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//t>7 i y STATE OF WISCONSIN CIRCUIT COURT : BRANCH 33 MILWAUKEE COUNTY SHIRLEY ANN PENNOCK, ESTATE OF WILMAR ROBERT PENNOCK, Plaintiff, vs H.K. PORTER, INC., SOUTHERN TEXTILE CORP., CELOTEX CORP., EAGLE-PICHER INDUSTRIES, INC. UNITED STATES GYPSUM COMPANY, W.R. GRACE & COMPANY, OWENS-ILLINOIS, INC., BUILDING SERVICE INDUSTRIAL SALES COMPANY, INC., Defendant. Case No. 750-082 5T TESTIMONY OF DR RTHUR.LANGER j June 23, 1989 Before the HONORABLE LAURENCE C. GRAM, JR. Circuit Court Judge, Branch 33, presiding. A_P_P_E_A_R_A_N_C_E_S: BORGELT, POWELL, PETERSON & FRAUEN, S.C., by STEVEN CELBA, 15th Floor, 735 North Water Street, Milwaukee, Wisconsin 53202-4188, appeared on behalf of Owens-Corning Fiberglass. DAVIS & YOUNG, by MARTIN MURPHY, 1700 Midland Building, Cleveland, Ohio 44115, appeared on behalf of Eagle-Picher Industries, Inc. FOLEY & LARDNER, by TREVOR WILL, Suite 3800, 777 East Wisconsin Avenue, Milwaukee, Wisconsin ' 53202-5367, appeared on behalf of Owens Illinois, Inc. Appearances.Continued: SCHIFF, HARDIN & WAITE, by ROBERT RILEY and BARBARA HERMANSEN, 7200 Sears Tower, Chicago, Illinois 60606, appeared on behalf of Owens Illinois Inc. NESS, MOTLEY, LOADHOLT, RICHARDSON & POOLE, by THOMAS HART III, P.O. Box 365, Barnwell, South Carolina 29182, appeared on behalf of the Plaintiffs. ATTORNEY JOHN CABANISS, 207 East Michigan Avenue, Milwaukee, Wisconsin 53202, appeared on behalf of the Plaintiffs. WITNESS INDEX DR. ARTHUR LANGER Page Direct Examination by Mr. Murphy 4-29 Cross-Examination by Mr. Hart 29-37 Redirect Examination by Mr. Murphy ' 41-70 Recross-Examination by Mr. Hart 70-148 Direct Examination by Mr. Martin 148-153 Re-recross-Examination by Mr. Hart 153-155 EXHIBIT LIST Defendant Exhibit 461 Plaintiff Exhibit 462 Plaintiff Exhibit 463 Dr. Langer's C.V. ' Letter Report 40 (received) 118 (marked) 118 (marked) 3 1 TRANSCRIPT_OF_PROCEEDINGS 2 THE CLERK: All rise. 3 THE COURT: Be seated, please. 4 MR. MURPHY: Mr. Murphy for Eagle Picher calls 5 Dr. Arthur Langer. 6 THE COURT: Right up here, sir. Do you 7 solemnly swear that all the testimony you are about to 8 give in this matter will be the truth, the whole truth 9 and nothing but the truth, so help you God? 10 THE WITNESS: I do. 11 THE COURT: Please be seated, sir. Thank you. 12 Again, would you state your name and spell 13 your last name for us, please? 14 THE WITNESS: My name is Arthur M. Langer, 15 L-a-n-g-e-r. ' 16 THE COURT: Mr. Murphy, you may proceed. 17 DR. ARTHUR M. LANGER, having been first duly 18 sworn on oath to tell the truth, the whole truth and 19 nothing but the truth testified as follows: 20 PJ?ect_ examination 21 BY.MR..MURPHY: 22 Q Dr. Langer, were you engaged by me to render an opinion 23 as to the agent involved in the mesothelioma in 24 Wilmar Pennock? 25 A Yes. 4 1 Q And have you arrived at such an opinion? 2 A Yes. 3 Q Okay. Now, let's go back a little bit, Doctor. Have 4 you ever testified on behalf of myself or my client. 5 Eagle Picher? 6 A No. 7 Q And, as a matter of fact, Doctor, the last time you and 8 I were -- were involved in legal proceedings together I 9 think you were testifying against me. 10 A I believe so. Yes. 11 Q And, Dr. Langer, in terms of my engagement, of course 12 we've agreed to compensate you for your time and pay 13 your expenses to come here and give your opinions, 14 correct? 15 A Yes. 16 Q Okay. Doctor, would you tell the Jury what your 17 occupation is? 18 A I'm a professor of geology and director of an 19 Environmental Sciences Laboratory, Institute of Applied 20 Sciences in the City University of New York. 21 Q Dr. Langer, what is thestudy of geology? 22 A Geology is defined as the study of the earth, its forms 23 and the various processes which are the natural 24 proceeses which form the various minerals, rocks and 25 entities that constitute the earth. 5 u 1 Q And is one of the branches of geology the study of 2 mineralology? 3 A Yes. 4 Q Okay. And, Doctor, would you tell me if you are an 5 expert in the study of the minerological, biological 6 effects of minerals on human tissue? 7 MR. HART: Excuse me. Your Honor. I think 8 that's a determination for the Court and the Jury to 9 make. I object to the form of the question. 10 MR. MORPHY: Let me rephrase it. Judge. I can 11 clean that up. 12 THE COURT: Okay. 13 Q (By Mr. Murphy) Do you study the biological effects of 14 minerals in human beings? 15 A I have for the past 23 years been involved in the study 16 of mineral dust as it pertains to human health effects. 17 Q Okay. 18 A Twenty years of that time was spent at the Mount Sinai 19 School of Medicine studying the various minerals which 20 produce human diseases, especially asbestos. 21 Q Okay. And, Doctor, are you an expert in the ^ 22 state-of-the-art regarding asbestos-related diseases 23 and its historical involvement? 24 A No. 25 Q And, Doctor,are you anindustrialhygienist? 6 1 A No, I'm not. 2 Q And, Doctor, are you an expert in the application of 3 threshold limit values in the '40's and '50's? 4 A No. 5 Q Okay. And, Doctor, you are not a physician? 6 A No, I am not. 7 Q And, Doctor, you have then no expertise in the 8 diagnosis and treatment of disease. Fair statement? 9 A It's partially fair. I have been called upon to 10 provide information and data to physicians but to help 11 them in the diagnosis which specifically involves the 12 study of human tissues, both the presence for mineral 13 agents implicated in the specific diseases. 14 Q Okay. Doctor, would you tell the Jury your educational 15 background beginning with college? 16 A I have a bachelor's degree from one of the senior 17 colleges, the City University of New York, that's 18 Hunter College. I have a masters degree from Columbia 19 University. I have a doctorate degree from Columbia 20 University. 21 Q And what's your doctorate in? 22 A My Ph.D. is in minerology specifically or minerology 23 crystallography, and that degree is from the Department 24 of Geology at Columbia University. 25 Q After you graduated with your Ph.D. from Columbia, 7 1 Doctor, what did you do? 2 A I joined the newly formed environmental science 3 laboratory at that time, in 1965. That was the 4 Mount Sinai Hosptial. Mount Sinai had not formed its 5 medical school. I was working under Dr. Irving 6 Selikoff, who at that time was one of the leading 7 physicians of the study of asbestos and asbestos 8 diseases. 9 Q And when you were first hired on, so to speak, with 10 Dr. Selikoff, what was your position? 11 A I started as a research associate in the Department of 12 Medicine in the Mount Sinai Hospital. 13 Q And, Doctor, can you tell, me from that point in time 14 forward what you did with regard to Mount Sinai? 15 A When the Mount Sinai School of Medicine formed I became 16 an assistant professor of medicine specifically 17 assigned as a member of the environmental science 18 laboratory, which was a division at that time of the 19 Department of Medicine. Subsequently the unit was 20 moved into the Department of Community Medicine. I 21 became an associate professor in that particular 22 department. I became the director of the physical 23 science laboratory within the entity known as the 24 environmental science laboratory. I later became an 25 associate director of the Environmental Science 8 1 Laboratory. After Professor Selikoff's retirement I 2 joined the Center for Polypeptide and Membrane 3 Research, in that my work had then shifted and 4 refocused on the study of mineral dust and how minerals 5 interact with cell membranes, how cell membranes 6 recognize minerals and how they communicate with 7 minerals. 8 Q Doctor, did you bring your C.V. with you here today? 9 A Yes. 10 Q Because I can't put my hand on mine right now. 11 A Neither can I,counselor. It's in my briefcase. 12 Q Well, let's try to do it from memory then. 13 THE WITNESS: May I, Your Honor? May I just 14 get my -- 15 THE COURT: Sure. 16 THE WITNESS: I got a copy saved. 17 MR. MURPHY: Your Honor, may I hand it to the 18 witness? 19 THE COURT: Sure. 20 Q (By Mr. Murphy) Doctor, was the Environmental Science 21 Laboratory affiliated with, the Mount Sinai School of 22 Medicine? 23 A Yes. 24 Q And you talk about your relationship as the assistant 25 director and you took us through your various 9 1 positions. Can you outline your teaching 2 responsibilities for us? 3 A My teaching responsibilities varied. From time to time 4 I was called upon to act as an instructor in several 5 courses in epidemiology, which is the study of the 6 occurrence of diseases in human populations. I was an 7 adjunct professor in the City University and I 8 sometimes x-rayed methods of analysis of particles. I 9 participated in the Page and Black Postgraduate School 10 as an instructor for physicians and was a faculty 11 member in many of the courses pertaining to pulmonary 12 diseases and asbestos diseases, and from time to time 13 we presented numerous seminars and colloquiums 14 pertaining to mineral dust and human disease. I 15 participated in all of these activities as a faculty 16 member. 17 Q What was Dr. Selikoff's primary course of study during 18 the years that you were there? 19 A I don't understand the question, counselor. 20 Q Well, did Dr. Selikoff have an insulator population 21 that he studied that was one of the major cohorts that 22 was being studied? 23 A Yes. 24 Q And how many people were involved in that cohort? 25 A Well, there are several cohorts. The major study, of 10 1 course, insulation workers. This involves all 17,800 2 insulation workers in the United States. 3 Q And did you assist and work in that particular study? 4 A Yes. 5 Q What was your role I guess we should ask? 6 A Yes. That's a better question. My role. I was given 7 various materials to analyze to which these workers 8 were exposed and I provided background information on 9 tissue burden, which means I was given various pieces 10 of tissue obtained at surgical procedures or autopsies 11 and I analyzied these materials for the inorganic 12 particles that were present. 13 Q And, Dr. Langer, after you were finished at -- 14 concluded your work at Mount Sinai -- when was that by 15 the way? 16 A You mean when did Ileave Sinai? 17 Q Yes. 18 A About a year ago. 19 Q Where did you go and what are you doing today? 20 A I joined an Institute of Applied Sciences elsewhere in 21 the City University at the Mount Sinai School of 22 Medicine in the Medical School in the City University 23 of New York. I moved to another senior college unit 24 out on the Brooklyn College Campus. 25 Q Okay. Doctor, do you belong to any professional 11 1 organizations? 2 A Yes. 3 Q And could you tell us what professional organizations 4 you belong to? 5 A I am a fellow of the Geological Society of America. I 6 am a fellow of the Minerological Society of America. I 7 am a fellow of the Geochemical Society and I belong to 8 a number of other organizations. 9 Q Okay. And, Doctor, are you a consultant to any 10 national governmental agencies? 11 A Yes. 12 Q Would you tell the Jury what agencies you consult for, 13 governmental agencies? 14 A I was in the past and continue to consult for the 15 United States Environmental Protection Agency, the 16 National Institute for Occupational Safety and Health, 17 National Institute of Environmental and Health 18 Sciences, the National Heart, Lung and Blood Institute. 19 Variour other governmental agencies as well. Numerous. 20 Q All right. Have you consulted for the Government 21 relative to any of the present standards -- 22 A Yes. 23 Q -- regardingasbestos? 24 A Yes. 25 Q Would you just explain that for the Jury? 12 1 A When -- when the Government sets standards in the 2 United States they call upon a recognized expert to 3 present testimony and data which supports a certain 4 opinion or viewpoint. And I have testified, for 5 example, in the Toxic Substances Control Act and I have 6 testified before the Department of Labor in the OSHA 7 Agency, the Occupational Safety and Health 8 Adminstration, hearings on setting the new asbestos 9 standard. 10 Q Now, Doctor, how about international organizations? 11 Have you consulted with any international 12 organizations? - 13 A Yes. 14 Q And tell the Jury what international organizations you 15 have consulted with. 16 A I have acted with the International Agency for Research 17 on Cancer, which is the research group of the World 18 Health Organization, specifically focusing on mineral 19 dust and human disease. I have consulted with the 20 World Health Organization and their criteria document 21 focusing on fibers in the environment and health 22 effects. I have acted as a consultant for the Ministry 23 of Mines of South Africa and their asbestos problems. 24 I have consulted for the Institute of Public Health in 25 Norway and setting up their microscopy laboratory. 13 1 Among others I have consulted for the International 2 Labor Organization. 3 Q Doctor/ are you on the editorial board of any peer 4 review journals? 5 A At this time? 6 Q Yes. 7 A Yes. 8 Q Have you been in the past on editorial boards? 9 A Yes. Many. 10 Q Do you serve terms, so to speak, on these boards? 11 A Yes. 12 Q Could you go back and tell theJury, first of all, what 13 peer review journals are? 14 A The classic term of peer review isto present a 15 manuscript of a study to your colleagues for their 16 critique, their gentle critique, hopefully, and these 17 manuscripts are reviewed and comments are sent back to 18 the author for revision or no revisions or outright 19 rejection or outright acceptance. This process is 20 common to the scientific -- the scientific field. 21 Q All right. With regard to the journals that you have 22 served as an editorial board member, would you tell the 23 Jury what journals? 24 A I served on "The Journal of Environmental Research," 25 "The American Journal of Industrial Medicine," "The 14 1 Journal of Toxicology and Pharmacology." There are 2 some others but I have forgotten. 3 Q Do you want to take a look at your C.V? 4 A "Environmental Research," "The American Journal," 5 "Journal of Environmental Pathology and Toxicology," 6 "Advances in Modern Environmental Pathology, Toxicology 7 and Oncology," in addition to reviewing manuscripts for 8 many other journals. 9 Q Dr. Langer, have you reviewed and authored any federal 10 or industrial studies? 11 A Yes. 12 Q And what studies are those? 13 A I have participated in a number of studies pertaining 14 to indoor air pollution. I've been a committee member 15 serving at the National Academy of Sciences in the 16 generation of theory document on fibers in the 17 environment and risk to the non-exposed, the 18 non-occupationally exposed population. And I have 19 served on other boards, specifically the Environmental 20 Protection Agency and the generation of their documents 21 pertaining to asbestos in buildings, public buildings 22 and schools and so on. 23 Q Doctor, have you published articles in the field of 24 asbestos-related diseases? 25 A Yes. 15 1 Q And I don't have a -- 2 MR. MORPHY: Does anybody have another C.V.? 3 Okay. 4 THE WITNESS: Take this. 5 Q (By Mr. Murphy) Doctor, about how many publications 6 have you had published in peer review journals authored 7 by yourself as the principal or co-author in? 8 A Peer review journals, about 60. 9 Q And, Doctor, is one of the first articles that you 10 published in 1967, which is called "Instrumental 11 Analysis of Inspired Pulmonary Particulates"? 12 A Yes. 13 Q And what was that about? 14 A I was a new member in the Environmental Sciences 15 Laboratory and I was brought to the Environmental 16 Sciences Laboratory to develop techniques for the 17 analysis of particles in human tissues. And at that 18 time I reviewed, utilizing the then standard 19 instruments for the analysis of small particles, small 20 mineral particles, reviewed the applicability of those 21 techniques for the use in the study of human tissues or 22 the particles recovered from human tissues and compared 23 those techniques against the nuclear transmission 24 electron microscopy techniques. Therefore, this was a 25 comparative study in which the standard x-ray 16 1 defraction techniques and various spectroscopy 2 techniques were compared against the electron beam 3 instrument. 4 Q Doctor, I see here in 1971 you published an article 5 "Chrysotile Asbestos in the Lungs of Americans in 6 New York City." Would you tell us a little bit of 7 that -- about that publication, the folks in 8 New York City? 9 A In 1971 the major marker in human tissues was the 10 presence of asbestos body at the index of exposure and 11 asbestos body, asbestos fiber, that has been ex-coated 12 by various bodies of salt. It's a protective 13 mechanism, and asbestos is the only one of a very large 14 number of fibers present in human tissues that ever 15 becomes coated and it was consider that the asbestos 16 was an insensitive technique, it was insensitive index 17 of exposure. Therefore, we decided to look at tissues 18 to determine if you could see uncoated fibers. This as 19 an electromicroscopy study. Most use light microscopes 20 to make their diagnosis of agents and tissues. And we 21 looked at a number of cases in New York City just to 22 get a general background as to whether there was 23 asbestos present from the lungs of people in 24 New York City who were not asbestos workers per say, 25 and indeed there was. 17 1 Q And did you attempt to quantify the asbestos in those 2 persons? 3 A Well, it was quantative in terms of known massive 4 tissue and known number of particles, and other than 5 that the calculation in terms of the actual mass of 6 fibers was not carried out. At that time it was merely 7 a yes or no kind of operation. 8 Q And in 1978, Doctor, you published "Asbestos Air 9 Pollution in Urban Areas." Generally what was that 10 article about? 11 A As a result of our earlier studies and the studies of 12 our colleagues in other parts of the world we were 13 curious as to where this chrysotile asbestos was coming 14 from, and the chrysotile was the principal fiber noted 15 in the lungs of urban dwellers of New York. And at 15 that time steel structures in New York City were being 17 sprayed with asbestos containing material. All of the 18 structural elements were sprayed as a means of 19 fireproofing. And we went about monitoring the air in 20 and around these construction sites to see whether or 21 not the asbestos was escaping into the air of 22 New York City, and indeed it was. 23 Q And, Dr. Langer, you published a paper, I see here, in 24 1972 called "Chemical Characterization of Uncoated 25 Asbestos Fibers from Lungs of Asbestos Workers by 18 1 Electron Microprobe Analysis." Just generally what was 2 that subject of that paper? 3 A We were using a new technique whereby we can chemically 4 analyze sublight microscopic particles found in human 5 tissues. The technique of chemical characterization. 6 It was called electron microprobe analysis and we 7 extracted fibers from human tissues and we chemically 8 characterized them. 9 Q 1973, Doctor, you published a work with Dr. Selikoff, 10 Dr. Hammond and Dr. Nicholson called "Identification of 11 Asbestos in Human Tissues." Was that generally the 12 same type? 13 A That was a general overview of the state-of-the-art-at 14 that time, yes. 15 Q And with regard to other publications, Doctor, . 16 you've -- I see there is one called "Inorganic 17 Particles in Human Tissues and their Association with 18 Neoplastic Disease," which you published in '74. What 19 was that about, Doctor? 20 A The insulation workers in the United States have access 21 tumors within organs which are not readily related to 22 inhallation of dust. 23 One of our questions was whether or not 24 mineral particles would be implicated as the agent of 25 these particular disease processes, so we examined 19 1 tissues from other anatomical sites to determine 2 whether or not asbestos fibers had migrated to those 3 sites, and the answer was yes. 4 Q And, Doctor, I notice also that you published a paper 5 with Dr. Pooley called "Electron Microscopical 6 Investigation of Asbestos Fibers." And that was in 7 '74, too. Is that more generally on the same topic? 8 A That's a study that pertains specifically to the 9 characteristics to the different asbestos fiber 10 materials. There was certain fibers in patterns of 11 12 V 13 14 disease that were not readily explainable by any other process other than the actual physical characteristics of the dust were different, asbestos fibers had the different sizes and mere morphologies and shapes. That 15 was one of our goals of that particular paper. 16 Q And, Doctor, in 1976 you reported a paper published 17 something called "Asbestos Exposure During Brake Lining 18 Maintenance and Repair." What was that about? 