Company, Limited; and as 19 such I had, if you like, oversight or supervisory 20 responsibilities for all these plants, yes. I 2 1 didn't go to all these plants to perform my hands-on 22 duties there. 23 Q. You had other doctors - 24 A. There were other part-time -- mostly 25 part-time -- contract positions. UCAREF00011450 19 1 Q. How long did you hold this job at Turner 2 Brothers ? 3 A. Well, I was -- I became -- I was with the 4 Turner and Newall group of companies in which Turner 5 Brothers Asbestos Company was a subsidiary for a 6 period of approximately ten years; from 1966 to 7 1976. Then I became the group medical advisor to 8 Turner and Newall Company, I think about 1969; but I 9 don't remember the dates offhand. Maybe later; I 10 just don't remember. 11 Q. Now, in that period of time, between 1966 12 and 1976, since you were a medical officer for an 13 asbestos-related concern, I take it it was up to you 14 to keep abreast of what was going on in the medical 15 and scientific community regarding asbestos and the 16 possible health effects associated with asbestos; is 17 that fair? 18 A. Yes; that was expected. 19 Q. The type of asbestos fiber that was being 20 used by Turner Brothers in this period of time, what 21 type was it? Do you know? 22 A. Turner Brothers? 23 Q. Yes. 24 A. They basically were usingchrysotile 25 asbestos fiber; but they also used some crocidolite. UCAREF00011451 20 1 Q. You said Turner Brothers, and you nodded 2 your head at me. Has there some other one of these 3 plants that was using something else besides - 4 A. Hell, we talked about Turner Brothers 5 Asbestos; not about Turner and Newall as a 6 corporation. 7 Q. Here they doing something different than 8 Turner Brothers Asbestos? 9 A. Yeah. They were a large corporation and 10 involved in other areas of the asbestos business. 11 Q. Like -12 A. They had mining business and they had 13 asbestos cement interests. 14 Q. Now, where were theirmines? 15 A. When I first went there, of course, they 16 were still operating the mine in Southern Rhodesia, 17 which is now Zimbabwe. Then Rhodesia declared its 18 unilateral declaration of independence, and that 19 source of supply was cut off. 20 They had mines in north British Columbia, 21 Cassiar, and there was a mine in Swaziland. 22 Q. Now, did you have anything to do with 23 these mines by way of your medical directorship? 24 A. Well, I knew about them, and I visited 25 both of them. I didn't visit Rhodesia because of UCAREF00011452 21 1 the political situation. 2 Q. Was there a medical person at the mines 3 who was reporting to you? 4 A. Not reporting to me, no; reported to my 5 management. I didn't really have very much direct 6 contact with the people overseas. 7 Q. So you were not being given any reports 8 or anything about any incidents of illnesses or 9 deaths or anything arising from the mine operations? 10 A. I wasn't, no. 11 Q. Your medical responsibilities at Turner 12 Brothers and then with Turner and Newall dealt 13 mostly with the asbestos-manufacturing aspect as 14 opposed to the mining aspect? 15 A. That's hard to say. Basically, my duties 16 were in the United Kingdom in the mines there; but I 17 also gave advice and service to all of the 18 corporation, which included all its operations 19 worldwide. I didn't, again, necessarily get 20 involved in the day-to-day problems of those 21 organizations. 22 Q. Were you ever questioned -- or your 23 advice sought is probably a better way to ask that 24 question -- by the corporation of Turner Brothers 25 and/or Turner and Newall with regard to the health UCAREF00011453 22 1 effects associated with asbestos exposure? 2 A. I believe I was. 3 Q. Do you know, how did that come to pass? 4 A. How? 5 Q. Yes. 6 A. Hell, as part of my job I sat on a 7 committee known as the Health Committee where these 8 matters were regularly discussed. 9 Q. Has the question of asbestos as a 10 possible cause of mesothelioma ever discussed? 11 A. Yes, it was. 12 Q. And do you know approximately when that 13 would have been? 14 A. Hell, when I joined Turner Brothers in 15 1966, by that time I believe that the issue had 16 already arisen. 17 Q. Did you ever advise anyone at Turner 18 Brothers or Turner and Newall between 1966 and 1976 19 that chrysotile asbestos would not cause 20 mesothelioma? 21 MR. GARRARDs I'm going to object to your 22 question in terms of what, if anything, he advised 23 Turner Brothers or Turner and Newall, which is not 24 relevant; they're not a part of this lawsuit. 25 Just object; it's not relevant to any UCAREF00011454 23 1 issue in this case. And I ask you, Doctor, if you 2 try to recollect anything back that far, I ask you 3 not to speculate in terms of whatever may have been 4 said or done. 5 A. I have no intention of speculating on 6 what I specifically advised or didn't advise at that 7 point in time. Unless you could refresh my memory, 8 I would prefer not to speculate. 9 Q. Well, Doctor, do you think in the period 10 of time between 1966 and 1976 that the body of 11 medical science available to you as a director of 12 medical services at Turner Brothers would have 13 allowed you to tell your company that chrysotile 14 asbestos had been eliminated as a cause of 15 mesothelioma in man? 16 MR. GARRARD: I again object to that 17 because you begin trying to play state of the art 18 with this doctor who has not been listed as a state 19 of the art expert and was not an employee of Union 20 Carbide at that time. 1 also do not think it is an 21 answerable question in its current form. 22 Q. Can you answer it? 23 A. If those are the words that you think I 24 would use, no, I can't. 25 Q. I'm not saying that's^the word you would UCAREF00011455 24 1 use; I'm asking can you answer that question as I've 2 posed it? 3 A. I just don't believe it's a question 4 that's -- that is answerable. I think it's badly 5 framed and to me somewhat unintelligible. 6 MR. CARUSO: Let's see what's 7 unintelligible about it. Read it back, please. 8 (The record was read by the reporter.) 9 A. I still don't think I can commit myself 10 to answer a question like that. I just don't 11 believe that it's giving me a viable opportunity to 12 tackle the issue, it really isn't. 13 Q. What's wrong with the question? 14 A. I think you're using words and you're 15 making a definitive statement, which I'm not 16 prepared to argue about because I don't think it's 17 valid or viable. 