Document KG70mJZxOZMOZBjwnZXL857BN

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE MARY GABALDON, individually and as Personal Representative of 10 the Estate of Esequiel Gabaldon; STEVEN GABALDON, individually; 11 and PAUL GABALDON, individually, f 12 13 vs . Plaintiffs, 811474 14 BOEING; ROCKWELL; THE BRUSH BERYLLIUM COMPANY (formerly Doe 15 Defendant No. 1); and DOES 3 through 100, inclusive, 16 Defendants. 17 18 19 DEPOSITION OF DENNIS JAMES PAUSTENBACH, Ph.D., DABT 20 Sunday, October 15, 2000 21 Long Beach, California 22 23 REPORTED BY: Lyn Corrin Aaker, CSR No. 6228 24 25 1 1 2 3 4 Deposition of DENNIS JAMES PAUSTENBACH, 5 Ph.D., DABT, an Expert Witness, taken 6 on behalf of Plaintiffs, at 401 East 7 Ocean Boulevard, Suite 800, Long Beach, 8 California 90802, commencing at the hour 9 of 11:07 a.m., Sunday, October 15, 2000, 10 before Lyn Corrin Aaker, CSR No. 6228, 11 pursuant to Notice of Taking Deposition. 12 , 13 14 15 APPEARANCES OF COUNSEL: 1. 16 For Plaintiffs: LAW OFFICES OF RAPHAEL METZGER BY: RAPHAEL METZGER 17 Attorney at Law 401 East Ocean Boulevard 18 Suite 800 Long Beach, California 90802 19 For Defendant LAW OFFICES OF PETER J. NOVA 20 BRUSH WELLMAN BY: PETER J. NOVA COMPANY: Attorney at Law 21 456 Patten Street Sonoma, California 95476 22 23 24 25 2 ~ 1 INDEX 2 3 WITNESS EXAMINATION PAGE 4 Dennis James By Mr. Metzger 8 Paustenbach, 5 Ph.D., DABT 6 7 EXHIBITS FOR IDENTIFICATION 8 (All exhibits bound under separate cover.) 9 Plaintiffs' 1 copy of curriculum vitae; 9 76 pages 10 Plaintiffs' 2 Copy of "Settlement Conference/ 10 11 Mediation Brief"; 31 pages 12 Plaintiffs' 3 Copy of "The Standard for 11 Control of Chronic Beryllium 13 Disease"; 7 pages 14 Plaintiffs' 4 Copy of I' Identifying 12 Appropriate Occupational 15 Exposure Limit for Beryllium"; 40 pages 16 Plaintiffs' 5 Copy of contract; 5 pages 12 17 Plaintiffs' 6 Copy of deposition notice; 13 18 6 pages 19 Plaintiffs' 7 Copy of "Beryllium"; 10 pages 13 20 Plaintiffs' 8 Copy of "Non-occupational 13 Berylliosis"; 13 pages 21 Plaintiffs' 9 Copy of "Interaction of 14 22 Genetic and Exposure Factors in the Prevalence of 23 Beryllosis"; 10 pages 24 Plaintiffs' 10 Copy of "Significance of 15 the Blood Beryllium 25 Lymphocyte Proliferation Test"; 4 pages 3 1 (continued) INDEX 2 3 EXHIBITS FOR IDENTIFICATION 4 Plaintiffs' 11 Copy of "Beryllium Disease: 15 A Clinical Perspective"; 5 8 pages 6 Plaintiffs' 12 Copy of "Epidemiology of 15 Beryllium Sensitization 7 and Disease in Nuclear Workers"; 7 pages 8 Plaintiffs' 13 Copy of "Risks of Beryllium 16 9 Disease Related to Work Processes at a Metal, Alloy, 10 and Oxide Production Plant"; 8 pages 11 Plaintiffs' 14 Copy of "Chronic Beryllium 16 12 Disease in a Precious Metal Refinery"; 8 pages 13 Plaintiffs' 15 Copy of "Threshold Limit 17 14 Values 1984"; 63 pags 15 Plaintiffs' 16 Copy of "Beryllium Disease 17 Screening in the Ceramics 16 Industry"; 8 pages 17 Plaintiffs' 17 Copy of "A Long-term Follow- 18 up of Workers Exposed to 18 Beryllium"; 9 pages 19 Plaintiffs' 18 Copy of "Retrospective 18 Beryllium Exposure Assessment 20 at the Rocky Flats Environmental Technology 21 Site"; 5 pages 22 Plaintiffs' 19 Copy of "Chronic Beryllium 18 Disease Prevention Program, 23 Final Rule, Economic Analysis"; 5 pages 24 Plaintiffs' 20 Copy of "History of - 19 25 Bervllium"; 17 Daaes 4 1 (continued) INDEX 2 3 EXHIBITS FOR IDENTIFICATION 4 Plaintiffs' 21 Copy of "Assessment of Risk 19 Potential"; 12 pages 5 Plaintiffs' 22 Copy of "10 CFR Part 850"; 19 6 62 pages 7 Plaintiffs' 23 Copy of "Chronic Beryllium 20 Disease and Cancer Risk 8 Estimates"; 14 pages 9 Plaintiffs' 24 Copy of "Machining Risk of , 20 Beryllium Disease and 10 Sensitization With Median Exposures Below 2 Micrograms 11 Per Cubic Meter"; 10 pages 12 Plaintiffs' 25 Copy of "Federal Register on 20 Beryllium"; 14 pages 13 Plaintiffs' 26 Copy of "Immunopathogenesis of 21 14 Chronic Beryllium Disease"; 21 pages 15 Plaintiffs' 27 Copy of "Differential 21 16 Diagnosis of Chronic Beryllium Disease"; 10 pages 17 Plaintiffs' 28 Copy of "Draft Documentation 21 18 of the Threshold Limit Value for Beryllium and Compounds"; 19 14 pages 20 Plaintiffs' 29 Copy of "Animal Models of 23 Beryllium-induced Lung 21 Disease"; 7 pages 22 Plaintiffs' 30 Copy of "The Natural History 23 of Beryllium Sensitization 23 and Chronic Beryllium Disease"; 7 pages 24 25 5 ~~ 1 (continued) INDEX 2 3 EXHIBITS FOR IDENTIFICATION 4 Plaintiffs' 31 Copy of "A Study on the 23 Beryllium Lymphocyte 5 Transformation Test ; 6 pages 6 Plaintiffs' 32 Copy of "Epidemiological 24 7 Aspects of Beryllium- induced Nonmalignant 8 Lung Disease"; 7 pages 9 Plaintiffs' 33 Copy of "Beryllium Disease 24 Screening in the Ceramics 10 Industry"; 8 pages 11 Plaintiffs' 34 Copy of "Chronic Beryllium 24 Disease: Uncommon Disease, 12 Less Common Diagnosis"; 3 pages 13 Plaintiffs' 35 Copy of "Chronic Beryllium 25 14 Disease: Diagnosis and Management"; 3 pages 15 Plaintiffs' 36 Copy of "A Study of Beryllium 25 16 Exposure Measurements, Part 2"; 4 pages 17 Plaintiffs' 37 Copy of "Beryllium Disease: 25 18 A Clinical Perspective"; 9 pages 19 Plaintiffs' 38 Copy of summary of documents; 26 20 3 pages 21 Plaintiffs' 39 Copy of "The Origin and Basis 27 of Threshold Limit Values"; 22 14 pages 23 Plaintiffs' 40 Copy of "Non-occupational 27 Berylliosis in Lorain, - 24 Ohio, August 5, 1948"; 82 pages 25 6 ~~ 1 (continued) INDEX 2 3 EXHIBITS FOR IDENTIFICATION 4 Plaintiffs' 41 Copy of typewritten notes; 28 2 pages 5 Plaintiffs' 42 Copy of "Medical Meeting 137 6 at Luckey, Ohio, March 20, 21, 1951"; 28 pages 7 Plaintiffs' 43 Copy of "St. Clair OnSite 138 8 Box No. 128"; 6 pages + 9 Plaintiffs' 44 Copy of August 29, 1967 138 J . M . DeNardi, M.D., letter; 10 2 pages 11 Plaintiffs' 45 Copy of August 9, 1974 141 NGK Insulators, Ltd., 12 letter; 2 pages 13 Plaintiffs' 46 Copy of August 16, 1974 142 Shogo Shima, M.D., letter; 14 2 pages 15 Plaintiffs' 47 Copy of "Beryllium Poisoning 144 and Health Care"; 26 pages 16 Plaintiffs' 48 Copy of "The Standard for 154 17 Control of Chronic Beryllium Disease"; 7 pages 18 Plaintiffs' 49 Copy of "Beryllium"; 10 pages 155 19 Plaintiffs' 50 Copy of "Machining Risk of 156 20 Beryllium Disease and Sensitization With Median 21 Exposures Below 2 Micrograms Per Cubic Meter"; 10 pages 22 23 24 25 1 SUNDAY, OCTOBER 15, 2000, LONG BEACH, CALIFORNIA 2 11:07 A.M. 3 *** 4 5 DENNIS JAMES PAUSTENBACH, Ph.D., DABT, 6 the witness herein, having been first duly sworn, 7 was examined and testified as follows: 8 9 EXAMINATION + 10 BY MR. METZGER: 11 Q. Good morning, Doctor. Would you 12 state and spell your full name for the recoqd, 13 please. 14 A. Dennis James Paustenbach. 15 Q. Is that P-a-u-s-t-e-n-b-a-c-h? 16 A. Yes, it is. 17 Q. And you are a Ph.D. Correct? Not a 18 medical doctor? 19 A. That's correct. 20 Q. You've given depositions before? 21 A. Yes. 22 Q. Approximately how many? 23 A. Between 10 and 20. 24 Q. That's over your entire career? 25 A. Yes, sir. 8 1 Q. You feel comfortable with the 2 process? 3 A. Yes. 4 Q. You understand you're under oath? 5 A. Yes. 6 Q. All I'll say is that if you don't 7 understand a question that I ask you, just let me 8 know, and I'll rephrase it so that it is clear to 9 you. You've been designated as an expert in this 10 case on behalf of the defendant Brush Wellman, and 11 you've been asked to produce certain documents here 12 at your deposition today. I see you've broyght 13 materials. 14 First of all, do you have a 15 curriculum vitae? 16 A. Yes. 17 Q. May I have that, please. 18 A. Yes. 19 MR. METZGER: All right. That will be 20 Exhibit 1. 21 (A copy of the aforementioned 22 document, consisting of 76 pages, was 23 marked by the court reporter as 24 Plaintiffs' Exhibit+ 1 for identification; 25 bound separately.) 9 1 BY MR. METZGER: 2 (1. And what are the other materials that 3 you've brought with you? 4 A. I brought a settlement conference/ 5 mediation -- you asked me to bring things that were 6 given to me by Mr. Nova. 7 (2. I'll tell you what. Is everything 8 that you've brought with you here on the table? 9 A. Yes. There may be some doubles, by 10 the way. 11 (2. Let me just take a l o o k at these 12 things because some look familiar and some qon't. 13 I'll identify some and I'll mark some. You've 14 brought a settlement conference/mediation brief 15 prepared by my office, which you've made some 1 6 highlighting on. Okay. And I guess we'll make that 17 Exhibit 2. 18 (A copy of the aforementioned 19 document, consisting of 31 pages, was 20 marked by the court reporter as 21 Plaintiffs' Exhibit+ 2 for identification; 22 bound separately.) 23 BY MR. METZGER: 24 Q. You've got here a copy of the 25 so-called crime fraud order with some other records 10 1 attached to it. Oh, I see. 2 MR. NOVA: That's the attachment to No. 1 3 here -- or No. 2. 4 MR. METZGER: All right. We'll make that 5 all, then, Exhibit 2, then, since it was one 6 document. Thank you. 7 (2. All right. Chapter 41 written by you 8 in Patty's 5th edition is "The History and 9 Biological Basis of Occupational Exposure Limits for 10 Chemical Agents. " 11 Does this chapter at all address 12 beryllium? 13 A. I don't recall if beryllium is in 14 there. 15 (1. I'm going to get a copy of this made, 16 but I'm not going to attach it to the deposition. I 17 always like to read things that folks like you 18 write. 19 Next we have "The Standard f o r 20 Control of Chronic Beryllium Disease" by 21 Merril Eisenbud published in "Applied Occupational 22 Environmental Hygiene," January 1998. That will be 23 Exhibit 3. 24 (A copy of the aforementioned 25 document, consisting of seven pages, was 11 1 marked by the court reporter as 2 Plaintiffs' Exhibit+ 3 for identification; 3 bound separately.) 4 BY MR. METZGER: 5 (2. Your article "Identifying Appropriate 6 Occupational Exposure Limit for Beryllium," marked 7 "Draft 9/9/00," which will be Exhibit 4. That's 8 what that is. Correct? 9 A. Yes, sir. 10 (A copy of the aforementioned 11 document, consisting of 40 pages, was 12 marked by the court reporter as 13 Plaintiffs' Exhibit+ 4 for identifi;ation; 14 bound separately.) 15 BY MR. METZGER: 16 Q. Your contract with Mr. Nova for this 17 case. Correct? 18 A. Yes. 19 MR. METZGER: This is Exhibit 5. 20 (A copy of the aforementioned 21 document, consisting of five pages, was 22 marked by the court reporter as 23 Plaintiffs' Exhibit+ 5 for identification; 24 bound separately.) 25 BY MR. METZGER: 12 1 (1. Okay. The notice of deposition with 2 the transmittal letter from Mr. Nova will be 3 Exhibit 6. 4 (A copy of the aforementioned 5 document, consisting of six pages, was 6 marked by the court reporter as 7 Plaintiffs' Exhibit+ 6 for identification; 8 bound separately.) 9 BY MR. METZGER: 10 (1. Exhibit 7 will be the 1963 version of 11 Stokinger's article on "Beryllium" in Patty's second 12 revised edition. Correct? t 13 A. Yes, sir. 14 (A copy of the aforementioned 15 document, consisting of 15 pages, was 16 marked by the court reporter as 17 Plaintiffs' Exhibit+ 7 for identification; 18 bound separately.) 19 BY MR. METZGER: 20 (1. The "Nonoccupationa1 Bery11iosis'I 21 article by Eisenbud from 1949. Correct? 22 A. Yes. 23 MR. METZGER: That will be Exhibit 8. 24 (A copy of the aforementioned 25 document, consisting of 13 pages, was 13 marked by the court reporter as Plaintiffs' Exhibit+ 8 for identification; bound separately.) BY MR. METZGER: (2. Now, here is what appears to me to be 6 a duplicate of the Eisenbud article that we 7 previously marked. Is that correct? 8 A. Probably. I've brought doubles in 9 case you want to put them as exhibits. 10 (2. Oh, you did. That's very nice of 11 you. That's this one. Correct? 12 A. Yes. 13 Q. The only thing is that one hAs your 14 highlighting on it. Let's make that one the exhibit 15 rather than this one, and I'll give that one to 16 you. Okay? 17 I have a check for you which I'll 18 fill out the amount and everything at the end after 19 you give me your tax ID number. 20 The Richeldi article, which will be 21 No. 9. 22 (A copy of the aforementioned 2 3 document, consisting of ten pages, was 24 marked by the court reporter as 25 Plaintiffs' Exhibit+ 9 for identification; 14 1 bound separately.) 2 MR. METZGER: An article by Lee Newman, 3 No. 10, "Significance of the Blood Beryllium 4 Lymphocyte Proliferation Test." 5 (A copy of the aforementioned 6 document, consisting of four pages, was 7 marked by the court reporter as 8 Plaintiffs' Exhibit+ 10 for identification; 9 bound separately.) 10 MR. METZGER: The Hardy article from 1980 11 "Beryllium Disease: A Clinical Perspective" will be 12 Exhibit 11. 13 (A copy of the aforementiongd 14 document, consisting of eight pages, was 15 marked by the court reporter as 16 Plaintiffs' Exhibit+ 11 for identification; 17 bound separately.) 18 MR. METZGER: The Kreiss article 19 "Epidemiology of Beryllium Sensitization and Disease 20 in Nuclear Workers" will be Exhibit 12. 21 (A copy of the aforementioned 22 document, consisting of seven pages, was 23 marked by the court reporter as 24 Plaintiffs' Exhibit+ 12 for identification; 25 bound separately.) 15 1 MR. METZGER: The Kreiss article "Risks of 2 Beryllium Disease Related to Work Processes at a 3 Metal, Alloy, and Oxide Production Plant, which 4 will be Exhibit 13. 5 (A copy of the aforementioned 6 document, consisting of eight pages, was 7 marked by the court reporter as 8 Plaintiffs' Exhibit+ 13 for identification; 9 bound separately.) 10 MR. METZGER: The Cullen article "Chronic 11 Beryllium Disease in a Precious Metal Refinery," 12 Exhibit 14. , 13 (A copy of the aforementioned 14 document, consisting of eight pages, was 15 marked by the court reporter as 16 Plaintiffs' Exhibit+ 14 for identification; 17 bound separately.) 18 BY MR. METZGER: 19 (1. That's yet another copy of that 20 article. Let me just keep this with this one over 21 here because it has more highlighting, but I'll give 22 this back to you. 2 3 A. Okay. Can we go off the record for a 24 second? 25 Q. Sure. 16 1 (Discussion held off the record.) 2 MR. METZGER: Let's go back on. 3 The "Threshold Limit Values,I' 1984, 4 of the ACGIH, Volume 9, will be Exhibit 15. 5 (A copy of the aforementioned 6 document, consisting of 63 pages, was 7 marked by the court reporter as 8 Plaintiffs' Exhibit+ 15 for identification; 9 bound separately.) 10 THE WITNESS: You got this one. Right? 11 BY MR. METZGER: 12 (2. Let me just keep this with this 13 because it has some highlighting on it, and '1'11 14 give that back to you. All right. 15 The Kreiss article "Beryllium Disease 16 Screening in the Ceramics Industry" will be 17 Exhibit 16. 18 (A copy of the aforementioned 19 document, consisting of eight pages, was 20 marked by the court reporter as 21 Plaintiffs' Exhibit+ 16 for identification; 22 bound separately.) 2 3 MR. METZGER: The Cotes article "A Long-term 24 Follow-up of Workers Exposed to Beryllium" will be 25 Exhibit 17. 17 1 (A copy of the aforementioned 2 document, consisting of nine pages, was 3 marked by the court reporter as 4 Plaintiffs' Exhibit+ 17 for identification; 5 bound separately.) 6 MR. METZGER: The Barnard article 7 "Retrospective Beryllium Exposure Assessment at the 8 Rocky Flats Environmental Technology Site" will be 9 Exhibit 18. 10 (A copy of the aforementioned 11 document, consisting of five pages, was 12 marked by the court reporter as 1 13 Plaintiffs' Exhibit+ 18 for identification; 14 bound separately.) 15 MR. METZGER: "Chronic Beryllium Disease 16 Prevention Program, Final Rule, Economic Analysis" 17 will be Exhibit 19. 18 (A copy of the aforementioned 19 document, consisting of five pages, was 20 marked by the court reporter as 21 Plaintiffs' Exhibit+ 19 for identification; 22 bound separately.) 23 MR. METZGER: "History of Beryllium" by 24 Martin Powers is Exhibit 20. 25 18 1 (A copy of the aforementioned 2 document, consisting of 17 pages, was 3 marked by the court reporter as 4 Plaintiffs' Exhibit+ 20 for identification; 5 bound separately.) 6 THE WITNESS: Do you have this one? 7 MR. METZGER: No. The Preuss article, 8 "Assessment of Risk Potential,'I Exhibit 21. 9 (A copy of the aforementioned 10 document, consisting of 12 pages, was 11 marked by the court reporter as 12 Plaintiffs' Exhibit+ 21 for identification; 13 bound separately.) 14 THE WITNESS: Have you got this one? 15 MR. METZGER: "10 CFR Part 850," 16 Exhibit 22. 17 (A copy of the aforementioned 18 document, consisting of 62 pages, was 19 marked by the court reporter as 20 Plaintiffs' Exhibit+ 22 for identification; 21 bound separately.) 22 THE WITNESS: Did you get this one? 23 BY MR. METZGER: 24 (2. Yes. Let me put this with the other 25 one, and I'll give it back to you when I go through 19 1 it. Can we finish the rest of these? And then 2 we'll go through the notebook. 3 The McGavran article, Exhibit 23. 4 (A copy of the aforementioned 5 document, consisting of 14 pages, was 6 marked by the court reporter as 7 Plaintiffs' Exhibit+ 23 for identification; 8 bound separately.) 9 MR. METZGER: The Kreiss article "Machining 10 Risk of Beryllium Disease and Sensitization With 11 Median Exposures Below 2 Micrograms Per Cubic Meter" 12 will be Exhibit 24. 13 (A copy of the aforementione'd 14 document, consisting of ten pages, was 15 marked by the court reporter as 16 Plaintiffs' Exhibit+ 24 for identification; 17 bound separately.) 18 MR. METZGER: The "Federal Register,'I 19 October 17, 1975, on "Beryllium" will be 20 Exhibit 25. 21 (A copy of the aforementioned 22 document, consisting of 14 pages, was 23 marked by the court reporter as 24 Plaintiffs' Exhibit+ 25 for identification; 25 bound separately.) 20 1 MR. METZGER: The Rossman and Jones-Williams 2 article "Immunopathogenesis of Chronic Beryllium 3 Disease," this will be Exhibit 26. 4 (A copy of the aforementioned 5 document, consisting of 21 pages, was 6 marked by the court reporter as 7 Plaintiffs' Exhibit+ 26 for identification; 8 bound separately.) 9 MR. METZGER: Rossman's "Differential 10 Diagnosis of Chronic Beryllium Disease" will be 11 Exhibit 27. 12 (A copy of the aforementione,d 13 document, consisting of ten pages, was 14 marked by the court reporter as 15 Plaintiffs' Exhibit+ 27 for identification; 16 bound separately.) 17 MR. METZGER: This is another copy of the 18 Kreiss article we just identified, which I'll put 19 with that, and I'll get it back to you. 20 "Draft Documentation of the Threshold 21 Limit Value for Beryllium and Beryllium Compounds," 22 1999, ACGIH, will be Exhibit 28. 23 (A copy of the aforementioned 24 document, consisting of 14 pages, was 25 marked by the court reporter as 21 1 P l a i n t i f f s ' E x h i b i t + 28 f o r i d e n t i f i c a t i o n ; 2 bound s e p a r a t e l y . ) 3 BY MR. METZGER: 4 (1. A r e t h e r e some o t h e r s you p u t on t h e 5 floor over there? 