19 A We were interested in the general problem of exposure 20 of workers to brake pad material, friction pad 21 materials. We were interested in asbestos air 22 pollution and how people of the general population who 23 were not industrial people, not asbestos workers, were 24 exposed to mineral fiber. And one of the major 25 materials used in the United States at the time which 20 1 acted as a source of exposure were friction pads, brake 2 pads on automobiles and vehicles. We thought it would 3 be a good idea to look at the center of the repair 4 operation, actual brake maintenance and repair to see 5 if these people got sick. And one of the parts of the 6 study, besides looking at workers and examining them to 7 see whether they had asbestos diseases, was to actually 8 go to a work place and monitor the workplace and see 9 what kind of fiber levels was exposed to asbestos. As 10 part of that study -- overall study of brake workers we 11 looked at the work environment and characterized the 12 work environment. 13 Q And, Dr. Langer, I see here that you and Dr. Rohl and 14 Dr. Selikoff published a paper called "Exposure to 15 Asbestos in Use of Consumer Spackling, Patching and 16 Taping Compounds." 17 A Yes. 18 Q That involves asbestos in those products? 19 A Yes. We were interested in exposures in 20 non-occupational settings, in households with the use 21 of products, consumer products, that contained asbestos 22 and some of these products were spackling patching 23 compounds. 24 Q You published "Variations of Properties of Chrysotile 25 Asbestos Subjected to Prolonged Milling" with 21 1 Dr. Selikoff. What was that paper about? 2 A That paper pertained to general -- every -- every paper 3 has a certain logic behind it. We were interested in 4 the patterns of diseases associated with the use of the 5 same fiber. The very same fiber used in different 6 industries appears to carry different disease risk. 7 And certain pathology studies involve laboratory 8 animals. Some showed positive results and some showed 9 negative results. There are properties of each 10 mineral, and how those properties at the time effect 11 biological outcome. That was a grinding technique. 12 When you grind minerals you alter their properties, you 13 alter their surface properties as you grind the 14 material down to break down the particle sizes. You 15 also alter the surface properties. And we studied 16 chrysotile asbestos, the white fiber chrysotile 17 asbestos after it had been milled and followed the 18 various physical chemical process during milling. For 19 example, according to the techniques used by certain 20 pathologists, the biological protection dropped. It 21 became inactive. 22 Q And, Dr. Langer, I'm only on No. 39 here but there is 23 one, for instance, on Maryland's Roads that was 24 published in Lancet, what is that about? 25 A There was a report that crushed stone from a certain 22 1 quary in Maryland at the outskirts of Washington D.C. 2 was using a rock that could contain chrysotile fibers, 3 chrysotile asbestos, and we became interested in it 4 because this is the very same road the Environmental 5 Protection Agency had sampled to determine how many 6 fibers were being liberated from brakes, and we 7 examined the rocks and indeed this contained chrysotile 8 asbestos and we determined the emissions from cars, 9 vehicles crossing roads made of this crushed stone 10 aggregate. So we were interested in the study of the 11 number standpoints and we published this "Asbetos on 12 the Roads of Maryland." 13 Q And I think, Doctor, there is one here called a 14 "Endemic Pleural Disease Associated with Fiberous Dust 15 Exposures in Turkey," in 1982. What was that about? 16 A That was a report in the World Literature, in fact 17 several reports, that there was another mineral fiber 18 implicated in the introduction of human mesothelioma. 19 And this fiber is erierionite, e-r-i-e-r-i-o-n-i-t-e. 20 And we sent a group of people to Turkey to verify the 21 diagnosis of mesothelioma. And one of my colleagues, 22 Dr. Rohl, R-o-h-1, went to Turkey to select specimens 23 of soils and rocks and we determined whether or not 24 certain mineral fibers were present. And we were one 25 of the few groups who found erierionite, which is a 23 1 very potent carcinogen, as well as some of the more 2 famous asbestos fibers. And just to go through it, 3 there were follow-ups, I think, in some of the studies 4 reporting in subsequent articles. One is "Mesothelioma 5 Following Intraperitoneal Innoculation." 6 Q That goes back to the Turkey fibers that we're talking 7 about? 8 A Yes. 9 Q And all of these articles that you published in the 10 Pe?iB?yiw_Journal, some of which were medical peer 11 review journals? 12 A Yes. 13 Q And these articles have to deal with the biological 14 effects of asbestos in -- in general? 15 A Yes. 16 Q And, Doctor, have you made any contributions tobooks 17 and monographs and reports? 18 A Yes. 19 Q And just generally tell the Jury what books you've 20 published in. 21 A Many ofthese are proceedings, symposiums that are held 22 in various places in the United States and the world. 23 Although there is some distinction between those 24 publications and the Peer-Reviewed_Journal, I don't 25 know there is anyone who would refute the fact that 24 1 symposiums held or conferences held in New York in 1964 2 and published in 1965, this is the first biological 3 effect of asbestos which was conveyed by the New York 4 Academy of Science and organized by Irving Solcoff and 5 his co-workers, that that is probably one of the 6 benchmark works in the field. There are many, many 7 meetings I have attended that papers of mine have been 8 published as part of the proceedings. These are the 9 "International Agency for Research on Cancer, Silica 10 and Silicosis," "The Electron Beam Instrumentation and 11 Analysis of Human Disease." There is just many, many 12 others involved that I have contributed to. 13 Q Have you given seminars and lectures to physicians and 14 interested investigators in asbestos-related disease? 15 A Many, yes. 16 Q And you've beeninvited to speak atinternational 17 meetings and conferences all over the world? 18 A Yes, many. 19 Q And just in general where, forinstance, have you been 20 invited to speak and just a few of the conferences, 21 maybe? 22 A Well, let's work backwards. The last conference was in 23 March in Paris. This was The First International 24 Conference on the Health Effects of Phyllosilicates, 25 p-h-y-l-l-o-s-i-l-i-c-a-t-e-s. Phyllosilicates are 25 1 sheet structures. We were interested, and I spoke on 2 talc, whether talc produces human disease or not. And 3 I co-authored a paper with Dr. Fred Pooley and 4 co-authored a paper with a colleague of mine from 5 New York on the fiberous clay minerals 6 A-l-a-t-t-o-p-u-1-i-g-t-e, and I hesitate to use this, 7 P-a-l-y-g-o-r-s-k-i-t-e. That was the meeting in 8 Paris. 9 Before that there was a meeting in Lyon, 10 France sponsored by the International Agency on 11 Research of Cancer. I presented a paper on fibers and 12 human tissues in American workers and whether or not 13 certain cohort data would be used to generate a risk 14 assessment for exposure to chrysotile asbestos. 15 I have participated in symposiums held in 16 Cardiff, Wales, on the biological effects of chrysotile 17 asbestos that was convened by the General Motors 18 Corporation. In fact, Chris Wagner was the convener of 19 that conference. 20 There was another conference in Hanover, 21 West Germany, a World Health Organization meeting on 22 health of non-occupational exposure to mineral fiber in 23 the environment. 24 There was another meeting in Lyon on the 25 health effects of silica and silicate. Silica, the 26 X mineral quartz, is a very common mineral found on the 2 surface of the earth. There, was some question as to 3 whether or not this is a human carcinogen. I was 4 present on behalf of the Hanover, West Germany 5 International Pneumoconiosis Meeting where I chaired 6 the section on Etiopathogenesis of Silica and 7 Silicosis. 8 A Did you present any papers, for instance, at the 9 International Pneumoconiosis conference in Pittsburgh 10 last summer? 11 A Yes. 12 Q What paper did you present there? 13 A I chaired the session on Determinance of Biological 14 Activity of Mineral Dust, presented a paper on 15 tremolite, the mineral tremolite, t-r-e-m-o-l-i-t-e, 16 and the mineral tremolite occurs in different forms 17 called habits and that some parts of tremolite occurs 18 in an asbestos mineral and much of it does not. And I 19 presented data information on the characteristic of 20 these materials and why one would produce disease and 21 one -- the other, why it would not. I presented a 22 paper on silica and biological effects of silica, and I 23 presented a paper on fibers of the pulmonary tissues of 24 American workers in the pathology workshop. 25 Q And, Doctor, then you have lectured and taught 27 1 pathologists? 2 A Yes. 3 Q And in that regard, Doctor, do you know, for instance. 4 Dr. Elliot McCaughey? 5 A Yes. 6 Q And what is Dr.McCaughey's -- 7 A Dr. McCaughey's early career as a pathologist was the 8 study of insulation workers in Belfast, Ireland. He 9 did that work with Peter Elmes. He's now in Canada, 10 head of Canadian Tumor. 11 Q As a pathologist what is Dr.Elliot's (sic) reputation? 12 A It's excellent. 13 Q And as an investigator of cause and effect is a 14 pathologist like Dr. McCaughey particularly qualified 15 in that area? 16 A Cause andeffect? You mean as an experimental 17 pa thologist? 18 Q Yes. 19 A Well, I'm trying tothink whether ornot he has 20 published any studies on experimental pathology. He's 21 a superb pathologist. 22 Q Let me ask you this. Is Dr. McCaughey's expertise in 23 the mineralogical, that is, the biological effects of 24 minerals or is his expertise in the diagnosis of the 25 disease? 28 1 A Mostly the diagnosis of disease. 2 Q Okay. Is your function in biological effects of 3 mineral fibers as opposed to somebody of -- with 4 qualifications of Dr. McCaughey? 5 A Yes. Normally this requires several experts, yes. 6 Q Okay. And how about -- Dr. Hammer, for instance, is a 7 pathologist. We've seen in this courtroom he has an 8 outstanding -- 9 A He's supurb. 10 Q -- expertise diagnosis of the disease? 11 A Yes. 12 Q And again, in terms of cause and effect are -- or the 13 biological effects of the minerals, is a mineralogist 14 such as yourself more peculiarly qualified in this area 15 than a pathologist? 16 A I think so, yes. 17 MR. MURPHY: Your Honor, we tender 18 Dr. Arthur Langer an expert on the biological effects 19 of mineral fibers relative to asbestos. 20 THE COURT: I believe Mr. Hart has an 21 opportunity to ask some questions. 22 23 BY MR. HART: CROSS-EXAMINATION 24 Q You and I know each other from -- we met sometime back, 25 have we not? 29 1 A Yes. 2 Q In fact, you have served as an expert witness at my 3 request, my firm's request, have you not? 4 A Yes. My great pleasure. 5 Q And you prepared a report at our request? 6 A Yes. 7 Q You have analyzed tissue at our request? 8 A Yes. 9 Q Dr. Langer, your degree, initial degree, is geology? 10 A Yes. That's correct. 11 Q And obtained a furthermineralogy degree? 12 A Yes. 13 Q Which is a subdivision of geology? 14 A Yes. 15 Q You worked at Mount Sinai for 20-some odd years; is 16 that correct? 17 A Yes. That's right. 18 Q And were you tenured in yourposition? 19 A No. 20 Q And when a new director came into Mount Sinai you were 21 not reappointed; is that right? 22 A That's correct. 23 Q Now, you don't hold yourself out to be a diagnostic 24 expert, do you, sir? 25 A Not in pathology, no. 30 1 Q Have you ever diagnosed any human being having a 2 disease other than a common cold? 3 A Well, we were not called upon -- I was never called 4 upon to directly diagnose, but I've been involved in 5 some form of diagnosis. 6 Q Certainly you have analyzed tissue on an electron 7 microscope. 8 A Yes. 9 Q And assisted pathologists in making their diagnosis? 10 A Absolutely. 11 Q But you don't hold yourself as qualifies or qualified 12 in making professional diagnosis of disease? 13 A Absolutely not. 14 Q In questions of medical -- medical questions you defer 15 to physicians on those issues; is that correct? 16 A Absolutely. 17 Q Dr. Hammer you mentioned is a leading expert in 18 mesothelioma? 19 A He's superb, yes. 20 Q You would defer to Dr. Hammer's opinion on medical 21 mesothelioma? 22 A Absolutely. 23 Q Dr. Elliot McCaughey is one of the world's leading 24 pathologists on mesothelioma? 25 A Absolutely. 31 1 Q He has probably studied more mesotheliomathan any 2 other physician in the world. Could that possibly be 3 correct? 4 A Yes. 5 Q And you respect hisopinions concerning themedical 6 issues of mesothelioma? 7 A Absolutely. 8 Q As much as any other person in the world; is that 9 correct? 10 A Yes. I would put him on par with Chris Wagner, 11 absolutely. 12 Q And you would defer to him and Dr. Hammer concerning 13 the medical issues of mesothelioma, including medical 14 causation? 15 MR. MARTIN: Objection. I'm sorry. 16 A Up to the point where you said causation I would defer 17 to their expertise. 18 Q (By Mr. Hart) Part of a physician's role in treating a 19 patient is determining the cause of their disease? 20 A Yes. That's right. 21 Q And inasmuch as that involves a medical judgment you 22 would defer to Dr. McCaughey in terms of the medical 23 causation of mesothelioma? 24 A No. ' 25 Q You hold yourself out as being superior to him? 32 1 A In a certain field, yes. 2 Q You are trained in analyzing the mineral, the fibers 3 themselves; is that correct, sir? 4 A Yes. 5 Q And this is done by way of electron microscopes? 6 A Yes. 7 Q And you study features of these materials? 8 A Yes. 9 Q Its physical properties? 10 A Physical, chemical properties, yes. 11 Q And how they interact immediately with substances 12 adjacent to these fibers? 13 A Yes. 14 Q Is that a correct summary? 15 A Yes. 16 Q Physicians, however, look at the broader spectrum of 17 information in treating patients; is that correct? 18 A It's possible, yes, sir. 19 Q They look at the substance which the patient was 20 exposed. That's one part of the information that 21 they -- 22 A If they can see it and determine it, yes. 23 Q And if they needed more information about that they 24 would come and call on somebody like you perhaps, but 25 that would not be their sole information in treating a 33 1 patient, would it? 2 A Absolutely not. Of course not. 3 Q They would examine the patient or have examined 4 sirailiar patients in the past; is that correct, sir? 5 A I'm sorry, counselor. Are you referring to physicians? 6 Q Physicians. 7 A Yes. Oh, yes. Of course. 8 Q And physicians, particularly pathologists, would 9 examine the cells and the tissues; is that correct? 10 A Yes. 11 Q And where you have done certain analysis of tissues 12 under electron microscope, you have not performed the 13 medical pathological diagnosis of those materials, have 14 you, sir? 15 A Up to the point my agreement ends, and maybe if I were 16 to give an example you would understand why I'm saying 17 no to that final endpoint. 18 Q Let me try to rephrase the question. 19 A Please. 20 Q You haveexamined tissues under microscope, correct? 21 A Yes. 22 Q You have not examined tissues for the purpose of you, 23 yourself, offering a professional opinion on the 24 pathological diagnosis of tissue? 25 A Absolutely not. Yes, that'scorrect. 34 1 Q You have assisted in -- pathologists in arrival at that 2 decision? 3 A Yes, that is correct. 4 Q But the final medical diagnosis is arrived at by a 5 pathologist? 6 A Absolutely. 7 Q In terms of information that apathologist would rely 8 upon or physician, they would also look into the issues 9 of causation; is that correct? 10 A That's correct, yes. 11 Q And whereas you havecertain opinions andexpertise 12 concerning the physical properties of a substance in 13 terms of producing an effect, a physician examines a 14 broader spectrum of issues, do they -- do they not? 15 A I don't think I followed that argument, and I would not 16 agree to it. But -- 17 Q When you make your examination of an asbestos fiber, 18 for example, you look at fiber and adjacent materials, 19 correct? 20 A Mostly the fiber. 21 Q Okay. And you are not concerned for the purpose of 22 your professional analysis to carry on in your 23 laboratory with the symptoms that a patient had? 24 A No. 25 Q The diagnosis that aphysicianrendersconcerning him? 35 1 A I may read it and agree or disagree with it. 2 Q You don't look at the work history that the individual 3 had? 4 A Yes. 5 Q Do you look at the x-rays that he had? 6 A Rarely. I don't do it now, no. 7 Q Okay. So a physician looks at all these things I have 8 mentioned? 9 A Sure. 10 Q Whereas youlook at just a few? 11 A Yes. 12 Q So in terms of arriving at a medical causation opinion, 13 as opposed to a geological opinion on the effects of 14 substances, you will defer to the making of a medical 15 causation opinion, would you not, sir? 16 A NO. 17 Q You would not defer to Dr. Elliot McCaughey's opinion 18 in terms of medical -- 19 MR. MARTIN: That's been asked and answered. 20 That's -- that was one of the first questions. 21 Q -- asopposed to mineralogical? 22 MR. MARTIN: It's asked and answered, 23 Your Honor. 24 THE COURT: Sustained. 25 Q (By Mr. Hart) Would you defer to a physician 36 1 concerning the issues of medical causation, leaving to 2 yourself the opinion of mineralogical analysis? 3 A No. 4 Q What medical training do you have, sir? 5 A None. 6 Q Thank you. 7 MR. HART: Your Honor, we would object to any 8 medical opinions of -- that this person would give to 9 the Jury as he is not qualified as a medical physician. 10 THE COURT: Just a minute. I think that we 11 will go outside the presence of the Jury and you can 12 state your position and the Court will state its 13 position. 14 (Discussion in Chambers with Court, counsel 15 and court reporter) 16 MR. HART: Your Honor, we object to any 17 opinion from Dr. Langer concerning, first of all, 18 diagnosis of any disease. 19 MR. MARTIN: I have no problem with the fact 20 that Dr. Langer cannot make a medical diagnosis. He 21 has said that his expertise is the biological effects 22 of minerals that cause the disease. 23 MR. HART: I object to any comment he may 24 have, any concerning diagnosis either in this case or 25 in other cases; commenting upon diagnoses reached by 37 1 physicians, commenting on -- even diagnoses reached by 2 board of researchers. 3 MR. MARTIN: I don't understand that 4 objection, because the reported literature is what any 5 physician or non-physician medical investigator relies 6 upon in reaching conclusions. He's not going to make a 7 diagnosis and he's not here for the purpose of the 8 diagnosis. He's only here on the issue of the causal 9 relationship between fibers and mesothelioma. 10 MR. HART: Your Honor, we would also object to 11 any opinions concerning medical causation in this case. 12 MR. MARTIN: Judge, I think that Mr. Hart 13 is -- is trying to confuse medical causation with the 14 biological effects of minerals that cause mesothelioma. 15 It's obvious from this man's background that 16 he has probably done more research than anybody else in 17 the world on the biological effects of asbestos and the 18 diseases they cause from a mineralogical standpoint and 19 more so than any physician who may be interested in 20 cause and effect. His life is cause and effect and he 21 is imminently qualified to testify on that particular 22 issue in this case. 23 I think the law in Wisconsin also is to the 24 effect that you -- in a mere licenser, or you can 25 correct me if I'm wrong, Trevor, is not the basis of 38 1 the qualifications of a witness but his experience and 2 background. And there are several cases that Mr. Will 3 has provided me with that hold to that effect. And I 4 think it's clearly appropriate for the Court to tender 5 this witness to the Jury on the issues of causation 6 between fibers and mesothelioma. 7 THE COURT: Okay. First of all, let me make a 8 general observation that it seems that a physician 9 comes into a courtroom or an engineer comes into a 10 courtroom, they are permitted to testify on any subject 11 known to man, but if anybody else comes into the 12 courtroom we seem to be a lot -- a lot more precise as 13 to whether we're going to allow them to testify or 14 we're not going to allow them to testify. 15 The statute in Wiscinson, 907.02, which says: 16 "Testimony by experts. If scientific, technical or 17 other specialized knowledge will assist the trier of 18 fact to understand the evidence or to determine a fact 19 in issue, a witness qualified as an expert by 20 knowledge, skill, experience, training or education, 21 may testify thereto in the form of an opinion or 22 otherwise." 