Document K0NbzR0kzQZ59oO1Z9zQnZro

1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF LOS ANGELES, CENTRAL CIVIL WEST 3 --- 4 FRANK SUNDQUIST and ) AMY SUNDQUIST ) 5) Plaintiffs, ) 6) v. )No. BC362023 7) BP WEST COAST PRODUCTS LLC, a ) 8 Delaware corporation; PETRO DIAMOND ) INC., a Delaware corporation; PETRO ) 9 DIAMOND TERMINAL COMPANY, a ) California corporation; UNITED OIL ) 10 COMPANY, a Nevada corporation; ) CROSBY OIL COMPANY, INC., a ) 11 corporation; PILOT TRAVEL CENTERS ) LLC, a corporation; SC FUELS, a ) 12 California corporation; MANSFIELD ) OIL COMPANY, a corporation; SOUTHERN) 13 COUNTIES OIL COMPANY, a California ) corporation; and DOES 1 through 200,) 14 inclusive, ) ) 15 Defendants. ) ____________________________________) 16 17 18 DEPOSITION OF DAVID PYATT, Ph.D. 19 DENVER, COLORADO September 2, 2009 20 21 22 ATKINSON-BAKER, INC. COURT REPORTERS 23 800-288-3376 www.depo.com 24 REPORTED BY PAM D. BUCKNER, CSR 25 FILE NO. A307526 1 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF LOS ANGELES, CENTRAL CIVIL WEST 3 --- 4 FRANK SUNDQUIST and AMY SUNDQUIST ) ) 5) Plaintiffs, 6 ) ) v. 7 BP WEST COAST PRODUCTS LLC, a )No. BC362023 ) ) 8 Delaware corporation; PETRO DIAMOND ) INC., a Delaware corporation; PETRO ) 9 DIAMOND TERMINAL COMPANY, a ) California corporation; UNITED OIL ) 10 COMPANY, a Nevada corporation; ) CROSBY OIL COMPANY, INC., a ) 11 corporation; PILOT TRAVEL CENTERS ) LLC, a corporation; SC FUELS, a ) 12 California corporation; MANSFIELD ) OIL COMPANY, a corporation; SOUTHERN) 13 COUNTIES OIL COMPANY, a California ) corporation; and DOES 1 through 200,) 14 inclusive, ) ) 15 Defendants. ) ____________________________________) 16 17 18 Deposition of DAVID PYATT, Ph.D., taken 19 on behalf of PLAINTIFFS at Embassy Suites, 20 7001 Yampa Street, Denver, Colorado, commencing at 21 11:10 a.m., on September 2, 2009, before Pam D. 22 Buckner, Certified Shorthand Reporter and Notary 23 Public in and for the State of Colorado. 24 25 2 1 APPEARANCES: 2 For Plaintiffs: 3 RAPHAEL METZGER, ESQ. (Appearing via telephone) Metzger Law Group 4 401 East Ocean Boulevard Suite 800 5 Long Beach, California 90802-4966 Telephone: 562-437-4499 6 For Defendants PPG Industries and 7 Sherwin-Williams: 8 THOMAS C. HURRELL, ESQ. Hurrell & Cantrall 9 660 South Figueroa Street 21st Floor 10 Los Angeles, California 90017 Telephone: 213-426-2000 11 For Defendants National Oak Distributors, Inc., 12 and International Autobody Marketing Group dba 5 Star Autobody Products: 13 DEIDRE COHEN KATZ, ESQ. (Appearing via telephone) 14 Walsworth, Franklin, Bevins & McCall One City Boulevard West 15 Fifth Floor Orange, California 92868-3677 16 Telephone: 714-634-2522 17 For Defendants Sherwin-Williams: 18 JAMES R. MILLER, ESQ. Dickie McCamey & Chilcote, P.C. 19 Two PPG Place Suite 400 20 Pittsburgh, Pennsylvania 15222-5402 Telephone: 412-392-5238 21 For Defendants Cumberland Products, Inc.: 22 DOUGLAS J. PAHL, ESQ. (Appearing via telephone) 23 Kern and Wooley 11100 Santa Monica Boulevard 24 Los Angeles, California 90025 Telephone: 310-824-1777 25 3 1 APPEARANCES CONTINUED: 2 For Defendant P.B.E. Warehouse, Inc.: 3 TATIANA OSEROFF, ESQ. (Appearing via telephone) Gordon & Rees 4 101 West Broadway Suite 1600 5 San Diego, California 92101 Telephone: 619-696-6700 6 For Defendant Berg Lacquer Company: 7 JASON M. BOOTH, ESQ. (Appearing via telephone) 8 Dongell, Lawrence & Finney LLP 707 Wilshire Boulevard 9 45th Floor Los Angeles, California 90017-3609 10 Telephone: 213-943-6100 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 INDEX 2 WITNESS: DAVID PYATT, Ph.D. 3 EXAMINATION PAGE 4 BY MR. METZGER 6 5 6 EXHIBITS INITIAL REFERENCE 7 1 Curriculum Vitae 8 8 2 Declaration of Pyatt 11 in Support of Defendant 9 Sherwin-Williams Company 10 3 Declaration of Pyatt 11 in Support of Defendant 11 PPG Industries, Inc. 12 4 Section of Occupational 24 Medicine, The Environment 13 and Disease: Association or Causation? 14 15 16 17 18 19 20 21 22 23 24 25 5 1 PROCEEDINGS 2 DAVID PYATT, Ph.D., 3 having first been duly sworn, was 4 examined and testified as follows: 5 EXAMINATION 6 BY MR. METZGER: 7 Q Good morning, Dr. Pyatt. Would you 8 introduce yourself for the record, please. 9 A Good morning. My name is David Pyatt. 10 Q Dr. Pyatt, we're doing your deposition 11 today in the Sundquist case. It's a limited 12 purpose deposition regarding your declaration 13 filed in support of the summary judgment motion. 14 Where are you right now? 15 A I am sitting in a hotel room outside of 16 the Denver airport at the Embassy Suites. 17 Q Okay. And who is with you in the room? 18 A The court reporter and Tom Hurrell and 19 Jim Miller. 20 MR. BOOTH: Raphael, forgive me. This 21 is Jason Booth. I'm having a great deal of 22 trouble hearing the witness. 23 MR. METZGER: I don't know what to do 24 about that. I can hear him. 25 MR. BOOTH: Okay. I'm just asking. 6 1 Maybe the witness can move the phone closer. 2 THE DEPONENT: Boy, I'm really close to 3 it. And now everyone's kind of fading in and out. 4 I wonder if something's wrong with this phone, if 5 we should try it again with a new phone. 6 MR. BOOTH: Now, that I heard pretty 7 well. 8 THE DEPONENT: Okay. Well, whatever you 9 guys want to do. 10 MR. BOOTH: Keep going. If I'm having 11 real trouble, I'll holler out again. I apologize. 12 MR. METZGER: All right. Let's try it. 13 MR. BOOTH: Thank you. 14 Q (BY MR. METZGER) All right. Now, 15 Dr. Pyatt, I'm not there in the room with you, and 16 I can't see what's going on, so I'm going to ask 17 that both Mr. Hurrell and Mr. Miller not 18 communicate with you while a question is pending. 19 MR. METZGER: Is that agreeable to 20 everyone? 21 MR. HURRELL: What did he say? 22 THE DEPONENT: He said -- he's asking 23 that you do not communicate with me while a 24 question is pending. 25 MR. HURRELL: Well, I think that's fine, 7 1 Raphael. Obviously, we might interpose an 2 objection, but we'll probably not be communicating 3 with the witness. Okay? 4 MR. METZGER: That's what I'm saying. 5 Mr. Miller, do you agree to do that? 6 MR. MILLER: I do. 7 MR. METZGER: And, Madam Reporter, if 8 there's any violation of that, I'm going to ask 9 you to announce that. Okay? 10 THE REPORTER: Yes. 11 Q (BY MR. METZGER) Okay. Dr. Pyatt, you 12 do understand you're under oath, correct? 13 A Yes, sir. 14 Q All right. Now, do you have with you a 15 copy of your curriculum vitae? 16 A I'm sorry, Mr. Metzger. I didn't hear 17 all that. You're kind of cutting in and out again 18 like you were at the very beginning. You asked me 19 about my C.V.? 20 Q Yes, your C.V. 21 A Yes, sir. I do have that. 22 Q Give that to the court reporter so she 23 can mark that as Exhibit 1. 24 A Okay. 25 Q Tell me when you have it back. 8 1 (Exhibit 1 marked for identification.) 2 Q (BY MR. METZGER) Dr. Pyatt? 3 A She's working on it. Okay. I now have 4 it back. 5 THE REPORTER: Exhibit 1 has been 6 marked, the curriculum vitae. 7 Q (BY MR. METZGER) Dr. Pyatt, is Exhibit 1 8 a true and correct copy of your curriculum vitae? 9 A Yes. 10 Q When was this version of your curriculum 11 vitae prepared? 12 A Well, I update it pretty routinely when 13 things change. If by "prepared" you mean printed 14 out, I think I did that Sunday or Monday in 15 preparation for this deposition. When I make 16 changes, I couldn't tell you. It's just really 17 when anything has been added or changed that I 18 remember to get back to it. 19 But I'm looking at it now, and it's -20 it looks quite up to date. 21 MR. HURRELL: Okay. Raphael, this is 22 Tom Hurrell. I think we'd better switch out the 23 phone. You're coming and going. We can't hear 24 most of what you're saying. Okay? 25 MR. METZGER: Then let's switch it out. 9 1 Sure. I'll wait for you guys to phone in again. 2 MR. HURRELL: Yeah. Give us a couple 3 minutes. Okay? 4 (Recess.) 5 MR. METZGER: Sorry. There will be a 6 lot of questions about that. (Inaudible.) 7 THE DEPONENT: Mr. Metzger, you're still 8 kind of cutting in and out. But, yes, we were 9 talking about my C.V. 10 Q (BY MR. METZGER) Are there any 11 publications that you would need to add to your 12 appendix to make it current? 13 A No. 14 (Discussion off the record. Dialing in 15 on a cell phone.) 16 Q (BY MR. METZGER) Is there anything else 17 that you need to add to your curriculum vitae to 18 render it complete and current? 