6 A. Y e s . They're doubles. 7 51. Can I j u s t see t h o s e ? 8 A. Sure. 9 52. Oh. May I j u s t h a v e t h i s ? 10 A. For you, o f c o u r s e . 11 51. Thank you. You p r o b a b l y h a v e a whole 12 s t a c k o f them, l i k e I d o i n my r e p r i n t s ove; t h e r e 13 ( i n d i c a t i n g ) . 1 4 You h a v e t h e 2000 TLV b o o k l e t . 15 C o r r e c t ? 16 A. Yes. 17 51. I d o n ' t know t h a t w e ' r e g o i n g t o mark 18 t h a t . L e t m e j u s t a s k you: Is t h e r e a n y t h i n g 19 p a r t i c u l a r i n h e r e a b o u t b e r y l l i u m t h a t you a r e 20 r e l y i n g on f o r y o u r o p i n i o n s ? 21 A . Not t h a t I r e c a l l , n o . 22 (2. T h e r e h a v e n ' t b e e n a n y c h a n g e s i n t h e 23 l a s t y e a r o r n o t i c e o f i n t e n d e d c h a n g e s , h a v e t h e r e ? 24 A . No. 25 Q . Going b a c k t o a r t i c l e s , No. 2 9 , 22 1 "Animal Models of Beryllium-induced Lung Disease'' by 2 Finch, that's Exhibit 29. 3 (A copy of the aforementioned 4 document, consisting of seven pages, was 5 marked by the court reporter as 6 Plaintiffs' Exhibit+ 29 for identification; 7 bound separately.) 8 MR. METZGER: Article by Newman, "The 9 Natural History of Beryllium Sensitization and 10 Chronic Beryllium Disease," will be Exhibit 30. 11 (A copy of the aforementioned 12 document,.consisting of seven pages,, was 13 marked by the court reporter as 14 Plaintiffs' Exhibit+ 30 for identification; 15 bound separately.) 16 MR. METZGER: Yoshida, "A Study on the 17 Beryllium Lymphocyte Transformation Test," 18 et cetera, will be Exhibit 31. 19 (A copy of the aforementioned 20 document, consisting of six pages, was 21 marked by the court reporter as 22 Plaintiffs' Exhibit+ 31 for identification; 23 bound separately.) 24 MR. METZGER: Eisenbud's "Epidemiological 25 Aspects of Beryllium-induced Nonmalignant Lung 23 1 Disease" will be Exhibit 32. 2 (A copy of the aforementioned 3 document, consisting of seven pages, was 4 marked by the court reporter as 5 Plaintiffs' Exhibit+ 32 for identification; 6 bound separately.) 7 MR. METZGER: Another Kreiss article, 8 "Beryllium Disease Screening in the Ceramics 9 Industry,I' that will be Exhibit 33. 10 (A copy of the aforementioned 11 document, consisting of eight pages, was 12 marked by the court reporter as t 13 Plaintiffs' Exhibit+ 33 for identification; 14 bound separately.) 15 MR. METZGER: An article by Middleton, 16 "Chronic Beryllium Disease: Uncommon Disease, Less 17 Common Diagnosis," will be Exhibit 34. 18 (A copy of the aforementioned 19 document, consisting of three pages, was 20 marked by the court reporter as 21 Plaintiffs' Exhibit+ 34 for identification; 22 bound separately.) 23 MR. METZGER: Rossman's "Chronic Beryllium 24 Disease: Diagnosis and Management" will be 25 Exhibit 35. 24 1 (A copy of the aforementioned 2 document, consisting of three pages, was 3 marked by the court reporter as 4 Plaintiffs' Exhibit+ 35 for identification; 5 bound separately.) 6 MR. METZGER: This is a copy unmarked. 7 Seiler, S-e-i-1-e-r, "A Study of Beryllium Exposure 8 Measurements, Part 2," will be Exhibit 36. 9 (A copy of the aforementioned 10 document, consisting of four pages, was 11 marked by the court reporter as 12 Plaintiffs' Exhibit+ 36 for identification; 13 bound separately.) 14 MR. METZGER: "Beryllium Disease: A 15 Clinical Perspective" by Harriet Hardy will be 16 Exhibit 37. 17 (A copy of the aforementioned 18 document, consisting of nine pages, was 19 marked by the court reporter as 20 Plaintiffs' Exhibit+ 37 for identification; 21 bound separately.) 22 MR. METZGER: This is a copy I will return 23 to you. I'll put this with the other just because 24 it has highlighting, and you'll get them back at the 25 end. Okay? 25 1 Q. I'm referring to your article. The 2 three pages of typewritten notes regarding 3 discovery, I assume that this was prepared by 4 Mr. Nova and sent to you. Is that correct? 5 A. No. The staff looked into voluminous 6 documents that you exchanged, and it's a summary of 7 what's in those. 8 Q. Prepared by your staff? 9 A. Yes, prepared by my staff. 10 MR. METZGER: That will be Exhibit 38. 11 (A copy of the aforementioned 12 document, consisting of three pages,, was 13 marked by the court reporter as 14 Plaintiffs' Exhibit+ 38 for identification; 15 bound separately.) 16 BY MR. METZGER: 17 (1. And then you have a notebook before 18 you. 19 A. Yes. 20 Q. More articles, or what? 21 A. One is the Jeff Paul article. 22 (1. Let me just see the notebook, and 23 we'll go through it. 24 The Jeffrey Paul article will be 25 Exhibit 39. 26 1 (A copy of the aforementioned 2 document, consisting of 14 pages, was 3 marked by the court reporter as 4 Plaintiffs' Exhibit+ 39 for identification; 5 bound separately.) 6 MR. METZGER: A typewritten study called 7 "Non-occupational Berylliosis in Lorain, Ohio, 8 August 5, 1948," which will be Exhibit 40. 9 (A copy of the aforementioned 10 document, consisting of 82 pages, was 11 marked by the court reporter as 12 Plaintiffs' Exhibit+ 40 for identification; 13 bound separately.) 14 THE WITNESS: These probably aren't 15 relevant. 16 BY MR. METZGER: 17 Q. Let me just take a look. These are 18 the discovery requests and responses directed to 19 plaintiff. Correct? 20 A. And then the responses, yes. 21 Q. I may mark those later. I'm not 22 going to at this moment. However, I will mark this 23 two-page document. Was that prepared by your staff? 24 A. Yes. 25 MR. METZGER: That will be Exhibit 41. 27 1 (A copy of the aforementioned 2 document, consisting of two pages, was 3 marked by the court reporter as 4 Plaintiffs' Exhibit+ 41 for identification; 5 bound separately.) 6 BY MR. METZGER: 7 (2. You have a copy of the second amended 8 complaint, which I will not mark now, and more 9 discovery requests and responses. Correct? 10 A. Yes. 11 (1. Okay. Have you prepared any other 12 writings regarding this case? 13 A. No. In fact, the two that ydu have I 14 didn't prepare. 15 (1. Okay. Fair enough. Have you 16 received any other writings regarding this case from 17 anyone that you have not yet shown me? 18 A. N o t to the best of my knowledge. 19 (2. Okay. Dr. Paustenbach, is this the 20 first beryllium case that you are giving testimony 21 in? 22 A. Yes. 23 (1. Have you worked on or consulted on 24 beryllium cases before this case? 25 A. No. That's not correct. 28 1 Q. Okay. 2 A. Would you rephrase the question. 3 Q. Have you consulted on beryllium cases 4 before this case? 5 A. Yes. 6 Q. How many? 7 A. One or two. 8 Q. And were those cases of chronic 9 beryllium disease? 10 A. Yes. 11 Q. And for whom did you consult? 12 A. The law firm of Jones, Day. I 13 Q. And were you consulting on behalf of 14 Brush Wellman? 15 A. Yes. 16 Q. Were those cases arising out of 17 Pennsylvania? 18 A. I don't recall. 19 Q. Do you recall the names of those 20 cases? 21 MR. NOVA: It's your deposition. You have 22 to fend for yourself. 23 THE WITNESS: I suppose all cases are public 24 knowledge. One is called Ziegler, Z-i-e-g-1-e-r, 25 and I don't recall the name of the other one. 29 1 BY MR. METZGER: 2 (2. Are these cases of CBD arising out of 3 Brush Wellman facilities? 4 A. That's my recollection. 5 (2. Out of which facility? 6 A. One was Elmore, and I don't recall 7 the other. 8 (1. Was the Ziegler case in Elmore? 9 A. That's my recollection. 10 (2. When did you begin consulting with 11 Jones, Day on these cases? 12 A. Within the last two years. + 13 (2. Have you given any depositions in 14 those cases? 15 A. No. 16 (2. Have you prepared any reports in 17 those cases? 18 A. Yes. 19 51. Have those been provided to opposing 20 counsel in those cases? 21 A. I don't know. 22 (2. Do you have those reports with you? 23 A. No. 24 Q. Generally, what areas do those 25 reports cover? 30 1 A. The history of knowledge regarding 2 beryllium and industrial hygiene controls. 3 Q. Is it one report that you prepared 4 for both cases? 5 A. No. 6 Q. How many? 7 A. There was one report prepared for one 8 case, and I'm not sure if I completed the report for 9 the second case. 10 9. Is the history of the knowledge of 11 beryllium the first report that you prepared? 12 A. I don't recall. t 13 Q. What is the other one about? 14 A. Related issues. 15 Q. Such as? 16 A. Industrial hygiene controls and some 17 discussion of occupational exposure limits. 18 Q. Who is the plaintiff's attorney for 19 those cases? 20 A. I don't recall. 21 Q. Are any of the opinions which you 22 have for the present case also opinions which are 23 set forth in those reports? 24 A. No. 25 Q. Do you have any opinions in this case 31 1 regarding the subjects of those reports? 2 A. Could you rephrase that or repeat the 3 question, please. 4 (Question read.) 5 MR. NOVA: If you understand it, you can 6 answer it. 7 THE WITNESS: I don't think I do. If I 8 understand your question properly -- 9 BY MR. METZGER: 10 Q. Do you have any opinions in this case 11 regarding the history of knowledge of beryllium 12 disease to offer in this case? t 13 A. I don't think that question doesn't 14 make sense. You've got a grammar problem in it. 15 Could you read it back. 16 (Question read.) 17 THE WITNESS: That's what he said. It 18 doesn't make sense. 19 BY MR. METZGER: 20 Q. Let me rephrase it. Have you 21 formulated any opinions in this case regarding the 22 history of knowledge of beryllium? 23 A. Yes. 24 Q. And regarding the history of 25 knowledge of beryllium disease? 32 1 A. Y e s . 2 Q . And t h o s e a r e s u b j e c t s which a r e 3 c o v e r e d i n t h a t r e p o r t t h a t you p r e p a r e d . C o r r e c t ? 4 A. Not a s i t p e r t a i n s t o t h i s case, and 5 it i s a minor p o r t i o n of o t h e r -- of t h a t o t h e r 6 case. 7 Q. But some p a r t of t h e r e p o r t i n t h a t 8 case t h a t you prepared concerns t h e h i s t o r y of t h e 9 knowledge of beryllium and beryllium d i s e a s e . 10 C o r r e c t ? 11 A . T h a t ' s my r e c o l l e c t i o n . 12 MR. METZGER: P e t e r , I would l i k e th,at 13 r e p o r t . I t ' s w i t h i n t h e s c o p e o f t h e r e q u e s t , 14 document r e q u e s t , s p e c i f i c a l l y " a l l r e p o r t s p r e p a r e d 15 b y s a i d e x p e r t which r e f e r t o o r r e f l e c t a n y 16 o p i n i o n s s a i d e x p e r t h a s c o n c e r n i n g t h i s c a s e . " 17 W i l l you p r o v i d e t h e r e p o r t , P e t e r ? 18 MR. NOVA: No. I t ' s work p r o d u c t . 19 MR. METZGER: A l l r i g h t . 20 Q . Did you p r o v i d e t h a t r e p o r t t o 21 J o n e s , Day? 22 A. Y e s . 23 (1. Did you p r o v i d e t h a t r e p o r t t o 24 J o n e s , Day w i t h t h e i n t e n t t h a t it be made a v a i l a b l e 25 t o o p p o s i n g c o u n s e l t o r e f l e c t y o u r o p i n i o n s i n t h e 33 1 case? 2 A. I don't know what the intent of 3 Jones, Day was with that report. 4 Q. I'm asking you about your intent. 5 Did you write this report in that case with the 6 intent of disclosing your opinions to the opposition 7 in the case? 8 A. I can't guess what Jones, Day was 9 going to do with it. I assumed that it might be 10 used in that way, but I don't know if that's what 11 they planned to do. 12 52. When you wrote the report, did you 13 intend it never to see the light of day? 14 A. When I do litigation work, I don't 15 think like that. 16 9. You assume that it would become 17 available. Correct? 18 A. Not necessarily. 19 (2. Does that report have a title? 20 A. Not that I recall. 21 Q. Your best description of it is the 22 history of the knowledge of beryllium and beryllium 23 disease? 24 A. That's definitely not the title. 25 (2. What is your best description of it? 34 1 A. I think it's an opinion about the 2 facts of a case. 3 Q. But it includes a history of the 4 knowledge, the state of art of beryllium -- 5 A. As I said, I don't recall how much of 6 the history is in there. That's not the primary 7 focus of the paper. 8 Q. What is the primary focus? 9 A. It's to talk about exposures and 10 historical engineering controls. 11 Q. For beryllium? 12 A. Yes. t 13 Q. And the subject of the other paper is 14 what? 15 A. I said I didn't recall if I finished 16 the other paper or not. My recollection is I began 17 it. I don't know that I finished it. 18 Q. And what is the subject of it? 19 A. I think it's similar material. 20 Q. How does it differ from the first 21 one? 22 A. I don't recall. It's been several 23 months since I worked on it. 24 Q. Have you provided that other one to 25 Jones, Day at least in draft form? 35 1 A. I don't know that. 2 Q. Have you written any other materials 3 for litigation regarding beryllium? 4 A. No. 5 (1. Has your deposition been scheduled in 6 either of those cases? 7 A. No. 8 Q. All right. Now, one of the items we 9 marked here (indicating) was your recent paper 10 regarding beryllium. I am aware of that. And that 11 was presented publicly recently. Correct? 12 A. Yes. t 13 (2. Other than that paper, have you 14 written any other papers on beryllium? 15 A. Do you mean by "written" papers for 16 which I am one of the authors? 17 Q. We'll start with that. 18 A. Yes. 19 Q. How many? 20 A. My recollection is there's one other. 21 Q. And what is the title of that? 22 A. I believe it's something like the 23 history and critique of air sampling methodologies 24 for beryllium. 25 Q. And has that been published? 36 1 A. No. 2 (1. Has it been submitted for 3 publication? 4 A. Yes. 5 Q. To which journal? 6 A. "Applied Occupational and 7 Environmental Hygiene. 'I 8 (1. When was it submitted? 9 A. September of 2000. 10 (1. Have you submitted to any other 11 journals? 12 A. No. 13 (1. Who are the coauthors of tha; with 14 you? 15 A. Marc Kolanz, Mike Kent, and I don't 16 recall the other authors. 17 Q. Have you provided a copy of this 18 article to anyone else? 19 A. Not to the best of my knowledge. 20 (1. Has this article undergone any peer 21 review either prior to submission -- any peer review 22 prior to submission to the journal? 23 1 A. Not other than the three authors, to 24 the best of my knowledge. 25 52. Do you have a copy of that with you, 37 1 by chance? 2 A. No. 3 Q. Okay. Did you receive funding for 4 that article? 5 A. I don't recall if I was given monies 6 to help write the article or not. 7 Q. How much time did you spend, 8 approximately, preparing that article? 9 A. A substantial amount. 10 (2. Could you estimate for me the number 11 of hours or days? 12 A. I would guess between 20 and+60 13 hours. 14 (1. And is this a project that was done 15 for your business? 16 A. Yes. 17 Q. And what is the name of your 18 business? 19 A. Exponent. 20 Q. Is that a corporation or dba? 21 A. It's a corporation. 22 (1. Are you the president of that 23 company? 24 A. No. 25 (1. What is your title with that company? 38 1 A. Vice president. 2 (2. Who is the president? 3 A. Michael Gaulke. 4 Q. Could you spell the last name? 5 A. G-a-u-1-k-e. 6 (1. And how long have you been with this 7 company? 8 A. Two years. 9 9. What is its business? 10 A. It's in the business of eye level 11 engineering work generally to reconstruct and 12 understand the cause of accidents and disasqers. It 13 a l s o has within it a group that does environmental 14 and epidemiology work. 15 (2. And who are the people in that group? 16 A. Who are the people in that group? 17 9. Yes. 18 A. There's approximately 180 people in 19 that group. 20 Q. Okay. Do you head up that group? 21 A. No. 22 Q. Who does? 23 A. Jack Mandel. 24 Q. Is he an epidemiologist? 25 A. Yes. 39 1 Q. Do you have stock ownership in this 2 company? 3 A. Yes. 4 Q. What is the percentage of your stock 5 ownership with the company? 6 A. I don't think I have to disclose that 7 today. 8 Q. Well, I think you may because I'm 9 trying to find out and explore financial bias here. 10 For this article which you spent about 20 to 60 11 hours on, did other people in your group also work 12 on that article? t 13 A. I don't recall. 14 Q. Was there a budget for that article, 15 that study? 16 A. To the best of my knowledge, yes. 17 Q. Did you see the budget? 18 A. I don't recall. 19 Q. Do you have to sign o f f on budgets 20 for work that you do? 21 A. I generally don't. 22 Q. Did you negotiate this contract for 23 the company? 24 A. I was the first scientist to interact 25 with Brush. I did not negotiate the contract. 40 1 9. So this is paid for by Brush Wellman? 2 A. I've told you I don't recall if the 3 time I spent on that paper was paid for by 4 Brush Wellman. It may or may not have been. I 5 often do a lot of work pro bono that has to do with 6 research. 7 52. Well, you met with Brush regarding a the initial discussion. Correct? 9 A. Which discussion? 10 9. You just mentioned a discussion 11 regarding the budget. 12 MR. NOVA: No, he didn't. , 13 MR. METZGER: Go back and read it. 14 (Answer read.) 15 BY MR. METZGER: 16 (2. I apologize. I misunderstood. Whom 17 did you discuss this study with at Brush? 18 A. If I may correct where we're going, 19 the road is convoluted. We're not connecting the 20 questions in a sequential way. 21 Q. All right. 22 A. It's kind of like telling you how to 2 3 get to New York going through West Virginia and 24 North Dakota and Michigan. 25 Q. Just tell me how it came about. 41 1 That's what I want to know. 2 A. So you'd like to know how I came 3 about getting to know Brush Wellman? 4 Q. Start with that, sure. 5 A. I received a call one day from 6 Marc Kolanz. 7 (1. Approximately when was that? 8 A. About maybe 21 months ago. 9 Q. And what did he ask you in that call, 10 or tell you? 11 A. Which one do you want to have 12 answered? 13 Q. What did he tell you? f 14 A. He told me he understood that I was 15 likely to know something about occupational disease, 16 and he'd like to ask me about beryllium. 17 Q. What did you tell him? 18 A. I told him I remembered beryllium and 19 that I used to teach a course in which I discussed 20 beryllium. 21 Q. Did he tell you anything more than 22 that? 23 A. He said he was from a firm that was 24 the world's largest producer of beryllium. 25 Q. At that time had you known of 42 1 Brush Wellman? 2 A. Only historically. 3 Q. And did he tell you why he was 4 calling you? 5 A. He said that the TLV was being up for 6 review, and he wanted my opinion as to the 7 scientific merit for the proposal. 8 (1. And did you tell him that you would 9 be willing to work with him on that? 10 A. Yes. 11 (2. Did you discuss financial 12 arrangements at that time? + 13 A. No. 14 9. Were you with this company Exponent 15 at the time? 16 A. Yes. 17 Q. Did you tell him that you have to 18 work out a contract with Exponent? 