23 Now, from time to time we have various 24 disciplines that interact with each other and to say 25 that only this discipline can testify on the subject to 39 1 the exclusion of all other disciplines, that's not what 2 the statute says. 3 I think we have a pretty liberal approach on 4 this in Wisconsin, which pretty well says if somebody 5 comes in with a special area of expertise, no matter 6 where that expertise comes from, it can come from the 7 classroom, it can come from his everday working 8 experience, where ever it comes from he can share that 9 expertise with the jury so long as it's going to be 10 helpful to the jury. 11 I think -- now, I can't rule ahead on the 12 specific questions, but I have heard the qualifications 13 of this man as a mineralogist and how it interacts with 14 the body. I think he can give us testimony in that. 15 What weight the Jury gives to that as opposed to 16 testimony from another disciplines, that's up to the 17 Jury to decide. I think that's what the statute is 18 telling us. That's the way the Court's going to rule. 19 (Court, counsel and court reporter return to 20 courtroom) 21 THE COURT: Mr. Murphy, you may proceed. 22 MR. MURPHY: Your Honor, we tender Dr. Langer 23 as an expert in the biological effects of 24 asbestos-related disease and I ask that Defendant's 25 Exhibit 461, which is Dr. Langer's C.V., can be 40 1 received in evidence. 2 MR. HART: Can we defer on the exhibit until 3 later? 4 THE COURT: Is there a problem with this? 5 MR. CABANISS: You said that this doctor -- 6 MR. HART: I thought that was your procedure. 7 THE COURT: I don't recall what the problem 8 was with -- 9 MR. HART: I don't object to it, it being the 10 real C.V. of Dr. Langer. 11 MR. CABANISS: We just want equal treatment 12 for our C.V. 13 THE COURT: I don't know why it can't be. If 14 there is something that's subject to 15 cross-examination -- we have already examined him as 16 far as his qualifications are concerned. 17 It's received. Go ahead. 18 REDIRECT.EXAMINATION 19 BY MR. MARTIN: 20 Q Dr. Langer, would you tell the Jury, let's begin at the 21 beginning, what asbestos is? 22 A Asbestos is a name used by geologists and economic 23 geologists, people who are interested in other deposits 24 for a group of minerals that have the same basic 25 properties. They tend to be flexible. They tend to be 41 1 chemically resistant. They tend to be so flexible they 2 could be woven. They have high tensil strength. If 3 present they could be used in a number of applications 4 as a reinforcing agent. 5 There are a number of these. The three most 6 common used are chrysotile asbestos, principally mined 7 in Canada, although they were mined at one time in the 8 United States. The mineral amosite from South Africa. 9 Amosite is a acronym for asbestos plains in 10 South Africa. And Crocidolite, which is another fiber 11 now principally mined in South Africa. These are the 12 three principal minerals used in the United States. 13 Q Okay. And, Doctor, where is that data kept in terms of 14 the fibers that are used in the United States? 15 A The importation and use of fibers of all minerals and 16 fuels in the United States, those data are kept by the 17 United States Bureau of Mines. 18 Q And is that kept in terms of tonnage of importation? 19 A Yes. There are specific individuals who follow certain 20 minerals and they receive all of the data from the 21 Department of Commerce on Importation of these various 22 varieties, including fibers from various parts of the 23 world. 24 Q And let's go back, even back to the '20's. For 25 instance, is there data from the Bureau of Mines in 42 1 terms of the types of asbestos imported in the 2 United States in the '20's? 3 A Yes. 4 Q What types were imported then? 5 A Chrysotile asbestos, fibers from South Africa; amosite 6 and crocidolte. Tonnage in the 1920's ranged from 7 4,000 tons to perhaps 8,000 tons per year during that 8 time period. 9 Q How about the '30's? 10 A About the same, although, the use and consumption of 11 asbestos progressively increased in the United States 12 until the early 1970's. 13 Q And how about in the '40's and '50's? 14 A During the major shipbuilding efforts in the Second 15 World War we continued to use asbestos fiber until it 16 peaked in consumption at about six to 700,000 tons of 17 fiber per year in the early '70's. 18 Q Doctor, let's go back to the mining of asbestos. In 19 terms of chyrsotile, where is that mined, the 20 chrysotile that's used in the United States? 21 A The principal mines are located in Quebec, Canada, in 22 the region called the Eastern Townships. There are two 23 specific areas, one is called the Thetford Area, 24 T-h-e-t-f-o-r-d. Thetford consists of about five or 25 six major pits, and then some 30 miles east there is a 43 1 major pit called a Jeffrey Pit, J-e-f-f-r-e-y. That 2 was the former Johns-Manville operation. 3 Q And have you visited the mines? 4 A Yes. 5 Q Have you visited mines all over the world? 6 A Yes. 7 Q And, Doctor, in terms of the removal of asbestos 8 minerals can you describe what happens to it from the 9 time it's ored to the time it's sold commercially? 10 A Fiber occurs in veins which constitute a very small 11 percentage of the total rock, so when we analyze the 12 sides of that wall to which the windows are mounted, in 13 that wall there may be 12 or 13 veins perhaps an inch 14 in thickness that contain fiber. So only one or two 15 percent of that total rock is actually usable, 16 economically exploitable mineral fiber, so that rock < 17 wall is blasted. The rocks are removed. The rocks are 18 taken out of these deep pits up to a -- a mill where 19 these rocks are then crushed and they -- these rocks 20 are dried and -- in a process that subjects them to 21 heat sufficient to drive off surface water and then 22 these materials are further milled and ground and sized 23 and subjected to a process called air-jet milling, and 24 therefore different devices that pull off fibers of 25 different lengths. These are called fiber grades. And 44 1 different fiber lengths have different costs and uses. 2 A very long fiber could be woven, therefore, it's a 3 much sought after fiber that may cost $2,000 per ton. 4 And there are various grades of fiber, all the way down 5 to the very smaller fibers, the number of sevens or the 6 floats. These materials are not as economically 7 desirable. The cost of such a material may be only 50 8 or $75 per ton. 9 Q And, Doctor, is the mining and milling process known as 10 the primary asbestos industry? 11 A That would be the primary industry, mining and milling 12 of asbestos, yes. 13 & Then what happens in the commercial use? Is there 14 what -- you fellows I think call this a secondary 15 industry that utilizes these products? 16 A Different fibers are used for different purposes, so 17 there are some secondary industries. The cement 18 industry requires a size such as a four -- a number 19 four fiber. That is -- is one general application. 20 The vinyl asbestos floor tile industry would require 21 number seven -- six or number seven fiber. That's 22 another process. The textile plants require a fiber 23 double, a fiber that's a very long fiber that can be 24 spun and woven. That's another process. So different 25 processes, different industries require different fiber 45 1 types and they have different industrial processing 2 strategies. 3 Q And, Doctor, have you not only studied from inception 4 of the ore, the mining and milling process, but the 5 secondary industries that utilize the fibers in terms 6 of what fibers are used by what industries? 7 A Well, the -- I have gone into the secondary uses, the a insulation trade, and I followed the insulation trade, 9 but the plants themselves, no, just what is available 10 in the data and discussion with experts. 11 Q Okay. In terms of the exposures then -- now let's 12 switch a little bit and talk about human expoures to 13 those particular fibers. Let's start with -- we'll 14 just do mines and milling and I guess we'll call it 15 factory and we'll go down eventually to end users. And 16 could you describe for us, maybe bystander's, human 17 exposures to asbestos in those categories? 18 A Well, the paradox is that you might think the miners 19 are exposed to high concentrations of fibers but they 20 are not because the rocks tend to be wet and the number 6r 21 of fibers that they are exposed to is certainly not as 22 great as those involved in milling -- the milling of 23 the fiber. There is the drying of the material, the 24 crushing and the milling of the material. And 25 depending on the efficacy of the dust control you can 46 1 have a great range of exposures there. In terms of the 2 factory, for example, there is a very famous factory, 3 Paterson Unarco, that used a fiber that came from 4 Africa that's called amosite. During the time period 5 during the Second World War there were very, very few 6 dust control devices used at that plant. There was no 7 governmental mandate to do so and that factory was 8 horrific. It was awful. One couldn't see from one 9 side of the factory to the other. According to 10 eyewitnesses the dust levels could have been 50 or a 11 hundred fibers per c.c. The current standard is two. 12 So these workers were engaged in activities and were 13 exposed to what we call orders of magnitude of greater 14 exposure in that particular plant. 15 Q What's orders of magnitude? 16 A Multiples of ten. Twenty fibers could have been, 20 17 multiplied by 10 or 200. That's a multiple of ten, 18 would be one order of magnitude, 200 -- 100 times that 19 value would be two orders of magnitude. 20 Q And in regard to the exposures then to end users of 21 products that contained asbestos, you have done work in 22 that regard? 23 A Yes. 24 Q Have you -- I think when we went through your 25 publications you have worked with -- studied brake line 47 1 and friction materials? 2 A Yes. 3 Q As it affects endusers? 4 A Yes. 5 Q We talked about environmental effects. Those are the 6 results of end users, environmental studies? 7 A Yes. We also studied patch -- drywall construction 8 workers, drywall workers that use patching and 9 spackling compounds that contained asbestos. 10 Q Insulators? 11 A Insulation workers, yes, of course. 12 Q And in terms of the various exposuresthen as we go to 13 end users and bystanders, are you familiar with the 14 exposures of those people? 15 A Yes. 16 Q Have -- and can you justgenerally tell us whatthe 17 differences are or would be in the types of exposures? 18 A Well, this depends on a lot of factors. Obviously 19 there are some end users, individuals, that suffer 20 terrible exposures, very high concentrations. It 21 depends on the work site. It depends on the kind of -- 22 of job category. It depends on the work environment. 23 If you are below the water line of a ship and you are 24 working in closed captivity on the ship with no 25 ventilation and you are performing a -- certain hanging 48 1 operations, insulating operations, you could be exposed 2 to tremendous levels of fiber. If you are doing 3 construction work and working outside, you could be 4 hanging the same product but get a very minimal 5 exposure. So it depends upon a lot of different 6 factors, but some of the end users' exposures may be 7 greater than the factory exposures. Why? Because the 8 factory is an enclosed environment and you can control 9 it. So there is very little disease you can get in 10 factories, whereas in end users in some open 11 environment where there are no control devices you rely 12 on the activities of workers themselves. Some 13 exposures may be low. Some exposures may be very high. 14 So there is a range of possibilities. 15 Q In terms of the exposures, we have heard the term about 16 consumption data in this courtroom, and we -- now I'm 17 going to ask you is there exposure data or such a term 18 exposure data? 19 A Yes, there are. Consumption data. Those data obtained 20 from the Plerpo Bureau of Mines. Ninety-five percent 21 of the fibers used in the United States was chrysotile 22 fiber from Canada. Now many people think that since 23 95 percent of the fiber was chrysotile, 95 percent of 24 the disease we should see should be chrysotile-related. 25 But if you look at tissues of the workers you find that 49 1 many of the specific categories have more amphibole 2 minerals, amosite and crocidolite in their pulmonary 3 tissues. So that consumption data need not reflect 4 what is present in the tissues of the workers. And a 5 good example, crocidolite was used in countries becasue 6 of its resistance to coercion and salt water, so it was 7 used extensively in shipyards. Two percent of the 8 fiber used in the United States was crocidolite, yet we 9 find it in 40 percent of the workers who worked in 10 shipyards. That means that the consumption data shows 11 it should only be 2 percent. But if you look at the 12 lungs of the workers, 40 percent of them are exposed, 13 that's a 20-fold increase over consumption data. So 14 you have to look at specific products, specific work 15 places and specific workers. So the consumption 16 figures are of interest but they do not tell you who 17 was exposed to what. You have to look at pulmonary 18 tissues. 19 Q What was the scientific method of doing that? How do 20 you determine what the exposures are? 21 A Pathologists normally would send me a tissue piece and 22 say -- say here's a tissue. What is in it? This 23 person has a certain disease, they have -- wp - 24 interesting occupational history but we do 25 the agent is. Give us an answer. Say if 50 1 chemically digested the particles are recovered, the 2 particles are then examined with an instrument called 3 an analytical electron microscope. We count the 4 particles that were present. We count the fibers. We 5 size the fibers. We're able to generate chemical 6 information on these fibers. We can tell specifics, 7 then we actually characterize them actually by selected 8 area electron defractions. This is a crystallography 9 technique. So, if you want to know what agents are 10 present, and pathologists will certainly verify that 11 there is a tumor present, but in terms of the agents 12 that -- that -- that's our bailiwick. These tissues 13 are sent to our laboratory or other laboratories like 14 ours and we examine them for the presence or absence of 15 certain particles which aid in the diagnosis and the 16 etiology of the diagnosis, the agent responsible for 17 the mesothelioma, as an example. 18 Q Doctor, last July in Pittsburgh at the Pneumoconiosis 19 Conference did you report on your experience, your data 20 that you had from tissues and materials that you 21 examined yourself, published that? 22 A Yes. We reported on, first, 54 cases which involved a 23 number of mesotheliomas and 23 mesotheliomas and 20 24 lung cancers and a few others. 25 Q Let me ask you about some of those cases. Were some of 51 1 the cases where you received tissues from analysis, 2 were they cases where you were engaged as the expert 3 for the plaintiff? 4 A Yes. 5 Q As a matter of fact, I think some of those came when 6 you were doing Ness, Motley work as their expert? 7 A I think so, yes. 8 Q And those tissues that you reviewed and that you 9 analyzed became the subject of this paper that you 10 presented? 11 A Yes. That'scorrect. 12 Q And you found -- when you looked at those tissues you 13 found that on the exposure data there was -- that 14 didn't correlate with the consumption data? There was 15 varied levels of amphiboles? 16 A Yes. Yes. 17 Q Now, in terms of levels, we have heard a lot about 18 controls, how you compare levels and controls with 19 levels with exposed persons or sick persons or persons 20 with mesothelioma. 21 A Yes. 22 Q Can you explain how that's done scientifically? 23 A Well, let's assume you have a tissue and you found a 24 million fibers of crocidolite in these tissues. Is 25 there any reason to suspect that everyone in the City 52 1 of Milwaukee doesn't have a million fibers of 2 crocidolite in their tissues and that -- this is just 3 an epiphenomenon. You have observed something and it 4 may be just a spurious association. Well, a good 5 scientist will look at a population of tissues or 6 materials from some exposed group and then look at some 7 other similiar population that you tried to match for 8 certain characteristics, then examine those tissues, 9 then you compare the results and of all of the exposed 10 workers with the millions of fibers -- of these 11 particular fibers had these disease and these people do 12 not -- and they do not have these diseases, then you 13 statistically evaluate the data and you come up with 14 the probability function, that the probability of this 15 happening as -- just out of chance is one in 16 10,000,000. Now a scientist normally accepts a level 17 of 95 times out of 100 this happened not by chance but 18 this is a real phenomena. It's not an artifact. Many 19 of these reports will report to 999 times out of 1,000 20 this is rarely so, or 999 times out of a thousand. So 21 the probability becomes more firm. 22 Now, Doctor, can I ask you, is there a cause and effect 23 relationship in general with asbestos exposures and the 24 disease mesothelioma? 25 Yes. 53 1 Q And is that -- is that cause and effect relationship 2 the same for all fibers? 3 A No. 4 Q Can you first of all identify for us fibers in terms of 5 their potential to cause mesothelioma? 6 A On the basis of potency? 7 Q On the basis of potency. 8 A We have data from Turkey indicating that the fiber 9 erieronite, e-r-i-e-r-o-n-i-t-e, is probably one of the 10 most potent mesotheliomgenic materials, in that a large 11 percentage of the population that live in towns in 12 which the soils, and these are volcanic soils, and 13 these natural minerals occur in the volcanic soils and 14 these people make their homes out of stone that's taken 15 from the local cropings, so these people are always 16 exposed to dust containing erieronite, and the levels 17 are very low and some 60 percent of the people who die 18 in a single town die of mesothelioma. The town is 19 called Karain, K-a-r-a-i-n, in Turkey. 20 There are several other local towns. In 21 Capadocia mineral fiber is implicated in etiology of 22 these. Now there is an environmental study in Europe, 23 by Dr. Wagner, an eminent pathologist in this 24 particular field, and by an inhalation study, which is 25 the most direct means of studying agents, you enhale 54 1 and produced effects. All of the animals died with 2 mesothelioma. That had never occurred. He has tested 3 all the asbestos materials. Twenty-eight out of 28 4 animals died of mesothelioma. 5 But on the other hand, in 740 animals exposed 6 to the asbestos fiber only 11 mesotheliomas were 7 generated. So this is a potency induced mesothelioma. 8 The next fiber, fiber No. 2, would be 9 crocidolite, and that's -- crocidolite is mined in a 10 portion of -- a part of South Africa from the 11 Northwestern Cape Province and around the Country of 12 Kuruman, K-u-r-u-m-a-n. That fiber, when taken into 13 the United Kingdom, Great Britain, has produced about 14 10 percent mortality. One in ten workers working with 15 that asbestos die of malignant mesothelioma. 16 The third fiber that I would list would be 17 amosite from South Africa. The amosite from 18 South Africa -- the now South Africa report many 19 mesotheliomas with this fiber and very many people are 20 at a lost to explain why this material in South Africa 21 never produce tumors. But it got in the United States. 22 In that plant in Paterson, New Jersey there were four 23 fiberizers. When the fibers came over from the mills 24 of South Africa they were in bags. These bags were cut 25 open and the fibers were dumped into these fiberizers 55 1 called blue devils and they whipped open the fiber 2 bundles to make it a more light material to use for 3 insulation aboard United States Naval ships in the 4 Second World War. I have studied the size distribution 5 of these fibers. So, the 5 percent mesothelioma that 6 we see with amosite -- let's put a percentage down. 7 For erieronite it would be 60 percent of the town's 8 people, with crocidolite about 10 percent, amosite 9 about 5 percent. 10 Now, for the fourth fiber -- I'm going to have 11 to qualify this. The fourth fiber would be chrysotile 12 asbestos. Now, we can talk about cohort groups of 13 workers all over the world, the largest of these -- the 14 second largest is the study of the Quebec miners and 15 millers in the Quebec Province. The studies from 16 MacGill University, chrysotile asbestos in their 17 studies produce a mortality experience of about -- oh, 18 hold on a second, counselor. It would be 10 and 2 is 19 12 over 40 would be 1 percent. Let's say about 20 0.25 percent. So it's less than 1 percent. It's a 21 quarter of 1 percent. That would be chrysotile from 22 Canada. There are then mesotheliomas in the Thetford 23 area and two of the asbestos area -- in the asbestos 24 area. There is three other mesothelioma-related 25 crocidolite uses in making gas masks for the Army. 56 1 The fifth fiber would be anthopyllite. 2 That's another fiber that's occasionally -- 3 a-n-t-h-o-p-h-y-1-1-i-t-e. There have been no reported 4 cases of mesothelioma from the finished anthopyllite 5 worker. The major pit was in Finland. There is zero 6 percent in the anthopyllite. 