19 A This is much better. Thank you. 20 No. It looks like it's pretty up to 21 date. 22 Q All right. I'm glad that we're now able 23 to hear each other, and we're able to do this 24 deposition. 25 A Yes. 10 1 Q All right. Dr. Pyatt, do you have a 2 copy of your declaration which you have prepared 3 for this case? 4 A Yes. 5 Q Okay. And how many did you prepare for 6 this case? 7 A I prepared two. 8 Q Okay. I'd like you to give the court 9 reporter the one in support of Sherwin-Williams 10 and have that be marked as Exhibit 2. 11 A Okay. 12 Q Tell me when she's given it back to you. 13 (Exhibit 2 marked for identification.) 14 A Okay. I have it back. 15 Q (BY MR. METZGER) And do you have the 16 declaration in support of PPG's summary judgment 17 motion? 18 A Yes. 19 Q Please give that to the court reporter. 20 We'll have that marked as Exhibit 3. 21 A Okay. 22 Q Tell me when you're ready. 23 (Exhibit 3 marked for identification.) 24 A Okay. I've got it. 25 Q (BY MR. METZGER) Okay. Now, let's work 11 1 off -- would it be an accurate statement that with 2 respect to the issue of general causation, that 3 the declarations are the same? 4 A They are the same. The only difference 5 would be the name of the defendant that, you know, 6 is on the cover and footer and things. But, yes, 7 they are the same. 8 Q They're substantively the same? 9 A Yes. 10 Q Good. Very well. Then let's use 11 Exhibit 2, the Sherwin-Williams one, and we'll go 12 through that one, if you would. 13 A Okay. 14 Q First I'd like to ask you about some of 15 your qualifications, Dr. Pyatt. You hold a 16 doctorate of philosophy in toxicology, correct? 17 A That's correct. 18 Q Do you hold any degrees in epidemiology? 19 A No. 20 Q Are you a practicing epidemiologist? 21 A No. 22 Q Have you ever conducted an epidemiologic 23 study? 24 A No. 25 Q I'd like you to turn to paragraph 10 of 12 1 your declaration. 2 A Okay. 3 Q In paragraph 10, beginning at line 9 on 4 page 5, you state -- you describe that there are 5 two critical steps in conducting a causative 6 analysis, and you state, "The first is to 7 establish whether or not the chemical in question 8 has been meaningfully linked in the epidemiology 9 literature with the specific disease." You then 10 state "This constitutes a general causation 11 analysis." 12 Did I read that correctly? 13 A Yes. Yes. I mean, the second sentence 14 kept going, but it was accurate up to that point. 15 Q Right. Is that your best definition of 16 "general causation"? 17 A Whether it's been meaningfully linked in 18 the epidemiology literature with the specific 19 disease -- yes, I think that's a good definition. 20 Q Can you provide me any textbook or 21 published peer-reviewed article that defines 22 "general causation" in that matter? 23 A I think they all do. I think that's 24 just an established way of looking at that issue. 25 I can't point specifically to an epidemiology text 13 1 right now, but I've never seen anything that would 2 lead me to believe that it was substantially 3 different from that. 4 Q Okay. Well, I'm going to tell you that 5 I have searched the medical and scientific 6 literature and textbooks, and I have been unable 7 to find "general causation" defined in the manner 8 that you have. So if you have a particular 9 reference upon which you are relying for that 10 definition of "general causation," I'd ask you to 11 provide it to me. 12 MR. HURRELL: Objection. It's 13 argumentative. 14 A I can't point to one sitting right here 15 now. 16 Q (BY MR. METZGER) All right. Now, are 17 you familiar with the "Reference Manual on 18 Scientific Evidence" published by the Federal 19 Judicial Center? 20 A I've heard of it but, no, I'm not 21 familiar with it. 22 Q Okay. Are you aware that in that 23 reference manual there is a chapter which is 24 called a "Reference Guide on Epidemiology"? 25 A No. I said I wasn't familiar with it. 14 1 Q Okay. I will represent to you that that 2 publication states that general causation 3 addresses the question, "Is the chemical/agent 4 capable of causing the disease that the plaintiff 5 had?" Would you disagree with that definition of 6 "general causation"? 7 A I think that's the same as what I have 8 in my report. 9 Q Well, that's not what I'm asking you. 10 I'm not asking you to compare them. I'm asking 11 you: Do you disagree with that definition? 12 A I do not disagree with that definition 13 with the caveat that it needs some explanation as 14 to how that word "cause" is defined. 15 Q Okay. So you accept that general 16 causation addresses the question whether a 17 particular chemical is capable of causing a 18 particular disease, correct? 19 A Yes. And the evidence that would be 20 used to establish that link would be the 21 quantitative epidemiology literature. 22 Q I'm not asking about the evidence now. 23 I'm just asking: Do you agree with that 24 definition? Yes or no? 25 MR. HURRELL: Well, he's answered the 15 1 question, Raphael. 2 Q (BY MR. METZGER) I think you actually 3 have, so I will move on. 4 Can you identify for me any published 5 peer-reviewed article or textbooks that says that 6 quantitative epidemiology is determinative of the 7 issue of general causation? 8 A Well, again, I guess it's a matter of 9 your interpretation. But my interpretation is 10 that's what they all say. 11 Q Well, I'm not asking for your 12 interpretation or mine. I'm asking if you can 13 actually direct me to any published peer-reviewed 14 article or textbook which states explicitly that 15 quantitative epidemiology is determinative of 16 general causation. 17 A I'll have to think about that. My 18 understanding is that that's what they all say, 19 that that is the most important aspect. And the 20 Surgeon General, EPA, ATSDR, every epidemiology 21 book that I have, Monson's, Livingfield's, there's 22 three or four, they all have sections on 23 establishing causation, and it is always an 24 evaluation of the epidemiology data. And if it's 25 not quantitative, then I don't know what it is. 16 1 Then it wouldn't even be considered epi. 2 MR. METZGER: I'll move to strike as 3 nonresponsive. 4 Q (BY MR. METZGER) I'm simply asking you 5 to identify for me, if you are able, a published 6 peer-reviewed article or textbook that states that 7 quantitative epidemiology is determinative of the 8 issue of general causation. 9 A Based on a word that you just used, no, 10 I cannot tell you that sitting here right now. 11 Q All right. Thank you. 12 When you write in your declaration that 13 general causation is whether or not the chemical 14 in question has been meaningfully linked in the 15 epidemiology literature with a specific disease, 16 I'd like you to direct me to a published 17 peer-reviewed article or textbook that provides an 18 algorithm or criteria for meaningful linkage. 19 A I can't think of one that's used those 20 words. That's my way of defining the way several 21 different textbooks and scientific agencies and 22 bodies evaluate epidemiological data. But I can't 23 think of one that has said "meaningful" in the 24 text. 25 Q Okay. Well, let me then ask you, so I 17 1 have an understanding of what you're intending to 2 convey here, what you mean by "meaningful 3 linkage." 4 A I mean, by meaningful -- "meaningfully 5 linked," that it is consistently seen across 6 different studies and different investigators that 7 it is strong enough to have achieved statistical 8 significance, that they've accounted for 9 confounders, that it's reproducible, that it 10 fulfills the Bradford Hill or some other 11 analytical process for evaluating scientific and 12 epidemiologic data. That's what I mean by 13 "meaningfully linked," that you have more than a 14 single case report. The two big ones, in my view, 15 are consistency and reproducibility. And I think 16 that's true not only for epidemiological data, but 17 for all scientific data. 18 Q Okay. When you say that the results 19 have to be consistent across studies, across how 20 many studies? 21 A I didn't say that it had to be 22 consistent like every single one because you will 23 always find studies that -- I mean, if you ask the 24 questions enough times, there's going to be some 25 variability in the answer just based on random 18 1 chance. There's no set number on how many studies 2 you have to have. I think most people would agree 3 that a single finding, while it may be suggestive, 4 is not sufficient to reach a conclusion on 5 causation. So there's not a set number, but 6 depending on how many you have, you need to be 7 seeing the same results across different studies 8 in order to define that as positive or causation. 