18 Q. What isn't valid or viable? 19 A. Well, you use words like "eliminated"; I 20 don't know what that means. Can you tell me what 21 that means? 22 Q. Well, I haven't got a dictionary here; 23 but "eliminate" generally means that you've taken it 24 out of the picture, you've taken it away, you've 25 eliminated it. UCAREF00011456 25 1 A. But you know for yourself that that's not 2 the case; there is even today debate as to whether 3 chrysotile is involved in the production of 4 mesothelioma. 5 Q. So you would agree with me that even as 6 of today there is still a debate going on as to 7 whether or not chrysotile is or is not associated 8 with mesothelioma? 9 A. There is -- yeah, I would say that there 10 is a debate going on, you know, between experts. 11 Q. And is that debate today more intense 12 than it was back in the late sixties, early 13 seventies, middle seventies? 14 A. I think the debate today has served to 15 clarify a number of the -- what in the early sixties 16 and seventies were rather vague assumptions. 17 Q. Do you know a man named I. C. Sayers, 18 S-a-y-e-r-s ? 19 A. No, I do not. No. 20 Q. I'm going to show you a document that is 21 entitled Asbestos as a Health Hazard in the United 22 Kingdom by I. C. Sayers -- and you say you don't 23 know the man. Let me ask you if you've ever seen 24 this document before? 25 A. Yes, I've glimpsed at this document; I UCAREF00011457 26 1 haven't read it. 2 Q. You say you've glimpsed at it. In what 3 context were you called upon to glimpse at that 4 document ? 5 A. I believe among some of the items I was 6 shown by Mr. Garrard here in preparation for this 7 deposition, this is one of the documents produced; 8 but I haven't read it. 9 Q. Did Mr. Garrard represent to you that 10 this document was a Union Carbide document? 11 A. No; he gave me no indication as to where 12 that document originated or what its purpose was. 13 Q. Had you never seen this before 14 Mr. Garrard showed this to you today? 15 A. That's correct. 16 Q. So you don't know whether or not this 17 document which is referred to as Asbestos as a 18 Health Hazard in the United Kingdom is, in fact, a 19 Union Carbide document? 20 A. I don't know the origin or the purpose of 21 it, no. 22 Q. And you've never heard of I. C. Sayers 23 before this deposition? 24 A. (Witness shakes head negatively.) 25 Don't know who he is. UCAREF00011458 27 1 Q. Now, this document has a date on it of 2 1967, okay? So now we're going back another time 3 capsule again to 1967 - 4 MR. GUYTONi I'll object to that. Prom 5 what I can see on the front of that, that 1967 is 6 not printed in any fashion. Somebody apparently has 7 written that on that. 8 Q. Let's assume it's written in 1967, 9 subject to counsel's objection here. And in this 10 document there is a paragraph which is numbered 6.1 11 under the title Moral Issues, and it says: "There 12 seems little doubt that the toxic effects of our 13 Coalinga product is still largely unknown. There is 14 a general inference that crocidolite is more liable 15 to produce mesothelioma. Exoneration of chrysotile 16 has not been made, however. A discussion with Dr. 17 W. Taylor with the Department of Social Medicine, 18 Queens College, two years again revealed that 19 concern over asbestosis is still increasing and that 20 chrysotile is definitely implicated along with other 21 types of asbestos." 22 Now, with regard to the statement 23 contained in that report -- this is 1967, okay - 24 "there is a general inference that crocidolite is 25 more likely to produce mesothelioma. Exoneration of UCAREF00011459 28 1 chrysotile has not been made, however." 2 Does that generally, to your 3 recollection, reflect accurately the state of 4 knowledge at that time of the difference between 5 crocidolite and chrysotile as an associated fiber 6 with mesothelioma? 7 MR. GARRARD: I'm going to object to your 8 question in that your question, once again, goes to 9 a state of the art question; and this doctor is not 10 put forward as a state of the art expert, nor was he 11 an employee of Union Carbide in 1967. 12 MR. CARUSO: I am not asking him for an 13 expert opinion. 14 MR. GARRARD: But you asked him if that 15 comports with his opinion as to what the literature 16 showed at that time. 17 MR. CARUSO: This man was working in the 18 field at that time. 19 MR. GARRARD: He was not an employee of 20 Union Carbide. 2 1 MR. CARUSO: Doesn't make any difference. 22 MR. GARRARD: Yes, it does. 23 MR. CARUSO: Makes no difference 24 whatsoever. 25 MR. GARRARD: You're not entitled to UCAREF00011460 29 1 elicit opinions from him unless he is listed as an 2 expert to give opinions; and that's the problem I've 3 got, is he's not. He is here as a factual witness 4 in relation to his experience with Union Carbide. 5 MR. CARUSO: That's why you brought him 6 here, but that's not why he's here. I can ask him 7 anything I want. 8 MR. GARRARD: No. He's not here as an 9 expert. 10 MR. CARUSO: I'm not asking for an expert 11 opinion 12 MR. GARRARD: I think that's an expert 13 opinion 14 MR. CARUSO: It's not. If I was asking 15 for his expert opinion, I would ask him that. 16 I have a man here who is a historical 17 reference. He was working with this stuff at that 18 time, and I want to know if based on what he can 19 recall at that time is this statement made by this 20 fella at Union Carbide, whoever he may have been, 21 accurately reflecting what the state of the medical 22 knowledge was in 1967. He's a doctor; he should 23 know. 24 MR. GARRARD: Which is his opinion. 25 MR. GUYTON: I'll object on the same UCAREF00011461 30 1 basis, because it is asking his opinion of what the 2 opinion was; and that calls for an expert opinion 3 based upon his reference to all the knowledge as 4 stated at the time. It also asks him to speculate 5 about what someone else knew or what someone else 6 had written. 7 MR. GARRARD: I don't want to unduly 8 object; it's not my style. I'm going to let him 9 answer the question; but if you keep going on that, 10 then I'm going to stop him from answering questions 11 on that. 12 He is not here as an expert -- I'm not 13 trying to be difficult, but he is not here as a 14 medical expert to render opinions. 15 Go ahead. 16 Q. If there is any possible way you can 17 remember the question, can you answer it or would 18 you like to hear the question again? 