7 Now chrysotile may be contemplated in the 8 mineral called tremolite. Now, tremolite may occur 9 with what we minerologists call different habits -- can 10 occur in different forms. If you look up on the list, 11 number 2, crocidolite, that's the asbestos variety of 12 mineral called riebeckite, r-i-e-b-e-c-k-i-t-e. 13 Riebeckite is not regulated in the United States but 14 crocidolite is because it's a true asbestos fiber. 15 Amosite is the asbesots variety of mineral 16 grunerite, g-r-u-n-e-r-i-t-e, but we don't regulate 17 grunerite. 18 Now, in the chrysotile deposits you can, on 19 occasions, find tremolite, but the tremolite occurs in 20 different habits, could be asbestos and could be just a 21 normal fragment that we minerologists call cleavage 22 fragments, breaks down in amalgamated particles. 23 There are 12 mesotheliomas in Canada. Ten 24 occur in an area where there is known to be tremolite 25 in the pits, and two occur in areas that don't have 57 1 very much tremolite. So there it may be related in 2 some fashion to tremolite. 3 Q Let me stop you there, because there's a lot of data 4 here to absorb. You said the habits? 5 A The forms. The form, logical forms. 6 Q There is two different kinds? 7 A At least, yes. 8 Q And what are those two different kinds? 9 A Asbestiform, or just call it asbestos, if you like. 10 And the other one is fragment, a cleavage, 11 c-l-e-a-v-a-g-e. 12 Q In terms of mesothelioma is there a difference between 13 asbestiform tremolite and cleavage fragment tremolite? 14 A Well, according to a major study which was undertaken 15 by someone called Davis, G.M. Davis, from the Institute 16 of Occupational Medicine in Edinbourgh, he's a world 17 renowned experimental pathologist, he examined three 18 specimens of tremolite asbestos and compared the 19 outcome with three varities of tremolite cleavage 20 fragment. Ninety percent of the animals exposed to 21 tremolite asbestos developed mesothelioma. Up until 22 several months ago only one mesothelioma was -- was 23 found in the 100 or so animals exposed to cleavage 24 fragment. Those data have changed. Lately there have 25 been several mesotheliomas within the cleavage fragment 58 1 population. We've examined our materials and are 2 studying these materials now and that particular 3 material has a subpopulation in asbestos fiber. So we 4 think that the tumors they see now, the tumor is 5 related to the subpopulation, the mixture of the 6 asbestos. 7 Q Doctor, I have had a chart here. I want -- let's see 8 if I can do this. 9 Doctor, are there different, what I would call 10 characteristics to different fibers? 11 A Yes, of course. 12 Q And I apologize. I thought I had that marked. 13 What affects are the different -- do the 14 different characteristics of fibers have on the 15 experience regarding mesothelioma? 16 A Well, I think everything. The -- for example, the 17 ability of a fiber to remain airborne as related to 18 fiber diameter, so the falling velocity of particle in 19 the air. Let's say we were to cut open a piece of 20 insulating board. Depending on the fiber type and its 21 dimensions this room would be contaminated for 22 different periods of time. Crocidolite has a very 23 narrow diameter fiber and so it takes a long time for 24 crocidolite dust to settle, therefore, it is a material 25 that's more hazardous to use in the work place. 59 1 The finer diameter fiber is enhaled to a 2 greater degree. The inhalation potential of 3 crocidolite, again, stands as one of the most dangerous 4 fibers. The amount of reach, the terminal portion of 5 the lung, alveolar region, that is related to fiber 6 diameter and also fiber length. The ability of lung -- 7 of cells to -- to eat and eliminate, to salvage 8 particles from tissues is related to fiber length. So 9 fiber length is another property. And, of course, 10 the -- a number of particles in the surface area and 11 the -- the ability to interact with cells is based on 12 the nature of the chemistry of the particle surface. 13 So all of the properties pertaining to how dangerous a 14 specific dust is. 15 Q In terms of the chrysotile asbestos, in general, we've 16 heard some talk about the clearance or dissolution of 17 that fiber in human tissue. 18 Is there a preferential clearance for that 19 fiber as opposed to others in general? 20 A We have found, based on -- chrysotile asbestos is not 21 very stable in the human lung and breaks down in an 22 organic media, as I understand the various components 23 in macrophages, so the fiber is broken apart and more 24 easily moved in tissues than the amphibole minerals. 25 Q And what's the significance of that in terms of cause 60 1 and effect relationships, in general, with 2 mesothelioma? 3 A It is generally held that the longer the residence time 4 of a particle in tissues the more likely it will induce 5 damage and produce damage. Therefore, the more stable 6 a mineral is in a human host, the more active this 7 material is. 8 Q Doctor, in terms of the -- and these are just general 9 rules, in terms of the length of fibers, there are 10 differences in different fibers? 11 A Yes. 12 Q In terms of the shape? * 13 A Yes. 14 Q If you disregard this. Some people have made different 15 statements about it. In general, the shape is more 16 curved, I guess? 17 A It could be, I guess. 18 Q As I understand it it's a concentrate. 19 A Yes. 20 Q But as a general rule amphiboles are straight? 21 A General rule, yes. 22 Q And the length? 23 A Well, that length is oversimplified there. Length 24 depends on the industry. There are certain user 25 industries that use only very long fiber. For example, 61 1 a chrysotile textile industry might use a very long 2 fiber, tiles may use a very short fiber. So that 3 length with long, short, you would have to look at 4 pulmonary tissues. It's generally held that long fiber 5 is more biologically active than short ones. 6 Density of chrysotile is about 2.5 something, 7 2.5 -- 2.5 grams per c.c., and the density of amphibole 8 fibers may -- well, they would average about 3.2, maybe 9 something like that. So amphibole fibers are more 10 dense. 11 Q Okay. How about surface? 12 A The surface is -- of the serpentine mineral, that would 13 be the magnesium on the surface of chrysotile, would 14 give it a slightly positive suface charge. The 15 amphibole minerals are covered with oxygen which 16 produce a negative surface charge. 17 Q How about the weight of the fibers? 18 A Weight of what? Well, when you say weight you really 19 look at density. So that given a unit volume the 20 amphiboles would weigh more than the chrysotile. 21 Q Okay. Chemistry is different? 22 A Chemistry is much different. Chrysotile tends to be 23 magnesium silocate with iron and nickle in the 24 structure. 25 Amphibole minerals, depending on the amphibole 62 1 mineral. The crocidolite has sodium, iron. 2 Amosite has iron and a lot of magnesium. 3 Q The durability? 4 A That's in the human host. 5 Q Well, let's talk about the human host. 6 A Durability of serpentine is far less than amphibole 7 fibers. 8 Q We talked about the hardness. Some fibers are -- are 9 brittle, break. 10 A Well, that's a different term. Chrysotile tends to be 11 a more -- a more -- let's see what the term is. We use 12 harsh and we use soft for chrysotile. Chrysotile tends 13 to be -- tends to be, quote, soft, tends to be -- 14 amphiboles tend to be more harsh. 15 Q And I think we were talking one time, integrity of the 16 fibers, the ability to break up. 17 A The integrity. Because of the chemical attack on 18 chrysotile, it tends to break up integrity. The fibers 19 tend to be low. Amphiboles tend to resist that 20 breakdown more than others. 21 Q And as I understand the breakdown of amphiboles, and I 22 think we've been told by Mr. McCaughey they are hollow. 23 A They are. They tend to be hollow capillaries; that's 24 right. 25 Q Okay. And amphiboles tend to be solid? 63 1 A Yes. 2 Q And do all of these propensities of the different 3 fibers effect their ablility to cause mesothelioma in 4 humans? 5 A Well, if I was to look at that list; shape, certainly; 6 inhalation potentially is increased if the fiber is 7 straight. Inhalation, potentially, given a certain 8 length. Can't be too long because it can't get to the 9 place where it's doing the damage. The density might 10 effect aerosol stability. That's mostly diameter 11 dependent. The surface property of the chrysotile and 12 amphobiles. We think that has a lot to do with whether 13 or not a macrophage will ingest them, can attract and 14 hold chrysotile together. The weight. I don't think 15 it means very much. Surface chemistry, certainly, 16 because that's what is recognized by the cell 17 membranes. Durability. The more durable a particle 18 the more biological influence it has. The hardness, 19 no, I don't think so. Although the -- the harsh fibers 20 tend to be more straight and less curly. 21 And the integrity, certainly. That's more like the 22 durability. The lower integrity the -- and durability, 23 the less likely it is to produce adverse effects. 24 Q Doctor, I'm showing you Plaintiff's Exhibit 63, from 25 the National Institute of Environmental Health 64 1 Sciences. I just ask you to identify what a 2 photomacrophage shows. . 3 A If I am reading his notes, mac is macrophage, alveolar 4 or space. That's the area where the air meets the 5 blood capillary membrane, where the gas exchange takes 6 place. And you can see the ciliated portion of an 7 epithelial cell. The ciliate beats and removes 8 particles. There is an arrow pointing to something 9 sticking -- macrophage. That is obviously a mineral 10 fiber that is engulfed by a macrophage and macrophaage 11 is now taking that particle somewhere. 12 Q That sort of demonstrative exhibit shows how these 13 fibers can be removed? 14 A Yeah. It's interesting. I would have, if I peer 15 reviewed this I would have liked some other 16 information, but it's a nice picture. 17 Q Doctor, in terms of the epidemiology, we've talked 18 about some of the basic minerology characteristics. 19 What is the -- was the epidemiology disclosed in terms 20 of asbestos fiber types in mesothelioma? 21 A Epidemology is the study of groups of people exposed to 22 different substances, and epidemiologists then design 23 the study to see whether or not people who were exposed 24 to certain substances have certain kinds of disease, 25 more than you would anticipate in other populations. 65 1 There are epidimological studies all over the 2 world. Many, many studies that were on -- ongoing that 3 have been completed and many of these studies focused 4 on agents to these mineral fibers on that laundry list 5 of fibers; do they have different biological potential 6 for generating specific diseases, for example, 7 mesothelioma. 8 Q And what has the world epidemological literature shown 9 in terms of chrysotile fiber in general and 10 mesothelioma? 11 A There are some studies that are major studies, major 12 significance because of the detail in which they were 13 carried out and because of the numbers, the sheer 14 numbers of people followed. These studies would 15 involve the McDonald Studies from MacGill University in 16 Canada; the Quebec Miners and Minerals, of some there 17 may be 4,000 deaths. Now there are two mesotheliomas, 18 so there are a large number of deaths and they have 19 found 12 mesotheliomas in this industry. 20 The studies of material by Newhouse -- 21 Newhouse in London, formerly -- now retired from the 22 London School of Tropical Medicine and Hygiene. 23 Geoffrey Berry, now a colleague of Sullivan, published 24 on a friction product manufacturing facility which 25 there were 13,000 employes and of the -- at one time 66 1 there were eight mesotheliomas in this particular 2 plant. The eight mesotheliomas in a chrysotile 3 exposure. Later Tissue Burden Studies were performed 4 by Fred Pooley. Pooley found mesothelioma cases were 5 those that worked in the spring room using the 6 crocidolite. That was a specility item those -- these 7 mesotheliomas, although this chrysotile cohorts -- much 8 of the world believes the Tissue Burden Study and this 9 is a chrysotile induced. This is also true of the 10 Rochdale Textile Plant in Great Britain, from the 11 Midland Plant is used to base the American Standard on 12 the asbestos standard. There is 17 mesotheliomas in 13 Rochdale. All 17 mesotheliomas are now associated with 14 crocidolite and only 2 percent crocidolite was used in 15 the entire operation, over 40 years, 2.6 percent. 16 Those individuals with mesothelioma have crocidolite in 17 their pulmonary tissues and if one keeps developing 18 the -- the Feridi Study friction part, Newhouse, 19 Geoffrey Berry, Sullivan. The -- even the study of the 20 Nicholson, Mount Sinai Thetford workers, there was one 21 mesothelioma found in 44 malignancy deaths. The ratio 22 of lung cancers in mesothelioma, this is extremely 23 different in chrysotile workers. There is only one 24 reported mesothelioma in many, many hundreds of deaths, 25 of one mesothelioma of the peritoneun in the world's 67 1 cohorts. Again and again for chrysotile exposure, 2 there are very few human mesotheliomas. 3 Q Now, Doctor, I'm going to ask you some questions 4 specific to Mr. Pennock. I want you to assume that 5 Mr. Pennock worked at the Sturgeon Bay Shipyard in 6 Wisconsin from 1953 to 1976 and that for a period of 7 time, for approximately a year or so he worked in the 8 electrical crew pulling cable and on occasion he would 9 be in the engine room where insulators were applying 10 their insulation products. This is a new ship 11 construction at Sturgeon Bay, the construction from 12 wooden mine sweepers for the Navy; and then for a 13 period of time he worked as a planner outside the ships 14 and then he returned for approximately another year, in 15 1955-'56 era, to the electrical crew and again was in 16 the engine room or in rooms where insulation workers 17 may have been working. I want you to assume further 18 that Mr. Pennock was diagnosed as having a newly 19 pleural mesothelioma in August of 1984. I want you to 20 assume further that he died from this disease on -- in 21 February of 1985. I want you to assume that he worked 22 for the telephone company from '56 to '84 and worked in 23 buildings with phone insulation. I want you to assume 24 that at the shipyards he was exposed to amosite fibers 25 and chrysotile fibers. I want you to assume that he 68 1 had small placks on the hemidiaphragm and I want you to 2 assume that he did not have asbestosis. 3 Now, Doctor, based on those assumed facts do 4 you have an opinion, based upon a reasonable scientific 5 probability, whether his amosite exposure was a 6 substantial factor in causing his mesothelioma? Do you 7 have an opinion? 8 A Yes. 9 Q What's your opinion? 10 A All of the other factors equal in terms of fiber 11 dimensions, even concentrations, and given the cohort 12 data and the attack rate for those exposed to amosite 13 as opposed to chrysotile,the difference, of5 percent 14 and the difference of the 0.25 percentsuggest that the 15 amosite would be a factor 20 times greater than the 16 chrysotile. ' 17 MR. HART: Could I ask the court reporter to 18 read back the first section of his answer? 19 (Beginning of previous answer read by court 20 reporter) 21 THE COURT: Okay, Mr. Murphy. 22 Q (By Mr. Murphy) Doctor, do you have an opinion, again 23 based upon a reasonable degree of scientific 24 probability whether the chrysotile expsoure in the 25 shipyard was a substantial factor in causing his 69 1 mesothelioma? Do you have -- 2 A Scientifically it is improbable. It is not probable. 3 MR. MORPHY: Thank you. Doctor. I have no 4 further questions. 5 THE COURT: Okay. We'll take a recess at this 6 time, about 15 minutes in duration. 7 Court is in recess. 8 {Jury exits courtroom) 9 (Short recess taken at 10:15 a.m.) 10 (Court reconvened at 10:35 a.m.) 11 (Jury enters courtroom) 12 THE COURT: Be seated, please. 13 Mr. Hart. 14 cross-examination 15 BY MR. HART: 16 Q Good morning. 17 A Good morning, Mr. Hart. 18 Q You and I saw each other last night, did we not? 19 A We met, yes. 20 Q And you spoke concerning your testimony in this case? 21 A Yes. 22 Q With Mr. Murphy present and short deposition yesterday? 23 A Yes. 24 Q Now, when was the first time you and I met? 25 A I don't remember, but it -- 70 1 Q May be eight or ten years ago? 2 A It's a possibility. 3 Q And what was that in connection with? 4 A I don't remember that. 5 Q Do you recall working with my firm concerning the issue 6 of mesothelioma, first of all? 7 A Yes. 8 Q And we asked you, among other things, the question of 9 chrysotile's ability to cause mesothelioma? 10 A Yes. 11 Q And it was your opinion at that time that chrysotile 12 asbestos as used commercially in the United States is 13 capable of causing mesothelioma? 14 A Yes. I still believe that. 15 Q Okay. And persons exposed to chrysotile asbestos in 16 the United States used commercially in insulation 17 products are at a higher risk of developing 18 mesothelioma? 19 A Very much so. 20 Q You don't know if chrysotile can be exonerated in any 21 particular case? 22 A It depends on other fibers present. Not exonerated 23 with zero effects but with probabilities. There may be 24 other agents present that are more likely to have 25 induced the tumor. 71 1 Q Your last opinion, the part read back was the 2 qualification of that opinion? 3 A Yes, of course. 4 Q The three points that you stressed with assuming other 5 facts equal between the chrysotile exposure and 6 amosite, and those three factors were fibers -- I can't 7 read my writing. 8 A Fiber length. 9 Q Con -- and the final wasconcentrations? 10 A Yes. 11 Q So you were assuming inanswering Mr. Murphy's 12 questions that the concentration of exposure was equal, 13 to that of chrysotile? 14 A That would be a general overview, but of course you 15 could have less amosite than chrysotile to produce 16 mesothelioma. 17 Q Okay. Now, you talked a little bit about this paper 18 you presented concerning the concentrations of asbestos 19 fibers found in certain person's lungs? 20 A That's correct. 21 Q And those persons werepeople who had asbestos 22 diseases, a large percentage of them were mesothelioma 23 victims? 24 A Yes. 25 Q Whose tissues werereferred to yourlaboratory for 72 1 review; is that correct? 2 A Yes. 3 Q And you mentioned the percentage of who had each type 4 of fiber. 5 A I'm sorry. I couldn't hear you, counselor. 6 Q You described or mentioned the percentage of the number 7 of persons who had each type of fiber in their lungs; 8 is that correct? 9 A Yes. 10 Q And I think you broke it down to three types of 11 workers; insulation workers, shipyard workers and other 12 trades; is that correct? 13 A Yes. 14 Q Now, in thelungs ofshipyard workers we have two -- 15 you actually made two measurements. You determined the 16 prevalence, did you not? 17 A Yes. 18 Q And what doesprevalence mean? 19 A Prevalence, in this instance, of the proportion of a 20 certain population which has a certain characteristic. 21 So prevalence would be the percentage of certain 22 workers that have that particular fiber in their 23 tissues as related to total population of workers. It 24 is not quite an incidence of data but it is the 25 percentage of the workers that show this particular 73 1 fiber. 2 Q Okay. And the prevalence for shipyard workers for 3 crocidolite was 40 percent? correct? 4 A Something like that. That's right. 5 Q And chrysotile was 67 percent? 6 A That's about right. 7 Q And amosite was 67 percent; is that correct, sir? 8 A That's about right. 9 Q Well, that's exactly what you reported in the -- 10 A Then -- then I would support those. 11 MR. MARTIN: Do you have another copy of that? 12 Maybe if he had it he could -- 13 Q (By Mr. Hart) This is also a paper, the one that you 14 presented in this year, was also published, at least 15 this certain data, it was published about two years 16 ago; is that correct? 17 A No. 18 Q Much similiar was published? 19 A No. 20 Q Did you publish a chapter in the "Accomplishments in 21 Oncology" in December, 1986? 22 A Yes. 23 Q Okay. Does that contain information from 53 asbestos 24 exposed workers, 1 person exposed domestic setting? 25 A I don't think so. 74 1 MR. HART: May I approach. Your Honor? 2 A No. This is Accomplishments in Oncology. This is the 3 paper on chrysotile and tremolite. This is the right 4 cover but this is the wrong paper. This paper is a 5 paper that -- that was just published in the 6 proceedings of the IRC Common Graph of Exposure and 7 Risk Assessment. Yeah, this is -- 8 Q The cover is different but you published the 9 information -- 10 A Yeah. 11 Q -- that you presented there? That's what I was getting 12 at. The information has been published! 13 A Yes. 14 Q Substantially the same was typewritten there? 15 A Yes. The numbers are all the same. I hope so. I'm 16 assuming so. 17 Q Doctor, what was the other analysis that you made 18 concerning the tissue? Was there not a concentration 19 analysis? 20 A We gave the following data: we gave -- 21 Q My question, was there not a concentration analysis? 22 A Number of fibers per gram of tissue? 