9 Q Is there -- in your -- are you saying 10 that there needs to be a certain percentage of 11 studies that have the same result, or not? I'm 12 not quite understanding. 13 A No. I mean, that would be the same 14 thing as if there has to be a set number, and I 15 don't believe there has to be -- there could be a 16 set number because every question that you ask and 17 go to the epidemiological literature to find an 18 answer for is going to be different. 19 With regard to benzene and multiple 20 myeloma, there are many, many studies that have 21 asked that question and have relevant data that 22 bear on that issue, and the vast majority of those 23 studies are negative. So that I consider to be 24 consistent and supports that benzene does not 25 cause this disease, multiple myeloma. 19 1 Q I understand that's your opinion, but 2 let me -3 MR. METZGER: I'm actually going to move 4 to strike the part about benzene and multiple 5 myeloma because I'm not there yet. 6 Q (BY MR. METZGER) I'm asking you now only 7 generally about principles. We will get to 8 benzene and multiple myeloma. But I think you 9 indicated that the studies had to have a certain 10 strength. Did I understand that correctly? 11 A Yes. That's one of Bradford Hill's 12 views. That's one of all of the criteria that 13 I've ever seen to evaluate epidemiological 14 evidence. 15 Q What must the strength be? 16 A Well, the way I view it, the study needs 17 to at least be powerful or different enough to 18 have achieved statistical significance. So there 19 is a statistically significant difference, whether 20 it's positive or negative. If you don't have 21 that, then you can't even say that it's different 22 from the null hypothesis where just chance played 23 some role in the results. So that, I think, is a 24 minimum. 25 Q Okay. And can you identify for me any 20 1 published article, peer-reviewed literature, or 2 any textbook which defines the strength of 3 association by statistical significance? 4 A I think Monson's textbook on 5 Occupational Epidemiology has a nice section on 6 that. I think the Surgeon General's section on 7 evaluating scientific and epidemiological data has 8 language to that effect. But I haven't memorized 9 these, so no, I can't specifically point to one. 10 Q Okay. And you mentioned confounders. 11 What does this study have to do regarding 12 controlling for confounders -- strike that. 13 What else could be done regarding 14 confounders according to your own personal view of 15 this matter of general causation? 16 A Well, I just used that as an example of 17 what studies should do. And that's really the 18 purview of the epidemiologist. And most 19 studies -- most studies that are peer-reviewed 20 have made some effort to account for potential 21 confounders. In a case control study things like 22 recall bias and things like that, you can't always 23 control for them. So they're there, and we all 24 know that they're potentially there, and there's 25 nothing, really, that anyone can do to fix it. So 21 1 you just have to take that into consideration when 2 you're interpreting the data. But there's not 3 going to be a set, fixed answer to your question. 4 It's going to depend on the study type, the 5 design, and what the issues are, what the 6 potential confounders could be. 7 Q Okay. And how is reproducibility, as 8 you're using the term, determined? 9 A That in any evaluation of scientific 10 data -- and I guess it would be hand in hand with 11 consistency -- that people that ask the same 12 question are getting the same answer. And in the 13 biological sciences you want that to be, to the 14 extent possible, different investigators, 15 different labs, different parts of the country. 16 You definitely start having more confidence in the 17 answer when you see different people asking the 18 same question, getting the same answer from 19 different types of studies. So that's -- that's 20 what I mean by reproducibility. And I think 21 that's absolutely critical in any scientific 22 endeavor. 23 Q Can you identify any published 24 peer-reviewed article or textbook which states 25 that reproducibility is a factor in general 22 1 causation? 2 A I would say that that is a fundamental 3 tenet underpinning of all of science. So whether 4 I can point to a specific paper that would satisfy 5 your question, I don't know. But I would, on the 6 record, state that that is absolutely essential to 7 all areas of science. 8 Q I understand your answer, but I'm asking 9 you specifically about general causation. Are you 10 able to identify any textbook or peer-reviewed 11 article which states that reproducibility is a 12 factor in a general causation analysis? 13 A Sure. I think the Bradford Hill does. 14 I think the Henle-Koch, K-O-C-H, postulates do. I 15 think the EPA's guidelines on evaluating 16 carcinogenic data -- they may not use the word 17 "reproducibility," but they certainly have the 18 notion of consistency across studies and seeing 19 the same results from more than one study. They 20 all do. 21 Q Well, I understand what you've just 22 said, Dr. Pyatt, but I think we're now -- you've 23 now defined "reproducibility" as consistency 24 across studies, which we've discussed as the first 25 factor that you mentioned. I'm trying to 23 1 understand if there is something more or different 2 about reproducibility than consistency across 3 studies. 4 A No. I would say those go hand in hand. 5 Q So they're the same thing? 6 A Sure. 7 Q All right. Now, you mentioned Bradford 8 Hill criteria. Are you referring to discerning 9 viewpoints or factors which Sir Austin Bradford 10 Hill identified in making causal determinations? 11 A Right, the benign factors that he 12 described in his '65 paper that have been 13 reproduced for the last 30 years in one form or 14 another. Some people do call them criteria; 15 others don't. But, yes, that's what I'm referring 16 to. 17 Q And you, in fact, cite that article in 18 your declaration, do you not? 19 A I do. 20 Q And you have that article with you, do 21 you not? 22 A I can probably dig it out, yes. 23 Q Please do so and give it to the court 24 reporter to mark as Exhibit 4. 25 (Exhibit 4 marked for identification.) 24 1 A Okay. It's marked as Exhibit 4. 2 Q (BY MR. METZGER) All right. And is that 3 Exhibit 4 the article by Bradford Hill entitled 4 "The Environment and Disease: Association or 5 Causation?" from 1965 Proceedings of the Royal 6 Society of Medicine? 7 A Yes. 8 Q Okay. Now, I'd like you to take a look 9 at your declaration at paragraph 10, page 5, 10 lines 3 to 5. 11 A Before I -- I'm sorry. Go ahead. 12 Q There you state, "To establish 13 causation, the accepted methodology in the 14 scientific and medical communities for rendering 15 an opinion on a chemical cause of disease consists 16 of faithful application of the Bradford Hill 17 criteria (or some other comparable analytical 18 process)." 19 Did I read that correctly? 20 A I'm sorry. I was reading -- okay. Say 21 it again. I'm sorry, Mr. Metzger. I was reading 22 something else. I'm with you now. 23 Q Okay. I'm on paragraph 10 of your 24 declaration -25 A Yes. 25 1 Q -- page 5, lines 3 to 5. 2 A Correct. 3 Q Okay. And what you write there is, "To 4 establish causation, the accepted methodology in 5 the scientific and medical communities for 6 rendering an opinion on the chemical cause of 7 disease consists of faithful application of the 8 Bradford Hill criteria (or some other comparable 9 analytical process)." 10 Did I read that correctly? 11 A Yes, sir. 12 Q And immediately following that, you cite 13 the Hill 1965 article, which is Exhibit 4, 14 correct? 15 A And the Evans' 1976 article. 16 Q Is the Evans what you're referring to as 17 "some other analytical process"? 18 A Well, there's lots of descriptions of 19 this. But, yes, there is something in the Evans 20 paper that is exactly what we're talking about. 21 And that's one of the things that I was reading a 22 few minutes ago, and they talk about establishing 23 objective criteria for causation. And they have a 24 table "Elements of Causation in Chronic Disease," 25 and there they have five -- 26 1 Q Dr. Pyatt, you are getting ahead of me. 2 I think you've answered my question when you said 3 "Yes." 4 A All right. Sorry. 5 Q So I'd like to ask another question, if 6 I could. 