19 THE WITNESS: I'd like to have it read. 20 Q. The question I'm trying to ask you is 21 this: If you and I had been back in 1967 together 22 and I would have handed you this piece of paper and 23 said. Dr. Lewinsohn, would you take a look at this 24 Paragraph 6.1, 1 -- which you can do now, by the 25 way, if you want to look at it again -- would you UCAREF00011462 31 1 take a look at that; and when they're talking about 2 crocidolite being implicated as a cause of 3 mesothelioma and chrysotile has not been exonerated, 4 would you agree with that as of 1967? 5 MR. GARRARD: Same objections without 6 restating them. 7 MR. CARUSO: Fine. 8 A. The reason I hesitate to give you an 9 answer is because you're trying to condense into one 10 question and to base on -- you know, on one person's 11 opinion a yes-or-no answer where there isn't a 12 yes-or-no answer possible. 13 In order to answer your question, I would 14 have to go back and review a great deal of the 15 literature at that moment in time to tell you 16 whether in 1967 there was -- this was a valid 17 statement to make. It's very difficult to answer 18 it. 19 However, you know, if I give it my best 20 shot, then what this seems to be saying is that in 21 1967 there was a belief in some sectors -- and it 22 doesn't say whose belief it was, whether it was a 23 majority opinion or a minority opinion or whether it 24 was a consensus of opinion -- that there was a 25 gradation or effect somehow or another between the m UCAREF00011463 32 1 association of different types of asbestos fiber in 2 the production of mesothelioma and that at that 3 moment in time in 1967 this individual who wrote the 4 report believed that crocidolite was more liable to 5 produce mesothelioma, but that chrysotile had not 6 been eliminated as a cause, to use your word. 7 That's the best 1 can answer it. 8 Q. Now, you came aboard at Union Carbide in 9 1982? 10 A. Yes, that's correct. 11 Q. By corporate medical? 12 A. Yeah. 13 Q. And have you ever sincecoming aboard 14 with Union Carbide been involvedwith the asbestos 15 products between 1982 and the present in any way? 16 MR. GARRARD: What do you mean by 17 " involved"? 18 MR. CARUSO: Well, whatever, in his job 19 category with any of the asbestos product divisions 20 or anything like that. 21 A. Only in view of the fact that when I 22 joined Union Carbide it was known that I had spent a 23 lot of time working in the asbestos industry. From 24 time to time I would be asked for assistance, yes. 2 5 Q. And who would ask you for that UCAREF00011464 33 1 assistance? 2 A. Well, that varied. It might be 3 Dr. Fortney, who wanted to know how to respond to an 4 inquiry; or it might have been somebody in the 5 management of the division that wanted to talk to me 6 about asbestos or chrysotile asbestos or matters of 7 that kind. 8 Q. Were you ever called upon for assistance 9 by a man named Harrison Rhodes? 10 A. I'd more likely call on him for 11 assistance; but I did know Harry Rhodes, yes. 12 Q. During the course of your tenure with 13 Union Carbide between 1982 and the present, were you 14 ever involved in any discussions with a man from 15 Montello Corporation, Ken Campbell? 16 A. Don't know him. 17 Q. Don't know him? 18 A. (Witness shakes head negatively.) 19 Q. Let me show you this Materials Safety 20 Data Sheet from the Calidria Corporation that's 21 dated 12/13/84. Let me ask you first of all: What 22 i8 the Calidria Corporation? 23 A. That was the name of the part of the 24 Metals Division that rained and marketed the Coalinga 25 fiber. UCAREF00011465 34 1 Q. It's a part of Union Carbide? 2 A. It was a part of Union Carbide. 3 Q. Now, could you tell us, if you know, what 4 is the function of a Materials Safety Data Sheet? 5 A. The Materials Safety Data Sheet basically 6 is to provide information to people handling or 7 using a product relating to its physical properties, 8 its health hazards, first aid treatment in the event 9 of acute exposures, and any other relevant matters 10 in order to insure the safety of the product. 11 Q. In the Union Carbide operation, who would 12 receive from Union Carbide copies of the Material 13 Safety Data Sheet, if you know? 14 MR. GARRARD: Doctor, if you know. 15 A. I don't believe I'm qualified to answer 16 that. 17 Q. Now, this publication, which is of 1984, 18 has two parts I'd like to ask you about. 19 MR. GARRARD: Which section are you 20 referring to? 21 MR. CARUSO: Chronic Effects of 22 Overexposure. 23 Q. It says: "Overexposure to chrysotile 24 asbestos has caused damage to lungs (Asbestosis, 25 lung cancer, and mesothelioma of the pleura and the UCAREF00011466 35 1 peritoneum.) " 2 Mr. Rhodes testified in his deposition 3 that this entry that was placed into this Materials 4 Safety Data Sheet was made after discussions with 5 you. 6 Let me ask you first of all, is Mr. 7 Rhodes' recollection correct about that? 8 A. I know I was involved in the drafting of 9 this particular section, yes. 10 Q. Who else was involved in it besides 11 yourself? 12 A. That I don't remember; but -- I think at 13 that time this was -- may well have been partly 14 drafted by somebody in our Toxicology Information 15 Services Group under Mr. Marvin Huffman and that it 16 could have been referred to me from them; or it 17 could have been referred to me from somebody at the 18 division. But I know that the final form of this is 19 probably designed by Mr. Marvin Huffman's group. 20 Q. Marvin Huffman? 21 A. Yeah. 22 Q. And you say "Mr. Marvin Huffman's group." 23 Who was Mr. Huffman? 24 A. Well, he works in the -- in those days I 25 think it was still called Corporate Applied UCAREF00011467 36 1 Toxicology; he worked in that area. It doesn't 2 really matter how he fits into it, but he -- his 3 group, which now is down to himself and someone 4 else, they basically assist the divisions in 5 formatting the Material Safety Data Sheet and do a 6 lot of the literature reviews and that sort of 7 thing. 8 Q. Was it you who suggested that 9 mesothelioma be placed in that paragraph dealing 10 with chronic effects of overexposure? 11 A. I don't know whether, you know, I would 12 put it -- it was I who suggested it. I can only say 13 that this is a combined effort; but probably my 14 input was significant. 15 Q. And do you agree with it as it's written, 16 that overexposure to chrysotile asbestos has caused 17 damage to lungs, (Asbestosis, lung cancer, and IB mesothelioma of the pleura and the peritoneum)? 