23 Q Yes. ' 24 A Yes. 25 Q And that's in Table 2? 75 1 A Yes. 2 Q Okay. And you gave -- the numbers were expressed in 3 terms of millions of fibers per gram of dried lung 4 tissue; is that correct? 5 A Yes. 6 Q And for shipyard workers and crocidolite you found 7 5.1 million; is that correct? 8 A Plus orminus acertain number; that's right. 9 Q Plus or minus what number? 10 A 13 million -- 13.4. 11 Q For amosite workers what was the concentration found in 12 the lungs of workers? 13 A These are shipyard workers? 14 Q Yes, sir. 15 A It would be 11.4, plus or minus 19 .`9 . 16 Q And for chrysotile what was found in the lungs? 17 A 19.4, plus or minus 17.4. 18 Q Again, all those are in terms of millions of fibers per 19 dried gram of lung tissue? 20 A That's right. Yes. 21 Q So in terms of what the actual concentrations that were 22 present in the lung tissues of these people you 23 examined, this is a more accurate indicator; is that 24 correct? Concentrations of -- 25 A It's a better indicator. More accurate than what? 76 1 Q In terms of the asbestos to which they were exposed to, 2 often times the concentration in terms of chrysotile 3 does not reflect the actual exposure an individual had? 4 A I would agree to that. That's right. 5 Q Okay. In terras of crocidolite, most of the crocidolite 6 that reaches the depths of the lung tissue remains 7 there; is that correct? 8 A Yes, generally. Not -- most -- certain percentage, 20, 9 30 percent, something like that. 10 Q Okay. And it does not dissolve in the lung, generally? 11 A There are no data to suggest it dissolves, no. 12 Q Likewise, amosite generally does not dissolve? 13 A Right. 14 Q Chrysotile generally does dissolve? 15 A Generally. 16 Q So the amounts that you've seen in concentrations 17 generally are a lot less than the individual was 18 exposed to? 19 A Yes. I would agree to that. 20 Q Okay. But even given what was left after dissolved, 21 after the years had passed up we have ten times as much 22 chrysotile as we have amosite, or I guess that would be 23 eight -- about nine times, eight-and-a-half times? 24 A Nine times. That's fair enough. Ten is even close. 25 Q And how many times greater than the crocidolite 77 1 concentration? 2 A It would be 20-fold. 3 Q Now let's take, for example, the highest exposures here 4 or highest concentrations that you found. Help me with 5 my math here if I mess up. 31.3 million fibers of 6 amosite as compared to 268 .8 million fibers of 7 chyrsotile. Did I do that correctly? 8 A Yes. What you'redoing is adding one -- thestandard 9 deviation is one of the sigmas with the average. 10 Q Okay. 11 A Of course, that --there could -- therecould be in 12 these data values that exceed that and there could be 13 values that are zero. 14 Q Right. 15 A So I'm giving a general measure of what was found. 16 When you talk about accuracy, accuracy deals with the 17 real world that tells us what's really there. We're 18 really dealing with a measure of precision. It's a 19 reproducible of the measurement. That's -- but the -- 20 but the general trend is there. You find more 21 chrysotile than amosite and more amosite than 22 crocidolite, generally speaking. That would be the 23 trend, that's right. 24 Q Okay. And scientists and statistician use the term 25 called standard deviation; is that correct, sir? 78 1 A Yes. 2 Q And that's what this number you have here is? 3 A Yes. That's a measure of the -- of the variablity. 4 Q Okay. Now, how much of the chrysotile fiber that's 5 enhaled in the lungs is removed through the process of 6 leaching and other types of activity of the body? 7 A Well, this is -- this is something we really don't 8 know. It is hard to imagine that someone with 9 several -- 1 million or even billions of chrysotile 10 fibers have -- had most of the fibers removed. Some 11 individuals don't respond the same way, therefore, what 12 you see represents at least -- at least the minimal 13 amount of fiber enhaled and it could be a trivial 14 amount or it could be a substantial amount. So we're 15 left with that uncertainty. 16 Q In general, would it be fair to assume the average 17 shipyard worker has a concentration initially of 18 greater than 91.4 million particles of chrysotile? 19 A I would say a hundred million fibers would be some 20 ballpark figure. 21 Q A hundred million? 22 A Yeah. 23 Q So 9 percent or so has left the lung? In an average 24 shipyard worker only 9 percent leaves? 25 A No. I did not explain this correctly then. No. 79 1 Looking at that average concentration you might assume/ 2 well, the shipyard workers have a hundred million 3 fibers of chrysotile in their pulmonary tissues per 4 gram of dried lung tissue. How much left? I don't 5 know. 6 Q Do you have an opinion or estimate as to what the 7 concentration originally was before the amount? 8 A No. 9 Q Would it be fair to say at least twice as great? 10 A I don't know. 11 Q You have no information on that? 12 A Well, the only information I have isvery much 13 anecdotal information. I have linked the pulmonary 14 tissues to workers exposed 60 years ago to chrysotile 15 products. I still find chrysotile has the magnesium 16 silicone ratio questions. 17 The Canadian fibers today, now, why, some 18 people retain fibers without any alteration and others 19 do not, I don't know. 20 Q Okay. 21 A And your guess is as good as mine, maybe better. 22 Q So, Doctor, the actual concentration a person has is 23 not equal in shipyard workers? 24 A No. 25 Q So that was -- so although you made assumptions in 80 1 response to Mr. Murphy's questions, that assumption you 2 made does not reflect the concentration of the shipyard 3 workers you examined; is that correct? 4 A All right. I'll agree to that. 5 Q And you assumed that the -- or the testimony you 6 believe was amosite was 20 times as potent in the 7 example given to you by Mr. Murphy? 8 A Yes. 9 Q And in the persons examined, actually chrysotile was 10 eight to nine times greater exposure than amosite? 11 A Wait a minute, counselor. This is a very dangerous 12 game into -- 13 Q My question was, the concentration that you found in 14 the workers showed that the chrysotile amount was eight 15 or nine times greater than the amosite amount. 16 A I'm not disputing those figures. I'mdisputing the 17 fact that you are just ----18 Q That was my question. 19 A All right. 20 Q The concentration -- 21 MR. MARTIN: I think the Doctor wanted to 22 explain his answer. I think he should be entitled to 23 explain his answer. 24 Q (By Mr. Hart) I didn't mean to cut you off from the 25 explanation of the question I asked you. I just wanted 81 1 to -- we got another witness that wants to testify 2 today and I'm trying to get through this as quickly as 3 I can. 4 A Me too. 5 Q If you think I cut you off, let me know. 6 A Basically, counsel, I was objecting to the facts. I 7 characterize the fiber potentcy on the basis of equal 8 studies and these individuals -- these various places 9 have been exposed to a range of fiber character and a 10 range of concentrations and -- and not comparing this 11 with what we find in shipyard workers, I'm not sure 12 that that characterization works. 13 Q Okay. 14 A That's the only caveat that I'm introducing. 15 Q That's a good one. The statement you made to 16 Mr. Murphy when you offered your opinion was that 17 assuming the concentrations are equal the potency of 18 amosite is 20 times greater. 19 A Just about, yes. 20 Q And in shipyard workers we know the exposure is not 21 equal but in fact is at least nine or ten times greater 22 chrysotile than amosite? 23 A Yes. But again, counselor, all things being equal. 24 Now, if you have got 50 million fibers greater than 25 20 microns in length of pulmonary tissues, hundred 82 1 million fibers in some other -- in some other terms 2 into a half micron, the half -- you got half as much as 3 in long. Fiber may be a significant factor in the 4 production of disease. I'm saying a lot of 5 characteristics being equal. It's more complex than 6 just -- than just concentration. Of course it's fiber 7 type and dimension and some of these other 8 characteristics. 9 Q The only thing I was addressing -- I know you put other 10 qualifications. You're assumption in answering his 11 question was concentrations were equal. I ask you if 12 your own studies have shown the concentrations are not 13 equal in shipyard workers. 14 A Yes. 15 Q Now, let's talk about -- you said -- you said something 16 on direct about shipyards, in a factory, they have 17 mechanisms of controling exposure; is that correct? 18 A Yes. 19 Q And many factory situations are actully, in terms of 20 dustiness, are quite clean? 21 A Generally? 22 Q Generally. 23 A Yes. 24 Q They can be? 25 A They can be, yes. 83 1 Q Shipyard environments are notoriously dusty, are they ' 2 not? 3 A Yes, they are. 4 Q Particularly when insulation is going on? 5 A Not so much application as repair and tear outs. This 6 is true. 7 Q But there is some dust created from the application 8 from new insulation? 9 A Yes. 10 Q And you gave a statement on direct examination, I 11 think, shipyards, the exposure can be hundreds of 12 fibers per cubic centimeter? 13 A Thousands. 14 Q Thousands of particles? 15 A Yes. 16 Q Some exposure would occur during application and some 17 reoccur during removal? 18 A Hundreds are absorbed during application,thousands 19 during rip out and removal. So, application is far 20 more dangerous than the putting on of the insulation. 21 It's far more dangerous than removal of the old 22 materials. 23 MR. MURPHY: Excuse me. 24 THE WITNESS: I'm sorry. Let's set the record 25 straight. The application contains far less dust. 84 1 Q (By Mr. Hart) I think you stated it backwards, did you 2 not? You said the application is. Didn't you mean -- 3 A Yes. I was making the mistake of following your 4 writing. 5 Q Well, I gave you the courtesy of correcting your 6 mistake. 7 Okay. And we have thousdands of fibers, too, 8 here? 9 A Yes. That's correct. 10 Q Generally, what would be the range we're talking about 11 in terms of hundreds of -- during the application? 12 A Let's take a realistic rangs. That would be somewhere 13 in the order of several fibers of -- several hundred 14 fibers per m.l or c.c., cubic centimeter area. A 15 thimble full of air. 16 Q What are we talking about? Seven to 700; is that a 17 fair range? 18 A No. I would say two to 200 for application. 19 Q Okay. And that's per thimble full of air? 20 A That's right. Correct. 21 Q And removal, roughly we're up in the thousands? 22 A Could go as high as several thousands. There is a 23 report from Great Britain, the Harries Report in 1968 24 indicated fiber levels of about 800. And a paper by 25 Alex Cross in 1979 indicated that the highest measures 85 1 they had ever observed was about 3,000 during a removal 2 operation in the naval shipyards of Great Britain. 3 Q Now, the dust produced by insulator can be breathed by 4 other workers in the vicinity? 5 A Absolutely, yes. 6 Q So somebody working next tohim, toinsulator doing -- 7 producing this kind of exposure is exposed to 8 essentially the same air; is that correct? 9 A Yes. 10 Q So electricians in the same room,engine room, while 11 insulation is going on would be subjected to same 12 exposure levels? 13 A Little less. Those who are actively engaged in the 14 application of this material will be at the epicenter. 15 The source of the test data from Great Britain, again, 16 parties from Devanport Shipyards indicated that 17 bystanders in the same compartment, 50 feet distance, 18 from here -- here to the end of the courtroom, may have 19 been exposed to 50 fibers per m.l. 20 Q Okay. So if there is a 50 foot distance it would be 21 down to 50 fibers and closer you get -- 22 A Yes. 23 Q So what would be a fair range for, let's say, somebody 24 in an engine compartment? What would be the range 25 there? 86 1 A I don't know. 2 Q Say up to hundreds? 3 A It's possible. 4 Q Okay. And, in fact, that would occur with some 5 regularity, would it not? 6 A Depending on the operations. Possible. 7 Q Okay. Now, in terms of the biological effects of 8 fibers, the peak exposures are very important, are they 9 not? 10 A Yes. 11 Q And what is a peak exposure? 12 A A peak exposure would be an exposure which is the most 13 intense during the operation. For example, insulation 14 workers use a power saw to cut an asbestos containing 15 material. The power saw traverses this material. 16 There is a dust cloud generated. If you were to sample 17 in that air you would find there is an immediate peak 18 of fiber, maybe 50 fiber per m.l. of air. As time 19 progresses this fiber level would drownd down the OSHA 20 standard that provides in the standard for a time 21 average. It's time-weighted, meaning you take the 22 fiber values and extrapolate over a whole day. You -- 23 over -- over a whole day make provisions for these 24 peaks. So, you cannot have an exposure and excursion 25 over the limit of where time period greater than a 87 1 certain number of minutes. Then the dust settles and 2 you have a more safe working environment, but these 3 excursions may be more important. 4 Q I think you are bringing up a regulatory feature as 5 relates to this. Let's talk about it a moment. There 6 is a time-weighted average feature in terms of 7 controlling dust; is that correct? 8 A I'm sorry. 9 MR. RILEY: I'm going to object now. What 10 Mr. Hart is asking about is current regulatory scheme 11 and ofcourse that doesn't have any relevance in 1953 12 to 1956. 13 MR. HART: He just brought it up. I am -- 14 MR. RILEY: You brought it in in his answer. 15 THE COURT: The objection is sustained. 16 Q (By Mr. Hart) You got regulatory areas logging 17 biological effects which is -- which was my question. 18 It is important to look at the average concentration 19 somebody is exposed to as terms of -- terms of 20 biological effects of the substance, particularly 21 asbestos? 22 A It's a useful tool, useful indice. 23 Q It has been utilized by scientists and doctors to index 24 exposures? 25 A Yes. 88 1 Q Now, in addition to the average exposure scientists and 2 doctors will examine the peak exposures; is that 3 correct? 4 A Yes. 5 Q And that's because although the average may be within a 6 specified level, peak exposures over that level may 7 have important biological effects; is that correct? 8 A Yes. 9 Q And by that we mean biological aims that may produce 10 disease? 11 A Yes. 12 Q And so although the average exposure is within a 13 specified level, biological effect may occur if there 14 are peak exposures over that? 15 A Yes. ' 16 Q Okay. And in a shipyard environment the opportunity 17 for peak exposures was very great, was it not? 18 A Yes. 19 Q In fact, they occurred rather frequently? 20 A I don't know. 21 Q The other aspects of exposure to asbestos fibers is the 22 amount of dust that actually gets into the air; is that 23 correct? 24 A Yes. 25 Q Of course the -- the asbestos fiber itself? 89 1 A Yes. 2 Q Now, many things can affect the ability of asbestos 3 fiber to get into the air, can it not? 4 A Absolutely. 5 Q Mr. Murphy went through some of those on the chart, did 6 he not? 7 A Physical properties, yes. 8 Q Right. Now, all three types that we've been talking 9 about, and let's limit ourselves to amosite and 10 chrysotile, if we can, because that's the only 11 important ones here. Both of those types can be 12 respirible, can they not? 13 A Yes. 14 Q That both chrysotile fibers can be liberated insulation 15 products to the extent they can be breathed into human 16 lungs? 17 A Yes. 18 Q And amosite can also? 19 A Yes. 20 Q Let'sdiscuss theeffects -- what things can affect 21 chrysotile. 22 Can the milling of chrysotile fiber that comes 23 from the plant affect its respirability? 24 A Yes. 25 Q Explain that to the Jury. 90 1 A Different fibers enter the mill. This mill could be a 2 secondary mill. There is a product that's being made 3 that requires formulation of the chrysotile fiber which 4 is delivered, may not meet certain specifications. 5 These materials may be remanipulated in some fashion. 6 They may be further milled. 7 This was the -- the general scenario in the 8 Paterson Energy Plant, where the amosite from 9 South Africa was remilled. It was refiberized and 10 broken down. 11 So there are many applications whereby fiber 12 is remanipulated. 13 Q So you said refiberized. Does that mean that the 14 bundles of natural -- I'm going to talk about 15 chrysotile, if I can. 16 A Sure. 17 Q The bundles naturally occur in chrysotile, broken apart 18 and produce smaller bundles? 19 A They are broken open so that the fiber diameters 20 decreased and there is more volume created. If you 21 take a material, you keep on breaking it open, you -- 22 you create greater volumes. And some of the 23 applications require some material to have a lot of 24 volume. That's a good insulating property to have, 25 spaces filled with air. Air is a very good insulator 91 1 in terms of biological effects of chrysotile. 2 Q What effect does this refiberization have on the 3 chrysotile fiber? 4 A In terms of the biological potential it would increase 5 it. 6 Q So increases potential to produce disease the more you 7 break apart those bundles? 8 A I would agree with that. Yes. 9 Q And what we're talking about is mechanical breaking 10 apart of these fibers; is that correct? That's what 11 you've been describing here? 12 A Well, it would be mechanical. It would be forced jets 13 of air. Air-jet milling is one of the preferred 14 techniques becasue the surface properties of the fibers 15 are not altered. You don't want to damage the surface 16 of the fiber. So it loses its ability to -- to perform 17 as its intended function of the fibers to bind with 18 materials and so on. 19 Q Okay. And this process here, is that basically 20 fluffing up the product a little bit? 21 A Yes. . 22 Q Okay. Now, another thing that can affect the effects 23 of chyrsotile is heating it; is that correct? 24 A Yes. 25 Q And what effect does heating have upon chrysotile? 92 1 A Well, heating -- it depends on temperatures. The low 2 temperature heat drives off surface water. Sometimes 3 very finely divided materials become wet because of the 4 relative humidity. The effect of heating these 5 materials is just to drive off the surface water. It's 6 much like a clothes dryer. Fibers are just processed 7 with low heat. Is -- 8 Q Excuse me a moment. The wet fibers -- I'm going to let 9 you go on, but the wet fibers being wet would tend to 10 clump together? 11 A They tend to, that's correct. 12 Q Go ahead. I just want to clear that up. 13 A They require different heating ranges and different 14 temperatures, but you can reach certain temperatures 15 that fiber continues to lose its mechanical properties 16 and the fiber no longer performs in the same way. Now, 17 those temperatures, the biological potential increases 18 to a certain point, then drops off. 19 Q Okay. So heating drives off the water, that's when it 20 dries out the fibers; is that correct? 21 A Yes. 22 Q And it also, by doing so, by driving out the water, 23 increases the number of fibers or -- 24 A It's possible. 25 Q -- it fiberizes thematerial? 93 1 A No. Heating is -- normally it's performed on the 2 fiberized material. You can heat it before you can 3 refiberize it dry. You can then reheat to make sure 4 any water inside the fiber bundle is driven off, but 5 heating -- you would have to heat that to a significant 6 temperature in order for cohesion and loose bonding. 7 For example, if a material was applied as a lagging on 8 high temperature surface, old insulation tends to lose 9 water, becomes a more dusty product. That's why the 10 tearing out operations in ships -- in shipyards tend to 11 be -- generate more dust than application of a 12 different material. 13 Q Okay. So would heating fiber then make the chrysotile 14 fiber more dusty? 15 A Generally, but those are high temperatures. 16 Q Well, eventually you can heat the chrysotile to such a 17 temperature that it destroys their -- the chemical 18 composition of it? 19 A Sure. That range is 800 to a thousand degrees 20 centigrade. The structure is broken down at about 650 21 degrees centigrade and the temperature is generated, 22 for example, friction produces 800 degrees, converts to 23 some other material, no longer chrysotile, becomes 24 something else. So -- 25 Q So some temperature before that the product tends to 94 1 become more dusty? 2 A Yes. I would agree with that. 3 Q And those temperatures begin at approximately 150 4 degrees centigrade? 5 A It could be 150. That would seem reasonable. Some 6 temperature like that. 7 Q And so heating to a hundred -- greater than 150 degrees 8 centigrade, what does that equal in fahrenheit? 9 A That would be 9/5ths. That would be 30 -- that would 10 be 270 -- about 300 degrees fahrenheit. Put an "ab" in 11 there. 12 Q And so heating to 300 degrees fahrenheit or more would 13 produce more dust in the chyrsotile; is that correct? 14 A It's possible. 15 Q Is that not in fact correct? 