19 A. Yes. 20 (1. And did you direct him to anyone at 21 Exponent to negotiate that? 22 A. Yes. 23 9. Whom did you direct him to? 24 A. Sue Lawless -- 25 (1. And who is she? 43 1 A. -- or Bonnie Clipson. Sue Lawless or 2 Bonnie Clipson. 3 (1. And who are they? 4 A. They are contract negotiators. 5 Q. For the company? 6 A. Yes. 7 (2. And was a contract consummated? 8 A. Yes. 9 9. Have you seen it? 10 A. I don't think so. 11 (2. Do you know what the amount of the 12 cOntract is? f 13 A. No. 14 Q. Do you have a copy of it? 15 A. No. 16 Q. Who would? 17 A. Bonnie Clipson or Sue Lawless. 18 Q. All right. Have you been compensated 19 for the two papers that you've written regarding the 20 Jones, Day cases? 21 A. Those aren't papers. 22 (2. Reports. 23 A. They're either reports or opinion 24 letters, but I have been compensated. 25 (2. And has that compensation been to you 44 1 directly or to Exponent? 2 A. It goes to Exponent. 3 9. And how much has Exponent been 4 compensated for those papers or reports? 5 A. I don't know. I think I've answered 6 this question previously. 7 9. Okay. Are there any other articles, 8 reports, papers, letters, opinions that you've 9 written regarding beryllium that you haven't already 10 mentioned? 11 A. In the spirit of trying to get this 12 resolved, there have been papers, if you will, 13 presented at scientific meetings over the ldst 14 couple years that might fit under the umbrella of 15 your question. 16 9. Are those listed on your CV? 17 A. I believe they are. 18 9. About how many such papers are we 19 talking about? 20 A. More than five and less than 15. 21 9. All right. Would you identify them 22 for me from your CV? 23 A. How do you wish to identify them? 24 9. If they're numbered, tell me the 25 number. If not, read me the title. 45 1 A. It was presented in Orlando, Florida 2 at the American Industrial Health Conference. The 3 title was "Alveolar-deposited airborne particles of 4 beryllium as a predictor of the prevalence of 5 disease in a beryllium processing facility." 6 The second paper presented at the 7 same conference was called "Biomonitoring for 8 beryllium in workers of a beryllium processing 9 facility.'I 10 The third paper presented at the same 11 conference, "Chronic beryllium disease and beryllium 12 sensitization at a beryllium mine and extraqtion 13 facility." 14 The next paper at the same 15 conference, "The role of extrapulmonary exposure 16 pathways in the prevalence of chronic beryllium 17 disease and beryllium sensitization." 18 Prior to that, at the Society of 19 Toxicology meeting, I presented a paper called 20 "Consideration of alternate exposure pathways in the 21 possible relation to prevalence of chronic beryllium 22 disease.'I 23 Q. Is that all? 24 A. To the best of my knowledge, yes. 25 Q. Dr. Paustenbach, would you just show 46 1 me which page on your CV you were reading from. 2 A. Yes. Page 36 and 37. 3 Q. All right, thank you. There were, 4 I'm gathering, four papers that you presented in 5 Orlando, Florida. Correct? 6 A. That one of us presented. I don't 7 recall that I presented any of them. I believe I'm 8 an author on all of them, but I don't recall if I 9 presented them. 10 (1. Do you recall actually presenting as 11 speaker any of them? 12 A. (Witness peruses document.) + 13 I don't believe I presented any of 14 these four papers. Now, I've answered the question 15 previously, but for the sake of completeness, you do 16 know I gave the paper that you've read, that you 17 have a copy of, at the ACGIH conference. I did not 18 list that, since I assumed you already knew about 19 it. 20 (2. Okay. Fine. That's fine. 21 A. That one I gave, myself. 22 (1. All right. Have these papers been 23 published in a collection of papers of this 24 conference? 25 A. Not yet. 47 1 Q. Is that expected to happen soon? Do 2 you know? 3 A. It's expected that they would appear 4 sometime before June of 2001. 5 Q. In which journal? 6 A. "Applied Environmental and 7 Occupational Hygiene." 8 (2. With respect to those four papers, 9 did you have funding for them? 10 A. I think our firm received funding to 11 help prepare the papers. 12 Q. That's Exponent? t 13 A. Yes, sir. 14 Q. And who funded those papers? 15 A. Well, I'm not entirely certain. 16 Q. Do you have a general idea? 17 A. I would suspect that it would be 18 Brush Wellman or its insurance carriers. 19 Q. Has any of the work that you've done 2 0 been funded by Brush Wellman's insurance carriers? 21 A. I don't know. 22 Q. Why do you suspect that these papers 23 may have been funded by Brush Wellman's insurance 24 carriers? 25 A. Simply because of my professional 48 1 history in the business. 2 (2. Could you explain to me what it is 3 about your professional history that leads you to 4 believe or suspect that these papers were funded by 5 Brush Wellman's insurance carriers? 6 A. Quite often in tort work there is a 7 claim to the insurance carrier, asking them for 8 funding to pay for lawyers and expert witnesses and 9 their associated bills. I assume that they have 10 insurance, and I assume that they will ask for some 11 sort of compensation at the end. 12 (2. In the past have you received+ funding 13 from insurance carriers to prepare papers? 14 A. Well, it sounds -- the way you're 15 wording it is a bit of a pejorative. One does 16 research and then -- provided by someone, and if you 17 can receive some support to support your time to 18 write the publication up, that can sometimes be paid 19 for by the company or its carrier. One never knows 20 at the end of the day who's paid for it. 21 (2. Well, in the past have you received 22 checks paid by insurance carriers for papers which 23 you were asked to write? 24 A. Never. 25 (1. Have the companies that you've worked 49 1 for received checks from insurance carriers for 2 papers? 3 A. I'd have no idea. 4 Q. Have you had discussions with 5 Brush Wellman's insurance carriers? 6 A. No. 7 (2. Were these four papers, in your mind, a written with the idea that they would likely be used 9 for purposes of litigation? 10 A. No. 11 (2. Was that discussed at all? 12 A. No. Maybe more specifically+whatwas 13 discussed was the primary intention to share this 14 with the scientific literature. 15 9. All right. Are there any other 16 papers, articles, studies, letters, opinions that 17 you have written regarding beryllium that you 18 haven't mentioned yet? 19 A. Not to the best of my recollection. 20 (2. Are you presently preparing any 21 papers on beryllium? 22 A. No. 23 Q. Now, if I recall correctly, you 24 mentioned that you were first contacted by, I 25 believe, Marc Kolanz about 22 months ago. 50 1 A. I think I said 21 months ago. 2 Q. Okay. I'm sorry. 21 months. Prior 3 to that time, had you done any work regarding 4 beryllium? 5 A. I think I've answered this 6 previously. All I had done is lecture at the 7 university on beryllium. 8 Q. At which university? 9 A. Purdue. 10 Q. Are you still on the faculty there? 11 A. No. 12 (2. When you lectured at Purdue, ?was this 13 a single lecture, or was it a course that you were 14 teaching? 15 A. It was a course. 16 Q. What was the title of the course? 17 A. I believe it was "Occupational 18 Disease." 19 Q. And was this a single-semester 20 course? 21 A. Yes. 22 Q. Of that semester, how much time was 23 actually spent on beryllium within this course? 24 A. Perhaps half a lecture. 25 Q. Which would be how long? 51 1 A. 45 minutes. 2 Q. And you were discussing beryllium 3 just as one of the issues or one of the substances 4 that environmental or occupational medicine people 5 are concerned about. Is that correct? 6 A. I wouldn't put it that way. It was 7 one of perhaps 100 chemicals that I would discuss as 8 being able to produce disease at certain doses. 9 (2. Did you write up the lecture that you 10 presented for that course? 11 A. I don ' t recall. 12 52. Do you still have it somewheqe, if 13 you did? 14 A. Perhaps. 15 (1. On disk maybe? 16 A. No chance. 17 Q. About when was this? 18 A. 1980. 19 (2. Did you do any independent research 20 prior to giving that lecture? 21 A. What do you mean by that? 22 Q. Original research. 23 A. On beryllium or on other things? 24 Q. On beryllium. 25 A. No. 52 1 (2. Is it fair to say that your first 2 original research on beryllium has been since you 3 were contacted by Marc Kolanz? 4 A. Yes. 5 (2. And when Marc Kolanz first contacted 6 you about 21 months ago, did you understand that he 7 was contacting you with respect to litigation? 8 A. No. 9 Q. You understood that he was contacting 10 you with respect to the OSHA standard which was 11 coming up for review? 12 A. No. t 13 (2. All right. Have you prepared any 14 summary of your opinions for this case? 15 A. No. 16 (2. Okay. Well, have you in any way 17 categorized your opinions? 18 A. Yes. 19 Q. Okay. How many opinions have you 20 formed regarding this case? 21 A. I don't have a specific number. 22 Q. You are able to recount them to me, 23 though, the general opinions? 24 A. As I understand the scope of my 25 testimony in this case, yes. 53 1 Q. All right. Then let's do that. Will 2 you please tell me what your opinions are for this 3 case. 4 A. Well, the first opinion is that the 5 current threshold limit value is 2.0 micrograms per 6 cubic meter and that that guideline has been in 7 place for a long time, approximately 50 years, and 8 that it has been evaluated and re-evaluated quite a 9 number of times since then, and until recently it 10 was generally considered to be protective. 11 The second opinion would be that the 12 information available to us today doesn't al+low us 13 to identify a better occupational exposure limit. 14 The reason for that is we're not sure of all the 15 factors which are influencing the likelihood of 16 either being sensitized or developing CBD. I think 17 those are the two broadest of the opinions. 18 Q. Okay. Do you have any opinions to 19 offer in this case specifically regarding my client, 20 Esequiel Gabaldon? 21 A. No. Excuse me. Would you read back 22 the question. 23 (Question read.) 24 MR. NOVA: I'm going to object. 25 THE WITNESS: It's a pretty broad 54 1 question. 2 BY MR. METZGER: 3 Q. I don't mean it to be -- 4 A. I assumed you meant about his medical 5 conditions, and, therefore, I don't have an opinion 6 about his medical conditions. 7 Q. Well, actually, I meant it a little 8 more broadly than that, but let me clarify because 9 I'm not trying to trick you in any way. 10 It sounds to me like your opinions 11 are concerning the standard, the standard for 12 beryllium, and that that is irrespective of,whoever 13 the plaintiff in the case may be. Is that correct? 14 A. I think that's fair. 15 (1. In other words, your testimony is 1 6 rather generic. It could be used in this case or 17 another CBD case, and it wouldn't differ based on 18 who the plaintiff is? 19 A. That's generally true. 20 Q. Okay. So is it fair to say that you 21 are not going to be rendering any opinions regarding 22 Mr. Gabaldon, despite the fact that you've been 23 provided with all of these discovery requests and 24 responses? 25 A. Again, it's fairly broad. I've been 55 1 asked to answer your questions about the 2 occupational exposure limits and their adequacy. 3 MR. NOVA: And I'm going to object. The 4 discovery responses contain multiple allegations 5 regarding the 2 microgram standard, too many to 6 enumerate. 7 MR. METZGER: Well, I appreciate that, 8 Peter, but I prefer that you not coach 9 Dr. Paustenbach. 10 MR. NOVA: I prefer you don't try to trick 11 him. 12 MR. METZGER: I'm certainly not trying to 13 trick him. 14 (1. In any event, is it fair to state, 15 Dr. Paustenbach, that you would not consider 16 discovery responses prepared by a plaintiff in a CBD 17 case to be authoritative scientific pronouncements 18 on chronic beryllium disease or standards of control 19 for chronic beryllium disease? 20 MR. NOVA: I'm going to object that the 21 question obviously misstates who prepared the 22 responses. There's absolutely no indication in this 23 case that they were prepared by the plaintiffs as 24 opposed to plaintiff counsel. 25 You can answer the question. 56 1 THE WITNESS: It doesn't sound like a 2 question related to industrial hygiene or 3 toxicology; so I'm going to decline to answer it 4 based on lack of understanding of the question. 5 BY MR. METZGER: 6 Q. Let me ask you: For your opinions in 7 this case, are you relying at all upon the discovery 8 responses that were provided to you by Mr. Nova? 9 A. I don't believe so. 10 Q. Okay. And are you relying at all on 11 the mediation brief that was provided to you by 12 Mr. Nova? 13 A. You're not saying Mr. Nova. Who is 14 the attorney that you are referring to? 15 MR. NOVA: I think he's talking about 16 plaintiff's mediation brief. I don't know what he's 17 talking about. If you don't understand the 18 question, don't answer it. 19 THE WITNESS: I don't know who "Mr. Delco" 20 is. 21 MR. NOVA: No. He said "Nova." 22 THE WITNESS: Oh, he did say "Nova"? I'm 23 sorry. It might be the fan. My opinions are not 24 based on this response (indicating). 25 BY MR. METZGER: 57 1 Q . On the discovery responses? 2 A. Yes, sir. 3 (1. Right. And you were also provided by 4 Mr. Nova a mediation brief that was prepared by me. 5 A. Yes, sir. 6 Q. Are you relying on that for your 7 opinions in this case? 8 A. No, sir. 9 (1. All right. 10 A. I assume by that you mean have I 11 been influenced by either of your writings in what 12 I'm about to testify to. + 13 Q. No. I'm not asking whether I 14 persuaded you. I'm asking you whether you're 15 relying on that. Is that the type of matter that 16 you, as an expert, would rely on? 17 A. No. 18 Q. I'd like to discuss with you the two 19 general opinions which you've identified. 20 MR. NOVA: Well, maybe before we get into 21 that, I'd like to take a break at some appropriate 22 point to go to the bathroom. 23 MR. METZGER: Let's take a break. 24 (A recess was taken.) 25 BY MR. METZGER: 58 1 (2. Dr. Paustenbach, the first opinion 2 that you rendered regarding the current TLV and 3 its -- the time period during which it's been in 4 effect is something which is basic knowledge. 5 Correct? 6 A. Yes. 7 Q. And I believe you stated that until 8 recently, it was generally considered to be 9 protective. By that do you mean protective of 10 health? 11 A. Yes. 12 (2. And when you say until recent,ly it 13 was generally considered to be protective of health, 14 until when are you referring to? 15 A. I think beginning in the mid, if not 16 slightly earlier, '90s there began to be a question 17 about exactly how compliant one needed to be to 2.0 18 micrograms per cubic meter to provide the level of 19 protection typical in threshold limit values. 20 (2. And what specifically raised this 21 question in your mind in the mid or earlier 199Os? 22 A. A number of things. The new 23 diagnostic techniques and the increased use of the 24 BLPT started to suggest that some people had 25 subclinical CBD that they wouldn't have observed 59 1 under old diagnostic techniques. 2 Q. And what year do you date that to? 3 A. The literature is a little unclear. 4 Those researchers at the front are normally five 5 years or so ahead of general practice; so my 6 recollection is that BLPT and the flexible 7 bronchoscope began to get used in the mid to 8 late '80s. 9 Q. And it's your belief that the 10 researchers who were investigating that were about 11 five years ahead of that time? 12 A. The researchers investigatinq that 13 were doing the work in the mid to late OS, and 14 five years later others began to use those 15 techniques more frequently. 16 Q. I see. And which researchers are you 17 speaking of specifically? 18 A. I need to look at the pile of papers 19 that I gave you. Do you mind if I refresh my 20 memory? 21 Q. If you need to look at them, we can 22 do that. I just thought that this was something 23 that you would have off the top of your head. 24 A. I like to be specific, but I think 25 that Newman and Rossman began to be talking about it 60 1 in the late '80s and using it, and others were using 2 the BLPT in the late '80s as well. 3 (2. Now, you mentioned that until 4 recently the 2 microgram standard was generally 5 considered to be protective. When you say it was 6 generally considered to be protective, by whom are 7 you referring? 8 A. 9 community . I'd say the industrial hygiene 10 (2. Is it your opinion -- do you have an 11 opinion as to whether as of the mid or early 1990s 12 the 2 microgram standard was considered to be -- was 13 generally considered to be health protective by 14 Brush Wellman? 15 A. Could you repeat that, please. 16 (Question read.) 17 THE WITNESS: From what I can determine, 18 they generally believed it was protective. 19 BY MR. METZGER: 20 (2. And what do you base that opinion on? 21 A. My work with them over the last two 22 years and some of their writings. 23 Q. Have you asked Brush Wellman, 24 Mr. Nova, or the Jones, Day firm to provide you 25 historical writings regarding their belief in the 61 1 health protectiveness of the 2 microgram standard? 2 A. I've asked for all related material. 3 I don't know that I've ever asked for it quite that 4 way, but I've asked for all the information they 5 considered relevant for me to understand the history 6 of the 2 microgram standard. And, of course, I did 7 my own research, which would only involve the 8 published materials. 9 Q. You did a literature search? 10 A. Yes, sir. 11 Q. Do you have that with you? 12 A. No. f 13 Q. Was that done in connection with 14 these papers that you did for Jones, Day? 15 A. I don't recall. I don't think so. 16 MR. NOVA: They weren't papers, for one 17 thing; so the answer to the question is no. 18 MR. METZGER: Are you now going to answer 19 the questions for the doctor? 20 MR. NOVA: Are you going to keep misstating 21 them, or are we going to have to go get the judge to 22 rule on your questions? How many times are you 23 going to keep saying it? They're not papers that he 24 wrote for Jones, Day. 25 BY MR. METZGER: 62 1 Q. Did you write them in Sanskrit? 2 Withdrawn. 3 A. You didn't mean to mischaracterize 4 me, did you, Counsel? 5 Q. No. 6 MR. NOVA: I think he did mean to 7 mischaracterize it. 8 BY MR. METZGER: 9 (2. Anyway, at any point in time, did you 10 ask anyone from Brush Wellman or Mr. Nova or any of 11 the attorneys from Jones, Day to provide you all of 12 the written documentation in Brush Wellman's, 13 possession regarding their assessment of the 2 14 microgram standard since it went into effect? 