19 A. I think that in 1984 when this was 20 written -- bearing in mind this is sort of a generic 2 1 type of statement talking about chrysotile asbestos 22 and not distinguishing in any way between the types 23 of chrysotile, bearing in mind the state of 24 knowledge at the time when this was drafted -- there 25 was by that time some evidence basically from the UCAREF00011468 37 1 Canadian chrysotile mines and mills -- and I think 2 possibly from elsewhere; I'm not sure, from 3 Cypress -- of cases of mesothelioma that had been 4 described in persons who had, as far as could be 5 ascertained from, historically worked with 6 chrysotile asbestos. 7 So in that context, I think that at that 8 moment in time it was probably a reasonable 9 statement to make. 10 Q. Would it have been reasonable - 11 MR. GARRARD > Did you finish your 12 answer? 13 A. I think that if this were to be rewritten 14 now, evidence which has come to light within the 15 last four years probably might make one want to 16 modify that statement; because it would appear 17 from -- as I understand the few articles that I've 18 kept up with -- it would appear now that the 19 likelihood of pure chrysotile inducing a 20 mesothelioma is very small, if any, and that most 21 chrysotile which has been incriminated in the 22 Canadian people and in Cypress is contaminated with 23 an amphibole fiber known as tremolite; and so it 24 would probably be written differently today. 25 In other words, it would be -- it's UCAREF00011469 38 1 unlikely that chrysotile asbestos would cause 2 mesothelioma of the pleura in the light of this 3 evidence. 4 Q. You would just take mesothelioma out of 5 this statement today if you were writing this? 6 A. I don't think I would take it out; I 7 think you'd have to give some descriptive 8 explanation as to why this particular product would 9 be unlikely to cause it. 10 Q. But you wouldn't take it out yet? 11 A. I wouldn't take it out; but I'd have to 12 qualify it, I'd have to give a qualifying statement. 13 Q. Would you take out the part about 14 asbestosis where it says. Overexposure to chrysotile 15 asbestos -- 16 A. No . 17 Q. Would you take out thepart of lung 18 cancers ? 19 A. No. 20 When I'm talking about chrysotile -- 21 Q. Right; the chrysotile this is directed 22 to, this Coalinga chrysotile. 23 A. No, I'm not saying that. I think this 24 particular statement is a generic statement that was 25 written in -- because there was no way I believe of UCAREF00011470 39 1 writing a statement like this specifically for 2 Coalinga; so the statement was written as is not 3 uncommon in Material Safety Data Sheets to cover 4 chrysotile asbestos. 5 This was to serve the purpose of the 6 Material Safety Data Sheet, which is as a health 7 warning. And if subsequently it were to be shown 8 that Coalinga fiber had the same potential 9 properties as any other form of chrysotile asbestos, 10 then this would be an acceptable statement. 11 Q. Well, are you saying, then, that Coalinga 12 chrysotile -- __ 13 A. No, I'm not saying anything about -- 14 Q. -- is different than any other 15 chrysotile? 16 A. Yes, it is. 17 Q. Okay. 18 A. That's not what I'm saying at the 19 moment. What I'm saying at the moment is in 20 preparing a Material Safety Data Sheet where the 2 1 evidence is not always complete for the particular 22 chemical or substance that you're writing the 23 Material Safety Sheet, if there is other evidence in 24 the literature for products of a similar kind, then 25 it's reasonable to adapt that in a health hazard UCAREF00011471 40 1 statement, which is really what has taken place 2 here. 3 Q. So if you're going to make a mistake - 4 A. But there are certain differences between 5 Coalinga fiber and other forms of chrysotile 6 asbestos. 7 Q. What are the differences? 8 A. It's a very unique fiber, as I understand 9 it and as I understood it when I was involved. 10 It's -- it really doesn't require any mining; it's 11 almost a surface deposit. And it's -- again, as I 12 understand it and from what I've been told, a form 13 of chrysotile fiber which is purer in the sense that 14 it isn't contaminated by amphiboles, and it has a 15 very characteristic fiber size and shape. It's 16 unusual in that it's a short fiber for a chrysotile 17 and it's a thin fiber. I believe that most of the 18 fibers are less than 5 microns in length; and I 19 don't know what the diameter is but the diameter is 20 certainly very small. 21 Q. You're not saying all of the fibers are 22 less than 5 microns? 23 A. I'm saying the majority. 24 So that has certain implications with 25 regard to the carcinogenic properties of this fiber. UCAREF00011472 41 1 Q. Well, in 1984 when you all wrote this 2 Material Safety Data Sheet, you were trying, I take 3 it, to give as accurate a description as possible of 4 the product that you were selling; were you not? 5 A. In that the product that was being sold 6 was a form of chrysotile asbestos, and given the 7 deficiency on specific health information related to 8 that product, a statement was devised which appeared 9 to be an appropriate health warning. 10 Q. Now, have you developed any information 11 between 1984, the time this was written, and today 12 that shows that the Coalinga chrysotile does not 13 cause asbestosis? 14 A. Huh-uh. I've had no involvement -- I 15 haven't developed personally any information. 16 Q. What about the company? 17 A. As far as I'm aware, that particular 18 company no longer belongs to Union Carbide; so I 19 don't know what they've done. 20 Q. Have you seen any studies that shows that 21 Coalinga chrysotile is not associated with lung 22 cancer? 23 A. I haven't seen any studies that say it 24 is . 25 Q. Have you seen any that says it isn't? UCAREF00011473 42 1 A. I haven't seen either. 2 Q. So the statements that you made here in 3 this 1984 Material Safety Data Sheet, as far as we 4 know through today, are accurate? 5 MR. GARRARD: Hold it. I object to the 6 form of your question in that he has already 7 indicated to you that as to mesothelioma he would 8 change that today; and I think that's a misstatement 9 of what he said. I'm sure you didn't mean to do 10 that, but I object to the form because that's not 11 what he said. 12 MR. CARUSO: You're right. 