16 A Well, we're assuming that the temperature in thermal 17 products can be generated as high as 300, maybe a 18 little higher, 150, 200 centigrade, depending on the 19 device. 20 Q But if we get into the range of 300 degrees fahrenheit, 21 400 degrees, there you are going to make a product more 22 dusty? 23 A I think so, yes. 24 Q In fact, you published the fact that heating will / _ 25 induce the formation of a more dusty product? 95 1 A Yes. I think that's true. 2 Q It also makes chrysotile that is more harsh; is that 3 correct? 4 A Yes. 5 Q And by harsh you were referring to again some of the 6 biological potential of the material? 7 A No. 8 Q What were you referring to? 9 A I was referring to a set of properties. 10 Chrysotile asbestos in Canada has different 11 qualities of fiber. Some of the fiber is very flexible 12 and they are called soft fiber or silky fiber. - 13 Something like that. Then there are other fibers that 14 for some reason are more rigid. They are more like 15 wood splinters. That is called a harsh fiber. And 16 application of the soft fiber is different than the 17 harsh fiber. The soft fiber is used in textiles. The 18 harsh fiber is used in chemical industry. When you 19 heat fiber, if you take the soft silky stuff and heat 20 it, it becomes more like the harsh fiber. 21 Q Does it increase the potential for the material to 22 enter the human body -- 23 A I believe so. 24 Q You got to let me finish my question before you answer 25 for the court reporter. 96 1 A Sorry. 2 Q So does heating chrysotile fiber increase its potential 3 for being breathed into human beings and producing 4 disease? 5 A I believe so, yes. 6 Q Doctor, when these fibers are released into the air, 7 and let's go back to our shipyard environment we have 8 talked about, generally, how long do they remain in the 9 air? 10 A It depends on the nature of the environment and it 11 depends on the size distribution of the particles. 12 They could remain suspended in the air for a period of 13 time; an hour, half hour. 14 Q That's used in -- let's use a situation in a shipyard 15 engine room where new insulation is being applied. Do 16 you have any opinion as to whether the fiber would 17 remain in the air for an hour or more? 18 A It depends. If this is an unventilated area, this air 19 moves nowhere, it stays. 20 Q Let's start with that, and there are men working -- 21 MR. MARTIN: I think I object. As I recall 22 the testimony in this case there was exhaust 23 ventilation, Tom. I object. 24 Q (Mr. Hart) Go ahead. We were talking about the 25 difference -- the factors that affect it. 97 1 A Well, the fact -- if you had moving air, obviously 2 parts move in the moving territory and the build-up of 3 parts would not be maintained. The air would be plush 4 and the fiber levels would decrease more rapidly. 5 Q Again in the shipyard environment what's your 6 experience, how long a fiber stayed in the air? 7 MR. RILEY: I'm going to object to the 8 relevance of that. 9 THE COURT: Sustained. 10 Q (By Mr. Hart) There is a question of whether tremolite 11 is present in chyrsotile. Are you aware of that 12 - discussion? 13 A Yes. 14 Q Okay. You have researched actual chrysotile ore and 15 have not been able to find tremolite? 16 A I found one part of tremolite in cleavage fragment in 17 several hundred specimens in chrysotile ore in Canada. 18 Q Now, that was in the Thetford area? 19 A From all over Canada. All over. As a matter of fact, 20 there are a number of specimens from the Jeffery Pit. 21 Q Well, you examined a number in the Thetford area; is 22 that correct? 23 A Yes. 24 Q And ore scientists have looked at the actual mineral 25 content of lungs of people that live in the Thetford 98 1 area? is that correct? 2 A Yes. 3 Q And both miners, people that work in the mine and 4 people who lived in the neighborhood; is that correct? 5 A Yes. 6 Q And they found tremolite, have they not? 7 A Yes. 8 Q And the opinion is that the tremolite found in the 9 miners came from the mine, the chrysotile ore? 10 A I think that's a good assumption, yes. 11 Q And people who lived in the neighborhood of the mine 12 who had tremolite in their lungs also got it from the 13 chrysotile ore? That's the -- 14 A That's just thegeneralassumption, yes. 15 Q So your inability to find it in the ore itself does not 16 preclude the fact that there is tremolite in the 17 Thetford area asbestos? 18 A Absolutely. 19 Q In fact, there is -- it's youropinion there probably 20 is tremolite in the Thetford asbestos? 21 A Yes. 22 Q Now, some researchers have looked at lungs of people 23 who have worked with chrysotile materials; is that 24 correct, sir? 25 MR. RILEY: I'm sorry. I'm going to object. 99 1 If he's now asking the Doctor to paraphrase the finding 2 of somebody else I think he ought to put that published 3 report before the Doctor. 4 MR. HART: It's all general information. He 5 was doing this all through direct. 6 MR. RILEY: General information from something 7 that's in the literature. The rule in this case, put 8 the article in front of the witness to read it. 9 THE COURT: Well, if it is referred -- let me 10 have the question. - 11 MR. HART: You want me to rephrase it, Judge? 12 THE COURT: If you would like to. 13 Q (By Mr. Hart) Are you familiar with finding of 14 tremolite in the lungs of persons exposed to chrysotile 15 in the manufacture of chrysotile products? 16 MR. RILEY: Same objection, Your Honor, 17 characterization of somebody's findings. 18 THE COURT: It just calls for a yes or no 19 answer. 20 Objection overruled. 21 A Yes. 22 Q (By Mr. Hart) Okay. And so persons -- you as a 23 scientist know persons who work with chrysotile fiber 24 that's been supplied to manufacturing plants can get 25 tremolite in their lungs; is that correct? 100 1 A Yes. 2 Q Now -- I guess I should say in chrysotile manufacturing 3 plants. 4 You are of the opinion that tremolite can 5 also -- let me start over again. 6 You are of the opinion, are you not, sir, that 7 persons exposed to products that contain chrysotile may 8 also be exposed to some portions of tremolite? is that 9 correct? 10 A That has been suggested. 11 Q Okay. In fact -- well, you are of the opinion that ^ 12 that is likely to occur in some instances; is that 13 correct? 14 A It may occur, yes. 15 Q Okay. And that would be end users and persons around 16 them like bystanders? 17 A That's possible. 18 Q Okay. But it's your opinion that it may in fact occur? 19 A It may occur. 20 Q Okay. And the two types of tremolite you discusssed, 21 correct? 22 A The major habits. 23 Q I'm talking about the asbestiformtremolite. 24 A Good enough. 25 Q I think I spelled it -- it's twowords and one word. 101 1 A I understand. 2 Q Okay. Andthatcauses cancer? 3 A We think so, yes. 4 Q Okay. And it's your opinion it causes mesothelioma? 5 A Yes. 6 Q The second kind are the cleavage fragment. That's a 7 second variety of tremolite you found? 8 A Fine. Yes. 9 Q And -- okay. And it's your opinion that cleavage 10 fragment does not cause mesothelioma? 11 A That's correct. 12 Q But are you familiar with theresearch by the American 13 Thorasic Society? Are you not, sir? 14 HR. MARTIN: Tom, you referring to the 15 Proposed Draft? It's not -- not the final draft. We 16 agreed on that. 17 MR. HART: That's correct. 18 Q (By Mr. Hart) Are you familiar with that, sir? 19 A Yes. 20 Q Okay. The American Throasic Society has asked a 21 committee of persons to study the health effects of 22 tremolite; is that correct? 23 A Yes. 24 Q And a person on that committee is Hans Weill? 25 A Yes. 102 1 Q Gerald Abraham? 2 A Yes. 3 Q You know Dr. Abraham? 4 A Yes. 5 Q You do. You have great respect for his work? 6 A No. 1 Q You don't? 8 A No. 9 Q You know Dr.Churg, Andrew Churg? 10 A Yes. 11 Q You got great respect forhis work? 12 A Much of it. 13 Q Jack Sussman (phonetic)? 14 A Yes. 15 Q You have -- you got great respect for him? 16 A Yes. 17 Q You worked with him? 18 A Yes. . 19 Q One of the three you do. How aboutHans Weill? 20 A I think -- Hans Weill isa pulmonologist. He's done 21 some very outstanding work in the field. I don't know 22 him. 23 Q Case? 24 A I know Bruce Case. 25 Q He's got -- 103 1 A He's a pathologist. He carries credentials in that 2 field. 3 Q How about Janet Hughes, Dr. Hughes? 4 A Epidemiologist. Excellent. 5 Q And Mark Shenger (phonetic)? 6 A I don't know him. 7 Q Okay. Overall the committee represents a broad 8 spectrum of scientific ability and viewpoint, does it 9 not? 10 A No, it does not. 11 Q It doesn't? 12 A No. It's one of the shortcomings of this report. 13 Q Okay. So I take it then you don't agree with the -- 14 some of the findings in the report? 15 A Yes, that's correct. I do not agree with some of the 16 findings. 17 Q The report goes on for about roughly 15, 16 pages, plus 18 references. The one thing I want to ask, do they or do 19 they not agree -- do they not offer the opinion that 20 until further study is made there is no basis for the 21 conclusion that cleavage fragments do not cause cancer 22 in human beings? 23 A That is one of their conclusions that I most disagree 24 with. 25 Q Would you agree with me then that at least in the 104 1 scientific community the issue of cleavage fragments 2 causing disease in human beings should be an open one 3 for further discussion? 4 A Every issue should be open, of course, but I think that 5 the bulk of the data refutes that cleavage fragment 6 produces human mesothelioma. I think it is wrong. 7 Q Okay. That's your opinion? 8 A Yes. 9 Q And obvioulsy other doctors have otheropinions? 10 A Sure. 11 Q Your opinion is subject to change with new information, 12 as their1s ought to be? 13 A Of course. 14 Q So as to this issue as to cleavage fragments causing 15 cancer, would it be fair to say it should remain as lay 16 people an open issue at this time, subject to further 17 research and discussion? 18 A You are really asking about thephilosophy about how 19 scientists decide anything and why we say certain 20 things. I am convinced by a body of epidemilogical 21 data and body of experimental data that cleavage 22 fragments carry very, very low biological activity. 23 There was a study done -- as you know, there 24 was a contamination in Lake Superior of amphobile 25 minerals of the reserve mining area at 105 1 Silver Bay and those are cleavage fragments that were 2 dumped into Lake Superior. And the cleavage fragments 3 of grunolite were studied in the home state miners. 4 Same cleavage fragment. There were no asbestos lung 5 cancers or mesothelioma in the home state miners 6 exposed to grunolite cleavage fragment. 7 Amosite from South Africa produced asbestos 8 mesothelioma. Grunolite, the cleavage fragment, does 9 not. And if you look at the tremolite story, 10 tremolites from various talc pits that are cleavage 11 fragments does not produce human mesothelioma. 12 Tremolite from the vermiculite, v-e-r-m-i-c-u-l-t-i-e, 13 pit of Libby, L-i-b-b-y, Montana. So the cleavage -- 14 there are many epidemiological studies that support 15 cleavage fragments do not produce the same effects as 16 the asbestiform mineral fiber, and the experimental 17 data to come out of many laboratories supports this. 18 And the fact that my -- my colleagues sat in 19 judgment on this without a good minerologist or 20 crystallographer or someone who is in the mining area 21 to sit down and explain these various mineral types and 22 these different deposits, maybe the outcome of this 23 document would have been different. That was my major 24 objection to it, the fact they did not have the proper 25 expertise. Some of these people are excellent, of 106 1 course, but this document is subject to a great deal of 2 criticism, and I'm sure that that document will be 3 changed before it is published. 4 Q You think they just didn't know enough about rocks in 5 order to make their opinion? 6 A The original charging committee, no, they did not know 7 enough about rocks and minerals. They may know how to 8 thump on a chest and diagnosis mesothelioma, but we're 9 dealing with agents, and the agent here involved is a 10 contamination of a play sand in New York State with 11 tremolite. And the report of a physician in the 12 "New England Journal of Medicine" said that play sand 13 has a contamination of 2 to 4 percent tremolite 14 asbestos. If this were true we should have band that 15 product. I was the consultant for the Consumer Product 16 Safety Commission. I looked at those materials. They 17 were people at Harvard, M.I.T. and at Yale, and we all 18 came to the same conclusions; those were tremolite 19 cleavage fragments, we said, based on the World 20 Literature and based on cleavage fragment, it carries a 21 different biological potential. And they were -- the 22 Thorasic-Society was asked to evaluate the play sand 23 issue. Is there a risk? And in this document they 24 said we don't have the mineral expertise to do that. 25 It's beyond the expertise of this committee, therefore, 107 1 we are going to review the data on tremolite. So they 2 reviewed the World Literature of tremolite effects. 3 Q I tried to make it even shorter than -- is it a fair 4 summary that Dr. Langer says no, American Thorasic says 5 yes, about the ability of -- 6 A No. That's an unfair characterization. 7 Q The committee report, the draft report now -- report 8 now that says yes, you say no? 9 MR. MARTIN: Objection. Your Honor, that's 10 not the final report. 11 MR. HART: I said draft report. 12 MR. MARTIN: It's not the proposed draft. 13 MR. HART: We won't know what the final 14 report -- we got the draft report and you have reviewed 15 it. They say basically yes, there is a risk. 16 THE COURT: Just a minute. I'm going to 17 sustain any further reference to this. 18 I think -- we got nobody here to -- to give me 19 any guidance or the Jury any guidance what weight to 20 give to this particular report. I have an expert on 21 the stand who says that we shouldn't give it any 22 credit. 23 MR. HART: May I have a moment, Your Honor? 24 May we take this up in sidebar? 25 THE COURT: Sure. 108 1 (Court, counsel and court reporter enter 2 Chambers) 3 MR. HART: Judge, my only point is -- my point 4 is that in cross-examining the witness the recognized 5 law of Wisconsin is that you do not have to have the 6 witness recognize a document as an authority, and he 7 may question it was recognized by the committee that 8 drafted -- 9 THE COURT: All that -- we've done all that. 10 All of that we've done, but I don't -- I think we're 11 trying to bootstrap this report into something we don't 12 have a witness to do it, not at this point. 13 MR. HART: Your Honor, it's the same as any 14 other article that comes out. 15 THE COURT: I don't think so. 16 MR. WILL: He said it's not authoritative and 17 he disagrees with it and that's the end of the inquiry. 18 MR. CABANISS: When you cross-examine your 19 witnesses you couldn't cross-examine with -- with 20 documents. They did. 21 MR. WILL: That's not what I - 22 MR. CABANISS: That's what you're implying. 23 That's not right. 24 MR. WILL: You -- if you let me finish. 25 MR. CABANISS: We have a right to 109 1 cross-examine him on that document. 2 THE COURT: And you have done that. 3 MR. CABANISS: Right. All he's doing right 4 now is the -- summarizing what the positions are. 5 THE COURT: No. No. 6 I think we have had an ample opportunity to 7 cross-examine him on this document. That's been done. 8 Everything now is repetitious and I think we're trying 9 to lend some credence to something that I don't have 10 the witness that's about to lend credence to it, 11 because this one sure isn't. 12 MR. CABANISS: That's the reason we want to do 13 it, Your Honor, because he don't put any credence in it 14 and that's what the Jury should consider. 15 THE COURT: All of that they got. 16 MR. WILL: They got that. 17 MR. CABANISS: So what's wrong with him 18 summarizing what the witness said? 19 THE COURT: Enough is enough. 20 MR. HART: My only point, I was about ready to 21 leave this area but he went on -- I smiled at 22 Your Honor -- for about three, four minutes on a 23 speech, what his position is about this and this and I 24 think now. I'm allowed to go in and question him about 25 the contrary opinion of other physicians as expressed 110 1 in this document, and that's what cross-examination is 2 all about and -- and I'll stick to reading what's 3 actually in there and I'll do that. But that is a -- 4 that's the mode of cross-examination we've gone through 5 in this trial. I think that's what ought to be 6 permitted regarding -- all this discussion so far has 7 been his opinion, his basis. We don't even talk about 8 the document that much. I haven't had a chance to. 9 MR. MARTIN: First, I think I realize what has 10 been -- this is a proposed draft that has been 11 circulated to members of A.T.S. and it's not a final 12 published draft and there may be claims in it -- 13 THE COURT: I don't know what it is. 14 MR. MARTIN: That's not fair. Tom knows that 15 it's been a proposed draft sent around to 16 investigators. It has not been adopted by the A.T.S as 17 of today. 18 MR. CABANISS: Something -- all chrysotile for 19 cross-examination when it's published in a book. 20 MR. MARTIN: No. He's making it -- references 21 to everybody's position of the American Thorasic -- 22 MR. HART: I'll rephrase my question. If I 23 imply that, I'll change it. 24 MR. BOGAN: You already got it written on your 25 sheet. 111 1 MR. HART: I'll change it. 2 MR. MARTIN: It's not the position of the 3 American Thorasic Society today. 4 MR. HART: I will correct that. Your Honor. 5 MR. MARTIN: That's why it's unfair to keep 6 referring to it as the position. 7 MR. HART: I won't do that any more. 8 MR. WILL: Your Honor, can we get back to the 9 basic point? He's been confronted with the document on 10 cross-examination. He says he disagrees with it. 11 THE COURT: I think any further examination of 12 this witness on this document is a waste of time and 13 under the appropriate section of the statute I'm going 14 to sustain any objections. 15 MR. MARTIN: Thank you, Your Honor. 16 MR. HART: You are limiting my 17 cross-examination on this document? 18 THE COURT: That's correct. 19 MR. HART: Thank you. 20 (Court, counsel and court reporter return to 21 courtroom) 22 Q (By Mr. Hart) Doctor, the document we were talking 23 about was the A.T.S. Committee's, was it not? 24 A Yes. Some committee. 25 MR. MARTIN: Your Honor, I thought -- 112 1 objection. 2 MR. HART: I did that for Mr. Murphy's 3 benefit. 4 THE COURT: I think he's correcting one of the 5 things that you had objected to, or your colleagues 6 objected. 7 MR. MARTIN: Then I don't object. I withdraw 8 my objection on the record. 9 MR. HART: Kind of need you to object. Let's 10 go on. 11 Q (By Mr. Hart) Doctor, you -- you mentioned one of the 12 basis for your opinion about chrysotile's potency was 13 the reported literature; is that correct? 14 A Yes. 15 Q Now, you yourself havepersonally seen cases of 16 chrysotile-caused mesotheliomas that are not reported 17 in the literature; is that correct? 18 A Several. Yes. 19 Q Several. Okay. In fact,you and Dr.McCaughey 20 published a report together; is that correct? 21 A Yes. 22 Q So your opinion is chrysotile can cause mesothelioma? 23 A Pleural mesosthelium. 24 Q Pleural. Okay. Chrysotile incombination with other 25 materials can contribute to causing mesothelioma? 113 1 A You mean partition it? If you have several agents? 2 Q If you have more than one type of asbestos fibers. If 3 you have more there's a possibility of partitions, if 4 there is that contribution. 5 A It's possible. 6 Q In fact, it can happen. 7 A It can happen. I suppose. Yes. 8 Q And again, I'm putting mesothelioma -- I'm referring to 9 pleural mesothelioma. 10 A Yes. 11 Q You relied upon two articles earlier, the McDonald 12 article and the Barry Newhouse article. Do you recall 13 those studies -- . 14 A Those are two principal studies. 15 Q -- that Mr. Murphy asked about? Do you agree that the 16 McDonald article did not exonerate chrysotile as the 17 cause of mesothelioma? 18 A I agree with thatstatement. 19 Q The Barry Newhouse study of friction workers failed to 20 show chrysotile does not cause mesothelioma? 21 A State that again. 22 Q The Barry Newhouse study of friction material workers 23 failed to show that chrysotile does not cause 24 mesothelioma? 25 A Their study did not show that. That's correct. It was 114 1 the Tissue Burden Study which implicated chrysotile as 2 the agent. That's correct. 3 Q You are aware that other physicians have seen cases of 4 chrysotile-caused mesothelioma that are not reported in 5 the medical -- 6 MR. RILEY: Objection to relevance, 7 foundation. 8 MR. HART: Going into the basis of his 9 opinion. 10 THE COURT: Overruled. 