15 A. I don't know that I've asked that 16 specific question. I can tell you my impression has 17 been that I've received everything that they have, 18 that they've ever heard of, regarding the history of 19 the standard back to 1949. They've been quite 20 generous in sharing information with me about that. 21 (1. Has Brush Wellman provided you any 22 documents which indicate that Brush Wellman knew as 23 early as the '50s that the 2 microgram standard was 24 not health protective? 25 A. For the sake of the rest of this 63 1 deposition, we probably need to tie down what 2 compliance with the 2 microgram standard means 3 because I find that the literature and what little I 4 can tell about litigation abuses the term; so we 5 probably need to define that. 6 Q. I'm sure we do, but my question 7 didn't even ask you about compliance. All that I 8 asked you was: Did Brush Wellman provide you any 9 documents which indicated that it knew as early as 10 the '50s that the 2 microgram standard was not 11 protective of health? 12 A. My answer is the same. The question 13 is too broad to answer. As you know -14 MR. NOVA: Then if the question is too 15 broad, then he can rephrase it. 16 THE WITNESS: All right. 17 BY MR. METZGER: 18 (2. Did Brush Wellman provide you any 19 documents dating from the 1950s? 20 A. I believe so. 21 (2. What are they? 22 A. It's whatever work was published 23 including the documentation of the TLVs, most of 24 which you've recorded as exhibits, were given to me. 25 Q. Did Brush Wellman provide you any 64 1 documents from the 1950s other than those which have 2 been marked as exhibits? 3 A. Yes. 4 Q. What are they? 5 A. I wouldn't know. You asked about all 6 documents from the 1950s. I don't know those off 7 the top of my head. 8 Q. Where are they? 9 A. Where are they? 10 Q. Yes. 11 A. They may not be pertinent to this 12 case. + 13 MR. NOVA: Just answer the question. Where 14 are the documents? 15 THE WITNESS: Oakland, California. 1 6 BY MR. METZGER: 17 (2. Where in Oakland? 18 A. In our offices in Oakland. 19 (2. In whose office? 20 A. The Exponent office. 21 Q. And which office within Exponent? 22 A. The Oakland office. 23 Q. Where are they housed in the office? 24 A. I believe in the central corridor. 25 Q. But is there someone who has -- if 65 1 you wanted t o o b t a i n some of t h o s e documents, i s 2 t h e r e someone who you would a s k t o g e t them f o r you? 3 A. Y e s . 4 (2. Who i s t h a t ? 5 A. Jessica Green. 6 (1. Now, do you have a n o p i n i o n t o r e n d e r 7 i n t h i s c a s e a s t o when t h e a d e q u a c y of t h e -8 strike that. 9 Do you h a v e a n o p i n i o n t o r e n d e r i n 10 t h i s c a s e a s t o when t h e i n a d e q u a c y o f t h e 2 11 microgram s t a n d a r d was knowable by B r u s h Wellman? 12 A . I ' v e n e v e r s a i d i t w a s i n a d e q u a t e , 13 a n d I d o n ' t b e l i e v e t h e y ' d s a y i t ' s i n a d e q u a t e , and 14 I w o u l d n ' t s a y i t ' s i n a d e q u a t e i n t h e way you j u s t 15 d e s c r i b e d i t . 16 (2. L e t m e d e f i n e t h e t e r m f o r p u r p o s e s 17 o f t h i s q u e s t i o n . 18 A. Excuse m e . Can I go o f f t h e r e c o r d ? 19 Q. No. S t a y on t h e r e c o r d . 20 When I u s e t h e t e r m " i n a d e q u a t e " i n 21 t h e f o l l o w i n g q u e s t i o n , I ' m g o i n g t o b e r e f e r r i n g by 22 i n a d e q u a c y t o i n a d e q u a t e t o p r o t e c t h e a l t h . Okay? 23 With t h a t i n mind, my q u e s t i o n i s : 24 D o you h a v e a n o p i n i o n t o r e n d e r i n t h i s c a s e a s t o 25 when i t was knowable by Brush Wellman t h a t t h e 2 66 1 microgram standard was inadequate? 2 A. I haven't said that the 2 3 microgram -- 4 MR. NOVA: The question is: Do you have an 5 opinion? Yes or no? 6 THE WITNESS: That's what he asked? 7 MR. NOVA: I think it was a yes-or-no 8 question. 9 THE WITNESS: Could you read it back, 10 please. 11 (Question read.) 12 THE WITNESS: Yes. ? 1 3 BY MR. METZGER: 14 Q. What is your opinion? 15 A. Well, the accumulated information 16 beginning from 1948 upon which one can then make a 17 decision as to whether it's adequate. 18 Q. As you sit here today, is it your 19 belief and opinion that the 2 microgram standard for 20 beryllium is inadequate to protect the health of 21 workers exposed to beryllium? 22 A. Based on what we know today, there's 2 3 an inadequate amount of information to understand -- 24 to be able to answer that question. 25 Q. Do you have an opinion today as to 67 1 whether workers are contracting chronic beryllium 2 disease at exposures which are below the 2 microgram 3 standard? 4 A. As I said before, we don't have a 5 population that hasn't been exposed for some period 6 of time to concentrations above 2 to be able to 7 answer that question definitively with the exception 8 perhaps of the Cardiff study or the Cardiff data 9 set. 10 9. Well, with respect to the Cardiff 11 site, do you have an opinion as to whether workers 12 exposed at that site to beryllium have been, 13 exposed -- strike that. 14 First of all, do you have an opinion 15 as to whether workers at the Cardiff site have been 1 6 exposed to beryllium below the 2 microgram standard? 17 A. Of course they have. They've also 18 been exposed above. 19 Q. That was going to be my next 20 question. Do you have an opinion as to whether 21 there are any workers at the Cardiff site who have 22 been exposed to beryllium only below the 2 microgram 23 standard? 24 THE WITNESS: Reread it, please. 25 (Question read.) 68 1 THE WITNESS: To the best of my knowledge, 2 no one has access to the specific individual 3 exposure histories that would allow me to answer 4 that question. 5 BY MR. METZGER: 6 Q. Do you have any data to opine that 7 workers at the Cardiff site have been exposed to in 8 excess of 2 micrograms on an eight-hour 9 time-weighted average? 10 A. I know that some workers have at 11 times for one day been exposed above 2. 12 (2. Do you have an opinion as totwhether 13 the 2 microgram standard for beryllium, as it has 14 been implemented by industry, is protective of 15 worker health? 16 MR. NOVA: Objection; overbroad, vague. 17 THE WITNESS: I think it's too early to 18 know. 19 BY MR. METZGER: 20 Q. Why is that? 21 A. Because of the breadth of your 22 question, I'm going to assume that the breadth of 23 your question is inartful rather than meant to be 24 misleading. But it's fairly clear that in order to 25 answer a question about the adequacy of that 69 1 guideline, you need to set a criteria as to how 2 often you're going to exceed it or allow one to 3 exceed it, to what degree, to what form of beryllium 4 you're referring, to the particle size to which 5 you're referring, whether or not we understand the 6 cohort with respect to genetic susceptibility, and 7 whether we need to understand if dermal contact or 8 ingestion is an important component to the 9 predicting whether or not disease will occur. 10 52. The 2 microgram standard has been in 11 effect for about 50 years. Correct? 12 A. Yes. + 13 (2. And during that 50-year period, has 14 that standard, as it has been applied in industry, 15 been protective of worker health? 16 MR. NOVA: Objection; vague, overbroad. 17 THE WITNESS: You stated, I believe, as it 18 has been applied in industry? 19 BY MR. METZGER: 20 (1. Yes. 21 A. You don't really apply a standard in 22 terms -- it's the wrong term. You attempt to comply 23 with the standard. 24 (2. Let me put it, then, in those terms 25 for you. Has industry's attempts to comply with the 70 1 2 microgram standard for beryllium over the last 50 2 years prevented occupational cases of CBD? By 3 "prevented" I mean prevented the occurrence of such 4 cases. 5 MR. NOVA: Objection; vague, compound. 6 THE WITNESS: I don't think one could say 7 that. 8 BY MR. METZGER: 9 Q. Okay. So it's your belief that there 10 have been cases of CBD that have occurred over the 11 last 50 years, despite industry's attempts to comply 12 with the 2 microgram standard? t 13 A. Yes. 14 (2. And how long has it been known by the 15 beryllium industry that its attempts to comply with 16 the 2 microgram standard were not preventing 17 occurrences of CBD in exposed workers? 18 MR. NOVA: Objection; vague. 19 THE WITNESS: Probably ten years. 20 BY MR. METZGER: 21 (2. Okay. And upon what do you base that 22 opinion? 23 A. I think that in the industry CBD was 24 observed in the last ten years that would have been 25 reflective of exposures of prior years that told 71 1 them that the constellation of exposures had brought 2 about that disease. 3 Q. Now I'm the one who's not 4 understanding. All right. Are there any documents 5 that you are relying on for your opinions in this 6 case other than -- strike that. Let me go back. 7 Are there any documents authored by 8 Brush Wellman that you are relying on for your 9 opinions in this case? 10 (Question read.) 11 THE WITNESS: I assume you mean by 12 "Brush Wellman," employees of Brush Wellman., 13 BY MR. METZGER: 14 Q. I will rephrase the question and make 15 it clear for you. We have identified here certain 1 6 documents that you have brought with you. They've 17 been marked as exhibits, and some of them may be 18 articles which are coauthored by some Brush Wellman 19 employees. 20 Other than these documents which have 21 been marked as exhibits here today, which you 22 brought with you, are there any documents whatsoever 23 that have been authored by any Brush Wellman 24 employees that you are relying on for any of your 25 opinions in this case? 72 1 A. Yes. 2 Q. What are they? 3 A. I believe the article by Kent, 4 et al., which will be published, I believe, sometime 5 in 2000, would be a document that would influence my 6 opinion. 7 Q. And is that one of the papers that 8 was presented? 9 A. It was not a paper that I presented. 10 It's a paper that Mr. Kent presented. 11 Q. At this Orlando conference? 12 A. I don't recall if he presented it in 13 Orlando, but he did present it at the FEACGfH 14 symposia. 15 Q. And what was the topic of this 16 article? 17 A. It was a paper that evaluated the 18 relationship between particle size, morphology, and 19 positive on BLPT. 20 Q. Did that article discuss any 21 historical literature regarding beryllium? 22 A. I think so. 23 (1. Did that article address when it was 24 known by Brush Wellman that the 2 microgram standard 25 was not preventing cases of CBD? 73 1 A. Again, I don't think you mean to 2 represent what's been discussed. I don't think 3 Brush Wellman believes that if one complies with the 4 2 microgram standard, that CBD won't be prevented. 5 I think it's their opinion that it probably is 6 prevented if you always comply to 2. 7 (2. Has someone told you that, that 8 that's their opinion? 9 A. Yes. 10 Q. Who told you that? 11 A. Kolanz and others. 12 (1. Who else? t 13 MR. NOVA: Who else in the universe of the 14 planet, or who else from Brush Wellman? 15 BY MR. METZGER: 1 6 (1. Who else from Brush Wellman told you 17 that they believe that if the 2 microgram standard 18 is complied with, cases of CBD will be prevented? 19 A. I don't know if I've said that. If I 20 have just said that, I may have misspoken. Could 21 you read back what I did say. 22 (Answer read.) 23 MR. METZGER: I would like the record to 24 reflect that Dr. Paustenbach is reading the 25 reporter's screen containing the transcript of his 74 1 testimony. 2 MR. NOVA: And he's doing that to try to 3 understand what he's being asked in this deposition, 4 which is getting more confusing by the minute. 5 BY MR. METZGER: 6 (2. Are you ready to resume, 7 Dr. Paustenbach? 8 A. Yes. I'd like to clarify something I 9 said because the two sentences, at least as the 10 court reporter has recorded them, are nonsequitur. 11 9. Please clarify. What is it you'd 12 like to clarify, Dr. Paustenbach? t 13 A. Maybe I'll just restate it. I 14 believe Brush Wellman generally believes that if one 15 complies with the 2 microgram standard all the time, 16 they believe that CBD would be prevented. That's 17 their working hypothesis. And the data contrary to 18 that are not available. 19 Q. Has someone at Brush Wellman told you 20 that that is their company position? 21 A. I don't think it's ever been told to 22 me as their company position. 23 Q. Has someone from Brush Wellman 24 expressed that to you in any way? 25 A. Yes. 75 1 (1. Who? 2 A. Marc. 3 (2. Marc Kolanz? 4 A. Kolanz, yes. 5 9. When did he express that to you? 6 A. We've talked about it on a number of 7 occasions. 8 Q. Over the last two years? 9 A. Sure. 10 (2. Has anyone else at Brush Wellman told 11 you that? 12 A. I don't believe so. 13 (2. Now, has Marc Kolanz provided you any 14 data upon which he contends that if the 2 microgram 15 standard is complied with all the time, all cases of 16 CBD will be prevented? 17 A. They're not able to provide that 18 information. 19 Q. So he hasn't provided you that data. 20 Correct? 21 A. The only data that he has provided -- 22 and he didn't provide it but that he made me aware 23 of -- was the Cardiff data, which a vast majority of 24 the time has concentrations of total beryllium less 25 than 2 micrograms per cubic meter. That is, I 76 1 think, the only data set which strongly suggests 2 that CBD doesn't occur if you have that level of 3 control. 4 (2. That it does not occur? 5 A. That it does not occur. 6 (2. Are there cases of CBD at Cardiff? 7 A. N o t that we know of. 8 (2. There have been no cases that you're 9 aware of? 10 A. N o , sir. 11 MR. NOVA: Asked and answered. 12 BY MR. METZGER: , 13 (1. Okay. How long has the Cardiff site 1 4 where those levels have been maintained been in 15 operation? 16 A. My recollection is it was in excess 17 of 20 years. 18 Q. And is it your belief that at all 19 times during the past 20 years, the Cardiff site has 20 not exceeded the 2 microgram standard? 21 A. I've already said -- I've already 22 answered that question. The vast majority of the 23 time, that is well in excess of 95 percent of the 24 time, they did not exceed the lapel samples over 2 25 micrograms per cubic meter. 77 1 Now, I'm going to say for the record 2 if we're going to drill down and have a very 3 detailed discussion, I'm going to go back to what I 4 said an hour ago, which is let's start talking about 5 2 micrograms per cubic meter, eight-hour versus 6 short-term, personal versus area, form, et cetera. 7 I'm not going to get caught into this broad sweeping 8 statement stuff. So we're going to have to have a 9 very specific deposition going forward. All right? 10 (2. All right. As you sit here today, 11 it's your belief that there have been no cases of 12 CBD at all out of Cardiff. Correct? 13 A. Yes. t 14 (2. Is there any other beryllium 15 manufacturing site that you are aware of where there 16 have been no cases of CBD? 17 A. It's unclear to me that CBD has been 18 seen at the Delta site. There is one CBD. I doubt 19 that it's related to the site. 20 Q. Any other sites? 21 A. I know of no other sites where CBD 22 has not been reported. 23 Q. NOW -- 24 A. And that's my limited knowledge. 25 There may be thousands of people that have used 78 1 beryllium, but of the papers that I've read, I don't 2 know of any. There may be hundreds of users of 3 beryllium, but in the major published studies that 4 you have there, I think they all report CBD at some 5 dose at some time. 6 Q. Have you asked Brush Wellman whether 7 there have been any cases of CBD at Cardiff? 8 A. You understand Cardiff and 9 Brush Wellman -- 10 MR. NOVA: It's a very specific question. 11 Answer them no matter how nonsensical they are, 12 please. 13 (Question read.) t 14 THE WITNESS: Yes. 15 BY MR. METZGER: 16 (2. Whom did you ask? 17 A. Kolanz. 18 Q. What did he tell you? 19 A. To the best of his knowledge, no. 20 Q. Did you ask anyone from the Cardiff 21 site whether there have been any CBD cases at 22 Cardiff? 23 A. Yes and no. 24 9. Would you explain. 25 A. The person whom I asked I think was 79 1 the U.S. liaison to the Cardiff site; therefore, a 2 nonemployee with Cardiff. 3 Q. And who was that person? 4 A. Dr. Johnson. 5 Q. First name? 6 A. James. 7 (2. And what did Dr. Johnson tell you? 8 A. With respect to your question, he 9 said he knew of no cases of CBD at that facility. 10 Q. Did you ask anyone -- is there a 11 medical director at Cardiff? 12 A. 13 Cardiff . There was a medical directortat 14 Q. Who was that? 15 A. I don't recall his name. 16 Q. Did you ask the medical director of 17 Cardiff if there were any cases of CBD there? 18 A. No. 19 9. Did you ask anyone in industrial 20 hygiene or environmental health and safety at that 21 site whether there were any cases of CBD? 22 A. No. 23 Q. All right. Now, let's talk 24 definitions regarding compliance, which I understand 25 you want to do. Is it your belief that a company 80 1 that employs workers, and in the course of their 2 employment those workers are exposed to beryllium, 3 violates the standard if a worker is exposed to a 4 concentration of beryllium of 2.1 micrograms per 5 cubic meter of air on an eight-hour time-weighted 6 average over one day? 7 A. My understanding is they have not 8 violated the standard as we define compliance with 9 the standard. 10 (1. Why? 11 A. Because you don't have to maintain 12 concentrations under the standard every day,all the 13 time, but, rather, you are expected to do so as best 14 you can. And that's defined by the times when OSHA 15 actually does an inspection. 16 (2. Is it true that the standard requires 17 that no employee be exposed to a concentration of 18 beryllium greater than 2 micrograms per cubic meter 19 on an eight-hour time-weighted average basis for any 20 day? 21 A. The standard doesn't call for that. 22 (2. What is the basis for your opinion 23 that the standard does not call for that? 24 A. Because a large fraction of the 25 workplaces in America who attempt to meet the 81 1 standard -- and I'm presuming you're meaning the 2 OSHA standard because that's by definition what we 3 mean by standard. A large fraction of the 4 workplaces are unable all the time to be under the 5 OSHA guideline. 6 9. And is it your opinion that those 7 employers who are unable to be under the OSHA 8 guideline at all times are not in violation of the 9 standard? 10 A. That s right. 11 9. Have you ever asked anyone from OSHA 12 if they agree with your interpretation? 13 A. Of course. t 14 Q. Who? 15 A. Numerous people. 16 Q. Name one. 17 A. Charlie Shields. 18 Q - Where is Charlie Shields? 19 A. He is in Chicago. 20 Q. And is he an OSHA compliance officer? 