13 Q. With regard to the asbestosis and the 14 lung cancer, that statement in this Material Data 15 Sheet of 1984, if you were writing it today, you'd 16 write it the same? 17 A. I don't know whether I would; because I 18 know a little bit more about the fiber now than I 19 did then. I also know from my own personal 20 observation of the employees at the King City mine 21 that no evidence has been found to date of -- at 22 least as of the time when I last was involved -- no 23 evidence had been found of asbestosis among the 24 miners. And as far as I'm aware, no excess cancers 25 of the lung had been found, either. So it may well UCAREF00011474 43 1 be that with developing knowledge over the last five 2 years since 1984 it might even be possible to modify 3 the statements with regard to lung cancer and 4 asbestosis; not that I could say that asbestosis or 5 lung cancer will not occur, because I haven't got 6 sufficient evidence for that; but that -- based upon 7 what I do know, it's unlikely that they would occur. 8 Q. Well, you wouldn't be willing to make a 9 statement like that just based on an informal 10 statement -- survey of workers that worked at that 11 mine; would you? 12 A. No, no -- 13 MR. GARRARDt Let him finish. 14 MR. CARUSO: I'm letting him finish; just 15 relax. 16 A. I would not make a statement based purely 17 on that one issue alone. I think that the statement 18 that the information goes further than that is 19 experimental evidence available -- as well as I'm 20 not sure that I was aware of in 1984 but I now am 21 aware of in which this fiber has been shown not to 22 produce significant -- a significant incidence of 23 tumors in the animals. 24 Q. Well, there is also medical evidence that 25 shows that chrysotile fibers does produce tumors in UCAREF00011475 44 1 animals; isn't it? 2 A. Yes; but I am talking of the Coalinga- 3 fiber as opposed to chrysotile asbestos in general. 4 It is a unique fiber, it's different, and it has 5 been studied on its own. 6 Q. In 1966 you all sent some of this stuff 7 over to Mellon for survey. Have you ever seen this 8 report before, the Mellon Institute? 9 A. I don't remember whether I was shown this 10 or not. 11 Q. Take a look at that. 12 MR. GARRARD: Take your time. Doctor. 13 (A recess was taken.) 14 A. May I just ask you if these codes refer 15 to CMS 100 is what? 16 Q. I don't know. It's not my report. 17 MR. GARRARD: I can't answer that 18 question. Doctor. 19 (A discussion ensued off the record.) 20 Q. You looked at this report. Were you able 21 to identify which fibers were fibers from the 22 Coalinga mine? 23 A. No. 24 Q. You can't tell from looking at this? 25 A. No; I don't know where these fibers come UCAREF00011476 45 1 from. 2 Q. Mr. Rhodes testified in hisdeposition 3 that the Coalings fibers - - a sample of the Coalinga 4 chrysotile was sent to the Mellon Institute and they 5 acted just like every other chrysotile fiber. And I 6 asked what does that mean, and he said they produced 7 tumors. 8 You don't know about that? 9 A. No. 10 Q. Let me ask you about thisthing here. 11 What is this "Warning: Cancer Hazard" over here in 12 precautionary statements? What is that for? 13 MR. GARRARD: If you know. Doctor. 14 Q. If you know. 15 A. You know, I had no part in, I don't 16 think, in writing that, and I don't know how these 17 warnings were developed. Must have been some 18 convention that they use when they write these 19 Material Safety Data Sheets as to whether they 20 have -- "Warning: Cancer Hazard" or "danger" or 21 different terms that are used in these things. 22 Q. What is Union Carbide saying? Is this 23 what they want to be put on the bags that the men 24 would actually receive? 25 MR. GARRARD: Doctor, if you know an UCAREF00011477 46 1 answer, give him an answer; but do not speculate. 2 A. I don't know the answer. This is a 3 Material Safety Data Sheet. Labels are something 4 that are dealt with by a specialized group of people 5 who design and wordsmith the labels. I don't have 6 anything to do with that. 7 Q. So this wording here under "Special 8 Precautions" would not necessarily appear on the 9 bags of the product that the men were receiving? 10 A. I don't -- I just don't know. 11 Q. You don't know? 12 A. No. 13 Q. Are you still at this time in your life a 14 subscriber to the Lagg Aphroism? 15 A. uh-huh. 16 Q. Would you tell the ladies and gentlemen 17 of the jury what Lagg Aphroism is? 18 A. Which one? There are four of them. 19 Q. I'll read you one which I like. 20 "Every worker should know something of 21 the materials that he works with and to which he is 22 exposed and the hazards of such materials and not 23 find out for himself, sometimes at the cost of his 24 life. " 25 A. Yes, I agree with that. UCAREF00011478 47 1 Q. is chrysotile asbestos a carcinogen? 2 A. Yes, I believe it's classified as a 3 carcinogen. 4 Q. When did it first get that 5 classification? Do you know? 6 A. That I don't know; because it would -- it 7 depends on who classified it. And I can't tell 6 you -- it's classified as a carcinogen. 9 Q. You said "it depends on who classified 10 it." How many different entities - 11 A. International Agency for Research and 12 Cancer, and the EPA, and -- you know, everybody has 13 their own ideas about classification. I'm not quite 14 sure when it would uniformally be classified, 15 especially in the United States of America. 16 Q. When you got to Union Carbide in 1982, 17 had it been classified as a carcinogen, if you know? 18 A. I don't know. If you're asking me 19 officially, in any official way, I don't know. 20 Q. When you got to Union Carbide in 1982 and 21 took the position as medical director -- excuse me, 22 assistant medical director -- is that right in 1982? 23 A. Assistant corporate medical director. 24 (A discussion ensued off the record.) 25 Q. When you took that job as the assistant UCAREF00011479 48 1 corporate medical director in 1982, did you have an 2 opinion at that time as to whether or not chrysotile 3 was a carcinogen? 4 A. Yes. 5 Q. What was your opinion? 6 A. Chrysotile is a carcinogen. 7 Q. Now, we talked just a second ago about 8 the Lagg Aphroism, which I think is A-p-h-r-o-i-s-m; 9 and in comparing the material which is contained in 10 the Safety Material Data Sheet, the information and 11 a warning label, which has been represented to us to 12 have been on the Coalinga product handled by the 13 Plaintiff in this case, Mr. Soignet, can you tell 14 us. Doctor, whether or not this labeling in light of 15 what's on your Material Safety Data Sheet and the 16 information contained in the Material Safety Data 17 Sheet fulfills Lagg's Aphroism? 