11 A Well, as I understand the question -- 12 Q (By Mr. Hart) Okay. 13 A -- there are physicians who say yes, so-and-so was 14 exposed to wood dust and wood dust is the agent 15 suspected in nasal tumor, for example, but wood dust is 16 accompanied by possibly two or three or four other -- 17 other agents. So if someone says I have a -- seen a 18 mesothelioma with only chrysotile exposure, my first 19 question is how do you know that. Have you done a 20 Tissue Burden Study? Is that the only fiber that you 21 have seen? So although someone may say this is that, 22 chrysotile exposure, I think that the epidemiologists 23 have misled us with chrysotile because they did not 24 carry out these more detailed analysis. 25 Q Well -- 115 1 A So the fact that someone blames chrysotile mesothelioma 2 comes with all the caveates, it may be so and it may 3 not be so. 4 Q Dr. Langer has seen chrysotile mesothelioma? 5 A Yes. The one published case, yes, and maybe two or ^ 6 three others, that's right. No other fibers found in 7 plumonary tissues; that's correct. 8 Q And you looked, did you not? 9 A Sure did. 10 Q Why didn't you publish those? 11 A Some of those cases are represented in the -- in the 12 study that's just been published. 13 Q So the brake line work you did publish with 14 Dr.. McCaughey and approximately three others? 15 A Two other cases in that study of 34. 15 Q Okay. In -- 17 A However, I meant the collection criteria. I don't want 18 to mislead the Jury and I don't want to mislead this 19 Court. Our technique has evolved over those periods of 20 time. Those 34 cases were all done the same way, bulk 21 tissue chemical extraction, not the carbon extraction 22 technique. It's another kind of technique. 23 Q There is no question in your mind the only fiber in 24 those two cases were chrysotile, based upon the most 25 recent scientific analysis method available to you? 116 1 A At a certain level of detection, yes. 2 Q And that's a scientifically acceptable level of 3 detection? 4 A I don't know what that means. 5 Q Okay. We'll go on then. 6 You, Dr. Churg and others, when they 7 summarized the World Literature on chrysotile 8 mesotheliomas, did not have the benefit, for example, 9 until recently, of those two cases? 10 A I suppose so. 11 Q When you count up the cases, though? 12 A I'm shaking my head yes. 13 Q Okay. Do you agree that the more dust in the air the 14 more you will breath? 15 A Depends upon the characteristics of the dust. 16 Q Respirable dust in the air, the more you will breath? 17 A I think that's a general conclusion, yes. 18 Q Do you agree that exposure to visible chrysotile dust 19 is dangerous? 20 A It may be, it may not be. 21 Q Exposure to visible dust from chrysotile-containing 22 insulation products may be dangerous? 23 A May be. 24 Q In a mixed fiber exposure, that is to say chrysotile 25 and amosite, you cannot state which type caused the 117 1 mesothelioma, can you, sir? 2 A You mean specifically? 3 Q Yes. 4 A No. You must base a conclusion on the relative 5 potencies based on the experience of many workers in 6 many other places. 7 Q And that would be based upon? 8 A Epidemiology. 9 Q Those three assumptions that you would have to make of 10 concentration fibers -- 11 A Those are three general assumptions. There are more 12 characteristics, obviously. We're pooling mortality 13 data, which is very dangerous because you have to know 14 a lot of characteristics of the population. You have 15 to know their ages, know their smoking history, you 16 have to know many other factors. So you have to look 17 at trends, and if crocidolite is consistently high and 18 amosite is consistently -- and chrysotile is 19 consistently low, based on these pooled data sets that 20 come from many different areas, then you would conclude 21 reasonably, with a fair degree of scientific 22 probability that fiber C, crocidolite, is more 23 dangerous than Ch, chrysotile. 24 Q In short, chrysotile fibers are capable of causing 25 human disease? 118 1 A It's possible. 2 Q You say possible. In fact, it is capable. 3 A There are reports. 4 Q You believe it is to be so, do you not? 5 A It can be, yes. 6 Are you talking about mesothelioma or are you 7 talking about asbestos disease in general? 8 Q Asbestos disease in general. 9 A For -- well, it depends on the asbestos disease, of 10 course. 11 (Exhibit No. 462 marked for identification) 12 Q (By Mr. Hart) Let me hand you what's beea marked as 13 Exhibit 462. I ask you if you can identify that as a 14 letter that you authored, sir. 15 A Yes. 16 Q And that was written to my law partner in 1981? 17 A Yes. 18 Q And is that your signature appearing on there? 19 A Yes. 20 Q You indicate that you're attaching a report; is that 21 correct, in your letter? 22 A Yes. 23 (Exhibit No. 463 marked for identification) 24 Q (By Mr. Hart) I'm going to hand you what's been marked 25 as 463 and ask you if that's the report that was 119 1 attached to your letter. 2 A Is this the report that I sent? I don't see any date 3 on it, but I'm assuming it's -- I mean, this obviously 4 carries my signature and it -- I don't think I sent 5 this report to your office. It was sent somewhere 6 else. 7 Q Originally you sent it to Mr. Carl Ash? 8 A That's right. 9 Q And then when my partner, Mr. Motley, asked you certain 10 questions about a case, John Rossi -- 11 A I sent a copy of the report. Yes, that sounds about 12 right. 13 Q And this is a copy of what you sent to us? 14 A Could be. Yes. 15 Q And that's yoursignatureappearing on that? 16 A All right. 17 Q Is that correct? 18 ' A I'm just trying to think of the original case. This 19 would be dated about 19 -- 20 Q '81. The name of the original individual is in there 21 further back. 22 A Okay. 23 Q They represent your opinions at the time? 24 A Yes. 25 Q The issue, when you wereoriginally contacted by 120 1 Mr. Ash, was whether brake line dusts were capable of 2 causing mesothelioma; is that correct? 3 A That's right. I think asbestos disease. It could have 4 been mesothelioma. 5 Q One of the questions you answered to Mr. Ash was 6 specifically about chrysotile asbestos is capable of 7 causing mesothelioma? 8 A Yes. 9 Q Mr. Motley, my partner, contacted you about a case of 10 Mr. Clowers? 11 A Yes. 12 Q C-l -- excuse me. It was Rossi on this matter. 13 Q Would you look at the front page of the letter to 14 Mr. Motley? 15 A Yes. 16 Q Okay. And Mr. Rossi had an exposure to asbestos. 17 MR. RILEY: Your Honor. Excuse me, 18 Your Honor, I object. This isn't Mr. Rossi's case. I 19 object to references to some other case. 20 MR. HART: This is the basis of foundation of 21 a statement, Your Honor. 22 THE COURT: I'm not trying Mr. Rossi's case or 23 Mr. Clover's case. I'm worried about getting too much 24 reference of these other cases. I understand what you 25 are trying to do, which is permissible, but let's -- 121 1 MR. MARTIN: I think all the bases have been 2 met. I think if counsel has something in here to 3 impeach the witness, I think we should move right to 4 it. The Doctor has provided this report. I don't 5 think anything else is relevant, except anything in 6 here that may be contrary to the opinions, and I object 7 to that. . 8 THE COURT: I think that's really correct, 9 because what I understand of this is that we had an 10 original case for which the witness wrote a report. 11 There was another case and a copy of this report was 12 given to the attorney for that other case. But the 13 facts that support whatever opinions are in that report 14 are in that first case, not in the second one. 15 MR. HART: I recall clearly that -- 16 THE COURT: So, I don't think we have to go 17 into the details of the second case. 18 Q (By Mr. Hart) When you wrote your letter to 19 Mr. Motley, July 17, 1981, you had not analyzed any 20 tissue of Mr. Rossi; is that correct? If you will look 21 at it. 22 A I believe so. I think this is a generic letter. 23 Q Right. This is not specifically to the Rossi case. 24 This is a generic letter you wrote concerning, among 25 other things, chrysotile's ability to cause 122 1 mesothelioma. 2 A I'm sorry. I was reading the letter, counsel. 3 Please -- 4 Q This letter represents your opinions as of that time? 5 A Yes. 6 Q About chrysotile's ability to cause mesothelioma? 7 A Well, asbestos disease, including mesothelioma. 8 Q Okay. Now, I'm going to refer you to the second page, 9 if I can, of the letter. You said you have to do some 10 homework -- 11 MR. RILEY: Objection, Your Honor. I would 12 like to be heard, please. 13 THE COURT: Okay. Proceed in Chambers. 14 Somebody got a copy of the report? 15 (Court, counsel and court reporter enter 16 Chambers) 17 MR. RILEY: This isn't being offered for 18 impeachment, obviously. It's -- it's a hearsay 19 statement. It's not relevant to the case. 20 Go ahead. 21 MR. HART: That's relevant to the defense 22 raised. He's been asked to testify on it. I think 23 it's entirely appropriate to put his earlier comments 24 about his characterization of his defense. 25 MR. MARTIN: If he says something correct on 123 1 the merits of the chrysotile, what's contrary to what 2 he said? 3 MR. HART: In addition to impeachment, it goes 4 to bias. 5 MR. RILEY: And your bias. You want to prove 6 he's biased in your favor, is what you want. You 7 can't -- 8 THE COURT: It's not -- no, it's not relevant, 9 and I really -- at this point we're wasting time and 10 I'm told we have another witness we want to get in 11 today. 12 MR. CANABISS: You didn't waist any time? 13 THE COURT: For the record the statement that 14 counsel proposed to read is, "You will have to do some ^ 15 homework regarding these peripheral tissues to properly 16 anticipate and attack the 'normal' defense of the 17 industry." 18 Was that it or did you want the next 19 paragraph, too? 20 MR. HART: No. That was part of it. 21 THE COURT: I'm just trying to complete your 22 offer of proof for you. 23 MR. HART: We marked the document as an 24 exhibit. 25 THE COURT: Objection is sustained. 124 1 Whose copy do I have here? 2 MR. RILEY: That was mine. 3 MR. MARTIN: Your Honor -- make it a part of 4 the record for your objection, is that what you want to 5 do? 6 MR. HART: It's been marked as an exhibit. I 7 already marked it as an exhibit. 8 THE COURT: The objection is sustained. 9 (Court, counsel and court reporter return to 10 courtroom) 11 Q (By Mr. Hart) Doctor, do you agree that chrysotile 12 fibers used in industry or manufacture of products, 13 that it is increasing fiberized asbestos? 14 A It can be. 15 Q It is generally increasingly fiberized. Is that your 15 opinion, sir? 17 A Well, the most fiberized material is the dust generated 18 in a chrysotile textile plant, in carting and spinning, 19 so the fiber dusts are generated in these industries 20 that vigorously manipulate fiber, but in general it may 21 be so. 22 Q In the United States industrial applications and 23 insulating materials there is more dust produced than 24 in Canadian chrysotile worker experience? 25 A I don't know whether that's true or not. 125 1 Q In the United States as the chrysotile is further 2 opened and processed fiber produceds to size whereby 3 its inhalation potential is vastly increased and their 4 ability to migrate to the pleural is increased, as 5 well. Do you agree with that? 6 A That's a statement I may have made in the past. 7 Q Would you look at the second exhibit I have had marked? 8 Is that not a statement you made? I think it's at 9 Page 7, the second last page. 10 A Page 7. 11 Q The second to the last page under the heading? "Does 12 Chrysotile Asbestos Cause Mesothelioma." 13 A Okay. Yes. Ofcourse. 14 Q Do you agree that the bulk of animal work, that is 15 animal experimentations around the world, refutes the 16 concept that chrysotile is not capable of producing 17 mesothelioma? 18 A Yes. 19 Q Okay. And, in fact, animal research has shown that 20 chrysotile is equally potent as crocidolite? 21 A Yes. 22 Q Chrysotile fibers tend to migrate to the pleural; is 23 that correct? 24 A Yes. 25 Q And research has shown that when the pleural tissue of 126 1 asbestos exposed workers is examined there is a greater 2 concentration of chrysotile than other types of fibers? 3 A Numerically, yes. 4 Q And the -- that the greater concentration of chrysotile 5 fibers occurred even when there has been a mixed 6 exposure to fibers? 7 A Yes. This is truenumerically. 8 Q Numerically. In fact, when there is a mixed exposure 9 to asbestos fibers in the air the pleural of those 10 persons generally show almost exclusively chrysotile 11 fibers? is that correct? 12 A Yes. 13 Q So when examined, the pleural tissues generally do not 14 show amphibole fibers; is that correct? 15 A Well, there are a very limited number of studies of 16 pleural tissues. Of course, Patrick Sebastien wrote an 17 asbestos paper ten years ago. There are some very 18 limited studies that is -- that the pleural itself, 19 rather than in the lung perenkamo. So, I think in that 20 series, in one Patrick Sebastien paper, chrysotile 21 tends to migrate to the pleural so that the pleural is 22 loads different from it -- pleural loads of chrysotile 23 differs from the lung waparen, w-a-p-a-r-e-n, load. 24 Q In terms of causing diseases in the pleural, the 25 presence of chrysotile fibers is important; is that 127 1 correct? 2 A May not be. 3 Q But it may be? 4 A I don't think it's as important as an amphibole fiber 5 at the pleural, no. 6 Q Well, we don't find -- 7 A Can it be? Is itpossible? That's yes, it's possible. 8 Q Generally the studies that have been done, we generally 9 don't find amphibole fibers, pleural, do we? 10 A I can only think of one systematic study of pleural 11 load, that is the Patrick Sebastien study. 12 Q The chrysotile fiber as found in the pleural is 13 implicated as an agent in mesothelioma both in animals 14 and in the human situation; is that correct? 15 A Could you rephrase that question, please? 16 Q Sure. The chrysotile fiber found in the pleural has 17 been implicated as a cause of mesothelioma both in 18 animals and in humans? 19 A I have a lot of problems with that question. Are you 20 saying that we have seen chrysotile at the pleural? 21 Yes. Is it implicated in the etiology of mesothelioma 22 that we see? Some people might interpret it that way. 23 Q Could you turn to the last page of your statement? 24 A Sure. 25 Q You state in the sentence, "Chrysotile asbestos is 128 1 present in the materials that the individual may have 2 come into contact with, there is ample opportunity for 3 significant fiber exposure in the automative brake 4 maintenance and repair areas of garage and auto shops, 5 the dust may persist for significant periods of time? 6 there is no correlation between the presence of 7 asbestos bodies in lung tissues and the occurrence of 8 malignant diseases associated with asbestos exposure; 9 short chrysotile fiber is encountered at the pleura of 10 individuals who are exposed to short chrysotile fiber 11 by definition will not form asbestos bodies readily? 12 the chrysotile asbestos fiber implicated as an agent in 13 mesothelioma induction, both in animal models and human 14 condition." 15 That's a statement that you made? 16 A ' Those are all statements that are true. 17 Q Okay. With exposures to amosite and with exposure to 18 chrysotile are you able to state which type of asbestos 19 fiber causes mesothelioma? 20 A State specifically the fiber, the agent? No. I think 21 you have to use a certain probability matter. You 22 would have to look at the world data and look at 23 relative effectiveness of different fiber types and 24 their ability to induce this particular disease on a 25 coma by the partitions. Do we know which fiber caused 129 1 this disease? No, of course not. But we have a 2 greater probablity that it is the one implicated in the 3 generation of more of these tumors in working 4 populations. So I think you are dealing with a 5 probability. 6 Q So youjust don't know? 7 A I don't think anyone else knows. 8 MR. MARTIN:Objection. Objection, 9 Your Honor. He just answered the question. 10 Q (By Mr. Hart) You recall testifying in the Glower's 11 case in Washington State? 12 A Yes. 13 Q Now, you were asked when one of my partners in that 14 case, excuse me, on cross-examination, when the lawyer 15 for the company asked you a question: "Doctor, with 16 exposure to amosite and with exposure to chrvsotile, 17 are you able to state which type of asbestos fiber 18 causes mesothelioma?" And your answer was a question 19 back to him saying: "With a mix fiber exposure?" And 20 he answered, yes. And your answer was, no. Then you 21 were asked: "Doctor, with an exposure to mixed fiber 22 type are you able to rule out chrysotile exposure as 23 causing mesothelioma?" And the answer was no. "You 24 just don't know, do you, on the basis exposure to both 25 amosite and chrysotile?" "You can't." Then you began: 130 1 "How can I base this answer on the" -- excuse me. "How 2 can I base this answer on the existing data that both 3 fiber types can introduce human mesothelioma, with both 4 being present in the same individual? To implicate one 5 without the other is without basis. You cannot say yes 6 and you cannot say no. You cannot rule out -- 7 Question: "You can't rule out either and you can't say 8 that one did and one didn't?" Answer: "That's right." 9 Question: "You just don't know?" Answer: "That's -- 10 just don't know." 11 MR. MAHTIN: Can we have the day of that 12 testimony, Tom? 13 MR. HART: August 30, 1983. 14 A That's about right. 15 Q (By Mr. Hart) Is that still your opinion today? 16 A No. 17 Q Okay. Doctor, do you know how asbestos causes 18 mesothelioma? 19 A No. 20 Q Does science know? 21 A No. 22 Q Your opinion, therefore, to the extent it has changed 23 since 1983 about which fiber causes it is based upon 24 your opinion of probabilities; is that correct? 25 A No. 131 1 Q It's your assessment of the probablity? 2 A No. 3 Q Your opinion as to probability of which fiber causes 4 it, you recognize is not a universal one; is that 5 correct? 6 A There is nothingthat'suniversally acceptable. 7 Q Okay. Dr. ElliotMcCaughey issomebody you respect? 8 A Very much so. 9 Q His opinion on causation, while you may disagree with 10 it, you may respect it? 11 A Of course. 12 Q On the pathological aspects he has more experience than 13 you? 14 A Of course. 15 Q Dr. Sam Hammer (phonetic) is someone who you repsect? 16 A The same. Of course. 17 Q His opinon on causationyourespect? 18 A Yes. 19 Q Were you given the -- any testimony regarding workers 20 as to what the exposures actually were at the shipyard? 21 A No. 22 Q Was -- last night you didn't know anything about the 23 exposure of the shipyard when I talked to you? 24 A That's true. 25 Q Did -- basically all you know is what Mr. Murphy told 132 1 you of that question? 2 A No. Of course not. About -- 3 Q About this particular -- 4 A About this specific -- oh. 5 Q Yeah. 6 A No. 7 Q I didn't mean with all that's in your head. Basically 8 all you know about Mr. Pennock's exposure was the 9 question -- is what Mr. Murphy gave you? 10 A Basically. 11 Q He did not provide you with the transcript, for 12 example, Dr. Hammer had? 13 A No. 14 Q If Dr. Hammer had more information to base an opinion 15 on causation do you think he would be in a better 16 position to judge the causation role of various fibers 17 in this case? 18 A No. 19 MR. MARTIN: Objection, Your Honor. 20 MR. RILEY: Objection, Your Honor. 21 THE COURT: He answered the question. The 22 answer will stand. 23 Q (By Mr. Hart) Did you have any information concerning 24 the relative concentration of asbestos fibers? 25 A No. 133 1 Q That would be important, would it not? 2 A It might be important. 3 Q Okay. If chrysotile was ten times greater than 4 araosite, that would increase its potency in particular 5 situations? 6 MR. MARTIN: Judge, I'll object, that 7 chrysotile is ten times greater than amosite. I'll 8 object that -- that there is no basis in the evidence. 9 There will be no basis. 10 THE COURT: You going to tie this up some way, 11 Mr. Hart? 12 Q (By Mr. Hart) I just ask you to assume it to be ten 13 times greater exposure to chrysotile. Would that 14 increase its potency in a particular situation? 15 A It might. ' 16 Q Okay. Doctor, in your studies of fibers you were 17 involved with fiber counting? is that correct? 18 A Yes. 19 Q Okay. And in doing so you became familiar with other 20 asbestos dust counting methodologies, have you not? 21 A Yes. 22 Q You have yourself assisted in the performance of 23 asbestos air sampling? 24 A Yes. . 25 Q Okay. You have utilized the terminology of sampling 134 1 from a midget impinger -- 2 A Yes. 3 Q -- known as millions ofparticles per cubic foot? 4 A That's the unit. 5 MR. MARTIN: I would like to object. May we 6 approach the bench on this issue? 7 (Sidebar conference off the record) 8 Q (By Mr. Hart) Doctor, you did dust counts using a 9 midget impinger; is that correct? 10 A No. I never counted a dust count with a midget 11 impinger. 12 Q You assisted in the counting of the dust counts that 13 were taken with a midget impinger? 14 A I have seen some old specimens of the materials 15 collected with the midget impinger. I've never 16 actually carried out -- 17 MR. RILEY: Time frame, in terms of when he 18 supposedly -- 19 THE WITNESS: That would be in the late 20 I960's. 21 MR. RILEY: Thank you. 22 Q (By Mr. Hart) And during a time period of late 1960's 23 the counting methods was reported in terms of million 24 particles per cubic foot; is that correct? 