7 A Yeah. Yeah. I'm with you. 8 Q All right. First, is that your 9 testimony? 10 A Is what my testimony? 11 Q The quotation from paragraph 10 of your 12 declaration that I read. 13 A That you need to have faithful 14 application of Bradford Hill or some analytical 15 process to establish general causation. Yes, that 16 is my testimony. 17 Q Okay. Now, I'd like you to take a look 18 at Exhibit 4, the Bradford Hill article, and I'd 19 like you to show me where in the article he 20 establishes criteria for causation. 21 A He calls them viewpoints. 22 Q He does not call them criteria, correct? 23 A He didn't in 1965, no. There have been 24 several people who have called them criteria since 25 then in other publications. But, no, Dr. Hill 27 1 didn't. 2 Q Okay. When you say he did not -- when 3 you say that Dr. Hill did not call them criteria 4 in 1965, are you suggesting that anytime during 5 his life he called them criteria? 6 A Oh, I don't know whether that's true or 7 not. 8 Q Okay. Now, there's a paragraph -- well, 9 actually, what Dr. Hill refers to is -- he refers 10 to them as viewpoints, correct? 11 A I think that's right, yes. 12 Q And he identifies nine viewpoints in 13 this article, correct? 14 A That's -- that's right, yes. Nine. 15 Q And then after he's identified those 16 nine viewpoints, he writes something further. I'd 17 like you to turn to that. I think it's a few 18 pages into the article, which I don't have before 19 me. I'm referring to where he states, "Here, 20 then, are nine different viewpoints." Can you 21 find that? 22 A Yes. 23 Q All right. And what he writes is, 24 "Here, then, are nine different viewpoints from 25 all of which we should study association before we 28 1 cry causation. What I do not believe, and this 2 has been suggested, is that we can usefully lay 3 down some hard-and-fast rules of evidence that 4 must be obeyed before we accept cause and effect. 5 None of my nine viewpoints can bring indisputable 6 evidence for or against the cause-and-effect 7 hypothesis, and none can be required as a sene qua 8 non." 9 Did I read that correctly? 10 A Yes. 11 Q All right. Okay. Now, would you show 12 me where in your declaration you identify the 13 Bradford Hill nine viewpoints. 14 A I didn't list them out like that. I 15 referenced the article and referenced the Evans 16 article, and that's all that I did. 17 Q Okay. Would you show me where in your 18 declaration you provided a discussion of your 19 faithful application of the Bradford Hill 20 viewpoints or, as you call them, criteria. 21 MR. HURRELL: Objection. It's 22 argumentative. 23 A I didn't spend a lot of time discussing 24 each one of the viewpoints or criteria, but it was 25 part and parcel of how I reached my conclusions on 29 1 this matter. 2 Q (BY MR. METZGER) Well, can you show me 3 where in your declaration you actually provide a 4 discussion or analysis of any of the Bradford Hill 5 viewpoints or, as you call them, criteria? 6 MR. HURRELL: Same objection. 7 A (Reviewed document.) Well, it doesn't 8 appear to be in this declaration that I'm seeing. 9 Q (BY MR. METZGER) All right. All right. 10 Changing topics. Do you agree that for a credible 11 scientist to make a valid determination of the 12 issue of general causation, it is critical that 13 the scientist consider all available relevant 14 studies to the issue? 15 A Well, I think the scientist in question 16 should do the best that they can. I mean, there's 17 always going to be, under some little rock 18 somewhere, a study that they may have missed. So 19 I don't think you can hold them to absolutely 20 finding every single thing that's ever been 21 published. But I think that they should do the 22 very best that they can. 23 Q And when you say that "they should do 24 the very best that they can," are you saying that 25 it's critical that a scientist making a causal 30 1 determination of general causation should attempt 2 to ascertain, identify, obtain, study all of the 3 available studies that are relevant to the issue? 4 A I didn't get that question. Are you 5 asking if that's what they should do? 6 Q Yes. 7 A Like I said, I think they should do the 8 best that they can in trying to identify and 9 collect all of the relevant scientific data on 10 that issue. 11 Q And do you agree that a failure to do 12 that can result in erroneous conclusions? 13 A Well, it depends on how big of a failure 14 it is. I mean, if you've read 50 papers and they 15 are all pointing in one direction, and then 16 somebody points out one paper from 1984 from 17 Romania that you didn't collect and didn't see, 18 that probably will not mean that your conclusions 19 are erroneous. So it just depends on how big of a 20 problem it is that you didn't collect all the 21 data. 22 Q All right. Do you agree that it's 23 critical that at a minimum the scientist do a 24 comprehensive literature search to identify the 25 available data and relevant studies? 31 1 A Well, I think for -- well, I can only 2 speak for myself. The comprehensive literature 3 search is forever ongoing. There are programs 4 from my library and PubMed and Ovid and others 5 that with key words they continually pull up new 6 studies, things that have been published. So I 7 think this literature searching, for me anyway, is 8 an ongoing process. 9 Q Okay. Before your involvement in this 10 case, when is the last time when you did a 11 literature search relevant to benzene or solvents 12 causing multiple myeloma? 13 A For me it's always. I'm always doing a 14 literature search on that because I'm always 15 getting papers on multiple myeloma. I'm always 16 getting papers on benzene. I'm always getting 17 papers on organic solvents. So it is a continual 18 process. 19 Q Well, I'm not sure I understand what you 20 mean because -- are you telling me that you do a 21 literature search for benzene and multiple myeloma 22 every day? 23 A Yes, every day. 24 Q Every day? Okay. 25 A I don't do that, but -- 32 1 Q I'm sorry? 2 A I don't do that, but PubMed does that 3 and Ovid does that and Dennison Library at the 4 School of Public Health does that. And that is 5 every time a paper is published, they screen the 6 literature, and on a weekly basis, they send me 7 the results of those searches. 8 Q Okay. Where are those search results? 9 I haven't seen them amongst the materials that you 10 produced. 11 A Why should I give those to you? 12 Q You should give those to me to show that 13 you actually did a literature search, because I 14 don't believe you actually did it. Where are 15 they? 16 MR. HURRELL: Raphael, you're arguing 17 with the witness. And we gave you everything 18 contained in Dr. Pyatt's file for this particular 19 case. That's it. 20 Q (BY MR. METZGER) Dr. Pyatt, where are 21 these literature searches that you've done for 22 benzene and multiple myeloma? 23 A They come in on my computer every 24 Sunday, and I read through the lists that come up 25 every Sunday and track down the papers. I print 33 1 out the abstracts, and then I track down the 2 papers that are relevant to that issue. 3 When you do an ongoing search of 4 benzene, you get lots of studies on the chemical 5 composition and how it reacts under various 6 conditions that aren't really relevant to its 7 health effects. But I track down and print out 8 every relevant toxicological paper on benzene. 9 And I have a search criteria for 10 multiple myeloma. And every time a study comes up 11 that has to do with its etiology, I print it out 12 and track the paper down. So I do it every 13 Sunday. 14 Q Okay. And on all these downloads which 15 you receive on your computer every -- are they 16 still on your computer? 17 A No. They come in on my e-mail, and once 18 I go through them -- I mean, I have about 25 that 19 come in either Saturday night or Sunday morning. 20 Once I search through those and pull out the 21 papers that I'm interested in, then I delete them. 22 Q So you don't have them on your computer 23 is what you're telling me; is that correct? 24 A They probably would be in my deleted 25 e-mail file for three months or so, however long 34 1 that I've kept the deleted files. 2 Q Okay. Isn't it true that for purposes 3 of this case you did not do a comprehensive 4 literature search to identify the studies, but 5 that you, rather, focused primarily on the 6 epidemiology literature related to the 7 relationships between benzene exposure and 8 multiple myeloma? 