18 MR. GARRARD: I'm going to object to the 19 question. He is not here as an expert testifying 20 about warning labels nor their contents, and I'm 21 going to instruct him not to answer the question. 22 MR. CARUSO: That's an instruction not to 23 answer? 24 Q. Doctor, if you have a man who is handling 25 a carcinogen and you do not warn that person UCAREF00011480 49 1 directly that the product he is handling is a 2 potential carcinogen, in your view. Doctor, has the 3 corporation fulfilled its duty to warn that 4 individual of the risks associated with the use of 5 that product? 6 MR. GARRARD: I'm going to object to that 7 question in that you're again asking him for 8 opinions, number one, in terms of whether someone 9 has fulfilled a duty; and number two, you are 10 blankly asking him his opinion concerning the 11 contents of a warning. And I'm going direct him not 12 to answer the question. 13 MR. CARUSO: Please note that we're 14 reserving all objections to his objections for 15 discussion with the Judge. I'm reserving my right 16 to retake this deposition if I have to retake it 17 during the course of this trial. 18 Q. Were there ever any discussions that you 19 know of that took place at Union Carbide to identify 20 the Coalinga asbestos product as a carcinogen on its 21 labels ? 22 MR. GARRARD: Could you read that back? 23 I'm -- 24 Q. Let me ask you again. 25 From the time you arrived at Union UCAREF00011481 50 1 Carbide until the time the mine was sold and Union 2 Carbide got out of the business, were there ever any 3 discussions in which you participated where it was 4 discussed that a label should be put on the bags 5 containing the Coalinga product identifying it as a 6 possible carcinogen? 7 A. I don't recollect participating in any 8 such discussions personally. 9 Q. Do you know of any such discussions 10 having taken place in which you did not participate 11 personally? 12 A. That, again, I can't tell you; I don't 13 know. 14 Q. Mr. Rhodes told us that he thought there 15 were discussions around 1970 about that question. 16 Did you ever - 17 A. I wasn't there then. 18 Q. I know that; but did you ever see any 19 memoranda, documents, or anything dealing with the 20 question of whether or not to identify this product 21 as a possible carcinogen? 22 A. No. 23 Q. Does UnionCarbide today sell any 24 products that have been classified as a carcinogen? 25 A. Probably. UCAREF00011482 51 1 Q. Do you know what they are? 2 A. (Witness shakes head negatively.) ,, 3 Well, you said "sell products"; that I 4 don't know, okay? We have probably in our 5 manufacturing facilities products that might be used 6 in formulations, et cetera, that are classified as 7 carcinogens. 8 For example, I believe one chloride is 9 classified as a carcinogen, and there are a number 10 that are suspected as being carcinogenic. 11 Q. With regard to the ones that are 12 suspected as being carcinogenic, are the people who 13 work with those substances warned by Union Carbide 14 of the potential carcinogenicity? 15 A. I believe everyone who works with these 16 substances knows of the hazards associated with 17 them. 18 Q. Where do they get that knowledge from? 19 A. They get it through their training, 20 through their job safety data sheets, and through 21 the free availability of the Material Safety Data 22 Sheets to all employees. 23 Q. So they actually are getting some of it 24 from the manufacturers of the substance? 25 A. If it happens that the carcinogen is one UCAREF00011483 52 1 you can buy from someone else, then the vendor's 2 Material Safety Data Sheet would be part of the 3 information. If the substance is one of our own 4 product, then it would be our Material Safety Data 5 Sheet. But there is also active employee training 6 continuously going on. 7 Q. Do you all label it, put a label on 8 the -- 9 A. That I don't know. There is a labeling 10 system, you know, the diamond with different things 11 in it; that's basically I think what I've seen. 12 Q. Do you know or know of a man named C. U. 13 Darnehl? 14 A. Dr. Darnehl? 15 Q. Yes. 16 A. I have met him on one occasion. 17 Q. Do you know what his relationship to 18 Union Carbide was or is? 19 A. He had long since retired by the time I 20 got there, and I believe that he had some -- he had 21 an appointment as a medical director; I don't know 22 exactly what his title was. 23 Q. Let me show you a letter of June 7th, 24 1967, which appears to have been penned by Dr. 25 Darnehl to a Mr. Hall, T. J. Hall, Union Carbide, UCAREF00011484 53 1 Europa, and ask you if you've ever seen this letter 2 before? 3 A. No, I haven't seen this letter before. 4 It's barely ledgible. 5 Q. I know. 6 Do you know who Mr. Hall is? 7 A. No. 8 Q. While you were on thePneumoconiosis 9 Panel in England, did you have an opportunity to 10 note an increase in lung cancer associated with 11 people suffering from asbestosis? 12 A. Did I have an opportunity? If you ask it 13 that way, I have to say no; because I wasn't doing 14 any studies. 15 Q. What about the panel itself? Did the 16 panel perform a study? 17 A. Well, the panelspublished their findings 18 annually -- they were usually about two years behind 19 -- in which it was shown that the incidence of 20 asbestosis was increasing, or diagnosed cases of 21 asbestosis by the panels in certain regions was 22 increasing, and also that the -- now, I don't know 23 whether they actually showed the instance of lung 24 cancer to be increasing as well; I can't remember 25 that. But I know that there was this report that UCAREF00011485 54 s 1 came out every year in which the latest statistics 2 were given. I know they were concentrated on 3 asbestosis. 4 The reason was that asbestosis was a 5 prescribed disease; in other words, you could get 6 compensated for asbestosis. Lung cancer in an 7 asbestos worker was not a prescribed disease, 8 because it was a requirement for compensation that 9 asbestosis also be present. So consequently, they 10 didn't tally up the lung cancer cases; they tallied 11 up the asbestos cases. 