21 A. Yes. 22 9. And did Charlie Shields tell you that 23 if on a single day a worker is exposed to beryllium 24 at a concentration greater than the 2 microgram 25 standard on an eight-hour time-weighted average, 82 1 that the employer is not in violation? 2 A. No. 3 Q. Would you consider the employer to be 4 in violation? Strike that. 5 Let me ask you this: What exactly is 6 it that Charlie Shields has told you that leads you 7 to have the opinion that you do that an employer 8 need not be in compliance every day? 9 A. Because there's other confounding 10 factors with respect to compliance other than the 11 air concentration. 12 Q. What confounding factors are +you 13 referring to? 14 A. If you wear a respirator during a 15 large fraction of the day, sometimes, depending on 16 the chemical, you need not be under the 2, in this 17 case, microgram per cubic meter standard. 18 Q. What other confounding factors? 19 A. Sometimes engineering feasibility 20 doesn't allow you to reach it; so you use the best 21 available technology. 22 Q. You mean where engineering controls 23 cannot reduce the exposure level below 2 micrograms, 24 you use whatever technology is available and reduce 25 it to some level above the 2 microgram standard, and 83 1 a worker works in that environment? 2 A. Then you're expected, if it's a 3 routine situation, to have them wear respiratory 4 protective equipment. 5 Q. Any other confounding factors? 6 A. Well, again, we haven't defined the 7 2. Of course, short-term samples don't qualify with 8 respect to compliance to the eight-hour TWA. 9 Q. And by that do I understand what you 10 mean is that you would not consider a 15-minute 11 sample or a grab sample in determining whether an 12 employer is in compliance with the standard?, 13 A. With the eight-hour permissible 14 exposure limit, that's right. 15 Q. Of course. Is there a certain 16 sampling period that you yourself would consider to 17 be the minimum required in determining whether an 18 employer is complying with the 2 microgram standard? 19 A. I'm very awkward with this line of 20 questioning because you're intermingling industrial 21 hygiene practice with legal compliance. Legal 22 compliance is defined by OSHA during their time of 23 inspection. 24 Q. Let me ask you this: Would you 25 consider a one-hour sample that was above 2 84 1 micrograms to be an indication that the employer was 2 not in compliance? 3 A. No. 4 Q. A two-hour sample? 5 A. What kind of sample are we talking 6 about? Are you talking about an area sample? 7 MR. NOVA: Wait for a question here. You 8 can't both talk at the same time. 9 BY MR. METZGER: 10 Q. Let me ask you this: Are area 11 samples samples which can be used in determining 12 whether an employer is in compliance? t 13 A. Not generally. 14 Q. What is your qualification? 15 A. If for some reason you are not able 1 6 to take a lapel sample that gives adequate 17 information, you can supply a series of area samples 18 with time in motion information. 19 (2. So it's your opinion that, generally 20 speaking, personal breathing zone samples are 21 required. Correct? 22 A. For which chemical? 23 Q. For beryllium. 24 A. That's what they prefer to use, yes. 25 Q. In your opinion, is that required to 85 1 determine whether an employer is in compliance? 2 A. No. It's not required. 3 Q. All right. And as far as personal 4 breathing zone sample, are you referring to the 5 lapel sampler or anything else? 6 A. There are personal breathing zone 7 samples that are not lapel samples. 8 Q. Can those be used? 9 MR. NOVA: Can they be used for what? The 10 question is vague. 11 BY MR. METZGER: 12 Q. Can those be used for determiping 13 compliance with the beryllium 2 microgram standard? 14 A. If handled properly, there is a 15 history of using nonlapel but personal breathing 16 zone samples to determine compliance with the 17 guideline. 18 Q. And what type of samplers are you 19 referring to? 20 A. They're called fixed air head 21 samples. 22 Q. Now, considering only personal 23 breathing zone samples -- okay? -- personal 24 breathing zone air samples, is a one-hour sample 25 adequate to determine compliance with the 2 86 1 microgram standard? 2 A. No. 3 Q. Is there a certain minimum number of 4 hours that you consider the sample needs to be in 5 order to use it as part of a data set in determining 6 compliance? 7 A. Generally, for purposes of OSHA, one 8 requires a six-hour sample, and that would be a 9 lapel sample. In the year 2000, that's the kind of 10 expectation that's in an OSHA compliance setting. 11 Q. Do you know whether some OSHA 12 compliance officers would accept a five-houy 13 sample? 14 MR. NOVA: Do you know if some would? 15 THE WITNESS: I really can't answer that 16 question. 17 BY MR. METZGER: 18 Q. Is there any regulation that it needs 19 to be a six-hour sample as opposed to a five-hour 20 sample? 21 A. I don't recall what the field 22 officer's manual requires these days. 23 Q. But that is the source that you would 24 refer to? 25 A. When you have the field officer's 87 1 manual and his supervisor's opinion. 2 Q. A written opinion? Are you referring 3 to a written opinion of a supervisor? 4 A. I don't know how they communicate. 5 Q. Okay. Fair enough. All right. Now, 6 is it your opinion that an employer who exposes a 7 worker to beryllium at a concentration of 2.1 8 micrograms on an eight-hour time-weighted average 9 collected by a lapel sampler over a period of eight 10 hours, where the worker is not wearing a respirator, 11 is it your opinion that that employer is in 12 violation of the standard? 13 A. Technically he'd be in violation if 14 that sample were collected by an OSHA inspector. 15 Q. Well, the employer would be in 16 violation of the standard irrespective of whether it 17 was collected by an OSHA inspector. Correct? 18 A. No, if it was in this country. I 19 assume you mean violation and lack of compliance to 20 be a legal term. We don't have self-compliance in 21 this country. 22 Q. We don't? 23 A. We don't incriminate the employer by 24 taking our own samples and saying, "Hi. I'm out of 25 compliance. Therefore, please send me a fine." 88 That's not what we have in this country. (1. I understand. MR. NOVA: He understands; so just wait for another question. BY MR. METZGER: 6 Q. But whether the sample is taken by an 7 OSHA inspector or just by the company, that doesn't 8 change whether the employer is in compliance or out 9 of compliance. Correct? 10 MR. NOVA: Objection; asked and answered. 11 State it again. 12 THE WITNESS: I'd have to repeat wha+t I 13 just told you a moment ago. 14 BY MR. METZGER: 15 Q. All right. That's fine. Have you 16 reviewed any of the data, the air monitoring data, 17 conducted by Rockwell, my client's employer? 18 A. What kind of data? 19 Q. The air monitoring data. 20 A. For? 21 (2. For beryllium for Mr. Gabaldon. 22 A. No. 23 Q. Now, other than articles published in 24 the literature, have you received any documents from 25 Brush Wellman, from its attorneys, dating from the 89 1 1950s? 2 A. I'm sure that I've received some 3 documents through either their attorneys or from 4 Brush Wellman from the 1950s. In fact, I gave you 5 one. 6 Q. Let me rephrase the question. Have 7 you received any documents authored by any 8 Brush Wellman employees dating from the 1950s? 9 A. I don't recall specifically. 10 Q. Have you received any documents 11 authored by any Brush Wellman employees dating from 12 the 1960s? + 13 A. Yes 14 Q. What are those? 15 A. I don't recall which ones. I've read 16 a large number of documents from the '60s involving 17 industrial hygiene at Brush Wellman. 18 Q. And have you brought those with you? 19 A. No. 20 Q. Why not? 21 A. They're not related to this case or 22 my opinions in this case. 23 Q. You're not basing your opinions on 24 any documents dating -- strike that. 25 Is it true that you are not basing 90 1 your opinions in this case on any documents authored 2 by any Brush Wellman employees from the 1960s other 3 than such as may have been marked as exhibits here 4 today? 5 A. I think that's correct. 6 (1. And just so it's also clear, is it 7 true that you're not basing your opinions in this 8 case on any documents authored by any Brush Wellman 9 employees from the 1950s, again other than any that 10 may be marked here as exhibits today? 11 A. I think that's fair. 12 Q. Are you basing your opinionstin this 13 case on any documents that have been authored by 14 Brush Wellman employees dating from the 1970s other 15 than such as may be marked as exhibits here today? 16 A. I don't think so. 17 (2. Are you basing your opinions in this 18 case on any documents that have been authored by any 19 Brush Wellman employees from the 1980s other than 20 such as have been marked as exhibits here today? 21 A. I don't think so. 22 (2. And is it true that you are not 23 basing your opinions in this case on any documents 24 that have been authored by any Brush Wellman 25 employees from the 1940s other than such as may have ai been marked here today? A. I think that's correct. Q. Are you able to tell me the date on which Brush Wellman -- strike that. Are you able to tell me the date on 6 which an employee of Brush Wellman first suspected 7 that the 2 microgram standard might not be 8 adequately protective of health? 9 THE WITNESS: Could you read that back. 10 (Question read.) 11 THE WITNESS: I don't know that a 12 Brush Wellman employee has ever written that, down; 13 so I can't answer. 14 BY MR. METZGER: 15 Q. Now, did you read the mediation brief 16 that Mr. Nova provided you, the mediation brief that 17 I wrote? 18 MR. NOVA: Did you read the mediation brief 19 that Mr. Metzger wrote? 20 THE WITNESS: Could you show it to me, 21 please. 22 MR. METZGER: All right. Let me withdraw 23 that question and ask you, since -- here we go. 24 Okay. 25 Q. You did read the order in the Faccio 92 1 case, which is the crime fraud order? 2 A. (Witness peruses document.) 3 I did read it. 4 Q. Okay. And I see that you highlighted 5 certain portions of it. Is that correct? 6 A. I'm not sure that I highlighted it or 7 somebody on the staff highlighted it. 8 (1. Either you or someone on your staff 9 highlighted certain portions of it. Correct? 10 A. Yes, sir. 11 Q. Did you request from Mr. Nova any of 12 the documents, historical documents, that w$re 13 referred to in this? 14 A. (Witness peruses document.) 15 Yes. 16 (2. Which documents did you request? 17 A. I requested the one by Eisenbud 18 regarding his evaluation of the city of Lorain. 19 Q. Had you read that before this time? 20 A. I didn't recall, but I wanted to make 21 sure I had it for this case. 22 (2. And did Mr. Nova provide that to you? 23 A. Somebody did. 24 (1. And did you read that? 25 A. Yes, sir. 93 1 (2. And when you read that, was that the 2 first time that you were reading it, or did you 3 recognize that you, in fact, had read that study 4 earlier? 5 A. It's hard to say because 6 Merril Eisenbud talks about it in his other papers, 7 and it's talked about by Harriet Hardy, and I've 8 read about it for the last 30 years; so I don't know 9 when the first time is I read about it. 10 9. Fair enough. What else did you ask 11 Mr. Nova for? 12 A. I asked to read the 1977 OSHA 13 hearings, either the summaries or something about 14 them. 15 (2. Yes. 16 A. I don't believe I've asked for 17 anything else as a result of reading this document. 18 Q. Okay. Now, looking at the mediation 19 brief, Exhibit 2 to which that is actually an 20 exhibit, did you highlight the sentence appearing on 21 Lines 24 and 25 of Page 5? 22 A. I don't recall. 23 Q. Okay. Did you note that that said 24 that in the 1970s ten secretaries at a Brush Wellman 25 plant who had never even worked with beryllium were 94 1 diagnosed with CBD? 2 A. I read that sentence. 3 Q. And do you have an opinion as to 4 whether those secretaries were exposed to beryllium 5 above the 2 microgram standard? 6 A. I don't have an opinion. 7 (2. Would you tell me what your opinion 8 is regarding the standard of care of an employer 9 whose workers are exposed to beryllium. 10 A. That's a very broad question. How do 11 you define "standard of care"? 12 (1. Well, more specifically, what an 13 employer is obligated to do with respect t o . 14 compliance with the 2 microgram standard, as you 15 understand it. 16 A. Which employees and over which period 17 of time are you referring? 18 (1. I'm referring to any employer who has 19 employed a worker who is exposed to beryllium on the 20 job at any time since the OSHA standard went into 21 effect until today. 22 MR. NOVA: Objection; overbroad, vague. 2 3 THE WITNESS: May I repeat the question as I 24 understand it? 25 MR. NOVA: No. If you don't understand it, 95 1 he can repeat it. Do you understand it? 2 THE WITNESS: I understand it to be too 3 broad to answer. 4 BY MR. METZGER: 5 (1. Okay. Has the OSHA standard changed 6 since it was implemented until today? 7 A. If you're referring to beryllium, no. 8 (2. And you're familiar with the 9 standard? 10 A. Yes. 11 Q. What is your opinion as to what the 12 standard of care is for an employer to comp1,y with 13 that standard? 14 MR. NOVA: Objection; vague. 15 BY MR. METZGER: 16 (2. Do you have an opinion on that? 17 A . Are you talking about the 18 professional standard of care? Are you talking 19 about the legal standard of care? What's called for 20 in the standard itself? The standard of care has 21 several definitions. 22 (2. Well, do you consider that there is a 23 standard of care other than what is set forth in the 24 standard itself? 25 A. Sure. 96 1 Q. And what is your opinion of the 2 standard of care for an employer to meet with 3 respect to protecting the health of a worker who was 4 exposed to beryllium at its workplace? 5 MR. NOVA: Objection; vague, overbroad. 6 THE WITNESS: I'm not going to guarantee 7 that I'll get all dimensions of that standard of 8 care listed as we sit here today, but I'd be happy 9 to try to answer your question. 10 BY MR. METZGER: 11 Q. Please. 12 A. Generally, when you're exposqd to 13 beryllium or similar chemicals, you tell employees 14 generally what the hazards are. You hand them 15 material safety data sheets and make them aware of 16 them. If there's medical monitoring that would be 17 helpful, you do whatever medical monitoring seems to 18 be appropriate. If air sampling gives insight as to 19 how or what one should do to minimize or restrict 20 exposure, you would do some industrial hygiene 21 monitoring. 22 You would generally tell them about 23 what classic industrial hygiene and cleanliness is 24 about, and you would try to equip them as best you 25 could with an understanding of the hazards and what 97 1 to look for to make sure that they protect 2 themselves. Provide personal protective equipment 3 as appropriate, explain to them how to use it as 4 appropriate, encourage them to use it. 5 I think those are the -- a broad 6 brush overview of what I consider the professional 7 standard of care with chemicals like beryllium. 8 (2. And when should an employee be 9 instructed to wear respiratory protection when the 10 employee is exposed to beryllium? 11 A . You generally have them wear it when 12 you think that the exposures are excessive qs 13 defined by the following: That is, if that dose 14 that they are to receive is going to potentially 15 represent a significant contribution to the daily 16 dose that would be considered protective or 17 preventive of disease. 18 (2. Have you finished? 19 A. Yes. 20 (2. Oh, okay. All right. A worker 21 should not be wearing a respirator eight hours a 22 day. Correct? 23 MR. NOVA: Objection; vague, overbroad. 24 THE WITNESS: It's coming from left field. 25 You want to define what you mean by that? There are 98 1 certainly many industries where employees are 2 expected and need to wear respirators eight hours a 3 day. 4 BY MR. METZGER: 5 Q. A worker who is working with 6 beryllium as his regular job, should such a worker 7 be wearing a respirator eight hours a day? 8 MR. NOVA: Objection; vague, overbroad. 9 THE WITNESS: Does the question refer to 10 comfort, legal compliance, ethics, standard of 11 care? I don't know where you're going with this. 12 BY MR. METZGER: 13 Q. Well, okay. Should an emplo3er 14 require a worker, say a beryllium grinder, to wear a 15 respirator eight hours a day when engineering 16 controls have been implemented in the workplace? 17 MR. NOVA: Objection; vague. 18 THE WITNESS: In the history of modern day 19 occupational health, it's expected that an employee 20 should wear a respirator as long as necessary to 21 keep his absorbed dose below that recommended by the 22 OSHA guideline or from the TLV, either one. He is 23 expected to wear a respirator -- he or she is 24 expected to wear a respirator that's protective. 25 If engineering controls have been 99 1 installed, and the best attempts have been made to 2 limit exposure but they are still inadequate to stay 3 below the guideline, in those cases they are 4 expected to wear a respirator as long as necessary 5 to protect their health. 6 BY MR. METZGER: 7 (2. Otherwise they're not expected to 8 wear a respirator. Is that correct? 9 MR. NOVA: Objection; vague, overbroad. 10 THE WITNESS: Otherwise it depends on the 11 decision of the management as to what level of 12 protection they want to encourage the worke5s to 13 comply with. 14 BY MR. METZGER: 15 (1. Now, I'd like you to assume for 16 purposes of my next question that the 2 microgram 17 standard is not preventing cases of CBD. Okay? Are 18 you with me? 19 MR. NOVA: Are you with him? I guess that's 20 a question. Are you with him? 21 THE WITNESS: If what you're asking me is 22 you want me to assume that compliance for 40 years 2 3 to 2 micrograms per cubic meter a day, eight hours a 24 day, 220 work days of the year, if I make those 25 assumptions and a person is not wearing a 100 1 respirator, that's a real dose, that you want me to 2 assume that it's not protective? 3 BY MR. METZGER: 4 (2. That wasn't my question, and I'm glad 5 that you asked that because I will now clarify it. 6 I'd like you to assume that it is 7 shown to scientific standards that a worker exposed 8 to beryllium for a single day at a concentration 9 less than the standard develops beryllium disease, 10 chronic beryllium disease. Assuming that, is it 11 your opinion that the standard should be changed? 12 A. No. t 13 (1. Why not? 14 A. With respect to the TLVs, for 15 example, since 1944, it's been acknowledged that no 16 guideline will necessarily protect everyone; so it's 17 been implicit that we don't try to identify 18 guidelines that will protect everyone. Rather, we 19 try to protect the vast majority if possible. 