9 MR. HURRELL: Objection. Vague and 10 ambiguous. 11 A I don't understand that question. 12 Q (BY MR. METZGER) Isn't it true that for 13 your analysis in this case you've focused 14 primarily on the epidemiology literature related 15 to the alleged relationship between benzene 16 exposure and multiple myeloma? 17 A Focused primarily, sure, that's true. 18 Q And you did not do a comprehensive 19 literature search for this case, true? 20 A I did not do a comprehensive literature 21 search for this case because my comprehensive 22 literature searching is an ongoing process. There 23 was no need for me to do one specifically for this 24 case. 25 Q Okay. Well, what's the most recent 35 1 article regarding the etiology of multiple myeloma 2 that came from your most recent Sunday morning 3 search? 4 A I don't -- I don't know. There was one 5 that came out last month. The author was Kyle. 6 But I don't have it because it wasn't specific to 7 occupational or environmental exposures. It was 8 more some of the genetics that people are thinking 9 about why people get multiple myeloma. 10 Q Well, let's talk about some of the 11 different studies. First of all, is it correct 12 that there are case reports regarding benzene and 13 multiple myeloma? 14 A Is it correct that there are case 15 reports? Yes. 16 Q Yes. Yes. That's what I'm asking you. 17 A Yes, there are case reports. I can 18 think of at least two. 19 Q And you don't mention those in your 20 declaration, correct? 21 A I don't know. I'll have to look. I 22 usually do. I usually talk about Torres because 23 Torres was what kind of got the whole thing going. 24 But maybe I didn't have it in this declaration. 25 I'm looking for the first pages of it. 36 1 I cited it. Torres is cited in there, 2 so I would assume that it's in here somewhere. 3 No. So you're wrong. It's in here, and 4 axoids are in here. So both of the two that I 5 knew about were cited in this. 6 Q Okay. And those are the only two case 7 reports that you're aware of? 8 A The only two that I can point to right 9 now, but it does seem like there's been another -10 I'm not sure if those were case reports. Yeah. I 11 think those are the only two that I can point to. 12 Q Okay. Let's talk about med analyses. 13 What med analyses regarding benzene and multiple 14 myeloma have been published in the last three 15 years? 16 A Published in the last three years? The 17 only one that I can think of was Peter Infante in 18 2006. I might be blanking on -- there may be a 19 more recent one, but the ones that I can think of 20 sitting here, they were for 2006. 21 Q Okay. Well, since you mention the -22 you have, in fact, read the Infante med analysis, 23 correct? 24 A I've read it, yes. 25 Q And in that med analysis, Dr. Infante 37 1 pulled data from seven cohort studies yielding a 2 statistically significant, weighted, relative risk 3 estimate of 2.13 with a 95 percent confidence 4 interval from 1.31 to 3.46; isn't that correct? 5 A I don't know whether that's correct or 6 not. 7 Q Okay. 8 (Discussion off the record.) 9 Q (BY MR. METZGER) Okay. And I gather 10 that you're not familiar with the med analysis 11 from 2007 reporting a medi-relative risk for 12 benzene and multiple myeloma of 2.29, which was 13 statistically significant; is that correct? 14 A I don't -- what's the -- what's the 15 author? 16 Q It's actually the German Ministry for 17 Labor. 18 A No, I haven't seen their med analysis. 19 I've seen what they said about benzene and 20 non-Hodgkins lymphoma and benzene and AML, but I 21 haven't seen their background analysis, and I 22 don't believe that that's actually been published. 23 Q Oh. Well, it has. And -24 MR. HURRELL: Well, I'm going to object 25 to the statement of counsel. 38 1 Q (BY MR. METZGER) Okay. In your 2 literature search did you identify a large med 3 analysis for multiple myeloma of chemical workers? 4 A Not -- I didn't -- I don't have it all 5 memorized. If you give me the author's first name 6 or last name -- the first author's last name, then 7 I may have seen it. 8 Q Greenberg. 9 A Yeah, I've seen it. 10 Q What study is that? 11 A I think I have. Hold on. Let's see if 12 I have it. 13 (Pause.) 14 No, I don't have it with me. So that 15 was chemical workers? 16 Q Yes. 17 A Hum. It sounds familiar, but I don't 18 have it with me. 19 Q What can you tell me about that study? 20 A I can't tell you anything about it 21 because I don't have it in front of me. 22 Q Okay. What animal studies have you 23 considered for your evaluation? 24 A Animal studies? 25 Q Yes. 39 1 A Well, I'm familiar with all of the 2 published animal studies on benzene. I don't know 3 that experimental animals make a very appropriate 4 experimental model for humans. They don't get the 5 diseases we get, and they get diseases that we 6 don't. 7 But I'm sure that none of those animal 8 studies report an increase in multiple myeloma in 9 those animals. They do get a T-cell lymphoma, 10 which is completely different than multiple 11 myeloma. So I don't think it's 100 percent 12 germane and relevant, and I certainly didn't 13 discuss it in my report. But I'm very familiar 14 with that data. 15 Q All right. First of all, what 16 hematologic malignancy do animals get that is the 17 closest analog to human multiple myeloma? 18 A Animals get multiple myeloma. There's 19 an experimental model where you can induce myeloma 20 in rats, so they have the ability to get multiple 21 myeloma. I don't know -- sorry. Go ahead. 22 Q Go ahead. When you say that there is 23 this model which is used to induce multiple 24 myeloma in rats, what chemical agents have been 25 shown to induce multiple myeloma in rats? 40 1 A I don't -- I don't know. I'd have to 2 pull that study out and look. It starts with a P, 3 but I -4 Q What's the author of the study you're 5 referring to? 6 A I can't remember. It was not in my 7 declaration, and that's what I thought we were 8 going to be discussing today. 9 Q Okay. What -- well, let me ask you 10 this: Are there any reviews in textbooks which 11 conclude that there is a causal relationship -- or 12 a probable causal relationship between benzene and 13 multiple myeloma? 14 A Are there any reviews or textbooks? 15 That wouldn't surprise me. 16 Q Well, which are they? 17 A I don't -- I don't have them all 18 memorized. I don't know. You just mentioned one 19 with Dr. Infante. 20 Q Well, that's another analysis, not a 21 review, correct? 22 A No. It was also a review. 23 Q All right. Are there any chapters in 24 textbooks that you're aware of which conclude that 25 there is a probable causal relationship between 41 1 benzene and multiple myeloma? 2 A I am not aware of any chapter in any 3 textbook sitting here now, no. 4 Q Are you aware of any chapters in any 5 textbooks which conclude that there is a causal 6 relationship between painting and multiple 7 myeloma? 8 A Not sitting here now, no. 9 Q Are you familiar with a study by 10 Delzell -- Elizabeth Delzell and others, which is 11 a method case control study of the Union Oil 12 cohort? 13 A The unpublished paper? Yes, I've read 14 that. 15 Q And you don't mention that in your 16 declaration, do you? 17 A It's unpublished. And I didn't mention 18 lots of things in my declaration. This was not 19 intended to be an all-inclusive encyclopedia of 20 every study that anyone has ever discussed benzene 21 and/or multiple myeloma or any occupational 22 exposure. I mean, there's lots of things that I 23 didn't list in a 20-page declaration. 24 Q Well, that study reported an eight-fold 25 significant excess of multiple myeloma in refinery 42 1 workers which the authors concluded was related to 2 their exposure, true? 3 A I don't remember. I think it was -4 well, I don't remember. It was something with 5 32 years of employment in production workers out 6 in the field. I don't actually remember. Did 7 not -- did not have anything to do with benzene 8 that -- that I recall. 9 Q Oh. Are you telling me that refinery 10 workers and oilfield workers are not exposed to 11 benzene? 12 A I don't think I said that. 13 Q That would be incorrect, wouldn't it? 14 A What you said is incorrect, yes. 15 Q Well, just so we have a clear record, 16 refinery workers and oilfield production workers 17 are occupationally exposed to benzene, true? 18 A Among lots of other chemicals, yes. 19 Q Okay. Now, you mentioned that that 20 study was not published. You said that twice, as 21 a matter of fact. Of what significance is that to 22 you? 23 A It's pretty important. 