12 Q. Were you familiar with a report submitted 13 by Dr. Buchannon at the 1964 Academy of Sciences 14 Conference in New York which indicated that in the 15 experience of the cases diagnosed by the 16 pneumoconiosis medical panels in Brittain as 17 suffering from asbestosis, 50 percent of those died 18 of lung cancer as well? 19 A. Right; that was the prerequisite of 20 asbestos and lung cancer. That was a paper that was 21 presented by Dr. Buchannon. I'm familiar with 22 that. The one problem with that paper is that A, it 23 was not a controlled studied, there were no 24 controls; and B, smoking histories were 25 unavailable. UCAREF00011486 55 1 As you know, there is a synergistic 2 effect between asbestos exposure and cigarette 3 smokers, and asbestos workers who smoke cigarettes 4 have a greater chance of developing lung cancer than 5 those who don't. 6 Q. Just to make sure we're on the same page 7 here, you testified that it was your belief that 8 there was possibly a difference between the Coalinga 9 chrysotile and all other chrysotile. 10 I want to make sure I'm getting this 11 right. Is that correct? 12 MR. GARRARD: I've got to object to the 13 form of your question. He didn't say there possibly 14 was; he said there was a difference. 15 A. In the physical properties. 16 Q. Insofar as the disease-causing aspects of 17 these fibers, does chrysotile asbestos, chrysotile, 18 in your view, cause asbestosis? 19 A. Chrysotile asbestos as a generic term? 20 Q. Right. 21 A. Yes. 22 Q. Does the Coalinga chrysotile cause 23 asbestosis? 24 A. All I can say is that -- and I'm only 25 going on my personal experience -- is that I haven't UCAREF00011487 56 1 seen it. 2 Q. Does chrysotile, generic chrysotile 3 let's change again -- is chrysotile associated with 4 lung cancer? 5 A. Yes, it is. 6 Q. Is Coalinga associated with lung cancer? 7 A. Again, I must answer the same way. My 8 personal experience, I haven't seen it. 9 Q. Now, how long did Union Carbide have that 10 mine? Do you know? 11 A. I don't know for sure; but I believe it 12 was started up sometime in the sixties. I just 13 don't know for sure. 14 Q. So it would be fair to say that as of 15 1985 when Union Carbide got rid of the mine that 16 since that's only a 20-year period that there might 17 be cases of asbestosis and lung cancer that would 18 come in years to come based on the latency of those 19 diseases; isn't that true? 20 A. Well, whether it's true or not I don't 21 know; but there is a possibility that followup of 22 that population over a long period of time, if there 23 were going to be an effect might reveal it because 24 of the latency. 25 Q. Now, with regard to the issue of UCAREF00011488 57 1 chrysotile asbestos and mesothelioma, my question to 2 you is: Is there an association at this point in 3 time of any kind between chrysotile and 4 mesothelioma? 5 A. The number of cases of mesothelioma in 6 the literature attributed to exposure to chrysotile 7 asbestos is extremely small; and in a recent - 8 well, let's put it this way: These cases have 9 recently been reviewed by a number of people, and it 10 would appear that the consensus of opinion is that 11 the production of mesothelioma by chrysotile is 12 consistent with the -- is consistent with the 13 contamination of chrysotile by an amphibole fiber 14 known as tremolite. 15 Furthermore, the cases that have been 16 associated and reviewed in the literature following 17 alleged chrysotile exposure only in most instances 18 have been shown to have been probably heavily 19 exposed as indicated by the lung burden of 20 chrysotile fibers; and particularly where -- in the 21 later reports that I've seen, it's possible to look 22 at both tremolite and chrysotile and look at the 23 ratio of the tremolite to the chrysotile in the 24 lung, and the chrysotile disappears from the lung; 25 it doesn't stay in the lung very* readily. But the UCAREF00011489 58 1 tremolite is there, and this ratio of treraolite to 2 chrysotile is a good indicator of the extent of 3 exposure. If there is a lot of tremolite, there has 4 been a heavy exposure to chrysotile. 5 But I think to answer your question, the 6 census of opinion today is that any mesothelioma 7 allegedly due to exposure to chrysotile have 8 probably more likely resulted from the contamination 9 of the chrysotile with tremolite. 10 Q. So does that mean that in your own mind 11 you have eliminated pure chrysotile as a cause of 12 mesothelioma? 13 A. No. 14 Q. Pure uncontaminated chrysotile? 15 A. I haven't eliminated; because Ithink 16 that there is one factor that still needs 17 consideration in that a population of -- has not 18 been studied exposed to pure chrysotile, if there is 19 a pure chrysotile that is suitable for study. 20 Q. Onion Carbide contends that this material 21 is pure uncontaminated chrysotile. Mr. Soignet was 22 one of the folks -- type of person who worked in the 23 oil fields in southeast Louisiana and onshore 24 warehousing who was in contact with this product. 25 How many people would it take to make up UCAREF00011490 59 1 a cohort of people similarly situated to Mr. Soignet 2 to begin a study on this question, if you know? 3 MR. GARRARD: Can you rephrase your 4 question? I'm not sure when you say "to begin a 5 study" that it's an answerable question. And I'm 6 not trying to tell you how to ask your question; you 7 may mean to do a study. I mean, you can begin a 8 study with anything -- ' 9 MR. CARUSO: You're absolutely right; 10 you're much smarter than I am. To do a study, 11 right. 12 Q. If I wanted to do a study, how many guys 13 like Blackie Soignet would I have to go get to make 14 up the cohort? 15 A. Well, a study on asbestos workers were 16 about 300; but at that time he wasn't limiting 17 himself to looking at any particular effect; he was 18 looking at asbestos workers because'it had been 19 brought to his attention that they were suffering 20 from asbestosis. 21 I think it depends on what you want to 22 do. I think this is a question for an 23 epidemiologist. And the number of -- the fact that 24 mesothelioma is a very rare tumor still and that its 25 incidence in the general population is only about UCAREF00011491 60 1 one in a million, its natural incidence. in order 2 to do a study which has any power of reaching 3 statistical significance would require quite a large 4 population. But that's my humble, you know, 5 opinion. 6 Q. So we would be looking for people in the 7 thousands? 8 A. I don't know. 9 Q. You don't know; but it would take a lot 10 of guys? 11 A. I think that would also depend on the 12 potency of the substance that you're looking at. If 13 you had a material that was a very potent 14 carcinogen, you would need fewer people, because you 15 would have more of them affected. 