20 Therefore, knowing what I know about 21 beryllium and assuming what you've said to be true, 22 one would have to conclude that the person was an 23 anomaly and that it would not have an impact on 24 agencies or consensus bodies to change that 25 guideline. 101 1 Q. Are the threshold limit values 2 designed to protect workers from the effects of 3 toxins that exert their toxic effects by immune 4 mediated mechanisms? 5 A. They try to. 6 (2. Was the standard for beryllium 7 established based on such an assumption? 8 A. My recollection is that in the early 9 documentations of the TLV for beryllium, the fact 10 that the immune system might be involved was 11 discussed and considered in their deliberations. 12 Q. When the standard was adopted, was it 13 arbitrary? 14 A. How are you using the term 15 'I arbitrary" ? 16 Q. I mean was the number arbitrarily 17 selected, the 2 microgram standard? 18 A. I think as I understand the word 19 "arbitrary,I' I'd have to say no. 20 Q. Was it based upon any scientific 21 data? 22 A. Sure. 23 (2. Was it based upon any epidemiologic 24 data? 25 A. Not in the traditional sense of 102 1 epidemiology. It would probably be considered case 2 report data. 3 Q. What case report data was it based 4 on? 5 A. Based on the experience in Lorain. 6 Q. Of which cases? 7 A. They were observing CBD in workers, 8 and they were observing CBD in some of the 9 community. That's considered case report data. 10 Q. I'd like you to assume that 11 beryllium actually causes chronic beryllium disease 12 at less than 2 micrograms per cubic meter oq an 13 eight-hour time-weighted average basis in 14 approximately 10 percent of the exposed population. 15 A. After how many days of exposure like 16 that? 17 Q. I'm not concerned whether it's one 18 day or 100 days or 1,000 days for the purposes of my 19 question. I'd like you to assume that exposure to 20 beryllium causes CBD in 10 percent of the exposed 21 population who is exposed below 2 micrograms per 22 cubic meter on an eight-hour time-weighted average. 23 If that were true, is it your opinion that the 24 standard should be revised? 25 A. It would take a long answer to answer 103 1 that question as you presented it. 2 Q. Fine. Let's hear it. 3 A. If I was to assume that one day's 4 exposure to 2 micrograms per cubic meter of 5 beryllium total, beryllium of any form, caused 10 6 percent of those exposed to get CBD sometime later, 7 and if that number of people exposed was a statistically relevant, and assuming that was a 9 relatively random sampling of the population, not 10 somehow people we knew were genetically predisposed 11 to developing CBD, then I would say the standard 12 certainly would require revision. , 13 (1. And it would require revision -- 14 A. And by "standard1'we're referring to 15 the current standard of 2 micrograms per cubic 16 meter, eight hours a day, 220 days a year for 40 17 years. 18 (1. What do you consider to be a 19 statistically relevant percentage of exposed workers 20 which should trigger a change in the standard? 21 A. For what chemical? 22 (1. The same scenario we're talking 23 about. You mentioned statistically relevant. I 24 asked you about 10 percent. You said statistically 25 relevant. I'm asking you: What do you mean by 104 1 that? 2 MR. NOVA: If you understand, answer it. If 3 you don't, tell him so. 4 THE WITNESS: Mr. Metzger, are you 5 referring to beryllium and the scenario we just 6 discussed? 7 BY MR. METZGER: 8 (1. Yes, exactly. 9 A. Surely if you had 100 employees that 10 were exposed and ten of them after one day's 11 exposure got CBD, I would think that would probably 12 require changing the standard for sure. 13 Q. Where do you draw the line fdr 14 statistically relevant in this context? 15 MR. NOVA: Objection; vague. 16 THE WITNESS: I draw the line as to what in 17 my professional judgment or the judgment of others 18 like me would be considered the sample size too 19 small upon which to render an opinion. 20 BY MR. METZGER: 21 Q. Is there a standard that you are 22 aware of in occupational health or if it's used by 23 OSHA in determining how many cases of diseases 24 should be allowed before a standard is tightened up? 25 A. That question makes no sense. 105 1 MR. NOVA: Then -- 2 THE WITNESS: I'm going to go to the 3 bathroom . 4 MR. METZGER: We'll take a break. 5 THE WITNESS: Okay. 6 (A recess was taken.) 7 BY MR. METZGER: 8 Q. My question, Dr. Paustenbach, is: In 9 setting the TLVs, does the ACGIH employ any standard 10 regarding what percentage of exposed workers 11 suffered an adverse outcome in determining a TLV for 12 a substance? t 13 A. No. 14 Q. Are you aware of a standard that is 15 applied by governmental agencies with respect to 16 carcinogenic agents? 17 A. You'll have to ask the question a 18 different way. 19 (1. In determining allowable exposures to 20 carcinogens, do any governmental agencies employ a 21 risk factor; for example, that if one in 100,000 or 22 one in a million people are predicted to get cancer, 23 we're going to regulate that? 24 A. There are risk criteria that have 25 been suggested or are used by the five or six 106 1 agencies of the U . S . Government. 2 (1. And are you familiar with them? 3 A. Yes. 4 (2. And what are those criteria? 5 A. By agency? 6 Q . By agency or generally, however you'd 7 like to tell me. 8 A. Well, first, it is a nonfixed 9 guideline. Second, let's be sure we're referring 10 only to cancer. 11 (1. Yes. 12 A. Third, the guideline or guidapce has 13 varied over the last 30 years. And fourth, the 14 guidance has lots of nonscience in the final 15 decision as to what's acceptable and not acceptable 16 risk. 17 (2. What are the numbers of all those 18 references? 19 A. EPA considers in most cases, but not 20 all, one in 1,000 increased theoretical risk, one in 21 1,000, to be something that requires action. At one 22 in 10,000 increased risk, EPA tends to -- I think it 23 requires evaluation for action. At one in 1,000 24 and/or one in a million, it is normally considered 25 diminimus risk, that is too small to warrant action. 107 1 MR. NOVA: So that's the EPA. 2 THE WITNESS: Yes, sir. 3 MR. NOVA: This is a rolling question. Next 4 agency. 5 THE WITNESS: If you go to OSHA, OSHA has 6 historically considered the acceptable cancer risk 7 of a lifetime exposure at their PEL to be always 8 acceptable at one in 1,000 and implicitly acceptable 9 at one in 100 increased lifetime risk. And it would 10 appear everything at one in 10,000 or greater to be 11 diminimus or insignificant. 12 The next agency -- t 13 BY MR. METZGER: 14 Q. Excuse me. What about below one in 15 loo? 16 A. Greater than. Is that what you mean 17 by "lower"? The risk is greater than one in loo? 18 Q . Yes. 19 A. If the lifetime risk is greater than 20 one in 100, it normally is proposed for evaluation 21 for rule making. 22 Q . May I just stop you because you've 23 answered my question. I realize you could go on 24 with other agencies. 25 A. You're done with the question? 108 1 Q. Yes. 2 A. Okay. 3 Q. Now, I'd like you to assume that over 4 a lifetime exposure, as OSHA defines lifetime 5 exposure and as you did earlier, 40 years, so many 6 days per year, eight hours per day, that at a 7 concentration of less than 2 micrograms per cubic 8 meter on an eight-hour time-weighted average for 9 beryllium causes CBD. Based on that assumption, do 10 you have an opinion as to whether the standard 11 should be revised? 12 A. I have personal views. + 13 Q. I'm asking for an opinion as a 14 professional as opposed to your own personal 15 beliefs . 16 THE WITNESS: Could you read back the 17 question, please. 18 (Question read.) 19 THE WITNESS: In part the decision would 20 involve the definition of CBD. Currently, CBD is 21 defined in several different ways. But one 22 definition, the most common one, does not require 23 symptomatology. Therefore, my views about whether 24 or not the change would be necessary would involve a 25 stricter definition of CBD than what's normally 109 1 used. 2 BY MR. METZGER: 3 Q. Would you adopt an impairment-based 4 definition? 5 A. Are you asking me a question? 6 Q. I thought I did. 7 A. Would I suggest that an 8 impairment-based definition be used? 9 (1. Yes. 10 A. I think before one makes a decision 11 about how to change a guideline, you would want to 12 have both. You would want to have an t 13 impairment-based CBD and then CBD based on whatever 14 indicator. 15 Q. Right. Okay. In other words, 16 something like a positive lymphocyte proliferation 17 test and impairment, not just sensitization? 18 A. Remember, some use 4 of 6 criteria. 19 Others require 5 of 6 criteria. There's just not 20 those two criteria that you mentioned. 21 Q. I understand. Now, with those 22 additional parameters, under the hypothetical that I 23 posed, should the standard be changed? 24 THE WITNESS: And you wouldn't mind reading 25 back that hypothetical, would you, Lyn. 110 1 (Question reread. ) 2 THE WITNESS: I can't answer the question 3 that you've posed that way. 4 MR. METZGER: Let me rephrase it, then. 5 (1. Taking the definition of CBD as to 6 mean a positive finding of sensitization and some 7 physical impairment due to beryllium exposure, if a 8 person is exposed to beryllium at less than 2 9 micrograms per cubic meter on an eight-hour 10 time-weighted average over a lifetime as defined by 11 OSHA and as you've described it, should the standard 12 be changed? + 13 A. That question can't be answered as 14 presented. You know, just for sake of the 15 afternoon, the reason it can't be answered that way 16 is we've already established this afternoon that we 17 don't know how important particle size is in 18 determining the likelihood of CBD. We don't know 19 what form of beryllium is relevant. We don't know 20 how much of the response is given by individual 21 genetic susceptibility. We don't know whether or 22 not there can be sensitization through oral intake, 23 which then makes the person more susceptible. We're 24 not quite sure of the role of dermal contact and its 25 ability to sensitize. We're not sure of the 111 1 importance or possible importance of peak 2 exposures -- significant peak exposures to sensitize 3 and, therefore, change the timing of the disease or 4 the dose-response curve. 5 So it makes that question and so many 6 of the others you have asked the last couple hours 7 not fair to me and not fair to anybody else that 8 reads this transcript. 9 So, you know, let's not play with one 10 another any more this afternoon. Let's get right 11 down to what my opinions are and what you want to 12 know because I'm not going to answer any oftthese 13 broad questions. 14 Q . Let me ask you this: Is it your 15 opinion that all of the questions which you've just 16 answered need to be -- strike that. 17 Is it your opinion that all of the 18 questions which you have just posed need to be 19 answered before the standard should be changed? 20 A. I think it's very important to get a 21 handle on some of those questions before the 22 standard be changed. Otherwise, you could easily 23 change the standard and have no impact on disease. 24 In fact, I could describe a situation where disease 25 could easily go up if you mishandle setting the 112 1 standard improperly. 2 Q. Which questions, in your opinion, 3 need to be answered before the standard should be 4 changed? 5 A. Okay. There's no doubt we need to 6 understand if a particular form of beryllium is the 7 causative agent in CBD or if it is, in fact, only 8 one form of beryllium that's relevant. We need to 9 resolve that. Secondly, we need to determine what 10 particle size fraction, if any, is the driver with 11 respect to predicting the likelihood of CBD. Third, 12 we need to find out if CBD only occurs in p%ople 13 that have the genetic predisposition. It's entirely 14 possible that only a certain kind of predisposed 15 person is going to get the disease. Those are the 16 three most important ones. 17 It's possible that the fourth one I'm 18 about to mention could end up being very important 19 as well, which is the ability to be sensitized 20 through one of several mechanisms, either dermal 21 contact, incidental oral uptake, or peak one-time or 22 two-time exposure. 23 Q. All right. And in your opinion, 24 although workers are developing CBD as the current 25 standard is being attempted to be complied with by 113 1 industry, all of these questions should be answered 2 before the standard is changed. Do I understand 3 that right? 4 A. No. I wouldn't -5 MR. NOVA: You answered the question. He 6 doesn't understand it right. Wait for another 7 question. 8 THE WITNESS: Could you repeat the last two 9 sentences, please, the last exchange. 10 (Record read.) 11 MR. NOVA: There's no question pending. 12 BY MR. METZGER: 13 (2. In your opinion, Dr. Paustenbach, do 14 the questions which you've just posed need to be 15 answered before the standard should be changed, even 16 if it means that workers currently exposed to 17 beryllium in the occupational environment continue 18 to develop CBD? 19 A. I think I've answered that. I said 20 you don't have to answer all these questions. And 21 if your assumption is correct, that if the current 22 standard, even if complied with 100 percent of the 23 time, isn't providing the level of protection that 24 you want, it would be potentially foolhardy to make 25 a decision to lower the current guideline without 114 1 more understanding than we have today. 2 Q. Okay. Do the technological means 3 exist to prevent worker exposure to beryllium? 4 MR. NOVA: Objection; vague, overbroad. 5 THE WITNESS: I think it depends on what you 6 mean by the form of beryllium and the processing 7 step that you're referring to. 8 BY MR. METZGER: 9 Q. Do the technological means exist to 10 prevent a beryllium grinder from being exposed to 11 beryllium in doing his job? 12 A. I think so. t 13 Q. And what such technological 14 mechanisms are there to do that? 15 A. You can use first-class glove boxes 16 with proper exceptional ventilation. You could use 17 robots. You could use some variation of those with 18 a person in a first-rate supplied air breathing 19 apparatus. There may even be ways to grind or mill 20 with a laser that would somehow minimize dust 21 levels. I think there's a number of technologies 22 that could be implemented. 23 Q. And if those technologies were 24 implemented and they were implemented successfully, 25 would that, in your opinion, be sufficient to 115 1 prevent CBD? 2 A. Well, you have to confirm the level 3 of control after you've implemented these control 4 measures, and we have to conclude that there aren't 5 such people that get CBD at incredibly low 6 concentrations. 7 (2. Is it your belief as a scientist 8 that the type of control measures that you've 9 described would likely reduce the prevalence of CBD 10 in beryllium-exposed workers? 11 A. Well, that would be true if I knew 12 what percent of the current at-risk employeqs were 13 involved in the kind of activity you're describing. 14 I don't know what percent of the population exposed 15 to beryllium has that kind of workday. 16 Q. Fair enough. Has Brush Wellman ever 17 recommended to any of its customers that they employ 18 the type of control methodologies that you've just 19 described? 20 A. Some of the controls that I described 21 have been recommended by Brush to its customers. 22 (2. Which of them? 23 MR. NOVA: Which customers or which control 24 measures? 25 BY MR. METZGER: 116 1 Q. Which control measures? 2 A. Well, I've seen publications that are 3 quite old, I believe even in the OS, that talk 4 about use of glove boxes, high-velocity, low-volume 5 exhaust, exceptional respiratory protection, 6 et cetera. I don't recall the recommendation to 7 use robots. 8 Q. Which Brush Wellman publications are 9 you aware of that have recommended to its customers 10 that they use glove boxes when working with 11 beryllium? 12 A. Is this meant to be a segwaytto the 1 3 prior question, or is this a brand-new question? 14 Q. Well, apparently you have difficulty; 15 so let me restate it. 16 Can you identify for me any 17 Brush Wellman publications in which Brush Wellman 18 has recommended to its customers to whom it sells 19 beryllium for them to use that the customers should 2 0 have their workers do their jobs in glove boxes? 2 1 A. It's a different question than you 2 2 asked before. One was milling, and now it's working 23 with beryllium in glove boxes. All I can tell you 2 4 is that they have published papers and given 25 assistance to people wherein they describe these 117 1 general control measures. It's up to the actual 2 user to decide if they're applicable or pertinent to 3 the situation. Keep in mind some of the materials 4 have almost no beryllium in them; so it wouldn't 5 make much sense sometimes to apply these kind of 6 controls. 7 (2. Can you identify for me any document 8 in which Brush Wellman has recommended to its 9 customers that they have any of their workers use 10 glove boxes to prevent the occurrence of chronic 11 beryllium disease? 12 A. I don't know. , 13 (1. Can you identify for me any 14 Brush Wellman document in which Brush Wellman has 15 recommended to any of its customers that they 16 provide a self-contained breathing apparatus to 17 their workers to prevent chronic beryllium disease? 18 A. I guess I'm awkward with the question 19 do I know of them ever recommending. Their MSDS 20 refers to the use, if not a recommended use, of 21 these control measures if they can't control the 22 exposures below 2. And all the way back into the 23 OS, they have peer-reviewed articles which they 24 sent to, I guess, a number of their users, giving an 25 array of options available to them. 118 1 In the industrial hygiene community, 2 because we can't guess at all the potential uses and 3 users and products, all we can do and all we have 4 ever traditionally done is offer an array of options 5 they can choose from if they don't have what they 6 consider adequate control. So it's very hard to 7 answer those questions the way they're being 8 presented. 9 Q. Has Brush Wellman ever recommended to 10 any of its customers the use of total body 11 protection to prevent the occurrence of beryllium 12 disease in exposed workers? f 13 A. I don't know. 14 Q. Has Brush Wellman ever had any of its 15 own workers in its own workplaces wear total body 16 protection to prevent CBD? 17 A. I don't think so. 18 Q. Has Brush Wellman ever had its 19 workers use glove boxes to prevent CBD? 20 A. Yes. 21 52. In which operations? 22 A. There's a number of milling 23 operations at Elmore where they use glove boxes. 