24 Q Okay. Tell me why. 25 A Why is it important? 43 1 Q Yes. 2 A Because the peer review process is 3 another fundamental tenet of science. That is how 4 something goes from being preliminary to actually 5 being considered scientific data through the peer 6 review process. That is a very important step. 7 Q And you would agree, then, that the 8 authors of that study and Unical should have 9 submitted that study for publication so it could 10 be peer-reviewed, correct? 11 MR. HURRELL: Objection. Calls for 12 speculation. No foundation. 13 A I wouldn't agree to that. I don't know 14 anything about that study other than the report 15 that I read. 16 Q (BY MR. METZGER) Well, if the petroleum 17 industry has consistently, over the years, 18 withheld from publication the positive studies, 19 when you review the published literature, your 20 review would be based upon a nonpublication bias, 21 would it not? 22 MR. HURRELL: You know, Raphael, I'm 23 going to object because you're going beyond the 24 scope of the purpose of this deposition. We're 25 giving you some latitude, but if you could confine 44 1 it to the summary judgment motion, that would be 2 great. 3 MR. METZGER: Your objection is noted. 4 Q (BY MR. METZGER) Please answer the 5 question, Dr. Pyatt. 6 A I didn't actually hear a question in 7 there, so could you do it again. 8 MR. METZGER: Madam Reporter, will you 9 read the question back, please. 10 (The last question was read back by the 11 reporter.) 12 A Well, I don't agree that that's true, so 13 I can't answer that question because that's based 14 on an assumption that I disagree with. 15 Q (BY MR. METZGER) All right. I'd like 16 you to give me your opinion number 1 in your 17 declaration in paragraph 12. You refer there -18 MR. METZGER: Someone on the phone is 19 typing. 20 MR. BOOTH: That's me. I apologize. 21 Q (BY MR. METZGER) You referred, in 22 paragraph 12, to an absence of reliable 23 epidemiological evidence. Do you see that? 24 A Yes. 25 Q How are you defining "reliable"? 45 1 A Based on all the things that we've been 2 discussing, that it's peer-reviewed, that it's 3 statistically significant, that it's consistent 4 across the studies, the Bradford Hill criteria or 5 viewpoints or whatever you want to call them, all 6 the things that we've been discussing. 7 Q So you're saying that in order for an 8 epidemiologic study to be reliable for your 9 consideration in a general causation analysis, it 10 has to be consistent, it has to be statistically 11 significant, it has to have a certain strength, 12 and you're probably also going to tell me that it 13 also has to exhibit a dose response relationship, 14 correct, all those things? 15 A I wouldn't say that, no. 16 Q Okay. On page 6 of your declaration, 17 line 10 and 11, the last two lines of 18 paragraph 13, you write, "Consistently no national 19 or international regulatory agency or scientific 20 body classifies benzene as an established or even 21 suspect (sic) cause of multiple myeloma." 22 Did I read that correctly? 23 A Perhaps. The last sentence is, 24 "Classifies benzene as an established or even 25 suspected cause of multiple myeloma." Maybe 46 1 that's what you said. 2 Q Okay. When you wrote that sentence, you 3 were attempting to mislead the Court, weren't you? 4 MR. HURRELL: Objection. It's 5 argumentative. 6 A That was not my intent, no. 7 Q (BY MR. METZGER) Okay. Well, will you 8 identify for me, please, any regulatory agency or 9 scientific body that specifically classifies 10 chemicals by -- specifically classifies chemicals 11 as being carcinogens for specific cancers. 12 A I don't understand that question. 13 Q Okay. Here's what I'm asking you. Can 14 you identify for me any governmental body or 15 regulatory agency that makes a pronouncement -- a 16 formal pronouncement as to whether benzene or any 17 other chemical causes multiple myeloma. 18 A They don't do that. That's my point. 19 Q Can you identify for me any regulatory 20 body -- regulatory agency or governmental body 21 that classifies chemicals as myelomagen. 22 A There are no chemical causes of myeloma, 23 so how would that -24 Q That's not what I was asking you. 25 A -- how would that be possible? If there 47 1 are no chemicals that cause myeloma, how can there 2 be a scientific or regulatory agency that's going 3 to classify a chemical as being a myelo -4 whatever you called it -- a chemical that can 5 cause multiple myeloma? There is not an 6 established chemical cause. 7 Q Here's what I'm getting it: Are there 8 any governmental agencies or regulatory bodies 9 that actually make a formal evaluation as to 10 whether any chemical causes any particular cancer? 11 A Of course they do. 12 Q Identify such one for me, please. 13 A Well, you read the IRIS value for 14 benzene from U.S. EPA, or you read any of the 15 supporting documentation for the carcinogenicity 16 evaluation for benzene, and they talk about 17 pliofilm, they talk about China, they talk about 18 the epidemiology studies, and they identify AML as 19 the disease that is pretty unequivocally linked 20 with benzene exposure. Of course they do. 21 MR. METZGER: I'd move to strike as not 22 responsive. 23 Q (BY MR. METZGER) Here's what I'm getting 24 at, Dr. Pyatt: You said IARC, did you not? 25 A IARC's on this list, yes. 48 1 Q Right. And that's the International 2 Agency for Research on Cancer, correct? 3 A That's correct. 4 Q And IARC classifies chemicals as being 5 human carcinogens or probable human carcinogens or 6 possibly human carcinogens or animal carcinogens, 7 et cetera, correct? 8 A That's correct. 9 Q IARC does not classify chemicals either 10 by -- strike that. 11 IARC does not classify chemicals as 12 being carcinogens to a particular organ or for a 13 specific cancer, true? 14 A I would disagree with that. I mean, if 15 you just read the first page and it says, okay, 16 benzene is a known carcinogen, it's a Group 1, and 17 then you got up and left and didn't read anything 18 else, fine, you maybe could make that argument. 19 But if you read their position on 20 benzene, they talk about the studies. They 21 identify the diseases that are known to be 22 associated with benzene. So they support their 23 decision that benzene is a known human carcinogen 24 with epidemiological data, and that data 25 identifies cancer. So, no, I don't agree that. 49 1 Q Well, I'm not asking you what the data 2 is that's discussed. You write here that no 3 national or international regulatory agency or 4 scientific body classifies benzene as an 5 established or even suspected cause of multiple 6 myeloma. 7 But isn't it true that no national or 8 international regulatory agency or scientific body 9 classifies any chemical specifically by organ site 10 or specific cancer? 11 A All right. This is the third time we've 12 done this, so I'll say it again. If you look at 13 IARC or you look at EPA or you look at any of 14 these other agencies that go through the process 15 of classifying chemicals, they say, yes, it's a 16 Group 1, Group 2, 2A, 2B. If that's all you read, 17 then you wouldn't know. 18 But if you read five more pages in any 19 of these documents, you will see the discussion of 20 the literature and you will see the synthesis of 21 that literature to support their position on that 22 particular chemical. And in that synthesis they 23 absolutely talk about specific cancers. 24 Q But they don't classify, for example, 25 benzene as a known human acute myelomonocytic 50 1 leukemogen, do they? 2 A Well, they don't have that -- that's not 3 their classification system, but that is what that 4 document says. 5 Q They don't classify any chemical by -6 as a specific organ carcinogen or a specific 7 neoplasm carcinogen, do they? 8 A I don't understand that question. 9 Q All right. I'll accept your answer. 10 Please turn to page 8 of your 11 declaration, paragraph 16. 12 A Okay. 13 Q Here in this paragraph you discuss the 14 association between painting and multiple myeloma, 15 true? 16 A Yes. That's the topic of that 17 paragraph. 18 Q Okay. In the last sentence in that 19 paragraph you write, "These studies also fail to 20 provide a consistent pattern of positive results 21 or evidence of a relevant dose response relation 22 between exposure and risk of multiple myeloma." 23 Correct? 24 A That's what it says, yes. That's what I 25 wrote. 