16 Q. We're talking about studying chrysotile, 17 this product, okay? 18 A. I think as far as this product is 19 concerned, you'd probably look forever and not find 20 any. 21 Q. Well, I've already found one. 22 MR. GARRARDi Objection. 23 A. That's your opinion. 24 MR. CARUSOt Thank you. That's all the 25 questions I have. UCAREF00011492 61 1 DIRECT EXAMINATION 2 BY MR. GUYTON: 3 Q. Doctor, when you said that asbestos has 4 been classified by others generally speaking as a 5 carcinogen, you do not mean by that that - 6 MR. GARRARD: Chrysotile, you mean? 7 MR. GUYTON: Let me restate that 8 question. 9 Q. Did you state previously that chrysotile 10 had been classified as a carcinogen by someone? 11 A. I believe that's correct, yes. 12 Q. You didn't mean by that that chrysotile 13 was a carcinogen in every particular type of cancer 14 or circumstances; did you? 15 MR. CARUSO: I object to the leading form 16 of the question. 17 A. I'm not sure what you mean "in every type 18 of --" 19 Q. Well, chrysotile, for instance, doesn't 20 cause skin cancer; does it? 21 A. Oh, I see what you mean. 22 Well, no, not in general. What I was 23 referring to was lung cancer. 24 Q. Specifically it has been'classified as a 25 carcinogen as lung cancer? UCAREF00011493 62 1 A. Well, it's classified a carcinogen based 2 upon the fact that it has been demonstrated to cause 3 lung cancer in humans. 4 MR. GUYTON: Pass the witness. 5 RECROSS-EXAMINATION 6 BY MR. CARUSO: 7 Q. Are you a stockholder in Union Carbide? 8 A. No. 9 Q. Have you seen this before, a copy of the 10 1987 10K from Union Carbide, a copy of the 1987 11 stockholder's report? Have you ever seen those 12 before? 13 A. I may have seen some of them; but I don't 14 get them. 15 Q. You don't get those, though? 16 A. (Witness shakes head negatively.) 17 MR. CARUSO: I have nothing else. Thank 18 you . 19 Having concluded this deposition, at this 20 time I reserve the right to reconvene it after I've 21 had an opportunity to receive a transcript and argue 22 the objections that were made by Mr. Garrard, 23 particularly with regard to his particular 24 25 /// UCAREF00011494 63 1 instructions to the witness not to answer certain 2 questions. 3 (Deposition concluded at 3:55 p.m.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UCAREF00011495 64 1 2 3 CERTIFICATE 4 5 STATE OF GEORGIAS 6 COUNTY OF FULTONs 7 I hereby certify that the foregoing 8 ' transcript was taken down, as stated in 9 the caption, and the questions and answers 10 thereto were reduced to typewriting under 11 my direction; that the foregoing pages 1 12 through 63 represent a true, complete, and 13 correct transcript of the evidence given 14 upon said hearing, and I further certify 15 that I am not of kin or counsel to the 16 parties in the case; am not in the regular 17 employ of counsel for any of said parties; 18 nor am I in anywise interested in the result 19 of said case. 20 This, the 10th day of March 1989. 2.1 22 K - dO --*___ 23 BT K. WILSON, CCR-B-1108 commission expires on the 24 th day of September, 1990. 25 UCAREF00011496 65 1 DEPOSITION OF DR. HILTON C. LEWINSOHN/JAN I do hereby certify that I have read all 2 questions propounded to me and all answers given by me on March 9, 1989, taken before 3 Janet K. Wilson, and that: 4 _____ 1) There are no changes noted. ____ 2) The following changes are noted: 5 Pursuant to Rule 30 (7)(e) of the Federal 6 Rules of Civil Procedure and/or Georgia Code Annotated 81A-130 (B)(6)(e), both of which read in 7 part: Any changes in form or substance which you desire to make shall be entered upon the 8 deposition...with a statement of the reasons given...for making them. Accordingly, to assist you 9 in effecting corrections, please use the form below: 10 Page No. ____ Line No.___ should read: 11 12 And the reason for the change is : 13 Paae No. 14 Line No. should read: 15 And the reason for the change is : 16 17 Page No. Line No. should read: 18 19 And the reason for the change is : 20 Page No. ______ Line No.____ should read: 21 22 And the reason for the change is : 23 24 Page No. Line No. should read: 25 * UCAREF00011497 66 1 DEPOSITION OF DR. HILTON C. LEWINSOHN/JAN And the reason for the change is*____________________________ 2 Page No. Line No. should read: 3 4 And the reason for the change is : 5 6 Page No. Line No. should read: 7 8 And the reason for the change is : 9 Page No. 10 Line No. should read: 11 And the reason for the change is : 12 13 Page No. Line No. should read: 14 15 And the reason for the change is : 16 Page No. 17 Line No. should read: 18 And the reason for the change is t 19 20 Page No. ______ Line No.____ should read: 21 22 And the reason for the change is : 23 Page No. ______ Line No.____ should read: 24 25 UCAREF00011498 67 1 DEPOSITION OF DR. HILTON C. LEWINSOHN/JAN And the reason for the change is : 2 Page No . Line No should read: 3 4 And the reason for the change is : 5 6 Paae No. Line No. should read: 7 8 And the reason for the change is: 9 Pace No. 10 Line No. should read: 11 And the reason for the change is: 12 13 Paae No. Line No. should read: 14 15 And the reason for the change is : 16 Paae No. 17 Line No. should read: 18 And the reason for the change is : 19 20 Paae No. Line No. should read: 21 22 And the reason for the change is : 23 Page No. 24 Line No. should read: 25 UCAREF00011499 68 1 DEPOSITION OF DR. HILTON C. LEWINSOHN/JAN And the reason for the change is : 2 Page No .______ Line No.____ should read: 3 4 And the reason for the change is : 5 6 If supplemental or additional pages are necessary, 7 please furnish same in typewriting annexed to this deposition. 8 9 DR. HILTON C. LEWINSOHN 10 Sworn to and subscribed before me, this the ______ day of . 1989. 11 12 Notary Public. My commission expires: 13 14 15 16 17 18 19 20 21 22 23 24 25 UCAREF00011500 70 1 2 3 4 AMENDED CERTIFICATE 5 6 7 STATE OF GEORGIA: 8 COUNTY OF FULTON: 9 I hereby certify that in addition to the 10 certification made on Page 64 of the transcript, 11 this deposition is being filed pending the witness' 12 right to review said deposition within 30 days, 13 which time has not elapsed. 14 This, the 10th day of March 1989. 15 16 17 18 JANJtT K. WILSON 19 Certified Court Reporter and 20 Notary Public. 21 22 23 24 25 UCAREF00011501