24 Q. Does that include grinding? 25 A. Yes. 119 1 Q. And since when has Brush Wellman 2 implemented the use of glove boxes at Elmore? 3 A. I don't know. 4 Q. How do you know that Brush Wellman is 5 having workers doing milling at Elmore use glove 6 boxes? 7 THE WITNESS: Can you repeat that. 8 (Question read.) 9 THE WITNESS: I saw that. 10 BY MR. METZGER: 11 Q. You took a tour of the site? 12 A. Yes. + 13 Q. When? 14 A. I've taken two or three over the last 15 year. 16 Q. What sites have you visited? 17 A. Only Elmore and their headquarters. 18 Q. If Brush Wellman is having its own 19 workers doing milling do that job using glove boxes, 20 do you believe that Brush Wellman should be telling 21 its customers who do milling that they should be 22 doing likewise? 23 A. I think they should be doing what 24 I've said two or three times now. The tradition in 25 the business is to -- 120 1 Q. Would you please answer my question. 2 MR. NOVA: Oh, wait a minute. You allow him 3 to finish his answers, or we're walking out of here. 4 MR. METZGER: Oh, my. 5 MR. NOVA: Do you understand? 6 MR. METZGER: Oh, my. The pointed finger 7 right at my face. 8 MR. NOVA: And you can record that for the 9 record. You will allow the witness to finish his 10 answers. 11 MR. METZGER: For the record, it appeared to 12 me that he was not being responsive. But if you 13 want him to make his statement before he answers the 14 question, that's fine. 15 Q. Proceed, Dr. Paustenbach. And if I 16 interrupted you, I do apologize. 17 MR. NOVA: With no sincerity whatsoever, the 18 record might reflect. 19 (Question read.) 20 THE WITNESS: The tradition in the business 21 is to share with the scientific community and your 22 suppliers techniques that you use to protect your 23 own employees. And typically you tell your 24 suppliers that if you find that you can't control 25 exposures to the current TLV or the current PEL, 121 1 then you might want to choose one of these options 2 to reduce exposures, and I think that's the 3 appropriate thing to do. 4 BY MR. METZGER: 5 Q. Do you know whether Brush Wellman has 6 told Rockwell that or Boeing that? 7 MR. NOVA: Object; compound. a THE WITNESS: I don't know what 9 correspondence that Brush Wellman had with Rockwell 10 or its predecessor or its descendants. 11 BY MR. METZGER: 12 Q. You've mentioned that there ?re 13 certain questions which you believe should be 14 answered before the standard should be changed. 15 A . (Nods head up and down.) 16 Q. Could you give me a time estimate for 17 how long you believe it would take researchers 18 funded by Brush Wellman to answer those questions? 19 A . I think it's directly dependent on 20 how much time -- well, a significant decision maker 21 would be the amount of resources you could put on 22 it. 23 Q. What amount of resources do you think 24 would need to be put on it to answer those 25 questions? 122 1 A. Substantial. 2 Q. How much? 3 A. What do you mean by "how much"? Are 4 we talking about money or people or time? 5 Q. Well, let's start with money. How 6 much? 7 A. To answer the question about the five 8 or six factors I mentioned to you, how much money 9 would it take to resolve them if they were 10 resolvable? 11 Q. Exactly. 12 A. Many millions. I 13 Q. Approximately how many? 14 A. I would think between $40- and 15 $100 million. 16 Q. And is that a present value number? 17 A. Yes, sir. 18 51. And would you tell me how long you 19 would anticipate this research would take to get the 20 answers that you want? 21 A. You kind of mischaracterized -- I 22 don't know if you mischaracterized it or not, but 23 the questions that I want answered I guess is a bit 24 strong. That the scientific community would 25 probably want answered? 123 1 (2. No. I'm not asking about the 2 scientific community because I don't think anyone 3 has appointed you to speak on behalf of the 4 scientific community in this case. You're rendering 5 your own opinions in this case. 6 MR. NOVA: Mr. Metzger, save the sarcasm and 7 insult, or this deposition is over. 8 MR. METZGER: Oh, I apologize, Mr. Nova. 9 (2. I'm just asking for your opinions for 10 what you want, because this is something that you 11 proposed. 12 THE WITNESS: Let's go back to where, I 13 attempted to answer his question about money. 14 (Record read.) 15 THE WITNESS: Mr. Metzger, what I'm 1 6 uncomfortable with here is the journey of the 17 questioning. Okay? I'm trying to give you an 18 honest answer about what a number of scientists -19 I'm not speaking for them. I'll just say that 20 they've spoken for themselves in the literature that 21 I've shared with you today. A number of these 22 scientists and the Federal Government have said 23 these are important questions that deserve to be 24 resolved. Okay? And I attempted to answer that 25 broad question of yours as honestly as I could. 124 1 But then it took a turn as to what 2 does Dr. Paustenbach want, with the impression that 3 he had more information or had a special requirement 4 beyond that which the other scientists have in order 5 to resolve these questions that I put forward. I 6 don't want to give you the impression that I think 7 you have to answer definitively all these questions 8 before somebody needs to regulate beryllium 9 differently than they do today. I want you to 10 understand that we need to know more than we know 11 today. 12 If one was to try to understqnd those 13 questions, all of them, then I think you could spend 14 $40- to $100 million. I didn't say you had to have 15 them all done. I didn't say you had to spend all 16 $40- to $100 million before-one could make an 17 informed decision. 18 BY MR. METZGER: 19 (1. I understand. 20 A. Now, that would probably give us _ - I 21 would hope it would give us all the information we'd 22 need to make an informed decision about how to 23 regulate occupational exposure to beryllium. The 24 time frame over which that work would occur, 25 depending on how many pieces you want to understand 125 1 and can understand, could easily be four to ten 2 years. 3 (1. Okay. In your opinion, would any 4 epidemiologic studies need to be done to answer this 5 question? 6 A. I think epidemiologic studies today 7 could not in and of themselves answer many of these 8 questions. The exposure data are simply inadequate 9 to do that. And by "exposure" I don't mean the 10 number of samples. I mean the kind of data that's 11 been collected thus far. 12 (2. I understand. Could you tell me what 13 studies you would recommend to be done to adswer the 14 questions that you've posed? 15 THE WITNESS: Counsel, is this within the 16 purview of this deposition? 17 MR. NOVA: He's paying for your time; so 18 it's enough within the purview. 19 THE WITNESS: So be it. 20 (Question read.) 21 THE WITNESS: To get a handle on the 22 question regarding which chemical form of beryllium 23 might be most important, one would look at the 24 various facilities that both manufacture and handle 25 each of the various forms. You would attempt to 126 1 find those that have exclusive exposure to one 2 form. You would characterize that chemically in the 3 air. 4 You would then measure the exposures 5 of the workers using both point source and area 6 sampling as well as personal lapel sampling. And as 7 best you could, you would try to reconstruct 8 exposure historically to understand a lifetime of 9 exposure to that form and, of course, the dose. 10 Then, assuming that the numbers of people are 11 adequate or, failing that, you could find other 12 cohorts with exclusive exposure to that form, you 13 could then conduct an epi study. 14 I don't know if enough data are 15 available today to do such a study in a satisfactory 16 way, but it's possible. You could, to help you 17 understand the importance of form, also do a series 18 of different in vitro and in vivo studies. 19 BY MR. METZGER: 20 Q. May I interrupt you briefly? Before 21 we get to the in vivo and in vitro studies, I ' d like 22 to ask you a few things about the epi study that you 23 just mentioned. May I do that? 24 A. It's okay with me. 25 Q . What type of epi study would you 127 1 recommend? A prospective cohort study? What are 2 you talking about? 3 A. This is a researcher's wish list with 4 lots of money available is the way I'm answering the 5 question. You would do -- if you deemed that time 6 was important, then you would focus first on a 7 retrospective epi study, assuming that there's 8 enough people and they've been exposed for long 9 enough that you can understand the disease pattern. 10 You would look at both sensitization and pulmonary 11 function tests to make your decision if you didn't 12 have available clinical CBD information. If you 13 wished, you might choose to go forward and do a 14 prospective study on that cohort. 15 Q. All right. Let me ask a foundational 16 question. Do you have an opinion as to what the 17 range of the latency period is for CBD? 18 A. I can only tell you what's been 19 reported by the various physicians. 20 Q. What do you understand that to be? 21 A. Well, dependable numbers seem to be 22 as short as one year and as long as 30 or 40 years. 23 (2. With that variable latency period, 24 how many years do you envision the epi study, a 25 prospective study, would have to run to yield 128 1 statistically significant results? 2 A. It depends on the work fours because 3 none of them just started today. Opinions on that 4 have been offered by other researchers that have 5 already looked at existing cohorts. Some cohorts 6 you could probably get a good handle on where 7 they're at within the next ten years. 8 (2. In doing this study, do you believe 9 that you could include in the exposed group workers 10 who have at any time in the past been exposed above 11 2 micrograms on an eight-hour time-weighted average? 12 A. You'd include everybody. If they've 13 been exposed to 2 or more or 2 or less, it doesn't 14 make any difference. 15 (2. If you include in the exposed group 16 that you're following those who have at some point 17 in time been exposed to more than 2 micrograms per 18 eight-hour time-weighted average, how can you 19 determine when they develop CBD whether their CBD 20 was caused by those exposures or whether they were 21 caused by later exposures? 22 A. You do that through evaluating 23 different dosimetrics. 24 Q. Do you have an estimation as to how 25 many workers would have to be included in such an 129 1 epidemiologic study to achieve statistically 2 significant results? 3 A. It depends on the incidence and the 4 degree of exposure. Those two things dictate the 5 size of the population. If you have a small cohort 6 with really high exposure and a high incidence of 7 disease, it doesn't take a very big cohort. 8 (2. Do you have any estimation as to how 9 long such a prospective cohort study would have to 10 run? 11 A. I've answered that question. I 12 said -13 MR. NOVA: Answer it again. t 14 THE WITNESS: What I said was it depends on 15 how many years they have already been exposed. And 16 if that's already been for 30 years, you might be 17 able to answer the prospective piece of the study in 18 ten years. If you want a purely prospective study, 19 then, of course, again, it would depend on their 20 current dose; but assuming that they were only 21 exposed at the current PEL, that could very well be 22 a 40-year or 50-year study. 23 BY MR. METZGER: 24 (1. Okay. All right. 25 MR. NOVA: We need to take our lunch break 130 1 at some convenient stopping point. 2 THE WITNESS: Is it appropriate to ask you 3 how long you think this could go? 4 BY MR. METZGER: 5 Q. Absolutely. I think I'm almost done; 6 so if you want to push through, I think we could 7 push through. 8 A. I'd love to push through. Are you 9 thinking you'll be about done by 3:00, maybe? 10 Q. What time is it now? 11 A. 2:30. 12 Q. Oh, certainly. + 13 A. In that case, can we take a 14 one-minute break? 15 Q. Of course. 16 (A recess was taken.) 17 BY MR. METZGER: 18 Q. I had asked you to tell me what 19 studies need to be done. What I'd like to do, if 20 it's agreeable with you so you can try to catch your 21 flight, Dr. Paustenbach, if you could just rattle 22 them off, generally the type of study. For example, 23 you mentioned in vitro, in vivo studies. Just tell 24 me generically all the different types of studies, 25 and that may be all I need to know. 131 1 A. Okay. On form, there may be some 2 in vitro and in vivo studies that could be done. 3 You know, the history of beryllium is that neither 4 of those studies tends to be very insightful just 5 because of the nature of the disease. But it's 6 possible that there have been some improvements 7 lately that we might get some insight on form and 8 toxicity from these kind of laboratory studies. 9 The next piece of form information is 10 morphology; so that would be the second category of 11 studies. This is the shape coupled with chemical 12 form. Some people believe that beryllium might be 13 acting like some of the other particles in that it 14 causes toxicity only when it's in a particular 15 shape. That's generally laboratory work to define 16 it, then coupled with field work to see if it's 17 there, and then coupled with epidemiology work to 18 see if there's a relationship between dose, form, 19 shape, and disease. 20 The third category would then be 21 particle size. This is probably the hardest 22 research to conduct. One would sample the workplace 23 air using cascade impactors or similar devices that 24 would allow you to understand very fine particles as 25 well as those up to five microns in size. The very 132 1 fine particles can be smaller than .01 microns in 2 diameter. 3 Here again, you would try to relate 4 that which is found in the workplace and that which 5 is found in the breathing zone with the chemical 6 process that's nearest the worker for the area 7 sample, and then you'd couple that with information 8 about disease. You can do that prospectively, only 9 prospectively coupled with an update, or you can 10 just do a pure prospective study. 11 The fourth kind of research would 12 involve genetic screening. Here you would have to 13 decide if you have a proper genetic marker for 14 predicting susceptibility to beryllium. There are a 15 number of markers out there that people have 16 suggested might work, and that research would simply 17 be ramped up. You would apply it to current 18 employees and, also, to new hires and then track the 19 new hires prospectively. Then you would probably, 20 after you understood the susceptibles in the current 21 population, look retrospectively to see what their 22 exposure has been and to see if they have some form 23 of disease today. 24 The next piece of research would 25 involve the importance of incidental uptake. 133 1 Normally we mean incidental uptake via the mouth; 2 that is, oral ingestion. That research is very 3 complicated and difficult to conduct and difficult 4 to interpret, but such research could be done. 5 The sixth category of research would 6 involve dermal contact and its role. Again, 7 difficult to conduct, difficult to interpret, but 8 might be significant. 9 The seventh area of research, then, 10 is finding a good biological monitor. This could be 11 urinary biological monitor, it could be a blood 12 monitor, it could be a component of the blood, it 13 could be a sputum sample, perhaps, but some 'sort of 14 biological monitor that tells you about either 15 exposure or response to exposure. 16 So I think that's the main lines of 17 research that one would want to conduct, each one 18 having an epi component. Of course on top of that 19 you could have just separate retrospective 20 epidemiology studies. 21 (1. Dr. Paustenbach, assuming that all of 22 the studies that you have just identified were done 23 as you believe they should be done, all the funding 24 and all the time and personnel that that would 25 entail, do you have an opinion as to what the 134 1 likelihood is that those studies would yield 2 sufficient information upon which to determine a 3 standard according to the criteria that you believe 4 are necessary? 5 A. Of course. Assuming that work was 6 conducted? 7 Q. Yes. 8 A. You'd have more information than we 9 usually have to set standards; so of course it would 10 be ample. 11 Q. What is the likelihood that such 12 studies would yield information which you b7lieve 13 could be used to develop a standard? Do you believe 14 it's 100 percent? 15 A. Of course. 16 (2. Okay. Have you ever seen a document 17 which is a report of a medical meeting at Luckey, 18 Ohio, dated March 20 and 21 of 1951? 19 A. I'd have to see it physically. 20 MR. METZGER: It's been marked -- I'm not 21 going to attach these to the deposition, Peter, but 22 they are being identified with our exhibit numbers. 23 MR. NOVA: That means you produced them? 24 MR. METZGER: Yes. You've been provided 25 copies with these numbers on them. We've marked it 135 1 as Exhibit 7675. My question is -- 2 MR. NOVA: If he's going to be asking you 3 questions about it, we'll mark it. 4 BY MR. METZGER: 5 Q. My question is: Have you ever seen 6 that document before? 7 A. (Witness peruses document.) 8 I'm not sure. 9 Q. You don't recall seeing it before? 10 A. That isn't what I said. I said I'm 11 just not sure. I don't recall. I don't recall if I 12 have or I haven't. , 13 Q. Is it fair to say that your opinions 14 in this case are not based in any way on that 15 document? 16 A. I've said nothing today that reflects 17 anything I've read in this document. 18 Q. You will not be rendering any 19 opinions that are based on this document. Is that 20 correct? 21 A. I didn't say that. I think generally 22 people are allowed to render opinions as more 23 information is provided in the case. 24 Q. This isn't new information. It's 25 been around since 1951. 136 1 A. But if it's new to me, and I think 2 it's important to the case, and you ask me questions 3 about it in court, I think I'm allowed to testify 4 about it. 5 MR. NOVA: He's also allowed to testify 6 about what your experts say; so if they're going to 7 have some opinion about that document, he's going to 8 be testifying about it. 9 MR. METZGER: I doubt it, but we can all 10 have our opinions on that. 11 (2. My next question is: Have you seen 12 this document which is dated -- this document which 13 has been marked Exhibit 7676. 14 A. (Witness peruses document.) 15 MR. NOVA: We are going to need to mark 16 these as exhibits to this deposition. 17 MR. METZGER: All right. We'll copy them 18 and attach them. 19 MR. NOVA: Okay. The one that we talked 20 about, 3/21/51, is going to be next in order, which 21 is 42. 