51 1 Q Are you suggesting there that the weight 2 of the evidence does not indicate a causal 3 relationship between painting and multiple 4 myeloma? 5 A That is what I'm suggesting, yes. 6 Q Are you suggesting there that the 7 majority of epidemiologic studies that have 8 assessed it do not provide evidence for a relation 9 between a history of paint-related occupations and 10 myeloma risk? 11 A I think the way I worded it in my 12 declaration is appropriate, that they fail to 13 provide a consistent pattern of positive studies. 14 There are positive studies, and I listed a couple. 15 There are a couple more probably that you could 16 add. There's a whole lot more negative studies 17 that I could add. 18 When you look at the really powerful 19 studies, like Steenland, for example, from the 20 NCI, they looked at 57,000 painters. There was no 21 increase at all in multiple myeloma. That is 22 pretty good evidence that they are unrelated. 23 Q Do you -- are you familiar with a 24 textbook on cancer epidemiology by Schottenfeld 25 and Fraumeni? 52 1 A I don't own that, but it seems like I've 2 seen it. 3 MR. METZGER: It's Schottenfeld and 4 Fraumeni, F-R-A-U-M-E-N-I. 5 Q (BY MR. METZGER) You recognize those 6 authors, do you not? 7 A Vaguely with the textbook. I mean, I've 8 certainly seen studies that Dr. Frau -- however 9 you pronounce his name -- I've seen papers that 10 he's written, so I recognize the name. 11 Q And you're familiar with the textbook 12 entitled "Cancer Epidemiology and Prevention," are 13 you not? 14 A I'd have to say probably not. It 15 sounded familiar, but I -- I can't put my finger 16 on where I saw it. 17 Q So are you telling me, as you sit here 18 today, you are not familiar with a standard and 19 leading textbook on cancer epidemiology? 20 MR. HURRELL: Objection. It's 21 argumentative. It assumes facts not established. 22 A I don't have that book. Whether or not 23 it's the leading textbook in cancer epidemiology, 24 I don't know the answer to that. 25 Q (BY MR. METZGER) Okay. I'd like to read 53 1 you a statement from that textbook. The sentence 2 is as follows: "The majority of epidemiologic 3 studies that have assessed it provide evidence for 4 a relation between a history of paint-related 5 occupations and myeloma risk." 6 Do you disagree with that? 7 MR. HURRELL: Well, objection. No 8 foundation for anything you're saying, Raphael. 9 A I don't have reason to disagree or 10 agree. I don't -- I don't know the context. I 11 don't know when it was written. I don't know what 12 scientific literature they evaluated to make that 13 statement. I don't have an opinion about that one 14 way or the other. 15 Q (BY MR. METZGER) Okay. In paragraph 17 16 of your declaration, on line 19, you write, 17 "There is indisputable evidence that multiple 18 myeloma and acute myelogenous leukemia have 19 different cellular origins." 20 Did I read that correctly? 21 A Yes. 22 Q That statement is flat wrong, isn't it? 23 MR. HURRELL: Objection. Argumentative. 24 A I disagree. 25 Q (BY MR. METZGER) You are familiar, are 54 1 you not, with the publication by the California 2 Environmental Protection Agency titled "Public 3 Health Goal for Benzene in Drinking Water"? 4 A Not very familiar, no. I've read it at 5 one point. I don't have it here. It's not 6 referenced in my declaration. I didn't bring it. 7 Q Okay. I'd like to read a sentence from 8 that publication of the State of California, the 9 Environmental Protection Agency. It says, "Recent 10 cytogenetic studies in individuals with multiple 11 myeloma have reported common genetic abnormalities 12 in plasma cells, myeloid cells, and lymphoid 13 cells, suggesting that multiple myeloma arises 14 from an alteration of hematopoietic stem cells." 15 Do you disagree with that? 16 MR. HURRELL: Objection. No foundation. 17 A I -- I mean, there are certainly plenty 18 of studies that would take a contrary position. 19 But I will look up that reference and see what 20 they're actually talking about. And if there's a 21 legitimate scientific dispute over where the cell 22 of origin is, then I would reword that sentence 23 and take out the word "indisputable." 24 But the studies that I have read clearly 25 indicate that myeloma and AML do not arise at the 55 1 same cellular level. In fact, myelomas have 2 already committed to a lymphoid lineage. They've 3 left the marrow. They've already been exposed to 4 antigen. They've already rearranged their DNA and 5 formed antibody, so they are very far along the 6 B cell lineage before the transformation occurs. 7 Totally completely different from AML. The 8 cytogenetics are different. I mean, they are 9 very, very different diseases. 10 But if there is one study out there that 11 says we think they're the same, then the word 12 "indisputable" would probably be a little strong. 13 Q (BY MR. METZGER) Okay. Are you familiar 14 with a study by an author whose last name is 15 spelled N-G. Ng. It's N-G. That's the last 16 name. No vowels. The title of the study is 17 "Confined Morphological and Interphase 18 Fluorescence In Situ Hybridization Study in 19 Multiple Myeloma of Chinese Patients." Have you 20 read that study? 21 A I haven't read that study, at least not 22 to where it stands out in my mind. 23 Q Okay. Isn't it true that there is an 24 abundant literature regarding the simultaneous 25 occurrence of acute myelogenous leukemia and 56 1 multiple myeloma in patients? 2 A I've seen some. I wouldn't call it an 3 abundance. 4 Q How many studies would you need to say 5 that there's an abundance? 6 A I don't -- I don't know. An abundant -7 an abundant amount. I don't know. I don't know. 8 Q Approximately. I mean, are we talking 9 one, five, ten, fifteen, twenty, thirty? How 10 many? 11 A Ten. 12 Q Okay. I'd like you to take a look at 13 paragraph 20 of your declaration on page 9, 14 lines 21 through 28. 15 A Okay. 16 Q Here you assume that the concentration 17 of benzene in the paint product which 18 Mr. Sundquist used was no more than 0.1 percent, 19 correct? 20 A No more than that. Yes, that's my 21 assumption. 22 Q And you also assume that -- well, strike 23 that. 24 Do you have any evidence, actual data, 25 to establish that the benzene content of the paint 57 1 products that Mr. Sundquist used were less than 2 0.1 percent? 3 A I don't have the data, but I know that 4 they've done testing on the raw ingredients, the 5 materials that went into making the product, and 6 they've done testing on the actual finished 7 product. And it's not listed on the MSDS sheets, 8 and there's a reporting requirement of 0.1 9 percent. But I don't have their testing data. 10 Q Did you ask them for it? 11 A No. 12 Q Have you ever seen it? 13 A Have I ever seen their testing data? 14 No. 15 Q Are you assuming that because the paint 16 manufacturers did not list benzene on their 17 Material Safety Data Sheet, that the products 18 necessarily contained less than 0.1 percent 19 benzene? 20 A That is my assumption, yes. 21 Q Why do you make that assumption? 22 A Why would I not make that assumption? 23 Q Well, I'll answer you because I believe 24 that that assumption is unwarranted. I can't see 25 any reason whatsoever for making that assumption 58 1 based upon what appears on a Material Safety Data 2 Sheet. Do you? 3 A I disagree. 4 Q Why do you think that the absence of 5 benzene on a Material Safety Data Sheet gives rise 6 to an assumption or an inference that the product 7 contains less than 0.1 percent benzene? 8 A Because that's the federal reporting 9 requirement. They've tested their product. It 10 wasn't more than .1 percent. They didn't put it 11 on the MSDS sheet. I trust that's what happened, 12 and I believe the MSDS sheets in terms of that 13 aspect, and that's my assumption. 14 Q Are you saying that federal OSHA does 15 not require manufacturers -- paint manufacturers 16 to list benzene on their Material Safety Data 17 Sheets if the benzene concentration is less than 18 0.1 percent? 19 A I'm sorry. I didn't get that question. 20 Am I assuming that that's -- what was the 21 question? 22 Q No. Are you saying that there's some 23 regulatory -- that there's some regulation that 24 says that if the benzene concentration of a 25 product is less than 0.1 percent, the manufacturer 59 1 of that product doesn't have to list benzene on 2 the Material Safety Data Sheet for the product? 