25 A No. 135 1 MR. RILEY: Object, 1960's. That's an 2 irrelevant issue in this case. 3 THE COURT: Objection overruled. 4 Q (By Mr. Hart) There was a fiber per c.c. counting 5 method employed at one time in the late '60's? 6 A That was established in the early 1970's by the 7 Occupational Safety and Health Act. The asbestos 8 standard the Federal Register published in 1972, at 9 that time, that's what you were talking about. The 10 late '60's there was -- the United Public Health 11 Service was starting to use the membrane filter 12 technique. It was used in Europe to -- so the 13 technology -- the European investigators were being 14 brought to the United States at that time. So to say 15 ' that only the midget impinger was used with total 16 particle counts, that does not properly characterize 17 that time period. 18 Q I don't mean to characterize it as such. I'm just 19 asking if you're familiar with the counting 20 methodology, million per cubic foot in the late 1960's. 21 A Am I familiar with it? 22 Q Yes. 23 A I counted all dust and not just the asbestos dust. 24 MR. RILEY: Objection. 25 THE COURT: Objection sustained. 136 1 Q (By Mr. Hart) Are you familiar with the basis of that 2 counting method? 3 MR. RILEY: Objection. Not relevant, 4 Your Honor. 5 THE COURT: Overruled. 6 Q (By Mr. Hart) In terms of what particles per count, 7 don't tell us what ones, but are you familiar with the 8 basis? 9 A Yes. 10 Q Okay. And the basis that was employed in 1960 that you 11 were familiar with was the same one that was 12 recommended counting -- now, I'm talking method, the 13 same one recommended by Dr. Dreessen in 1983; is that 14 correct? 15 MR. RILEY: Objection, Your Honor. No 16 foundation, beyond the scope of direct examination. 17 THE COURT: Well, that's -- that's not an 18 objection. At least in Wisconsin, in the laws you are 19 not limited by the scope of the direct. You can ask * 20 him any questions that are relevant to the case. 21 MR. MARTIN: Your Honor, I think that in the 22 direct examination Dr. Danger did say that he's not an 23 expert on state-of-the-art. 24 THE COURT: That's not a matter of scope. 25 It's a matter 137 1 MR. MARTIN: That's right. 2 MR. RILEY: That's the second part of the 3 foundation. 4 MR. MARTIN: My objection is on the -- 5 MR. RILEY: Object on the foundation. 6 THE COURT: I'll sustain it. 7 Q (By Mr. Hart) Are you familiar with the standard 8 reported by Dr. Dreessen? 9 MR. MARTIN: Objection, Your Honor. Not 10 material. This witness has stated -- he's stated he's 11 not an expert. 12 MR. HART: He's a court witness. I can 13 explore his knowledge about the area. 14 MR. MARTIN: Your Honor, perhaps we should be 15 heard on this. I can review exactly what the witness 16 said. 17 THE COURT: Unfortunately we are in an area 18 that's going to take some time. I think the best thing 19 for me to do is to excuse the Jury. We can voir dire 20 the witness on this outside the presence of the Jury 21 and determine whether he can be qualified or not, 22 otherwise I think we are going to be hopping back. 23 MR. HART: I can go at it at a different 24 angle. 25 THE COURT: Okay. 138 1 Q (By Mr. Hart) Dr. Danger, you mentioned the Biological 2 Affects of Asbestos Conference in 1964; is that 3 correct? 4 A Yes. 5 Q Do you recognize this Volume, sir? 6 A Yes. 7 Q What is that, sir? 8 A This is a -- Volume 132 of the annuals in the New York 9 Academy of Science. This is the publication of the 10 conference proceedings held in New York in 1964 called 11 the Biological Affects of Asbestos. It was published 12 in 1963. 13 Q You have reviewed that Volume, have you not, sir? 14 A I have read that Volume, yes. 15 Q In fact, that particular copy that I have I got from 16 you, did I not? 17 A And I am delighted to have given it to you. 18 Q Thank you. You recall in there an article that you 19 provided by Dr. Shall (phonetic) where he recounted the 20 historical dust counting methodologies? 21 MR. RILEY: Objection, Your Honor. This is 22 not cumulative. That's been offered through another 23 witness. 24 THE COURT: If we have already had that in the 25 report, once is enough. 139 1 MR. HART: Not on cross-examination, 2 Your Honor. 3 THE COURT: Doesn't make any difference. 4 Objection sustained, cumulative. 5 Q (By Mr. Hart) Are you familiar with the dust counting 6 methodoligies employed in the 1950's? 7 A Yes. 8 Q Okay. In the 1950's the dust counting methodology was 9 to count the total dust, not just the asbestos dust; is 10 that correct? 11 MR. MARTIN: Objection, Your Honor. I believe 12 we can put it on the record once at a short sidebar. 13 THE COURT: We'll put it on the record. You 14 can make your record later. 15 MR. MARTIN: Thank you, Judge. 16 A All particles, yes. 17 MR. HART: I think I'm through. 18 Can I check my notes? 19 Q (By Mr. Hart) Doctor, you are familiar with the 20 latency aspect of mesothelioma; is that correct? 21 A Yes. 22 Q The exposures that have occurred generally more than 20 23 years before a diagnosis are more than contributory 24 than later exposure; is that correct? 25 A Generally thought so, yes. 140 1 Q Exposures in the neighborhood of 30 years prior to 2 diagnosis are generally considered contributory to the 3 causation of mesothelioma? 4 A Generally, yes. 5 Q Asbestos mesothelioma is adose-responsedisease, is it 6 not? 7 A I believe yes. 8 Q That means the more you are exposed -- the more 9 asbestos you are exposed, the more your risk is that 10 you will develop mesothelioma? 11 A Yes. 12 Q To this extent your entire exposure to asbestos within 13 a relevant latency period produces your increased risk 14 of mesothelioma? 15 A If it's all the same fiber type it would follow, yes. 16 Q And different fiber types would contribute to the dose 17 response in proportion to the potency and 18 concentration? 19 A Yes, and characteristics. 20 Q The potency with respect to their characteristic? 21 A Yes. In large sense, yes. 22 Q So the total exposures of asbestos that an individual 23 would have, let's say in the neighborhood 30 years 24 prior to his diagnosis, would contribute to his disease 25 of mesothelioma with variation, given to the individual 141 1 fibers of potency and concentration? 2 A Yes. 3 Q If the exposure included chrysotile asbestos more than 4 30 years prior to diagnosis, the chrysotile exposure 5 would contribute to the development of mesothelioma in 6 an individual along with the other fibers that he was 7 exposed to? 8 MR. MARTIN: Objection. Foundation. Standard 9 substantial factor. 10 THE COURT: Rephrase your question, counsel. 11 Q (By Mr. Hart) The total exposure of an individual more 12 than 30 years ago is a substantial contributing factor 13 to development of mesothelioma? is that correct? 14 A On the right fibers, yes. 15 Q Given chrysotile, amosite and crocidolite? ' 16 A All taking part in relative degrees; that's right. 17 Q And given an exposure to both amosite and chyrostile, 18 approximately 30 years before a diagnosis, the total 19 exposure to chrysotile and amosite is a substantial 20 contributing factor to development of mesothelioma? 21 A Could be, yes. 22 Q In fact, it is your opinion? 23 A Depending on other characteristics, yes. 24 Q The only characteristic would be, number one, the 25 potency of the fibers that you have described and the 142 1 concentrations; is that correct? 2 A Yes. 3 Q And with respect to amosite and chrysotile, you believe 4 amosite to be approximately 20 times more potent? 5 A Yes. 6 Q And -- and that's assuming equal concentrations? 7 A Assuming a number of factors. 8 Q Okay. Among them equal concentrations? 9 A Well, are you talking about particle number or mass? 10 I'm assuming mass, the amount. 11 Q Right. 12 A Yes. - 13 Q Okay. And let's talk about mass just for a moment. 14 How many chrysotile fibers are there -- first of all, 15 we have the measurement of a gram, then we have what's 16 known as a microgram; is that correct? 17 A Yes. 18 Q What's a microgram?? 19 A One millionth of a gram. 20 Q How many asbestos fibers ofchrysotile variety are 21 there generally in a microgram? 22 A Depends on the size. 23 Q What's the normal size in the studies you have done in 24 the 54 cases you found? 25 A Well, you can find that -- 143 1 Q What did you find generally in your study of 54 cases? 2 A I don't remember. I don't think that I gave a value. 3 Let's make it easy. 400 cubic feet. About 400 cubic 4 microns of chrysotile. 400 microns of chrysotile is 5 equivalent to about 1 nanogram, n-a-n-o-g-r-a-m, of 6 chrysotile. That is a billionth of a gram. Now, if 7 you take the 400 cubic microns you can change that into 8 a range of particle values, based on their dimensions. 9 You are dealing with weight. You can have big or a lot 10 of little larger -- you can have a big fiber or lot of 11 little fibers, so that 400 cubic micron value for one 12 nanogram can represent a very great disparity of a 13 range of fiber number. It could be one fiber and it 14 could be a hundred thousand fibers. 15 Q A hundred thousand? 16 A Could be. 17 Q Did you find that the range, the amount of fiber, the 18 number of fibers in one microgram is approximately 19 100,000? 20 A I don't know. Did I ever publish that? 21 Q Is that a finding of your 54 cases you studied? 22 A I don't remember that figure. 23 Q Assuming the size of chrysotile fiber, let's say ten 24 microns by a half micron in diameter, how many of those 25 fibers would it take to compose a microgram? 144 1 A Let's calculate it. I need a pen or a pencil and my 2 calculator. 3 Q Perhaps I can do it the other way. How many 4 asbestos -- how much would five million asbestos fibers 5 weigh that are ten microns long, about half diameter 6 wide -- half micron in diameter? 7 A Look, the calculation is real easy. You have a certain 8 volume of -- you had a thimble full of chrysotile 9 that's one-by-one centiliter big, your little finger. 10 That would weigh two-and-a-half grams. Now, that is -- 11 you start to break that down. You can get any number 12 of fibers depending on how you open it up. You can 13 have billions of fibers in this little volume or you 14 can have only ten. These would be large chunks of 15 rock. Obviously you are asking me what's the value. 16 You want me to recalculate? 17 Q Just assume 5 million particles. 18 A Let's -- okay. There are approximately 10 to the 12th, 19 10 to the -- there is a trillion cubic microns in a 20 centimeter. We're dealing with fibers that are ten 21 microns. Let's do ten by one micron. Make -- ten is 22 easier. How many of those fibers are there in a cubic 23 centimeter? Ten by one. That's ten to the fourth, and 24 ten to the fourth microns, that would be ten to the 25 8th, and it would be -- ten microns is a hundred of 145 1 milimeter. A thousand -- ten to the third. So there 2 are 10 to the 11th -- 10 to the 11th fibers that are 10 3 microns in -- ten microns in length by one micron, so 4 10 to the 11th, that's a hundred billion such fibers 5 that diminish. 6 If you want to know how many there are in a 7 microgram we would divide through by two-and-a-half to 8 give us per gram. So, 10 to the 12th, that would be 10 9 times to the 10th, that would be two -- that would be 10 four times 10 to the 10th and now we're going to 11 decrease this by a million. That would be four times 12 10 to the 4th. So that would be 40,000 of those per 13 microgram. 14 MR. MARTIN: Your Honor, I'm going to make an 15 objection that this may be relevant but I don't think 16 it's material. It goes back to law school. I think 17 things can be relevant but they cannot be material. I 18 don't think this testimony is material, when we reach 19 this level objection. 20 A Actually it's a little bigger. There would be 40,000 21 of such fibers. 22 THE COURT: Just a minute. 23 Mr. Hart, where are we going with this? 24 MR. HART: I got one question. 25 Q (By Mr. Hart) The reason ten microns by half micron 146 1 are in size fiber, in addition to being round in -- is 2 a respirable type of chrysotile fiber -- 3 MR. RILEY: Objection, Your Honor. This isn't 4 relevant to anything. I don't know. It isn't 5 relevant. 6 THE COURT: I'm concerned. You fellows tell 7 me the importance of time and our little pocket 8 calculators don't have enough room for the numbers of 9 zeros to put those things out. 10 THE WITNESS: This is true. 11 THE COURT: I'm going to sustain the 12 obj ection. 13 Q (By Mr. Hart) This is a size fiber that would produce 14 a biological effect in a human host, could it not, sir? 15 MR. RILEY: Objection. Irrelevant. 16 THE COURT: Overruled. 17 A A ten micron fiber does have biological effect, yes. 18 MR. HART: Thank you, sir. 19 REDIRECT.EXAMINATION 20 BY MR. MARTIN: 21 Q Doctor, in terms of the levels of detection -- in terms 22 of the levels of detection of chrysotile or amosite or 23 crocidolite, do you understand that state-of-the-art 24 has developed and changed to some extent? 25 A Yes. 147 1 Q At one time you fellows did ashing -- 2 A Yes. 3 Q -- as a method of doing it? Is there now a more 4 preferred method of digestion? 5 A Yes. 6 Q And in those days where we had a lot of ashing were 7 there carbons that created artifacts and problems for 8 the analysis of tissue? 9 A It could, yes,induce artifacts, yes. 10 Q And today wehavemuch moresophisticated methods of 11 of examining and detecting fibers? 12 A Yes. 13 Q How -- and what period of time are we talking about, 14 development of change? 15 A Well, in the last 20 years we have gone from using 16 standard light microscopy techniques to electronic 17 microscopes. 18 Q As far as the state-of-the-art change since 1981 when 19 you wrote some of these letters to Mr. Motley and 20 Mr. Hart? 21 A Well, not so much state-of-the-art as the field moves 22 and -- and there are more reports and you have to, as 23 time goes on, as was stated earlier, you have to 24 evaluate each new report and this will mold your views 25 of a problem area. 148 1 Q And since the time that Mr. Motley hired you to write 2 that letter and report in the Rossi case and you gave 3 them the letter, the generic opinions that you gave 4 Mr. Carl Ash, I think in New Jersey, has additional 5 data come to your attention? 6 A Yes. Many of these statements in these letters I would 7 stand by today but the epidimeological studies that 8 have been published in the last five years have been 9 monumental. 10 Q And in terms of the fiberization, I think you said one 11 of the industries where there has been a lot of 12 fiberization of chrysotile fibers is textiles? 13 A Yes. Very much so. 14 Q And what is the epidemiologic data, it's chrysotile and 15 mesothelioma in the textile industries where there is a 16 lot of fiberization? 17 A Interestingly the Charleston study which was mentioned, 18 in Charleston, South Carolina, there is only one case 19 of suspected peritoneam but there was never pleural 20 mesothelioma in that cohort. 21 Q How long has that textile mill been studied? 22 A That was reported by Lynch and Smith in 1935. So, it 23 has been an ongoing operation for many, many decades. 24 Q And there have been no confirmed chrysotile -- 25 A Pleural mesotheliomas? 149 1 q -- pleuralmesotheliomas? 2 A Correct. 3 Q In that textile mill? 4 A Yes. 5 Q In regard to animal studies, real quickly. In the 6 animal studies, as I understand Merle Stanton has 7 produced tumors with laboratory animals using all types 8 of fibers, including glass I believe? 9 A Yes. 10 Q And in terms of extrapolating from animal studies to 11 human studies, is there a problem or is there any -- 12 can it be absolutely extrapolated, per se? 13 A No. 14 Q Thefinding to humans? 15 A No. 16 Q Doctor, you said something about the cases that you had 17 reported on, and I don't want to go back to the page, 18 but the data included levels of chrysotile exposure, 19 crocidolite exposure and amosite exposure? 20 A Yes. 21 Q In the 53 cases you reported on in Pittsburgh what 22 conclusions were drawn by you from the data you 23 presented? 24 A First major conclusion was that the various data that 25 we used, so-called consumption figures, cannot be used 150 1 as indices of exposure in the work place. We used only 2 5 percent amphiboles, yet 75 percent of the workers we 3 examined had amphiboles in the pulmonary tissues. 4 That's a tremendous concentration factor. We said 5 crocidolite was not exposed to the insulationn workers 6 in the United States, yet 20 percent of the insulation 7 workers studied had crocidolite in the pulmonary 8 tissues. And subsequently one in four studies we found 9 lagging in insulation. We found that the shipyard 10 workers have exposures to crocidolite more than anyone 11 else. We find a lot of chrysotile in everyone who is 12 amphibole exposed. And there are certain job 13 categories and work places that are more dangerous than 14 others. 15 Q Okay. And, Doctor, in this particular case, with 16 regard to Wilmar Pennock, the asbestos data that you 17 have available concerning the fibers he was exposed to 18 at Sturgeon Bay, I take it, would be tissue analysis of 19 minerals? 20 A Of course. 21 Q We don't have that in this case? 22 A Unfortunately. 23 Q Would the next best scientific basis be if there was an 24 air monitoring scientifically done at the shipyard at 25 the time of exposure? 151 1 A Yes. Of course. 2 Q We don't have that in this case. Do we then have to 3 scientifically fall back on other data basis to -- in 4 order to reach a conclusion? 5 A Yes. 6 Q So we don't have the best available scientific data? 7 A Yes. 8 Q And in that regard, what you have told us is that based 9 on the probabilities that you have extracted from your 10 understanding, that epidemiology and your work in this 11 field, that it's more probable that the asbestos 12 exposure Mr. Pennock had to amosite was a -- the 13 substantial factor to the production of tumor? 14 A Yes. 15 MR. HART: Objection, Your Honor, leading. 16 MR. MARTIN: I'm sorry. I'm trying to save 17 time. 18 THE COURT: I'll allow the answer but the 19 objection is sustained. 20 Q (By Mr. Martin) And with regard to -- with the 21 assumption that I gave you before, Doctor, do you have 22 an opinion, based upon a reasonable degree of 23 scientific probability, if the chrysotile exposures in 24 the shipyard was a substantial factor in the 25 development of the tumor in Mr. Pennock? 152 1 A Probably not. 2 Q Thank you very much. Doctor. 3 MR. MARTIN: Nothing further. 4 THE COURT: Anything further of this witness? 5 RECROSSiEXAMINATION 6 BY MR. HART: 7 Q Doctor, on the textile study they didn't produce any -- 8 they don't find any mesotheliomas -- 9 A No. 10 Q -- in persons who madetextilematerials; is that 11 correct? 12 A No. There was one suspected case of peritoneal 13 mesothelioma. 14 Q Let me be more precise. There was no pleural 15 mesothelioma in the persons who made the textiles in 16 South Carolina? 17 A That's correct. 18 Q And the textiles they madeincluded asbestos cloth? 19 A - I think so but I'm not sure. 20 Q Asbestos rope and yarn? 21 A Yes, could be. 22 Q And some packing? 23 A Yes. 24 Q Okay. And persons -- you would expect that persons 25 exposed to those in the shipyard likewise would not be 153 1 at risk of mesothelioma from those products? 2 A I would agree with that, yes. 3 Q So had. Mr. Pennock had exposure toasbestos cloth in 4 his situation you would not expect it to contribute to 5 his mesothelioma? 6 A That's correct. 7 Q Okay. You said certain job categories and locations 8 are particularly dangerous? 9 A Yes. 10 Q Would you include within thatshipyardexposure? 11 A Absolutely. 12 Q Generally during the 1950's? 13 A Yes. 14 Q Thank you. 15 MR. HART: Nothing further, Your Honor, of 16 this witness. 17 THE COURT: You may step down, sir. 18 Okay. We have got one more witness to go? 19 MR. RILEY: We do, Your Honor. 20 THE COURT: We are going to take about a 21 five-minute recess. 22 Court is in recess. 23 (Whereupon a recess was taken at 12:22 p.m.) 24 (Whereupon court reconvened at 12:30 p.m.) 25 154 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF WISCONSIN ) MILWAUKEE COUNTY ( SS: I, JULIE A. CAMPSHURE, a Court Reporter in and for the State of Wisconsin, do hereby certify that I reported the foregoing proceedings and that the foregoing transcript consisting of 154 pages is a true and correct transcript of my stenograph notes made at said time and place. Dated at Milwaukee, Wisconsin this 16th day of January, 1990. u '***.cl*M LcjXiiyjK G-<jJ-~) yyy\m^-<Xa') ^ tf\ rr-P . NESS, MOTLEY, LOADHOLT, RICHARDSON & POOLE MEMORANDUM March 2, 1990 TO: PROM: Ed Westbrook f::^^L.|poD THOMAS H. HART, III SUBJECT: Dr. Arthur Langer Attached please find a copy of the testimony of Dr. Arthur Langer when he appeared as a defense witness in Wisconsin recently. Dr. Langer made a number of admissions. I believe the examination could have been much better if the judge had permitted the extent of cross I desired. THH,III.lw 001 attachment i BARNWELL OFFICE, EXTENSION # 700