22 (A copy of the aforementioned 23 document, consisting of 28 pages, was 24 marked by the court reporter as 25 Plaintiffs' Exhibit+ 42 for identification; 137 1 bound separately.) 2 MR. NOVA: The document labeled "St. Clair 3 OnSite Box No. 128" will be 43. 4 (A copy of the aforementioned 5 document, consisting of six pages, was 6 marked by the court reporter as 7 Plaintiffs' Exhibit+ 43 for identification; 8 bound separately.) 9 BY MR. METZGER: 10 Q. Have you ever seen it before? 11 A. I don't recall having seen it. 12 Q. Thank you. t 13 A. By the way, the document is not 14 complete. 15 Q. Thank you very much. Have you ever 16 seen any documents authored by a Dr. DeNardi? I'm 17 showing you Exhibit 7616. Have you seen that 18 before? 19 A. (Witness peruses document.) 20 I believe I have. 21 MR. NOVA: That document will be Exhibit 44 22 to this deposition. 23 (A copy of the aforementioned 24 document, consisting of two pages, was 25 marked by the court reporter as 138 1 Plaintiffs' Exhibit+ 44 for identification; 2 bound separately.) 3 BY MR. METZGER: 4 Q. Are any of your opinions in this case 5 based upon this document? 6 A. Yes. 7 (2. When did you see this document? 8 A. As I said, I believe I've seen it. I 9 do remember having read, if not in this document or 10 a similar document, the belief that in that time 11 frame, which I believe is the early OS, middle 12 OS, that it had been proposed that there may not 13 be a safe level of exposure for those that are 14 considered genetically susceptible. 15 Q. And do you agree with that opinion? 16 A. I think that's an overly broad 17 statement to say that no dose would be acceptable. 18 Q. Do you have any -- 19 A. And it's illogical, too. 20 Q. Do you have any scientific evidence 21 which you believe establishes that there is a dose 22 which is safe? 23 MR. NOVA: Objection; vague, overbroad. 24 THE WITNESS: By what route and in what 25 situation? 139 1 BY MR. METZGER: 2 Q. Well, I believe we can refer to the 3 respiratory route. I don't care what the situation 4 is. Is there a dose which you believe is safe to be 5 inhaled of beryllium? 6 MR. NOVA: Objection; vague, overbroad. 7 THE WITNESS: Of course. 8 BY MR. METZGER: 9 Q. What is the dose? 10 A. We've been through this before. It's 11 been generally thought that for most people, if the 12 concentrations were kept below 2 micrograms +per 13 cubic meter during a working lifetime, that 14 certainly for those that aren't genetically 15 susceptible it was expected to be safe. 16 (2. All right. Do you believe that that 17 is a safe dose today? 18 A. As I said before, we don't know 19 enough to be able to answer that question today. 20 Q. All right. Can you give me any dose 21 that you believe today has been proven to be safe? 22 MR. NOVA: Objection; asked and answered. 23 THE WITNESS: I will repeat it. We've 24 generally thought, using classic industrial hygiene 25 and occupational health criteria, that unless you 140 1 were genetically susceptible, the chances were quite 2 high that you would not contract CBD if the 3 concentrations were kept below 2 micrograms per 4 cubic meter total beryllium. In spite of the fact I 5 don't think that's a great dosimetric, that's what 6 the data thus far and the belief in the industrial 7 hygiene community -- that's what it was. 8 BY MR. METZGER: 9 Q. I'm not asking you what has 10 historically been believed, and I'm not asking you 11 what the scientific community believes. I'm not 12 asking you any of those things. 13 What I'm asking you is: Are'you able 14 to identify for me a dose of beryllium that you 15 believe is safe for persons who are genetically 16 susceptible to developing CBD? 17 A. I can't identify that dose today. 18 Q. I'm showing you what has been marked 19 as Exhibit 7620, and I'll ask you if you've ever 20 seen that document before. 21 MR. NOVA: That will be Exhibit 45 to this 22 deposition. 23 (A copy of the aforementioned 24 document, consisting of two pages, was 25 marked by the court reporter as 141 Plaintiffs' Exhibit+ 45 for identification; bound separately.) THE WITNESS: (Peruses document.) I don't recall seeing it. BY MR. METZGER: 6 (2. Thank you. I'm showing you what has 7 been marked as Exhibit 7621, which will be 8 Exhibit 46 to this deposition, and I'll ask you if 9 you've ever seen that before. 10 (A copy of the aforementioned 11 document, consisting of two pages, was 12 marked by the court reporter as 13 Plaintiffs' Exhibit+ 46 for identification; 14 bound separately.) 15 THE WITNESS: (Peruses document.) 16 I have seen it. 17 BY MR. METZGER: 18 (1. Are any of your opinions in this case 19 based in any way on that document? 20 A. My opinions in this case have 21 considered the correspondence that I am aware of 22 from Dr. Shima. 23 52. That's not what I asked you. Are any 24 of your opinions in this case based on that 25 document? 142 1 MR. NOVA: Based on the two blank pieces of 2 paper as opposed to the text. I think that's what 3 he's saying. 4 MR. METZGER: No, Peter. My question is 5 what I'm asking you. 6 Q. Are any of your opinions -- 7 MR. NOVA: I don't understand it; so I don't 8 want you answering a question that I don't even 9 understand. 10 MR. METZGER: Your objection is noted. 11 (2. My question is: Are any of your 12 opinions in this case based in any way on th,is 13 document? And I don't mean the paper. I mean the 14 contents of the document. 15 MR. NOVA: Asked and answered. 16 THE WITNESS: I read the letter, and I've 17 read the correspondence about Shima, and it's 18 incorporated in the opinions I've offered today. 19 BY MR. METZGER: 20 Q. So the answer is yes, is it? 21 A. I guess it's yes, based on what I've 22 said. 23 (2. That's all I'm asking. I'm showing 24 you what has been marked as Exhibit 7588. Have you 25 seen this document before? 143 A. Yes. MR. NOVA: That's Exhibit 47 to this deposition. (A copy of the aforementioned 5 document, consisting of 26 pages, was 6 marked by the court reporter as 7 Plaintiffs' Exhibit+ 47 for identification; 8 bound separately.) 9 BY MR. METZGER: 10 Q. Are any of your opinions in this 11 case? 12 A. For sake of the record, the qitle is 13 "Beryllium Poisoning and Healthcare by S. Shima from 14 the Sangyo Igaku Journal 3 ( 5 ) , 14-22 (1980). " 15 Q. Are any of your opinions in this case 16 based on this document? 17 A. My opinions have incorporated what's 18 in that document. 19 Q. Are there any other documents that 20 you have based your opinions on in this case that 21 you haven't brought with you? 22 MR. NOVA: Is that an indication that he was 23 required to bring that document with him? 24 MR. METZGER: If it is a Brush Wellman 25 document that he's basing his opinions on, yes, he 144 1 was required to bring it to this deposition. 2 MR. NOVA: Are you implying that a document 3 written by Shima in a medical article in Japan is a 4 Brush Wellman document? 5 MR. METZGER: No, I'm not. I'm implying 6 that any documents on which he's basing his opinions 7 in this case do need to be brought to the deposition 8 and have been requested. 9 MR. NOVA: You brought them. 10 THE WITNESS: Mr. Metzger, maybe it's a 11 matter of lack of good communication. I told you at 12 the beginning what my opinions were. Okay?, I 13 shared the documents. Then you asked me a whole 14 series of questions outside that. We spent most of 15 the day on things that weren't related to that. Now 16 you're accusing me of not having shared all the 17 documents on the new issues that you've raised this 18 afternoon. That's the problem. 19 MR. NOVA: I can assure you that 20 Judge Watson will not believe that you have 21 deliberately withheld documents. I will assure you 22 that he will conclude the contrary; that the 23 tricksterism that Mr. Metzger is attempting to 24 perpetrate here in the document requests will not be 25 substantiated; so I don't want you to be worrying 145 1 about that. 2 BY MR. METZGER: 3 Q. Okay. Have you ever seen any 4 documents authored by Mr. Zenczak, Z-e-n-c-z-a-k? 5 MR. NOVA: The question is: Have you ever 6 seen any documents authored by him? You can answer 7 it off the top of your head. If you don't know, 8 te11 him. 9 THE WITNESS: I'm not sure. It's very 10 similar in name to the man that wrote a lot about 11 ventilation control within the Brush Wellman 12 company. t 13 BY MR. METZGER: 14 (2. Have you seen any data regarding 15 Autonetics? 16 A. I don't recall. 17 Q. All right. Have you spoken with 18 any other experts that have been engaged by 19 Brush Wellman in this case? 20 A. No. 21 Q. Have you completed all your work to 22 render your opinions in this case? 23 A. I've completed the work that I've 24 been asked to perform. 25 Q. Is there any literature upon which 146 1 you base your opinion that until recently the 2 2 microgram standard was generally considered to be 3 protective other than that which you brought with 4 you and which has been marked as exhibits today? 5 A. I don't think so. 6 Q. Are there any documents or 7 literature, other than that which you brought with 8 you and have been marked as exhibits today, upon 9 which you base your opinion that the currently 10 available information does not allow you to identify 11 a better occupational exposure limit than the 2 12 microgram standard? t 13 A. Yes. 14 9. What documents are those? 15 A. Those are the documents prepared by 16 the various authors that presented at the 1999 ACGIH 17 symposium. 18 9. Anything else? 19 A. Yes. 20 (1. What else? 21 A. The article by Wambaugh that was 22 published earlier this year. W-a-m-b-a-u-g-h, I 23 believe. 24 (1. What article is that? 25 A. I don't recall the journal that it 147 1 was in. I think it was "Applied Occupational and 2 Environmental Hygiene.'' 3 Q. What was the subject? 4 A. Proposed occupational exposure limit 5 for beryllium. 6 Q. Are there any other articles upon 7 which you are basing your second opinion that you 8 haven't brought with you today? 9 MR. NOVA: I'm going to object. 10 Mischaracterizes the entire conduct of this 11 deposition. 12 THE WITNESS: And I don't need to s?y any 13 more. Is that right? 14 MR. NOVA: No. 15 BY MR. METZGER: 16 (1. Doctor? 17 MR. NOVA: He's not allowed to think, 18 Mr. Metzger? 19 MR. METZGER: I thought he interpreted you 20 as he didn't have to answer the question. 21 MR. NOVA: I think he interpreted the 22 opposite. 23 THE WITNESS: I have peer-reviewed some 24 papers for journals that, if accepted, may influence 25 my opinion. 148 1 BY MR. METZGER: 2 (2. What papers are these? 3 A. I can't disclose those. It's a 4 matter of professional courtesy. You can't do that. 5 Q. If you can't disclose them, you can't 6 rely on them for your opinions in this case. 7 A. I didn't say -8 MR. NOVA: Wait for a question, please. 9 It's getting late, I know, but you need to wait for 10 a question that you understand. 11 BY MR. METZGER: 12 (2. Dr. Paustenbach, are you will+ing to 13 disclose those papers or not? 14 A. No. 15 MR. METZGER: Mr. Nova, may I have your 16 agreement that he will not be relying on these 17 papers for his opinions in this case? 18 MR. NOVA: This is Dr. Paustenbach's 19 deposition. It's not the time for agreements 20 between counsel. We can discuss that at a later 21 time. 22 MR. METZGER: Very well. 23 (1. Who are the authors of these studies? 24 A. I can't disclose that. 25 (2. What are the subjects -- 149 1 MR. NOVA: Mr. Metzger is professing shock, 2 but you don't need to interpret the shock in how you 3 answer the question. 4 BY MR. METZGER: 5 Q. What are the subjects of these 6 studies? 7 A. I didn't say they were studies. I 8 said they were papers. 9 Q. What are the subjects of these 10 papers? 11 A. They talk about beryllium. 12 Q. What aspects of it? t 13 A. Mr. Metzger, I am not going to 14 disclose anything about those papers. There's a 15 rich legal and professional history about not having 16 to disclose papers that one is reading that are in 17 review. 18 (1. Okay. How many such papers are 19 there? 20 A. Where? 21 Q. That you are presently reviewing for 22 publication. 23 A. Two. 24 51. And for which journal are you 25 reviewing them? 150 1 A. I can't share that with you. 2 Q. You can't even tell me what journal? 3 MR. NOVA: Mr. Metzger is professing 4 disbelief and shock again, but don't allow that to 5 influence your answers. Mr. Metzger is disbelieving 6 and shocked often, as you can tell. 7 THE WITNESS: I can't tell you what 8 journal. 9 BY MR. METZGER: 10 Q. Are there any other papers or 11 articles or documents upon which you are basing any 12 of your opinions in this case other than thqse that 13 you have brought with you and have been marked as 14 exhibits and other than those that you just 15 identified? 16 A. Not to the best of my recollection. 17 Q. Have you told me all of your opinions 18 in this case? 19 A. I've answered your questions as 20 honestly and as completely as I know how. 21 Q. That's not what I've asked you. Have 22 you told me all of your opinions that you have 23 formed in this case? 24 A. I think I've covered the vast 25 majority of the opinions that I would have for this 151 1 case. 2 (2. Have you told me all of the opinions 3 that you have formed for this case? 4 A. Let me be clear. I'm not trying to 5 be evasive. I've not had anyone come to this point 6 in the deposition and ask that after having walked 7 through the many areas that we walked through. To 8 the best of my knowledge, given what I've been asked 9 to provide in the way of information in this case, 10 I've shared my opinions with you. 11 (2. In that case, we're done. 12 A. Thank you. + 13 (2. Same stipulation from yesterday, 14 only that the court reporter will forward the 15 transcript to Dr. Paustenbach instead of yesterday's 16 witness? 17 MR. NOVA: Yes. That stipulation is fine. 18 Although I have reconsidered the documents and am 19 not willing to leave Dr. Paustenbach's originals 20 here with the assumption that your staff will 21 somehow mark on other copies of the documents and 22 attempt to duplicate the markings. I don't think 23 that that's a sufficiently reliable practice; so we 24 need to come to some agreement about the documents. 25 THE WITNESS: There's also doubles in 152 1 there -2 MR. NOVA: I'm not concerned -3 THE WITNESS: -- and stickies and all that 4 stuff. 5 MR. NOVA: Right. That's also part of the 6 problem. 7 MR. METZGER: Okay. What I'd like to do is 8 obtain copies of these, and what I proposed earlier 9 is since it is Sunday, and I don't have staff here 10 today, that my staff tomorrow morning begin copying 11 these and reproduce the highlightings and then that 12 I would bring you the originals to return t? 13 Dr. Paustenbach at our next meeting, which I believe 14 is on Wednesday, I believe. 15 MR. NOVA: What your staff does with the 16 documents after they're copied we have no interest 17 in. So the documents can be left with the court 18 reporter and copied in the manner that the court 19 reporter normally does such things. 20 MR. METZGER: Well, then, all the documents 21 will be just left with the court reporter in her 22 custody. 23 MR. NOVA: Absolutely, as opposed to your 24 custody. 25 MR. METZGER: Sure. 153 1 (Discussion held off the record.) 2 MR. NOVA: Anything that is not marked as an 3 exhibit is not staying here. 4 MR. METZGER: Then we'll have to mark the 5 rest of those as exhibits. The only reason I want 6 those others is they have highlighting, and I want 7 to have a complete set of copies with highlighting. 8 There were some doubles that did not have any 9 highlighting, and those I returned to you. So if 10 you want, we'll just mark -11 THE WITNESS: No. That's not true. That's 12 the problem. I don't know why you kept both sets. 13 MR. METZGER: We'll just have to maGk the 14 doubles as exhibits. Fine. 15 THE WITNESS: That doesn't make sense. 16 MR. NOVA: Sure, it does. We have could 17 have a complete record of what they are. 18 THE WITNESS: Okay. 19 MR. METZGER: All right. There was a 20 double, so to speak, of Eisenbud's "The Standard for 21 Control of Chronic Beryllium Disease" with 22 highlighting on it. That will be the next exhibit, 23 which is 48. So this will be Exhibit 48. 24 ( A copy of the aforementioned 25 document, consisting of seven pages, was 154 1 marked by the court reporter as 2 Plaintiffs' Exhibit+ 48 for identification; 3 bound separately.) 4 MR. METZGER: What I'd like to do regarding 5 your article is give you back the one which doesn't 6 have the highlighting and mark the one which does 7 have the highlighting as Exhibit 4. Is that 8 agreeable, Peter? 9 MR. NOVA: Yes. 10 MR. METZGER: All right. The copy of 11 Stokinger's piece in Patty's Volume I1 which has 12 highlighting on it will be Exhibit 49. 13 (A copy of the aforementionGd 14 document, consisting of ten pages, was 15 marked by the court reporter as 16 Plaintiffs' Exhibit+ 49 for identification; 17 bound separately.) 18 BY MR. METZGER: 19 Q. Dr. Paustenbach, I'll just return 20 this one to you from Kreiss. 21 A. That's fine. 22 Q. A copy of the Kreiss article 23 "Machining Risk" which has highlighting on it will 24 be Exhibit 50. That's it. Okay? 25 155 1 (A copy of the aforementioned 2 document, consisting of ten pages, was 3 marked by the court reporter as 4 Plaintiffs' Exhibit+ 50 for identification; 5 bound separately.) 6 MR. METZGER: Same stipulation as yesterday, 7 other than the court reporter will forward the 8 transcript to Dr. Paustenbach rather than to 9 yesterday's witness? 10 MR. NOVA: Yes. 11 (It was stipulated that the court 12 reporter be relieved of her duties u+nder 13 the Code and send the original transcript 14 to Dr. Paustenbach; that Dr. Paustenbach 15 will make any corrections on an errata 16 sheet, will forward a copy of the errata 17 sheet to both counsel, will sign the 18 transcript under penalty of perjury, and 19 will return it to Mr. Metzger; that if the 20 original transcript is not signed or is for 21 some reason lost, a certified copy may be 22 used with the full force and effect as the 23 original.) 24 25 (Proceed*in*gs*concluded at 3:07 p.m.) 156 1 DECLARATION 2 3 4 5 I hereby declare I am the deponent in the 6 within matter; that I have read the foregoing 7 deposition and know the contents thereof, and I 8 declare that the same is true of my knowledge except 9 as to the matters which are therein stated upon my 10 information or belief, and as to those matters, I 11 believe it to be true. 12 I declare under the penalties of perj,ury of 13 the State of California that the foregoing is true 14 and correct. 15 Executed this 16 2000, at day of , California. I 17 18 19 20 21 Dennis James Paustenbach, Ph.D., DABT 22 23 24 25 157 t