3 A That's my understanding of the federal 4 hazard communication, that if it's more than 5 .1 percent, it needs to be listed on the MSDS 6 sheet. So if it's not listed on the MSDS sheet, 7 then my assumption is that it is something less 8 than .1 percent. 9 Q Have you ever read that regulation in 10 its entirety? 11 A I don't know what its entirety is. I've 12 read it. 13 Q Okay. If you've read it, isn't it true 14 that what the regulation actually says is that a 15 manufacturer must list benzene on its Material 16 Safety Data Sheet for the product even if benzene 17 is present at a concentration of less than 18 0.1 percent if, for the use of the product, a PEL 19 or TLV could be exceeded or the use of the product 20 could present a health hazard to the worker? 21 MR. HURRELL: Well, objection. I 22 believe, you know, there's no foundation for 23 what -- I believe you're misreading that, Raphael. 24 But go ahead and answer if you can, 25 Doctor. 60 1 A I recall some language. I don't know if 2 it's exactly the way you just described it. But I 3 haven't seen any evidence that that's the case. I 4 think that's how OSHA set the .1 percent, is that 5 it was not likely to exceed the PEL under normal 6 working conditions. 7 Q (BY MR. METZGER) Are you suggesting that 8 even though paint is often sprayed, that paint 9 containing 0.1 percent would not produce a 10 respiratory exposure in excess of a TLV or PEL? 11 MR. HURRELL: Objection. No foundation. 12 A All I'm saying is that's my 13 understanding of how the OSHA standard was set. 14 I'm not an industrial hygienist. 15 MR. HURRELL: And, Raphael, can we take 16 a two-minute restroom break? 17 MR. METZGER: Well, I'd actually like to 18 wrap it up, so if we could go on for just another 19 few minutes, I think I can wrap it up. I actually 20 have to get on the road myself. 21 MR. HURRELL: Go right ahead, then. 22 MR. METZGER: Thank you. 23 Q (BY MR. METZGER) Dr. Pyatt, would you 24 agree that a determination of general causation, 25 in this instance whether benzene had caused 61 1 multiple myeloma, that there is no algorithm by 2 which that is determined? 3 A What's your definition of an 4 "algorithm"? 5 Q You've heard the word before, haven't 6 you? 7 A You know, I think the only other time 8 I've heard it was in a deposition, and it might 9 have been with you. 10 Q Okay. Did you look it up after I 11 mentioned it? 12 A Sorry. Sorry. I think I know. I mean, 13 I'm pretty sure I know what you're asking. Is it 14 like a set formula? No, there's not a set formula 15 that anyone can use to establish general 16 causation. It's an evaluation of the literature 17 based on the criteria that we've been -- that we 18 discussed somewhat and others -- you can use 19 others if you like. They're all pretty similar. 20 Q And would you agree that therefore the 21 determination of that issue is one which requires 22 the exercise of professional judgment? 23 A Well, I think professional judgment is a 24 part of the evaluation, yes, because there isn't a 25 set blueprint that one could follow that would end 62 1 up with a box yes or a box no. 2 Q And would you therefore agree that two 3 qualified scientists, each exercising their own 4 best independent professional judgment, could 5 reach different conclusions on the issue of 6 general causation? 7 (Discussion off the record.) 8 Q (BY MR. METZGER) That two qualified 9 scientific experts, each exercising their own best 10 professional judgment, could reach different 11 conclusions on the issue of general causation. 12 A That's pretty vague. I think it's 13 possible. If you're referring to the benzene and 14 multiple myeloma literature and that general 15 causation, that literature seems pretty clear to 16 me. 17 Q Incidentally, have you read the article 18 by Beelte, B-E-E-L-T-E? 19 A That doesn't sound familiar. 20 Q I understand that you're soon going to 21 be going to Munich for the International Benzene 22 Conference, correct? 23 A That's true. I leave on Saturday. 24 Q And have you seen the abstracts for the 25 conference? 63 1 A I've seen some of them. I haven't seen 2 all of them. I've seen the names of the titles, 3 but I haven't read all the abstracts. 4 Q Do you have them? 5 A I don't know if I have them or not. 6 We -- I've seen the abstracts for the posters 7 because I'm chairing one of the poster sessions, 8 but I don't know if I have all of the abstracts 9 for the individual presenters or not. 10 Q You are aware that Bernie Goldstein is 11 presenting at the conference? 12 A I am aware that Dr. Goldstein has a 13 presentation, yes. 14 Q Okay. And you consider him to be a 15 credible expert, do you not? 16 A I -- I do. 17 Q And are you aware that Dr. Goldstein's 18 abstract for his presentation states that the 19 association between benzene and multiple myeloma 20 is now conclusive? 21 A I don't recall that being in his 22 abstract, and I would strongly disagree with that 23 unless he means -- unless he means that it's 24 conclusive that it's not an association. 25 Q No. That's not what he means at all. 64 1 A Then I would disagree with that. 2 Q Okay. 3 MR. BOOTH: I'll object to the 4 characterization of Dr. Goldstein. 5 (Discussion off the record.) 6 MR. METZGER: Just give me a moment. I 7 think I'm done. 8 Okay. I am, so I'll propose that the -9 well, let's go off the record one second. 10 (Discussion off the record.) 11 MR. METZGER: I'll propose that the 12 court reporter forward the original transcript of 13 this deposition to Mr. Hurrell. Mr. Hurrell will 14 make it available to Dr. Pyatt to read, review, 15 and sign. I would ask the court reporter to have 16 the signature page state that the -- that the 17 witness is signing the declaration under penalty 18 of perjury under the laws of the state of 19 California and of the United States. 20 Dr. Pyatt, you may sign the transcript 21 under penalty of perjury without having to have it 22 notarized. 23 THE DEPONENT: Okay. 24 MR. METZGER: You may make any 25 corrections that you wish. I would ask that you 65 1 make the corrections on the pages where the 2 testimony occurs and then list them on the errata 3 sheet at the end of the transcript so that 4 everyone may know where those are. 5 THE DEPONENT: Sure. That's fine. I'll 6 do that. 7 MR. METZGER: I would ask you to then 8 forward the transcript to Mr. Hurrell. You can 9 have 30 days from Mr. Hurrell's receipt to read, 10 review, sign, and make the corrections. 11 When Mr. Hurrell receives the transcript 12 back from you, he will forthwith notify all 13 counsel of the changes, and then he will forward 14 the original transcript to my office, and we will 15 lodge it in advance of the hearing on summary 16 judgment. Or if it's not available by then, we'll 17 lodge it in advance of any hearing or trial on 18 reasonable request. If the original's not signed 19 or is lost, a certified copy may be used with full 20 force and effect. 21 So stipulated? 22 MR. HURRELL: Sounds fine. 23 MR. BOOTH: So agreed. 24 MR. MILLER: So stipulated. 25 MR. METZGER: Very well. Thank you, 66 1 gentlemen. 2 (The deposition was concluded at the 3 approximate hour of 1:13 p.m.) 4 5 ***** 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 67 1 I, DAVID PYATT, Ph.D., do hereby certify 2 under penalty of perjury that I have read the 3 foregoing deposition and that the same is a true 4 and accurate transcript of my testimony, except 5 for attached amendments, if any. 6 7 ____________________________ 8 DAVID PYATT, Ph.D. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 68 1 REPORTER'S CERTIFICATE 2 I, PAM D. BUCKNER, Certified Shorthand 3 Reporter and a Notary Public in the State of 4 Colorado, appointed to take the deposition of 5 DAVID PYATT, Ph.D., do hereby certify that the 6 deponent was by me first duly sworn to testify to 7 the truth under the penalty of perjury; that the 8 deposition was taken by me at Embassy Suites, 7001 9 Yampa Street, Denver, Colorado, on September 2, 10 2009; that the proceedings were thereafter reduced 11 to typewritten form by means of computer-aided 12 transcription; that the foregoing is an accurate 13 transcript of the proceedings at that time. 14 I further certify that I am not related 15 to any party herein or their counsel and have no 16 interest in the result of this litigation. 17 IN WITNESS WHEREOF, I have hereunto set 18 my hand and affixed my Notarial Seal this 14th day 19 of September, 2009. 20 21 ________________________ 22 PAM D. BUCKNER, CSR 23 24 My Commission Expires 10/02/2010 25 69